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Judgment
Leach, C.J.—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 chap. 5, Madras Town Planning Act of 1920 and of a writ of prohibition against further
proceedings being entered upon.
On 19th August 1930, u/s 12, Madras Town Planning Act of 1920, as amended by Madras Act, 2[II] of 1930, the Provincial Government
directed the Corporation of Madras to prepare, publish and submit for its sanction by 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 notifications issued
from time to time the Provincial Government extended the time within which the Corporation of Madras was to comply with the notification of 19th
August 1930. So far as the Lloyds Road area was concerned the last extension was to 16th March 1936. The Corporation submitted its scheme
by that date.
On 8th November 1938, the Provincial Government issued a notification sanctioning the scheme under the provisions of Section 14 of the Act.
Section 15(2) states that the Provincial Government may, at any time, by notification in the official Gazette vary or revoke a scheme sanctioned u/s
Before issuing a notification u/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 u/s
In the scheme as originally sanctioned the time fixed was two years from the date of the notification, that is, two years from 8th November
1938. The amendment extended the period to two years and three months from 8th November 1938.
On 2lst 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. 5 of the
Act. The Corporation submitted its claims to the Col-lector on 1st February 1941. On 2lst July 1941, the Collector of Madras passed an order
notifying that the work had been commenced from 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 28th August 1941. Nothing further happened until 21st March 1944. On that date the
Provincial Government appointed a new arbitrator to whom the proceedings were transferred as from 1st April 1944.
The new arbitrator announced that he would commence his duties on 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 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. Clause 3,
Schedule 1, Arbitration Act of 1940 which requires an arbitrator 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 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. Section 29, Madras Town Planning Act of 1920 provides a right of appeal from a decision of the
arbitrator falling within Clause (c) or Clause (d) of Sub-section (1) of Section 27 to the Chief Judge of the Court of Small Causes in cases arising in
the City of Madras. Clause (c) refers to decisions on questions relating to injurious effect within the meaning of Section 20 and Clause (d) to the
determination of questions relating to betterment contribution u/s 23. Under Clause (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 the 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 Section 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 u/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 Section
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
Clause 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 u/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. Section 46 of that Act says that its provisions,
except Sub-section (1) of Section 6 and Sections 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
Section 46, Arbitration Act of 1940, applies to chap. 5, 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. Rule 3 of Schedule 1, 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
Section 46, this rule is imported, into arbitrations under chap. 5, 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 Schedule 1, Arbitration Act. In the
second place, to apply Rule 3 of Schedule 1, 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 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 Rule 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 Section 46, Arbitration Act takes the Town Planning Act out of its purview.
These findings mean the dismissal of all the applications except C.M.A. No. 6057 of 1945 and C.R.P. No. 1557 of 1915. 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 u/s 29,
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 Section 30, 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 Section 30, 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 u/s 35 or (c) when the award has been improperly
procured or is otherwise invalid. The argument entirely overlooks the provisions of Section 29. That section states exactly what decisions are
appealable. Section 80 certainly does not restrict an appeal u/s 29, Town Planning Act which is here the governing enactment. Learned Counsel
for the Corporation has also pointed to Section 32 and says that this section is a bar to the present action. Having ignored Section 29, Town
Planning Act he now ignores the exception incorporated in Section 46, Arbitration Act. It is surprising that these petitions were ever filed. They are
also dismissed with costs in favour of the contesting respondent.