Holding

The Supreme Court held that the writ petition was improper because the petitioner had availed the alternative appeal, and the deeming clause of Section 13(3) does not apply when an order was originally passed within 60 days and later quashed; the fresh order is not bound by the 60‑day limitation.

Summary

G.P. Volkart Ltd. had obtained municipal approval to construct a 30‑storey building with an FSI of 2.45. After the Bombay Metropolitan Region Development Act, 1974 came into force, the Metropolitan Authority rejected the application within the statutory 60‑day period, prompting the company to appeal to the State Government, which allowed the development. Residents challenged this order, and the Bombay High Court set aside both the State Government’s order and the Authority’s rejection, directing a fresh consideration. While the Authority was preparing a fresh order, the company filed a writ petition claiming that, because the Authority had not refused permission within 60 days, permission was deemed granted under Section 13(3). The High Court entertained the writ and held the permission deemed granted. On appeal, the Supreme Court held that the writ petition should not have been entertained since the company had already availed the statutory appeal, which was pending, and that the deeming clause of Section 13(3) only operates when the Authority fails to pass any order within 60 days; a later quashing of an order does not trigger the deeming provision. Consequently, the fresh order was not subject to the 60‑day limitation, and the High Court’s judgment was set aside.

Issues considered

The writ petition should be dismissed when the petitioner has an alternative statutory remedy pending.
Whether Section 13(3) of the Bombay Metropolitan Region Development Act, 1974, deems permission granted when the original order was passed within 60 days but later quashed.
Whether the 60‑day limitation applies to a fresh order issued after a quashing of the original order.

Legislation cited

Bombay Metropolitan Region Development Act, 1974s. 13(1), s. 13(2), s. 13(3), s. 13(4)
Bombay Municipal Corporation Acts. 344, s. 345, s. 346
Bombay Rents, Hotel and Lodging House Rates Control Acts. 13(bb)
Constitution of Indias. Article 226
Income Tax Act, 1961s. 132(5)

Subjects

deeming clausestatutory appealSection 13Bombay Metropolitan Region Development Actwrit jurisdictionArticle 226limitation periodadministrative orderfresh orderalternative remedy

Judgment

BOMBAY METROPOLITAN REGION.DEVELOPMENT A
,
1
AUTHORITY, B~~BA Y
n ' V, r·1
GOKAK PJ\T:E.J,, VOLKART LTD. AND ORS.
·'
DECEMBER 13, 1994
B
[B.P. JEEVAN REDDY AND SUHAS C. SEN, JJ.] •

Bombay Metropolitan Region Development Act, 1974: Section 13.
Development Plan-Approval by Metropolitan Authority-Time Limit of
sixty days from the date of application-Deeming clause that permission C
shall be deemed to have been granted if not refused within sixty days-
Applicability of Deeming clause-Where Metropolitan authority passed the
order within sixty days but was quashed by the appellate authority the
deeming clause Held not applicable.

Constitution ofIndia, 1950:
D
Article 226-Writ-High Court should not entertain writ where the
petitioner has availed alternative statutory remedy of appeal and the same
was pending.

The respondent-company obtained approval from Munfcipal
Corporation of Greater Bombay for construction of a thirty-storeyed E
building at Colaba, Bombay utilizing Floor Space Index (FSI) of2.45 of
the plot. Subsequent to the said approval the Bombay Metropolita·n
Region Development Act, 1974 came into force and in exercise of the
powers under sub-section (1) of Section 13 of the said Act the
Metropolitan Authority issued a Notification prohibiting construction F
of any building which will have a Floor Space Index exceeding 1.33.
Under Section 13(1) of the Act permission from Metropolitan
Authority was necessary for development in contravention of the !>aid
Notification. Under sub-section (3) of Section 13 the Metropolitan
Authority was required to refuse or grant permission within sixty days
from the date of receipt of application and if such a permission was not G
refused within sixty days then it was to be deemed to have been
granted. Consequently, on 14th July, 1977, the respondent-company
applied for permission to undertake development with the FSI of 2.45.
Its application, which was received by the Metropolitan Authority on
15th July, 1977, was rejected on 8th September, 1977. The respondent-
Company preferred an appeal under Section 13(4) and the State H
485
486 SUPREME COURT REPORTS [1994) SUPP. 6 S.C.R

A Government by its order dated 23rd February, 1978 allowed the same
and gave a commencement Certificate to the Company. The residents
of Colaba challenged the State Government's order by filing a Writ
Petition in the Bombay High Court which set aside the orders of State
Government and Metropolitan Authority and directed the Municipal
Corporation to reconsider the application filed by the respondent-
B Company. However, after reconsideration the Metropolitan Authority
vide its order dated 17th September, 1984 rejected the first
respondent's application. The respondents preferred an appeal before
the State Government While the appeal was still pending it filed a writ
petition in the Bombay High Court challenging the order of rejection
on the ground that in view of the lapse of sixty days, permission was
c deemed to have been granted to the respondents under Section 13(3)
and consequently, the order of rejection was illegal and without
justification. A Division Bench of the High Court allowed the petition.

