The Bihari Mills and Another v. the Ahmedabad Municipal Corporation
SINHA C. ].-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 herein
after 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 P.lanning Act (Bombay
I of l\Jl5) was repealed, and certain orders of the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· -
·declared its intention by a resolution dated October
l, 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 Born.bay on July
14, 1942. Under that Act an arbitrator was
appointed in respect of the said Scheme, as required
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2 S.C.R. SUPREME COURT REPORTS IH 7
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 The Act of 1915 was repealed by the Act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 memo
randum 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 Bo.ird 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
J9fJ
Bihari MiU1
v.
Ahm,.dn Muniri·
P•I C..;.t.t' ..
s.-nh• c. 1.
/953
Bihari M i/11
v.
Ahmtdohad 11unici·
fJa/ Corporatit:m
Smha C. J.
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 withs. 30 of the Act of 1915.
Section 33 declares certain decisions except under
s. il2 (1), els. (v), (vi), (viii), (ix), (x) and (xiii), of
the Town Planning Officer to be final and conclusive
and binding 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. !H, to he 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 <\rbi·
tration, 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 Hll 5, has not been,
in terms, appointed the Town Planning Officer
under the Act.
After setting out the relevant provisions of the
Act of 191 !\ and the Act, it is necessarv to State that
the decision given by the Arbitrato'r, Shri R.!\'.
Parikh, functioning under the Act of 1915, cou Id
be reviewed by the Tribunal of Arbitration, but as
there was nv such Tribunal in existence on and
after that date, the appellants preferred appra I;
to the Board of Appeal, constituted under the Act.
Those appeals were disposed of by the Board by its
order dated January 23, 195!l. 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
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2 S.C.R. SUPREME COURT REPORTS 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 cle.ar
that the Board of Appeal had no jurisdiction. to
render any judgment in respect of the deci~ions or
proposals of the Arbitrator. In our opinion, this
contention is well ·founded. Reliance wa:s placed
in this connection on the provisions ofs. 90 of the
Act, the relevant portions of whieh 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 inconsis
tent with this Act, continue in force
thereunder and provisions of this Act
shall have effect in relation to such ......
d. " procee mgs...... .
It is clear that the saving clause was effective
to continue the appointment of the Arbitrator made
under the repraled Act, <tnd 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. 3~ 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
196J
Biha,i Mills
v.
Ahmedabad Munici~
pal Corporation
Sinh• C. J.
-•;920 .SUPREME COURT REPOR':['S [1964] VOL.
1953 · .• doe~ ·~o~ appear. to . have, been ·· re~ved: by· ,aI)y
. ilourMms .:subsequent legislation or •order oLthe Government·
, · 41un ;byd M .• · of. Gujrat, under the : Act. -Some ; Jacunae .were
: ,:i c.:pora1~':." . .. discovered in the. working , of the Act : and the .
· --· Government of Maharashtra came. out -. with the ·
·'''"" c.·J .. .... Bombay ToWn .: Planning (Amendment, and-Pro·
·, ceedirigs Validation) .Act, ,1960 jl\faharashtra Act .
, )QCIVof 1960). By~' 2,. sub-s •. (4) ·of 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 (:!)",.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 ag11ins! the' order of the ·Arbitrator as·
; such did not-lie to the Board ,of: Appeal, and, there
fore., the Board was incompetent. to ,deal with them,
: with the r_esult- thar the, orders . purported to have
been pass.ed br,,th~ -Board• on those. appeals are
without jurisdiction. We need not go· into the further
·.question a' -to- tlie 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 themselve8
were at least partly rc:Sponsible for. makmg those
infructuous appeals, there will be rio order_ as }o
· costs in this Court. _ · · -;-'lt:
A1~iala allowed •
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