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PETITIONER: BMRDA

       Vs.

RESPONDENT: GOKAK PATEL VOLKART

DATE OF JUDGMENT13/12/1994

BENCH: SEN, S.C. (J) BENCH: SEN, S.C. (J) JEEVAN REDDY, B.P. (J)

CITATION:  1995 SCC  (1) 642        JT 1995 (1)   155  1994 SCALE  (5)256

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by SEN, J.- Leave granted. 2.On 28-5-1974, Gokak Patel Volkart Ltd, submitted a plan for  construction  of two houses at  premises  Nos.  124-126 Wodehouse Road, Colaba, Bombay, to the Municipal Corporation of  Greater  Bombay.  The said two houses were  occupied  by tenants.  The plan was for construction of a thirty-storeyed building utilising Floor Space Index (for short FSI) of 2.45 of the said plot. 3.The Development Control Rules existent at the  relevant time  permitted construction of building on the FSI of  2.45 under R-8 FSI zone in which the above property was situated. The  plan was approved by the Corporation and  on  13-9-1974 Intimation  of Disapproval (IOD) was granted to the  Company under Section 346 of the Bombay Municipal Corporation 645 Act.   It was stipulated in the IOD that no work  should  be started  unless  the  existing  structures  proposed  to  be removed were in fact removed.  It was also stated in the IOD that  it was given exclusively for the purposes of  enabling the party to proceed further with arrangements of  obtaining "No  Objection"  Certificate from the  Housing  Commissioner under Section 13(bb) of the Bombay Rents, Hotel and  Lodging House Rates Control Act.  In pursuance of the IOD granted by the  Corporation,  the  Company  initiated  proceeding   for eviction of the tenants from the existing structures on  the property  in  question.   Ultimately  in  August  1979,  the tenants were evicted and old structures were demolished.  In the meantime, in 1975, the State Legislature of  Maharashtra enacted the Bombay Metropolitan Region Development Act, 1974 (Maharashtra  Act  No.  IV  of  1975)  to  provide  for  the establishment  of an authority for the purpose of  planning, coordinating  and supervising the proper, orderly and  rapid development  of the areas falling within ,hat  region.   The said  Act  came  into  force  with  effect  from  26-1-1975.

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Section 13 of the Act provides:               "13. (1) Notwithstanding anything contained in               any  law for the time being in  force,  except               with the previous permission of the Authority,               no  authority  or person shall  undertake  any               development within the Metropolitan Region  of               the  type  as the Metropolitan  Authority  may               from  time  to time specify,  by  notification               published  in the Official Gazette, and  which               is  likely  to adversely  affect  the  overall               development of the Metropolitan Region.               (2)Any  authority  or  person  desiring  to               undertake  development  referred  to  in  sub-               section  (1)  shall apply in  writing  to  the               Metropolitan   Authority  for  permission   to               undertake such development.               (3)The Metropolitan Authority shall,  after               making such inquiry as it deems necessary  and               within   60  days  from  the  receipt  of   an               application under sub-section (2), grant  such               permission without any conditions or with such               conditions  as  it may deem fit to  impose  or               refuse  to  grant such  permission.   If  such               permission  is not refused within 60  days  as               aforesaid,  it  shall be deemed to  have  been               granted by the Authority.               (4)Any authority or person aggrieved by the               decision  of the Metropolitan Authority  under               sub-section  (3), may, within 30 days,  appeal               against such decision to the State Government,               whose decision shall be final." 4.   The Metropolitan Authority, in exercise of powers under sub-section (1)     of Section 13 of the said Act, published in  the  Official  Gazette a  notification  dated  10-6-1977 providing,    inter   alia,   that   no   construction    or reconstruction  of  any building including addition  to  any existing building shall be carried out so as to have a Floor Space Index exceeding 1.33. 5.   As  a result of the provisions of Section 13(1) of  the Act and the notification dated 10-6-1977, a person  desiring to   undertake   development   in   contravention   of   the notification  had to apply in writing to the  authority  for permission  to  undertake such development.   The  authority could grant 646 permission without any condition or with such conditions  as it thought fit or refuse to grant such permission.  This has to  be  done  within  60  days  from  the  receipt  of   the application  under  sub-section (2) of Section 13.   If  the permission was not refused within the aforesaid period of 60 days  under  subsection (3) of Section 13,  such  permission should be deemed to have been granted by the authority. 6.   In view of the above developments, on 14-7-1977,  Gokak Patel   Volkart   Ltd.  (hereinafter   described   as   "the respondent-Company"),  applied  to the  Bombay  Metropolitan Region  Development  Authority  (hereinafter  described   as ’BMRDA)  under  Section  13(2) of  the  Bombay  Metropolitan Region Development Authority Act, 1974 (hereinafter referred to  as  ’the  Act’) for permission to  undertake  the  above development  with the FSI of 2.45. The said application  was received  by  the BMRDA on 15-7-1977.   The  permission  was refused by the Metropolitan Authority under Section 13(3) of the  Act on 8-9-1977.  The respondent-Company  preferred  an appeal  to the State Government under Section 13(4)  of  the Act  on 19-9-1977 which was allowed by the State  Government