In appeal to this Court, it was contended on behalf of the
appellant-authority that (1) since the Respondents had availed the
D alternative remedy of statutory appeal, which was pending, the High
Court should not have entertained the writ petition; (ii) the statutory
fiction of deemed permission arises only if there was a failure on the
part of the Authority to pass an order within sixty days of receipt of the
application and this time limit was inapplicable if the appellate
authority had quashed the order and directed a fresh order to be
E passed.

On behalf of the respondent-company it was contended that the
Authority had no jurisdiction to pass an order on the first respondent's
application under any provision except under Section 13(3); if the
order is not under Section 13(3) then the respondents will have no right
F to appeal against that order.

Allowing the appeal (and connected appeals), this Court

HELD: 1. This is a case, where there is not only the existence of an
alternative remedy but the respondent-petitioner actually had availed
G of that remedy and its appeal before the Statutory Authority was
pending. In that view of the matter the writ petition should not have
been entertained by the High Court. [492 D]

2.. 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
H an order is passed within that period. If the order is set aside on appeal
BOMBAY METROPOLITAN AUTHORITY v. G.P. VOLKART LTD. 487

and the Appellate order directs a fresh order to be passed then there is A
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. (493 G]

3. The deeming clause under section 13(3) of the Bombay Metro-
politan Region Development Act, 1974 comes into operation only when B
the Metropolitan Authority fails to pass an order within a period of
sixty 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. In
the instant case, there is no question of any inactivity. The appellant
had passed an order within sixty days which was ultimately quashed by C
the High Court. Therefore, there is no question of the deeming
provision coming into operation in this case at all. (496 D to E]

4. After the High Court quashed the order passed by the Metro-
politan Authority, a fresh order had to be passed under the direction of
the Court and not on tbe basis of any fresh application. This fresh D
order could not have possibly been passed within 60 days of the receipt
of the application. The High Court could have fixed a time limit for
par;sing 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 limit was fixed by the High Court. Therefore, the
Metropolitan Authority had to pass a fresh order within a reasonable E
time. (493 E to F]

Shri Chamundi Mopeds Ltd v. Church of South India Trust
Association CS! Cinod Secretariat, Madras, [1992) 3 S.C.C. 3;
Superintendent of Taxes, Dhubri and Ors. v. Onkarmal Nathma/ Trust etc.
etc., (1975) Suppl. S.C.R. 365, referred to. F
Director of Inspection of Income-Tax (Investigation) New Delhi and
Anr. v. Pooran Mall and-Sons and Anr., 96 ITR 390, relied on.

Regina v. Paddington Valuation Officer and Anr., (1966) 1 QB 380;
held inapplicable. G

5. 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 no~ answer the question whether time limit for passing an order H
488 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A under sub-section (3) of Section 13 will apply to the fresh order which
will now have to be passed. [493 G to H]

Director of Inspection of Income-Tax (Investigation) New Delhi and
Anr. v. Pooran Mall and sons and Anr., (96) ITR 390, referred to.

B CIVIL APPELLATE WRJSDICTION: Civil Appeal No. 9152of1994
etc. etc.

From the Judgment and Order dated 15.6.94 of the Bombay High
Court in W.P.No.2205 of 1984.

C Harish N. Salve. and Atul Setalwad, U.A. Rana, Rajiv Tyagi, Anand
Prasad and A.S. Bhasme for the Appellant

F .S. Nariman, Milan Seth, Bharat Damodar, Ravi Gandhi, R. Sasiprab-
hu, D.N. Mishra for JBD and Co. for the Respondents.

D The Judgment of the Court was delivered by

SEN, J. Leave granted.

On 28th May, 1974, Gokak Patel Volkart Ltd.submitted a plan for
construction of two houses at premises No. 124-126 Wodehouse Road,
Colaba, Bombay, to the Municipal Corporation of Greater Bombay. The
E 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.

