(Delivered by The Chief Justice.)
All these petitions can be dealt with in a common judgment. Except in C.M.P No. 6057 of 1945 and the connected C.R.P No. 1557 of 1945, the facts are the same.
We will first deal with the petitions in which the facts are identical. Here the petitioners ask for the issue of a writ of certiorari to quash proceedings before the arbitrator appointed under Chapter V of the Madras Town Planning Act of 1920 and of a writ of prohibition against further proceedings being entered upon.
On the 19th August 1930 under S. 12 of the Madras Town Planning Act of 1920 as amended by Madras Act II of 1930, the Provincial Government directed the Corporation of Madras to prepare, publish and submit for its sanction by the 1st May 1931 draft schemes in respect of lands specified in three areas in the City of Madras, namely the Lloyds Road area, the Cathedral road (South) area and the Mylapore Eastern section area, the boundaries of these areas being defined by the notification. The petitions before us relate only to the Lloyds road area. By notification issued from time to time the Provincial Government extended the time within which the Corporation of Madras was to comply with the notification of the 19th August 1930. So far as the Lloyds road area was concerned, the last extension was to the 16th March 1936. The Corporation submitted its scheme by that date.
On the 8th November 1938 the Provincial Government issued a notification sanctioning the scheme under the provisions of S. 14 of the Act. S. 15(2) states that the Provincial Government may, at any time, by notification in the official Gazette vary or revoke a scheme sanctioned under S. 14. Before issuing a notification under S. 15 it must publish in the prescribed manner a draft of the notification together with a notice specifying a date on or after which the draft will be taken into consideration and must consider any objection or suggestion which may be received in respect of the draft from the Council concerned or any person affected by the scheme. Having complied with the requirements of the Act the Provincial Government varied the scheme by extending the time within which the Corporation of Madras could submit claims for betterment contribution under S. 23. In the scheme as originally sanctioned, the time fixed was two years from the date of the notification, that is, two years from the 8th November 1938. The amendment extended the period to two years and three months from the 8th November 1938.
On the 21st January 1941 the Corporation passed a resolution in which it decided to make claims for betterment contribution against the property owners in the area. In the meantime the Provincial Government had appointed the Collector of Madras to be the arbitrator under Chap. V of the Act. The Corporation submitted its claims to the Collector on the 1st February 1941. On the 21st July 1941 the Collector of Madras passed an order notifying that the work had been commenced from the 15th July 1941 and stating that all correspondence relating to the schemes should be sent to his office. This order was published in the local press on the 28th August 1941. Nothing further happened until the 21st March 1944. On that date the Provincial Government appointed a new arbitrator to whom the proceedings were transferred as from the 1st April 1944.
The new arbitrator announced that he would commence his duties on the 15th April 1944, but notices to the owners of property in the area were not issued until 1945. The petitioner in C.M.P No. 5892 of 1945 was not served with notice until the 18th November 1945. He filed a statement objecting to the validity of the proceedings and the same course was adopted by the petitioners in the connected petitions. Without waiting for the arbitrator to hear their objections these petitioners have asked for the issue of the prerogative writs already referred to. They aver that the proceedings which have already taken place are illegal because the Provincial Government had no power to amend the scheme originally sanctioned so as to extend the time in which the Corporation might submit claims for betterment contribution. They also claim that the proceedings have become altogether void by reason of the fact that the arbitrator has not yet delivered his awards. The latter contention is based on Cl. 3 of the first schedule of the Arbitration Act of 1940 which requires an arbiter to deliver his award within four months of the date on which he enters upon the reference. The petitioners say that the four months should be calculated from the 15th April 1944, the date on which the new arbitrator announced that he would commence his duties.
It is not the practice of the Court to issue a prerogative writ where there is another remedy open to the party. It would be wrong to do so. Here there is another remedy open to the petitioners. S. 29 of the Madras Town Planning Act of 1920 provides a right of appeal from a decision of the arbitrator falling within Cl. (c) or Cl. (d) of Sub-S. 1 of S. 27 to the Chief Judge of the Court of Small Causes in cases arising in the City of Madras. Cl. (c) refers to decisions on questions relating to injurious effect within the meaning of S. 20 and Cl. (d) to the determination of questions relating to betterment contribution under S. 23. Under Cl. (d) the petitioners would have a right of appeal against decisions making their properties liable to betterment contribution. Obviously a property cannot be made liable to the contribution if the scheme under which it is claimed is invalid. In these circumstances we should not be inclined to issue these writs even if the arguments advanced in support of the applications were sound; but as we consider them to be unsound we will state our reasons.
