Case: Bihari Mills and Another Vs. Ahmedabad Municipalcorporation

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 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 The Act of 1915 was repealed by the Act which came into force from April 1, 1957.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.

Reasoning: 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 theour opinion, this contention isis clear that the saving clause was effective to continue the appointment of the Arbitrator made under the repealed Act, and also to keep alive the proceedings before him.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 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 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.