The Development Control Rules existent at the relevant time permitted
construction of building on the F.S.I. of2.45 under ·R-8 FSI. Zone in which
F
the above property was situated. The plan was approved by the corporation
and on 13th September 1974 Intimation of Disapproval (1.0.D.) was
granted to the Company under section 346 of the Bombay Municipal
Corporation Act. It was stipulated in the 1.0.D. that no work should be
started unless the existing structures proposed to be removed were in fact
G removed. It was also stated in the 1.0.D. 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 I.O.D. granted by the corporation, the
company initiated proceeding for eviction of the tenants from the existing
H · structures on the property in question. Ultimately in August 1979, the
BOMBAY METRO POLITAN AUTHORITY v. G.P. VOLKART LTD. [SEN, J.] 489

tenants were evicted and old structures were demolished. In the meantime, A
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, co-ordinating and supervising the proper, orderly and rapid
development of the areas falling within that region. The said Act. came into
force with effect from 26th January, 1975. Section 13 of the Act B
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 C
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.
D
(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 E
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 condition 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. F
(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."
G
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 10th June, 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. H
490 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A 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
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
B. the receipt of the application under sub-section (2) of Section 13. If the
pemiission was not refused within the aforesaid period of 60 days under
sub-section (3) of Section 13, such permission should be deemed to have
been granted by the authority.

In view of the above developments, on 14th July, 1977, Gokak Patel
C Volkart Ltd. (hereinafter described as 'the respondent-company'), applied
to the Bombay Metropolitan Region Development Authority (hereinafter
described as 'B.M.R.D.A.') 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 F.S.I. of 2.45. The said application was received by the
0 B.M.R.D.A. on 15.7.1977. The permission was refused by the Metropolitan
Authority under Section 13(3) of the Act on 8th September, 1977. The
respondent-company preferred an appeal to the State Government under
Section 13(4) of the Act on 19th September, 1977 which was allowed by
the State Government on 23rd February, 1978. Accordingly, the
respondent-company was given a commencement certificate under Sections
E 344 and 345 of the Bombay Municipal Corporation Act on 31st March,
1980.

Soon thereafter a Writ Petition was filed by the residents of Colaba
challenging the above order of the St;ate Government under Section 13(3)
of the Act allowing the appeal of the respondent-company against the order
F 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.
G
The material part of the order was as under:-

"Accordingly, the petition succeeds and the impugned order
dated February 23, 1978 passed by Minister for Housing and
B.M.R.D.A. is set aside and so also the order passed by
H respondent No. 3 rejecting the application and which was
BOMBAY METROPOLITAN AUtHORITY v. G.P. VOLK.ART LTD. [SEN, J.] 491

communicated to respondent No. 4 on September 8, 1977. A
Respondent No. 3 is directed to reconsider the application
dated July 14, 1977 filed by respondent No. 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 No. 3 shall pass the orders as
expeditiously as possible." B
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 19th September,
1984 rejected the application under Section 13(3). Against that, the
respondent-company filed appeal on merits before the State Government on C
16th October, 1984 which is still pending.

On the very next day, the Writ Petition was also filed in the High Court
of Judicature of 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 D
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.
E
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 F
writ petition had been delivered on 5th April, 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 at
all. BMRDA applied for certified copy of the judgment on 18th April, 1984
on 24th May, 1984 the company communicated the operative part of the G
order dated 5th April, 1984 to BMRDA. The Executive Committee of the
BMRDA sat on 18th July, 1984 and again on 24th July, 1984 and finally
decided to reject the application of the respondent-company under section
13(2) of the Act on 17th September, 1984. The BMRDA had no jurisdiction
to pass any order under section 13(3) of the Act on 17th September, 1984,
as the requisite period of 60 days provided by under Section 13(3) had H
492 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A expired by that time. It was held by Division Bench that the order dated
17th September, 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.

B 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
c the Bombay High Court praying more or less the same remedy as was
prayed in the appeal.

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 qf that remedy. The writ-
D petitioner' s appeal before the Statutory Authority was pending. In that view
of the matter this writ petition should not have been entertained.

The second point urged by Mr. Salve is also of substance. The
respondent had applied to BMRDA for permission to undertake the
development work with the FSI of 2.45 under sub-section (2) of Section 13
E of the Act. That application was received by the BMRDA on 15th July,
1977. The application was rejected by an order passed on 8th September,
1977 within the requisite period of 60 days from the receipt of the
. application as laid down in sub-section (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
F the application. No question of this time limit arises when the Appellate
Authority quashes the order and directs a fresh order to be passe4. 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 15th July, 1977.
G 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 5th April, 1984 or any subsequent date. There is nothing in the
wording of sub-section (3) of section 13 justifying such a construction.

