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PETITIONER: THE BIHARI MILLS AND ANOTHER

       Vs.

RESPONDENT: THE AHMEDABAD MUNICIPALCORPORATION

DATE OF JUDGMENT: 09/04/1963

BENCH:

ACT: Appeal-Order by Officer under Statute-Statute providing  for appeal  to authority specified-Statute repealed-New  statute substituting  new officer and new appellate  authority-Order under  old  statute-If  appealable to  authority  under  new statute  Bombay  Town Planning Act, 1915 (Bom. 1  of  1915). Bombay Town Planning Act, 1954 (Bom. 27 of 1955), s. 90.

HEADNOTE: In  1942,  a  scheme was sanctioned under  the  Bombay  Town Planning  Act,  1915,  for  an  area  under  the   Ahmedabad Municipal Borough.  The Arbitrator appointed under the  1915 Act  finalised the scheme.  From July 1, 1950,  the  Borough was converted into the Ahmedabad Municipal Corporation.  The 1915 Act was repealed by the Bombay Town Planning Act  1954, with  effect  from April 1, 1957.  On March  28,  1958,  the Arbitrator  passed certain orders affecting the  appellants. Against  the  decisions  of the  Arbitrator  the  appellants preferred  appeals before the Board of appeal set  up  under the  Act.   The  question  was  whether  the  appeals   were competent. Held  that  no appeal lay from the order of  the  Arbitrator appointed  under the 1915 Act to the Board of Appeal set  up under  the 1954 Act.  Under the 1915 Act an appeal lay  from an  order of the Arbitrator to the Tribunal of  Arbitration. In  the  1954 Act the Arbitrator was substituted by  a  Town Planning officer and the Tribunal of Arbitration by Board of Appeal.   The  saving  clause  in s.  90  of  the  1954  Act continued  the appointment of the Arbitrator made under  the 1915 Act and also kept alive the proceedings before him, but it  did not provide for the continuance of the  Tribunal  of Arbitration.  The Arbitrator did not become a Town  Planning officer and his decision or order did not have the effect of an  order  by  the Town Planning officer  so  as  to  become appealable to the Board of appeal. 916

JUDGMENT: CIVIL  APPRLLATE JURISDICTION : Civil Appeals Nos.  133  and 134 of 1962. Appeals  by special leave from the judgment and order  dated January  23, 1959 of the Board of Appeal  constituted  under the  Bombay  Town Planning Act No. 27 of  1955  in  Tribunal Appeals Nos. 140-47 of 1958. G.B.  Pai,  J. B. Dadachanji, O. C. Mathur  and  Ravinder Narain, for the appellants. S.P. Desai and I. N. Shroff, for the respondents.

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1963.  April 9. The judgment of the Court was delivered by SINHA  C.  J.-These  two consolidated  appeals,  by  special leave,  raise the question of the interpretation of  certain provisions  of  the Bombay Town Planning Act,  1954  (Bombay XXVII of 1955) which hereinafter will be referred to as  the Act, with particular reference to the scope and effect of s. 90 of the Act, whereby the Bombay Town Planning Act  (Bombay I  of  1915) was repealed, and certain orders of  the  State Government saved from the effect of the repeal. It  appears that the Ahmedabad Municipal Borough, which  was replaced  by  the Ahmedabad Municipal  Corporation-the  sole respondent  in these appeals and which hereinafter  will  be referred to as the Borough and the Corporation  respectively its  intention  by a resolution dated October  1,  1941,  to promulgate a scheme under the Act of 1915 in respect of  the area  known as Khokhara-Mohmedabad.  The said Scheme was  in due  course sanctioned by the Government of Bombay  on  July 14,  1942.   Under that Act an arbitrator was  appointed  in respect of the said Scheme, as required  917 under  the Act.  Shri R. N. Parikh was eventually  appointed the Arbitrator under the Act.  He finalised the Scheme under the  Act  of  1915.   The Borough  was  converted  into  the Ahmedabad Municipal ,Corporation under the Bombay Provincial Municipal  Corporation Act of 1949 with effect from July  1, 1950.   The Act of 1915 was repealed by the Act  which  came into force from April 1, 1957.  The said Arbitrator notified to  the  appellants  a  memorandum  dated  March  23,  1958, extracting his decision in respect of the said Scheme, in so far as it affected the appellants.  The Government of Bombay constituted  a Board of Appeal under the Act, consisting  of three  persons  whom it is not necessary  to  specify.   The appellants  filed two appeals against the award of the  said Arbitrator.  The said Board of Appeal heard the  appellants’ appeals,  as  also  appeals by other  persons,  in  all  151 appeals,  in  respect of the said Scheme.  It  is  from  the decision,  dated  January  23, 1959, of the  said  Board  of Appeal  that the appellants have appealed to this Court,  on obtaining special leave. Section  30 of the Act of 1915 lays down the duties  of  the Arbitrator  in some detail, running into ten clauses, and  a number  of  sub-clauses.  The decision  of  the  Arbitrator, except on matters covered by sub-sections (3A), (3B),  (3C), (4), (6) and (9) of s. 30 have been declared by s. 31 to  be final.  The matters in respect of which his decision has not been  declared to be final, as aforesaid,  the  Arbitrator’s conclusions have been characterised as proposals by s. 32 of the  Act of 1915, and those matters were to be submitted  to the  Tribunal of Arbitration, constituted under s.  33  (1), for  its  decision.  It would thus appear  that  on  certain matters  which  came under the purview of  the  Arbitrator’s powers,  the  decision of the Arbitrator was final,  and  in other matters they were merely proposals to be submitted for the decision of the Tribunal of Arbitration.  When the 918 Act of 1915 was repealed by the Act, it saved certain orders and  proceedings  by  s.  90, which  will  be  set  out  and discussed  later.   Under the Act, s.  31  contemplates  the appointment of a Town Planning officer, who is a  substitute of  the Arbitrator under the Act of 1915.  Section  32  lays down  in  great  detail  the duties  of  the  Town  Planning officer, which may be equated with s. 30 of the Act of 1915. Section  33  declares certain decisions except under  s.  32 (1),  cls. (v), (vi), (viii), (ix), (x) and (xiii),  of  the Town Planning officer to be final and conclusive and binding