The contention that the Provincial Government had no power to extend the period in which the betterment contribution could be claimed is answered by S. 15(2) which, as we have already indicated, states that the Provincial Government may at any time by notification vary or revoke a scheme sanctioned under S. 14. Its power to vary or revoke is entirely unrestricted, except that before acting it shall give the persons affected an opportunity of preferring objections, Mr. Thiruvenkatachari on behalf of the petitioners has suggested that in amending the scheme, the Provincial Government was acting in exercise of a power delegated to it and he says that a delegated authority cannot be exercised to enlarge a period of limitation with retrospective effect. It is obvious that when acting under the provisions of the Town Planning Act, the Provincial Government is not exercising a power “delegated” to it. It is exercising the power conferred upon it directly by statute. At any stage the Provincial Government had power to amend the scheme by enlarging the time for submission of claims for contribution. That is the plain meaning of S. 15(2). We may add that the Provincial Government took steps to amend the original scheme in this respect before the two years allowed by Cl. 22 of the original scheme for the submission of claims had expired. Moreover, no one filed an objection to the draft notification. It is also to be noted that under S. 23 no time need be fixed for the making of a claim.
There is no more substance in the argument based upon the provisions of the Arbitration Act. S. 46 of that Act says that its provisions, except Sub-S. 1 of S. 6 and Ss. 7, 12 and 37 shall apply to an arbitration under another enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement; but the section adds: “except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder.”
It is to be doubted whether this section covers an “arbitration” under the Town Planning Act. It is true that the Town Planning Act speaks of “the arbitrator”; but it does not require him to give an award. He is required to give a decision which is appealable. We will, however, assume that S. 46 of the Arbitration Act of 1940 applies to Chapter V of the Town Planning Act but it can only apply in so far as the Town Planning Act is not inconsistent with it. As we have just indicated, it is inconsistent in important respects. R. 3 of the first schedule of the Arbitration Act of 1940 says that the arbitrators shall make their award within four months after entering on the reference or after having been called upon to act by notice in writing from any party to the arbitration agreement or within such extended time as the Court may allow. The petitioners' argument is that by reason of S. 46, this rule is imported into arbitrations under Chapter V of the Town Planning Act. In the first place, rules as to the conduct of proceedings under the Town planning Act have been framed and they govern the procedure to be followed, not the rules in the first schedule of the Arbitration Act. In the second place, to apply R. 3 of the first schedule of the Arbitration Act would be to render proceedings under the Town Planning Act futile. We have been told that the claims for contribution in the scheme relating to the Lloyds road area number over a thousand. If the date for entering upon the arbitration had to be taken as the 15th April 1944, it would be a physical impossibility for the arbitrator to give his decisions within four months. It is argued that he could apply to the Court for extension of time, but the Act does not specify the Court to which such an application could be made. If R. 3 does apply—in our opinion it does not—the only rational way of applying it would be to consider the four months period as commencing from the date on which the arbitrator entered upon the hearing of a particular claim. We do not feel called upon to enter upon further discussion of the question because the exception contained in S. 46 of the Arbitration Act takes the Town Planning Act out of its purview.
These findings mean the dismissal of all the applications except C.M.P Nos. 6057 of 1945 and C.R.P No. 1557 of 1945. The petitioners in each case now under dismissal must pay two sets of costs, one set to the Corporation of Madras and one set to the Provincial Government. There will be no order as to costs in the stay petitions.
We leave open for argument before the arbitrator all the questions raised by the petitioners in their written statements except the questions which we have decided in this judgment.
We now turn to the two remaining matters. Here the petitioner is the Corporation of Madras. In C.M.P No. 6057 of 1945, the Corporation asks for a writ prohibiting the Chief Judge of the Court of Small Causes, Madras, from hearing an appeal from a decision of the arbitrator under S. 29 of the Town Planning Act. The revision petition asks for the revision of an order of the Chief Judge of the Court of Small Causes holding that his powers under the Town Planning Act are not restricted by S. 30 of the Arbitration Act. For the Corporation it is said that an appeal from the arbiter under the Town Planning Act only lies when the objection is one falling within S. 30 of the Arbitration Act. That section says that an award shall not be set aside except (a) when the arbitrator or umpire has misconducted himself or (b) when an award has been made after the issue of an order by the Court superseding the arbitration or after the arbitration proceedings have become invalid under S. 35 or (c) when the award has been improperly procured or is otherwise invalid. The argument entirely overlooks the provisions of S. 29. That section states exactly what decisions are appealable. S. 30 certainly does not restrict an appeal under S. 29 of the Town Planning Act which is here the governing enactment.
Learned counsel for the Corporation has also pointed to S. 32 and says that this section is a bar to the present action. Having ignored S. 29 of the Town Planning Act he now ignores the exception incorporated in S. 46 of the Arbitration Act. It is surprising that these petitions were ever filed. They are also dismissed with costs in favour of the contesting respondent.
N.R.R