Mr. Nariman appearing on behalf of the company drew our attention to
H the decision of this Court in the case of Shree Chamundi Mopeds Ltd. v.
BOMBAY METROPOLITAN AUTHORITY v. G.P. VOLKART LTD. [SEN, J.] 493

Church of South India Trust Association CS! Cinod Secretariat, Madras; A
[1992] 3 SCC 3. 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.
B
It is true that the order, dated 17th September, 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 failed to pass an order within 60 days of the
receipt of the application.
c
As a matter of fact, the application received by the Metropolitan
Authority on 15th July, 1977 was disposed of by an order dated 8th
September, 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 D
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 15th July, 1977.

After the High Court quashed the order passed by the Metropolitan
Authority on 17th September, 1984, a fresh order had to be passed unde~ E
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 15th July, 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 limit was fixed by the High Court. Therefore, the F
Metropolitan Authority had to pass a fresh order within a reasonable time.

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 G
requirement of law that the consequential order to give effect to the
Appellate order must be also passed within the statutory period of
limitation. This proposition of law is well settled.

In the case of Director ofInspection ofIncome-Tax (Investigation) New
Delhi and Anr. v. Pooran Mall and Sons and Anr., 96 ITR 390, this Court H
494 SUPREME COURT REPORTS [1994) SUPP. 6 S.C.R

A 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
B direction given by a Statutory Authority or by a Court in a writ proceeding.
It was observed:-

"Even ifthe period of time fixed under section 132(5) is held
to be mandatory that was satisfied when the first order was
made. Therefore, if any direction is given under section
c 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
D 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 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
E
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."
F
Mr. Nariman next drew our attention to the decision of ~he court of
Appeal in the case of Regina v. Paddington Valuation Officer and Anr.,
- [1966] 1 QB 380. In particular we were referred to the judgment of Salmon
L.J., wherein it was observed:-

G "I am not altogether satisfied that there would be any power
to grant mandamus and keep the 1968 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
H follow if the 1956 valuation list were to be revived- which
BOMBAY METROPOLITAN AUTHORITY v. G.P. VOL.KART LTD. [SEN, J.] 495

both the appellants and respondents at first agreed would be A
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 B
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:
Reg. v. Cotham. etc., JJ and Webb; Ex parte William.
Accordingly, it seems to me that a finding that the list is null C
and void is necessarily implicit in an order of mandamus."

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 31656
dwellings at Paddington erroneously. There was a prayer for certiorari to D
quash the ·list altogether. There was also another prayer for a writ of
mandamus directing the valuation officer to prepare a new list. Lord
Denying, 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 E
of certioraris.. Lord Dening was of the view that certiorari was not a
necessary pre-requisite to mandamus.

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,
F
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."

In the case before us the decision taken by Metropolitan Authority on G
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 H
496 SUPREME COURT REPORTS [1994) SUPP. 6 S.C.R

A 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.

In the case of Supdt. of Taxes. Dhubri and Ors. v. Onkarmal Nathmal
Trust etc. etc., [1975] Suppl. SCR 365; this Court dealt with the question
B 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 latches even though the State
was restrained by an order from taking any action under the Act. Tlie State
c 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.

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
D I
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
c
that order is quashed by the Appellate Authority or by the High Court, the
deeming clause does not become operative straightaway. The appellate /

-E order will now hold the field and a fresh order will have to be passed in
terms of the order of the Appellate Authority or the Court.

The Last contention of Mr. Nariman was that the impugned order dated
17th September, 1984 had been passed under Section.13(3) of the BMRDA
Act. The Metropolitan Authority had no jurisdiction to pass any order
F 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.

There can be no dispute about this preposition. The consequential order

G
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
H in the case of Pooran Mall (Supra) referred to earlier in the Judgment.
BOMBAY METROPOLITAN AUTHORITY v. G.P. VOLKART LTD. [SEN, J.] 497

In the premises this appeal is allowed. The judgment under appeal A
dated 15.6.1994 is set aside. The appellant will be at liberty to proceed in
accordance with law. There will be no order as to costs. ·

CIVIL APPEALS Nos. 9153-54of1994.

Arising out of S.L.Ps. (C) Nos. 15942 and 15982of1994. B
. Leave granted.

In view ofour judgment in Civil Appeal No. 9152of1994 (arising out
of S.L.P. (C) No. 14848 of 1994), the above appeals are also allowed.·
There will be no order as to costs.
c
T.N.A. Appeals allowed.