Karnataka High Court
Sri. R. Narayana Prasad vs Bangalore Development Authority on 31 August, 2024
Bench: R Devdas, V Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REVIEW PETITION No.313/2022 C/W
REVIEW PETITION No.72/2023
IN R.P.No.313/2022
BETWEEN
SRI. R. NARAYANA PRASAD
S/O LATE RANGAIAH
AGED ABOUT 77 YEARS,
R/AT 1955, 8TH MAIN
JUDICIAL LAYOUT, GKVK POST
BENGALURU -560055
...PETITIONER
(BY SRI C M NAGABHUSHANA, ADVOCATE)
AND
1. BANGALORE DEVELOPMENT AUTHORITY
T COWDAIAH ROAD,
KUMARA PARK WEST EXTENSION
BANGALORE -560020
REPRESENTED BY ITS COMMISSIONER
2. TH ADDITIONAL LAND ACQUSITION OFFICER
THE BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD
KUMARA PARK WEST EXTENSION
2
BANGALORE-560020
REPRESENTED BY ITS COMMISSIONER
3. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT
VIKAS SOUDHA, DR AMBEDKAR VEEDHI
BANGALORE-560001
BY ITS SECRETARY
...RESPONDENTS
(BY SRI MURUGESH V. CHARATI, ADVOCATE FOR R1 AND
R2;
SRI KHAMROZ KHAN, AGA FOR R3)
THIS REVIEW PETITION IS FILED UNDER SECTION 114
OF CPC PRAYING TO REVIEW THE ORDER DATED 04.02.2021
PASSED BY THIS HON'BLE COURT IN W.A.No.2500/2018.
IN R.P.No.72/2023
BETWEEN
SMT A H BHAGYALAKSHMI
W/O B.B. RAMASWAMY GOWDA,
AGED ABOUT 64 YEARS,
R/O NO.780, II STAGE,
WEST OFF CHORD ROAD,
BASAVESHWARANAGAR,
BANGALORE - 560086.
...PETITIONER
(BY SRI UDAYA HOLLA, SR. COUNSEL FOR
SRI SHARATH S GOGI, ADVOCATE)
AND
1. STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT,
VIKASA SOUDHA,
DR. AMBEDKAR VEEDHI,
BANGALORE - 560001.
3
2. THE BANGALORE DEVELOPMENT AUTHORITY,
REPRESENTED BY M.S.N. BABU (LAO)
T.CHOWDAIAH ROAD,
KUMARA PARK WEST EXTENSION,
BANGALORE - 560020
REPRESENTED BY ITS COMMISSIONER
3. THE ADDITIONAL LAND ACQUISITION OFFICER
(REPRESENTED BY M.S.N.BABU (LAO)),
THE BANGALORE DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD,
KUMARA PARK WEST EXTENSION,
BANGALORE - 560020.
4. SRI. R. NARAYANA PRASAD
S/O LATE RANGAIAH,
R/O NO. 1955, 8TH MAIN,
JUDICIAL LAYOUT, GKVK POST,
BANGALORE - 560055
...RESPONDENTS
(BY SRI S.R.KHAMROZ KHAN, AGA FOR R1;
SRI MURUGESH V. CHARATI, ADVOCATE FOR R2 AND R3;
SRI C.M.NAGABHUSHANA, ADVOCATE FOR R4)
THIS REVIEW PETITION UNDER ORDER 47 RULE 1 OF
THE CPC, 1908, R/W ARTICLE 226 OF CONSTITUTION OF
INDIA, PRAYING TO REVIEW THE IMPUGNED JUDGMENT
/ORDER DATED 04.02.2021 PASSED IN W.A.NO.2500/2018
BY THIS HONBLE COURT AND CONSEQUENTLY DISMISS THE
WRIT APPEAL IN W.A.NO.2500/2018 (ANNEXURE-A).
THESE PETITIONS HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
V. SRISHANANDA, J., PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
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CAV ORDER
(PER : HON'BLE MR. JUSTICE V. SRISHANANDA)
These two review petitions are filed seeking review of
the judgment passed in W.A.No.2500/2018 (LA-BDA) dated
04.02.2021, by respondent No.1 in the said writ appeal and
Smt.A.H.Bhagyalakshmi who was not a party to the writ
appeal or writ proceedings.