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on 23-2-1978.  Accordingly, the respondent-Company was given a commencement certificate under Sections 344 and 345 of the Bombay Municipal Corporation Act on 31-3-1980. 7.   Soon  thereafter  a  writ petition  was  filed  by  the residents of Colaba challenging the above order of the State Government  under  Section  13(3) of the  Act  allowing  the appeal  of the respondent-Company against the order  of  the Metropolitan Authority.  By a judgment dated 5-4-1984 passed by the Bombay High Court, the order of the State  Government as  well as the order passed by the  Metropolitan  Authority under Section 13(3) of the Act rejecting the application  of the  respondent-Company were set aside with a  direction  to the  Administrator of the Municipal Corporation  of  Greater Bombay   to  consider  the  application  afresh   and   pass appropriate orders. 8.   The material part of the order was as under:               "Accordingly,  the petition succeeds  and  the               impugned  order  dated  23-2-1978  passed   by               Minister  for Housing and BMRDA is  set  aside               and  so also the order passed by Respondent  3               rejecting   the  application  and  which   was               communicated  to  Respondent  4  on  8-9-1977.               Respondent  3  is directed to  reconsider  the               application    dated   14-7-1977   filed    by               Respondent 4 under sub-section (2) of  Section               13   of  the  Act,  in  accordance  with   the               observation  made  in this judgment  and  pass               appropriate  orders.  Respondent 3 shall  pass               the orders as expeditiously as possible." 9.   The Metropolitan Authority took up’ the application  of the  respondent Company under Section 13(3) of the  Act  for reconsideration in pursuance of the above order of the Court and  by the order dated 19-9-1984 rejected  the  application under  Section 13(3).  Against that, the  respondent-Company filed appeal on merits before the State Government on 16-10- 1984 which is still pending. 647 10.On the very next day, the writ petition was also  filed in the High Court of Judicature at Bombay by the respondent- Company, challenging the order of the Metropolitan Authority passed under Section 13(3) rejecting the application of  the respondent-Company  under  Section 13(2) of the Act  on  the ground that in the facts and under the circumstances of  the case  and in view of the lapse of sixty days  stipulated  in Section 13(3) of the Act, permission was deemed to have been granted  to  the  respondent-Company  by  the   Metropolitan Authority  and  in  that view of the matter,  the  order  of rejection passed under Section 13(3) was illegal and without jurisdiction. 11.The Division Bench of the Bombay High Court upheld  the contention  of the Company and held that permission must  be deemed  to  have  been granted  to  construct  the  building according  to  the  plan  in view  of  the  fact  that  such permission  had not been refused within 60 days as  required by  sub-section (3) of Section 13 of the Act.  In coming  to this decision the Division Bench took note of the  following facts.   The judgment in the earlier writ petition had  been delivered  on  5-4-1984 by which order of  the  Metropolitan Authority  passed  under Section 13(3) had been  set  aside. There was a direction to pass a fresh order, that  direction was  not  carried out at all.  BMRDA applied  for  certified copy of the judgment on 18-4-1984; on 24-5-1984 the  Company communicated the operative part of the order dated  5-4-1984 to BMRDA.  The Executive Committee of the BMRDA sat on 18-7- 1984  and again on 24-7-1984 and finally decided  to  reject

