Case: Bombay Metropolitan Region Development Authority, Bombay Vs. Gokak Patel Volkart Ltd. and Ors

attention to the decision of the court of Appeal in the case of R. v. Paddington Valuation Officer. 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 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 William. Accordingly, it seems to me that a finding that the list in 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 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 Trust 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 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 Court27. 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 order28. 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 Mall referred to earlier in the judgment

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 toIn 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 thatIn 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 Court27. 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 order28. 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 Mall referred to earlier in the judgment