2. Shorn of unnecessary details, most essential facts for
disposal of the present review petitions are as under:
Review Petitioner in R.P.No.313/2022 and his brothers
were the absolute owners in possession and enjoyment of
land bearing Sy.No.329/3 (old Sy.No.158/3) of Kempapura
Agrahara village, Yeshwanthpura Hobli, Bengaluru
(hereinafter referred to as 'subject property' for short).
2.1 Subject property was notified by the Bangalore
Development Authority ('BDA' for short) for formation of
Chandra Layout during the year 1978-79. According to the
review petitioner, acquisition proceedings did not attain
finality as the respondent-BDA did not pay compensation nor
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took possession of the subject property. A Writ Petition
came to be filed by review petitioner in W.P.No.2262/2016
(LA-BDA) seeking declaration that the acquisition
proceedings lapsed based on the provisions of the BDA Act.
2.2 Learned single Judge of this Court having heard
the parties, recorded a finding that the acquisition
proceedings were not concluded as per the provisions of BDA
Act and then ruled that acquisition proceedings have lapsed.
3. BDA being aggrieved by the same, filed an intra Court
appeal in W.A.No.2500/2018.
4. A Division Bench of this Court (of which one of us is a
member) heard the writ appeal and based on the principles
of law enunciated by the Hon'ble Apex Court in the case of
Indore Development Authority vs. Manoharlal and
others etc., passed in SLP (c) Nos.9036-9038/2016,
allowed the writ appeal by the judgment dated 04th February
2021, which is impugned in the present review petitions.
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5. The grounds urged by the review petitioner in
R.P.No.313/2022 are as under:
The Writ Appeal is disposed of recording a finding that
the questions raised in the Writ Appeal is covered by the
Hon'ble Supreme Court decision in Indore Development
Authority V/s Manohar Lal and others and that issue has
not arisen in the Writ Appeal as such error apparent on
the record has resulted.
The appellant In the Writ Appeal neither invoked nor
argued applicability of Section 24(2) of Right to Fair
Compensation Transparency in land Acquisition,
Rehabilitation & Resettlement Act, 2013 and as such the
law laid down by the Apex Court is not applicable to the
facts and the law averred in the Writ Petition and by
Inadvertence of respondent those things are not
brought to the notice of this Hon'ble Court in the Writ
Appeal as such the error apparent on the record has
resulted.
By inadvertence of the respondent it was not brought to
the notice of this Hon'ble Court, the law laid down by
the Apex Court in Harishchandra V/s State of
Maharashtra, reported in AIR 1961 SC 1500 wherein is
laid down that the issue of Section 12(2) of notice to the
land owner under the Land Acquisition Act is mandatory
and acquisition proceedings are not followed and that
contention of the Writ petitioners has not been brought
to the notice of this Hon'ble Court.
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It was not brought to the notice of this Hon'ble Court by
the respondent that in R.F.A 646/2001 disposed on 16-
09-2004 preferred by B.D.A, this Hon'ble Court has held
that the B.D.A is entitled to take possession of the land
in accordance with law. But so far possession is not
taken and thus the requirement of law that award is not
passed in accordance and possession is not taken as per
the provisions of BDA Act read with provisions of L.A.
Act, 1894 and thus this aspect of the matter is not
considered in the Judgment dated 04-02-2021 and
therefore review of the same is required in the interest
of justice and equity.
The Hon'ble Apex Court, while dealing with the
Acquisition proceedings initiated under the BDA Act in
the case of Offshore Holdings Pvt Limited -Vs-
Bangalore Development Authority and others, has held
that section 27 of the BDA Act places an obligation upon
the Authority to compete the scheme within a period of
five years and if the scheme is not substantially carried
upon within that period, it shall lapse and the provisions
of section 36 shall become inoperative. In view of the
law laid down by the Hon'ble Apex Court in the above
case, question of invoking section 24 (2) of the Right to
Fair Compensation & Transparency in land Acquisition,
Rehabilitation & Resettlement Act, 2013 do not arise
and consequently the Law laid down in the Indore
Development Authority Act cannot be made applicable
to the Acquisition proceedings initiated under the BDA
Act.