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the  application  of the  respondent-Company  under  Section 13(2)   of  the  Act  on  17-9-1984.   The  BMRDA   had   no jurisdiction  to pass any order under Section 13(3)  of  the Act  on  17-9-1984,  as  the requisite  period  of  60  days provided  by under Section 13(3) had expired by  that  time. It was held by Division Bench that the order dated 17-9-1984 refusing  to  grant permission passed by the  Authority  was illegal.   The  said order was passed beyond  the  statutory period of 60 days, therefore, permission shall be deemed  to have been granted by the Authority in terms of Section 13(3) of the Act. 12.The contention of the appellant in this appeal is  that in  the first place the writ petition should not  have  been entertained.    The   writ  petitioner   had   an   adequate alternative  statutory remedy.  The writ petitioner  had  in fact already taken advantage of alternative remedy  provided by  the  statute  and had preferred an  appeal  against  the judgment of the Tribunal.  While the said appeal was pending the  writ  petitioner invoked the writ jurisdiction  of  the Bombay  High Court praying more or less the same  remedy  as was prayed in the appeal. 13.We  are  of  the  view that  the  point  taken  by  the appellant  is of substance.  This is a case, where there  is not only the existence of an alternative remedy but the writ petitioner  actually had availed of that remedy.   The  writ petitioner’s  appeal  before  the  statutory  authority  was pending.   In  that view of the matter  this  writ  petition should not have been entertained. 14.The  second  point  urged  by  Mr  Salve  is  also   of substance.    The  respondent  had  applied  to  BMRDA   for permission to undertake the 648 development work with the FSI of 2.45 under sub-section  (2) of Section 13 of the Act.  That application was received  by the BMRDA on 15-7-1977.  The application was rejected by  an order  passed on 8-9-1977 within the requisite period of  60 days  from  the receipt of the application as laid  down  in subsection  (3)  of Section 13.  The  statutory  fiction  of deemed  permission arises only if there is a failure on  the part  of the Metropolitan Authority to pass an order  within 60  days of the receipt of the application.  No question  of this time-limit arises when the Appellate Authority  quashes the order and directs a fresh order to be passed.  In such a situation  there cannot be any question of passing an  order within  60  days from the receipt of the  application  under sub-section (2) of Section 13.  The application was received by  the  Metropolitan Authority on 15-7-1977.  In  order  to accept the contention of the respondent it has to be  deemed that  the receipt of the application was on the date of  the judgment  which  was passed on 5-4-1984  or  any  subsequent date.  There is nothing in the wording of sub-section (3) of Section 13 justifying such a construction. 15.Mr Nariman appearing on behalf of the Company drew  our attention to the decision of this Court in the case of Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn.’ A distinction was drawn between quashing an order and stay  of operation  of an order.  It was explained in  that  judgment that  quashing  of an order resulted in restoration  of  the position  as it stood on the date of passing of  the  order. The  stay  of the operation of the order, however,  did  not lead to such results. 16.It  is true that the order dated 17-9-1984 after  being quashed  did not remain in suspended animation.  That  would have been the case, had the order been merely stayed.  That, however,  does not mean that the Metropolitan Authority  had