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on  all  persons,  while  decisions  of  the  Town  Planning officer,  under the above clauses, are subject to appeal  to the Board of Appeal, under s. 34, to be constituted under s. 35.   It  will  thus appear that the  Act  has  equated  the Arbitrator  under  the Act of 1915 with  the  Town  Planning officer  and the Tribunal of Arbitration with the  Board  of Appeal.   Though  under the former Act the Arbitrator  is  a part  of the Tribunal of Arbitration, under the Act  certain decisions of the Town Planning officer are appealable to the Board of Appeal.  It is common ground that Shri Parikh,  the Arbitrator  under the Act of 1915, has not been,  in  terms, appointed the Town Planning officer under the Act. After setting out the relevant provisions of the Act of 1915 and  the  Act, it is necessary to State  that  the  decision given by the Arbitrator, Shri R.N. Parikh, functioning under the  Act  of  1915, could be reviewed  by  the  Tribunal  of Arbitration, but as there was no such Tribunal in  existence on and after that date, the appellants preferred appeals  to the  Board  of  Appeal, constituted under  the  Act.   Those appeals  were  disposed of by the Board by its  order  dated January 23, 1959.  It is the legality of that order that  is in question before us. It  is  submitted  on behalf of  the  appellants  that  they preferred their appeals to the Board, which  919 was  the  only appellate authority in existence,  and  which mistakenly they were advised to be the competent tribunal to deal  with  the appeals.  It was -further argued that  on  a true  construction of the provisions of the Act and the  Act of  1915,  it  is  clear that the Board  of  Appeal  had  no jurisdiction  to  render  any judgment  in  respect  of  the decisions  or proposals of the Arbitrator. In  our  opinion, this  contention  is well-founded.  Reliance was  placed  in this  connection on the provisions of s. 90 of the Act,  the relevant portions of which may be set out below :               "(1)  The Bombay Town Planning Act,  1915,  is               hereby repealed.               (2)   Notwithstanding  the repeal of the  said               Act any appointment made of an arbitrator, any               proceedings pending before the Arbitrator  ...               under the repealed Act shall, in so far as  it               is not inconsistent with this Act, continue in               force  thereunder and provisions of  this  Act               shall   have  effect  in  relation   to   such               proceedings It is clear that the saving clause was effective to continue the  appointment of the Arbitrator made under  the  repealed Act, and also to keep alive the proceedings before him.  But the  proposals  made  by him had to be  dealt  with  by  the Tribunal  of  Arbitration, which was not  continued  by  the saving  clause, aforesaid.  The board of Appeal  constituted under  s.  35  of the Act was competent  to  deal  with  any decision  of the Town Planning officer, but  the  Arbitrator under  the  old Act did not ipso facto  become,  without  an express  order  of  the Government appointing  him,  a  Town Planning   officer;  and  any  decision  or  order  by   the Arbitrator  would  not have the effect of an  order  by  the latter.  That lacuna 920 does  not  appear  to have been removed  by  any  subsequent legislation or order of the Government of Gujrat, under  the Act.  Some lacunae were discovered in the working of the Act and  the Government of Maharashtra came out with the  Bombay Town  Planning (Amendment and Proceedings  Validation)  Act, 1960 (Maharashtra Act XXIV of 1960).  By s. 2, sub-s. (4) of

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this  Act,  it  has been provided that  "reference  to  Town Planning officer In this Act shall -include reference to  an Arbitrator  whose  appointment is continued in  force  under sub-section (2)" set out above.  No such action was taken by the  Government of Gujrat, nor any validating Act passed  by the  Gujrat  Legislature.   It is  thus  manifest  that  the appeals preferred by the appellants against the order of the Arbitrator as such did not lie to  the Board of Appeal, and, therefore the Board was incompetent to deal with them,  with the  result I that the orders purported to have been  passed -by the Board on those appeals are without jurisdiction.  We need  not go into the further question as to the  effect  of the  orders of the Arbitrator which had been  challenged  by the appellants as it now appears without effect. In  the result, these appeals are allowed.  But in  view  of the fact that the appellants themselves were at least partly responsible for making those infructuous appeals, there will be no order as to costs in this Court. Appeals allowed.  921