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As the Order sought to be Reviewed is passed in respect
of challenge to the acquisition proceedings initiated
under the BDA Act, by placing reliance on the dictum of
the Apex Court Indore Development Authority's Case
which has no applicable to the BDA Act, the order
requires to be reviewed at the hands of this Hon'ble
Court.
The error has crept in the order dated 04-02-2021 as
the order is passed without considering that, provisions
of section 24(2) of the Right to Fair Compensation &
Transparency in land Acquisition, Rehabilitation &
Resettlement Act, 2013 is not applicable to the
acquisition proceedings initiated under the BDA Act.
Hence the Review Petition requires to be allowed."
6. Reiterating the above grounds, Sri C.M. Nagabhushana,
learned counsel for the review petitioner contended that the
learned the Single Judge in the order dated 05.07.2017
passed in W.P.No.2262/2016 did not refer to Section 24(2) of
the Right to Fair Compensation & Transparency in land
Acquisition, Rehabilitation & Resettlement Act, 2013 and
therefore, the Division Bench applying the principles of law
enunciated in Indore Development Authorities as stated
supra and allowing the appeal of the BDA, has resulted in
miscarriage of justice which is error apparent on record.
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Therefore, the order of the Division Bench, which is
impugned in this review petition needs to be set aside and
order of the learned Single Judge needs to be restored.
7. It is further contended that when once the
compensation is not paid, the question of acquisition being
complete cannot be countenanced in law, in view of
judgment of Hon'ble Apex Court in the case of Prahlad
Singh and others vs. Union of India and others,
reported in (2011) 5 SCC 386, the order of the Division
Bench is per se suffering from error of law apparent on
record and therefore, review petition needs to be allowed.
8. It is further contended that Review Petitioner in
R.P.No.72/2023 was not a party to the Writ Appeal nor she
was a party in writ petition filed by review petitioner in
W.P.No.2262/2016. Review petitioner in R.P.No.72/2023 had
filed an application seeking impleading in W.P.No.2262/2016
before the learned single Judge and said application came to
be disposed of on 05.07.2017 along with final order in the
writ petition. The writ petition was allowed and liberty was
given for the petitioner to agitate her rights, if any, over the
10
subject property in accordance with law before appropriate
forum.
9. It is also contended by her that R.Narayana Prasad was
only a predecessor in title. Review petitioner in
R.P.No.72/2023 claims that she is entitled to possession and
enjoyment of the subject property and even if the review
petitioner in R.P.No.313/2022 would succeed, he would not
get any right, title and interest over the subject property. As
such, he did not prosecute writ appeal diligently which is
detrimental to the interest of the review petitioner and did
not urge proper grounds to oppose the appeal of the BDA.
Therefore, review petitioner is entitled to get the Order dated
04.02.2021 in W.A.No.2500/2018 reviewed through her
review petition.
10. It is further submitted by her that against the Order
passed by the Division Bench in W.A.No.2500/2018, she had
approached the Hon'ble Apex Court in SLP (C)
No.25383/2021, but the same was not pressed by the review
petitioner. Thereafter, she has filed the present review
petition on the following grounds:
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This Hon'ble Court committed a grave and serious error
apparent on the face of the record in allowing the Appeal
filed by the second and third respondent and this has
occasioned the failure of justice.
This Hon'ble Court committed a grave and serious error
apparent on the face of the record in failing to appreciate
that after the verdict in Indore Development Authority
March, 2020 Land Acquisition proceedings will not lapse.
This Hon'ble Court committed a grave and serious error
apparent on the face of the record in not considering that
the judgment in Indore Development Authority case doesn't
apply to circumstances of this case and held that Land
Acquisition proceedings was not lapsed is completely
unsustainable in law.
This Hon'ble Court committed a grave and serious error
apparent on the face of the record in failing to consider that
the BDA Act has provided a complete process for
determination of rights and 2013 Act will not apply to the
present case.