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failed to pass an order within 60 days of the receipt of the application. 17.As  a matter of fact, the application received  by  the Metropolitan  Authority on 15-7-1977 was disposed of  by  an order dated 8-9-1977 within the requisite period of 60 days. Therefore,  there  is no question of the  deeming  provision coming into operation in this case at all.  The order passed by  the Metropolitan Authority may have been quashed by  the High  Court but the fact remains that an order was  actually passed  within  the requisite period of time.   The  deeming provision  would have come into operation only if  no  order was passed within 60 days of the receipt of the  application on 15-7-1977. 18.After  the High Court quashed the order passed  by  the Metropolitan Authority on 17-9-1984, a fresh order had to be passed under the direction of the Court and not on the basis of  any fresh application.  This fresh order could not  have possibly  been passed within 60 days of the receipt  of  the application on 15-7-1977.  The High Court could have fixed a time-limit for passing a fresh order.  If such a  time-limit had  been fixed, the Metropolitan Authority had to  pass  an order within that period.  But in this case no time- (1992) 3 SCC 1 649 limit   was  fixed  by  the  High  Court.   Therefore,   the Metropolitan  Authority had to pass a fresh order  within  a reasonable time. 19.It  is well settled that when the statute lays  down  the period  of limitation for passing an order that  requirement is  fulfilled  as  soon as an order is  passed  within  that period.   If  the  order  is set aside  on  appeal  and  the appellate  order  directs a fresh order to  be  passed  then there is no requirement of law that the consequential  order to  give effect to the appellate order must also  be  passed within the statutory period of limitation.  This proposition of law is well settled. 20.In  the  case  of Director of Inspection  of  Income  Tax (Investigation)  v.  Pooran Mall2 this  Court  repelled  the contention  that the Income Tax Officer had no  jurisdiction to pass an order under Section 132(5) of the Income Tax  Act when the order initially passed by him within the period  of limitation had been set aside by the appellate authority, It was  held  in that case that the period of  time  fixed  for passing  an order under Section 132(5) applied only  to  the initial order and not to any subsequent order that may  have to  be  passed  under the direction  given  by  a  statutory authority  or  by  a court in a  writ  proceeding.   It  was observed: (SCC p. 572, para 6)               "Even  if  the  period  of  time  fixed  under               Section  132(5) is held to be  mandatory  that               was  satisfied when the first order was  made.               Thereafter,  if any direction is  given  under               Section   132(12)  or  by  a  court  in   writ               proceedings, as in this case, we do not  think               an order made in pursuance of such a direction               would be subject to the limitations prescribed               under Section 132(5).  Once the order has been                             made  within ninety days the aggrieved  person               has  got  the right to approach  the  notified               authority under Section 132(11) within  thirty               days and that authority can direct the  Income               Tax Officer to pass a fresh order.  We  cannot               accept   the  contention  on  behalf  of   the               respondents  that  even  such  a  fresh  order               should be passed within ninety days.  It would

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             make the sub-sections (11) and (12) of Section               132 ridiculous and useless.  It cannot be said               that what the notified authority could  direct               under Section 132 could not be done by a court               which  exercises its powers under Article  226               of the Constitution.  To hold otherwise  would               make  the powers of courts under  Article  226               wholly  ineffective.  The court in  exercising               its powers under Article 226 has to mould  the               remedy to suit the facts of a case." 21.  Mr Nariman next drew our attention to the  decision  of the  Court  of  Appeal  in the  case  of  R.  v.  Paddington Valuation  Officer3.  In particular we were referred to  the judgment of Salmon, L.J. wherein it was observed:               "I  am  not altogether  satisfied  that  there               would be any power to grant mandamus and  keep               the 1963 valuation list in force by the simple               expedient of postponing certiorari until after               a  new  list had been prepared.  No  doubt  it               would  be convenient, if possible,  to  follow               this  course, were the appeal to  be  allowed;               indeed grave inconvenience, if not               2  (1975)  4  SCC 568 : 1975  SCC  (Tax)  346:               (1974) 96 ITR 390               3 (1966) 1 QB 380: (1965) 2 All ER 836               650               chaos would follow if the 1956 valuation  list               were  to be revived which both the  appellants               and  respondents at first agreed would be  the               inevitable result of allowing the appeal.   It               may  be that mandamus can be  granted  without               certiorari, but mandamus cannot be granted  if               there is a valid valuation list in being.   It               is  not  enough  that  the  valuation  officer               should  have prepared the list badly  or  even               very  badly.  In such a case, he could not  be               ordered by mandamus to correct his mistakes or               make  a  new list.  In order for  mandamus  to               lie,  it  must  be  established  that  he  has               prepared  the list illegally or in bad  faith,               so  that  in effect he has not  exercised  his               statutory function at all and that accordingly               there   is  in  reality  no  valid   list   in               existence:  R.  v. Cotham ex  parte  William4.               Accordingly,  it  seems to me that  a  finding               that the list is null and void is  necessarily               implicit in an order of mandamus." 22.We  fail  to  see, how the  respondents  can  derive  any support  for their case from these observations  of  Salmon, L.J.  That was a case where it was found that the  valuation officer had prepared a valuation list of 31,656 dwellings at Paddington  erroneously.  There was a prayer for  certiorari to quash the list altogether.  There was also another prayer for  a writ of mandamus directing the valuation  officer  to prepare  a  new list.  Lord Denning, M.R. held that  if  the valuation  list  was entirely quashed there will  be  chaos. Therefore,  the  existing  list could remain  until  it  was replaced  by a new list, when the new list was prepared  the old  list  will  be quashed by  writ  of  certiorari.   Lord Denning was of the view that certiorari was not a  necessary prerequisite to mandamus. 23.Lord  Salmon, L.J. did not express any final  opinion  on the controversy.  It was observed:               "Having  regard to the view, however,  that  I               take of the facts, the point as to whether the