This Hon'ble Court committed a grave and serious error
apparent on the face of the record in not considering that
the petitioner land is acquired under the BDA Act and not
applies to Land Acquisition Act, 1894 and 2013 Act. The
Hon'ble Apex Court, in the matter of Bangalore Development
Authority Vs. State of Karnataka in Miscellaneous Application
No.(S)1614-1616/2019 in Civil Appeal No. (s) 7661-
7663/2018 decided on 20.01.2022, has held that "... Where
there are specific provisions under the BDA Act, the
provisions of the LA Act will not be attracted. The BDA Act
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has provided a complete process for determination of rights.
For the purpose of the claims in regard to the matter which
are not specifically dealt with in the BDA Act, reference to
the LA Act in terms of Section 36 has been made. The
intention of the Legislature is to take recourse for the
provisions of the LA act to a limited extent and subject to
supremacy of the provisions of the BDA Act..." Further held
that "The 2013 Act repeals only the LA Act and not any
other Central or State enactment dealing with acquisition.
Therefore, what is sought to be saved under Section 24 of
the 2013 Act is only acquisitions which had been initiated
under the LA Act and not those acquisitions which had been
initiated under any other Central or State enactment. The
expression contained in Section 24 of the LA Act cannot be
given extensive interpretation by adding words into the
provision, in the absence of the provision itself giving rise to
any such implication. We are of the view that 2013 Act
would not regulate the acquisition proceedings made under
the BDA Act."
This Hon'ble Court committed a grave and serious error
apparent on the face of the record by holding that the
controversy involved in the present case stands concluded
on account of the judgment delivered by the Constitutional
Bench of the Hon'ble Supreme Court in SLP (C) Nos. 9036-
9038/2016 in the case of Indore Development Authority Vs.
Manoharlal & Ors., Etc.
This Hon'ble Court committed a grave and serious error
apparent on the face of the record in holding that keeping in
view the aforesaid provision provided under the Land
Acquisition Act, the Civil Court was jurisdictionally
13
incompetent to decide any issue in respect of the land in
question as proceedings were initiated for acquisition of the
land and there was an award passed in the matter.
This Hon'ble Court committed a grave and serious error
apparent on the face of the record in holding that even if it
is presumed for a moment that on account of some order
passed by the Civil Court respondent No. 1 came in
possession of the land, it does not help respondent No.1
therein in any manner. In fact, the petitioner herein and her
husband and predecessor in title have not come in
possession of the land under order passed by the Civil
Court, in fact they have been given protection by injunction
order against the BDA.
This Hon'ble Court committed a grave and serious error
apparent on the face of the record in not considering that
the Final Notification is of the year 1978 and first litigation
was started in the year 1986, after 8 years of final
notification, till such time possession over the land by
B.B.Ramaswamy was not disturbed/interfered. On attempt
of interference interim injunction was obtained in 2000 and
same was confirmed in final order dated 16.09.2004 of this
Hon'ble Court in RFA No.646/2001. Even thereafter
possession was never taken till date and acquisition and
scheme has been lapsed.
The respondent authorities have not taken physical
possession of property and compensation has not been paid
by the BDA.
The SLP is withdrawn as not pressed and accordingly
dismissed as not pressed before the leave is granted, it does
not attract doctrine of merger and order of special leave to
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appeal does not stand substituted in place of the order
under challenge.
The petitioner being third party to the writ appeal as she
was not made party to the writ petition and to the writ
appeal, the petitioner is an aggrieved person being
aggrieved by the order dated 04.02.2021 in Writ Appeal
No.2500/2018, presenting the present writ petition as she is
the absolute owner in possession of the property in question
and proper and necessary party to the proceeding.
In the case of Union of India Vs. Nareshkumar Badrikumar
Jagad and others reported in (2019) 18 SCC 586, held that:
"18. Reverting to the question of whether the Union of India
has locus to file the review petition, we must immediately
advert to Section 114 of the Code of Civil Procedure (CPC)
which, inter alia, postulates that "any person considering
himself aggrieved" would have locus to file a review
petition."
11. Reiterating the grounds urged in the review petitions,
Sri Udaya Holla, learned Senior Advocate, contended that the
order under review suffers from legal infirmities and patent
factual errors. He further argued that Division Bench
proceeded on the premise that the lis in the subject matter of
Writ Appeal is covered by the principles of law laid down by
the Hon'ble Apex Court in the case of Indore Development
15
Authority supra, resulting in miscarriage of justice and
sought for review of the order passed in W.A.No.2500/2018.