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             1963 list could be temporarily kept alive were               mandamus to issue does not arise for  decision               and I express no concluded opinion upon it." 24.In   the   case  before  us  the  decision   taken   by Metropolitan Authority on the application of the  respondent has  been quashed.  Direction has been given to  dispose  of the  application afresh.  This direction does not  make  any sense  unless in reality there was an earlier order  dealing with  the application made by the respondent.  It cannot  be said  that  the Metropolitan Authority had  not  passed  any order,  erroneously  or  otherwise, within 60  days  of  the receipt  of the application.  The order that was passed  may have become null and void in law but the fact of the  matter is  that an order had actually been passed, otherwise  there would  have  been  no  question of issuance  of  a  writ  of certiorari for quashing of that order. 25.In  the  case of Supdt. of Taxes  v.  Onkarmal  Nathmal Trust5  this Court dealt with the question whether a  notice under  Section 7(2) of the Assam Taxation (On Goods  Carried by Road or Inland Waterways) Act, 1961 was 4    (1898) 1 QB 802 5    (1976) 1 SCC 766: 1975 Supp SCR 365 651 valid.   The prescribed period of limitation under  the  Act was two years from the expiry of the relevant period.  There was  a  difference of opinion on this point.   The  majority view was that the State was guilty of laches even though the State  was  restrained by an order from  taking  any  action under  the Act.  The State did not pray for modification  of the  order.   The State followed the policy  of  inactivity. Therefore, the notice under Section 7(2) issued in that case was held invalid. 26.In  the  instant  case, there is  no  question  of  any inactivity.   The  appellant had passed an order  within  60 days,  which was ultimately quashed by the High Court.   The deeming clause under Section 13(3) comes into operation only when  the  Metropolitan  Authority fails to  pass  an  order within  a  period  of  60  days  from  the  receipt  of  the application.   But if an order is passed and that  order  is quashed by the appellate authority or by the High Court, the deeming clause does not become operative straightaway.   The appellate order will now hold the field and fresh order will have  to  be passed in terms of the order of  the  appellate authority or the Court. 27.The last contention of Mr Nariman was that the impugned order dated 17-9-1984 had been passed under Section 13(3) of the   BMRDA   Act.   The  Metropolitan  Authority   had   no jurisdiction to pass any order dealing with the  application made  by  the respondent under any  other  provision  except Section 13(3).  If the order is not under Section 13(3) then the  respondent  will have no right to appeal  against  that order. 28.There  can be no dispute about this  preposition.   The consequential  order  passed by the  Metropolitan  Authority after it was quashed by the High Court must be treated as an order  under  Section 13(3) of the Act for  the  purpose  of appeal  and the limitation must be counted from the date  of the  fresh  order.  But that does not  answer  the  question whether  the  time-limit  for passing an  order  under  sub- section  (3)  of Section 13 will apply to  the  fresh  order which  will now have to be passed.  That question  has  been answered in the case of Pooran Mall2 referred to earlier  in the judgment. 29.In  the premises this appeal is allowed.  The  judgment under  appeal dated 15-6-1994 is set aside.   The  appellant

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will be at liberty to proceed in accordance with law.  There will be no order as to costs. Civil Appeals Nos. 9153-54 of 1994 [Arising out of SLPs  (C) Nos. 15942 & 15982 of 1994] 30.  Leave granted. 31.   In  view of our judgment in Civil Appeal No.  9152  of 1994  [arising out of SLP (C) No. 14848 of 1994], the  above appeals  are  also allowed.  There will be no  order  as  to costs. 653