12. He emphasized that facts and circumstances of the
case on hand is different from facts and circumstances of the
case involved in the case of Indore Development
Authority supra and as such holding that acquisition
proceedings has not lapsed in the impugned order has
resulted in miscarriage of justice, and sought for allowing the
review petition.
13. It is also his argument that the statutory provisions
under Bangalore Development Authority Act have provided a
complete process for determination of the rights of the
parties and finding recorded in the impugned order is thus
suffering from error apparent on the face of the record
making out a cause for review petitioner to apply for review.
14. In support of his arguments, Udaya Holla placed on
record the following judgments whereunder, it has been held
as under:
16
(i) Mayuram Subramanian Srinivasan vs. CBI
reported in (2006)5 SCC 752. Para-11.
"11. "Incuria" literally means "carelessness". In
practice per incuriam is taken to mean per ignoratium.
English courts have developed this principle in relaxation
of the rule of stare decisis. The "quotable in law", as held
in Young v. Bristol Aeroplane Co. Ltd. [(1944) 2 All ER
293 : 1944 KB 718] , is avoided and ignored if it is
rendered, "in ignoratium of a statute or other binding
authority". Same has been accepted, approved and
adopted by this Court while interpreting Article 141 of the
Constitution of India (in short "the Constitution") which
embodies the doctrine of precedents as a matter of law.
The above position was highlighted in State of U.P. v.
Synthetics and Chemicals Ltd. [(1991) 4 SCC 139] To
perpetuate an error is no heroism. To rectify it is the
compulsion of the judicial conscience. The position was
highlighted in Nirmal Jeet Kaur v. State of M.P. [(2004) 7
SCC 558 : 2004 SCC (Cri) 1989]"
(ii) Board of Control for Cricket in India and
another vs. Netaji Cricket Club and others reported
in (2005)4 SCC 741.
(iii) Union of India vs. Nareshkumar Badrikumar
Jagad and others reported in (2019)18 SCC 586.
Para-18.
"18. Reverting to the question of whether the Union
of India has locus to file the review petition, we must
immediately advert to Section 114 of the Code of Civil
Procedure (CPC) which, inter alia, postulates that "any
17
person considering himself aggrieved" would have locus to
file a review petition. Order 47 CPC restates the position
that any person considering himself aggrieved can file a
review petition. Be that as it may, the Supreme Court
exercises review jurisdiction by virtue of Article 137 of the
Constitution which predicates that the Supreme Court shall
have the power to review any judgment pronounced or
order made by it. Besides, the Supreme Court has framed
Rules to govern review petitions. Notably, neither Order 47
CPC nor Order 47 of the Supreme Court Rules limits the
remedy of review only to the parties to the judgment under
review. Therefore, we have no hesitation in enunciating
that even a third party to the proceedings, if he considers
himself an aggrieved person, may take recourse to the
remedy of review petition. The quintessence is that the
person should be aggrieved by the judgment and order
passed by this Court in some respect."
(iv) Mrs.Poornima Girish vs. Revenue
Department, Government of Karnataka and others
reported in ILR 2011 KAR 574(Para 4 and 6).
"4. If such is the factual position, the acquisition
proceedings insofar as the petitioner is concerned has
become stale and inconclusive, not having taken
possession of the subject property, though Notified for
acquisition under the provisions of the Bangalore
Development Authority Act, 1976 [for short 'the Act'].
Automatically, the notifications issued for the purpose of
acquiring the lands will not enure to the benefit of the
Authority insofar as this particular parcel of land is
18
concerned as it is now conceded that the Authority has not
taken possession but has allowed the petitioner to remain
in possession so far.
6. What is happening in the name of development is
nothing short of destruction and haphazard manner of
functioning to the detriment of persons/citizens like the
petitioner."
(v) The Commissioner and another vs. Mrs.
Poornima Girish and another, W.A.No.4824/2010.
(vi) Sri Munibyrappa and another vs. State of
Karnataka, rep. by its Secretary, Urban
Development Department and others reported in
ILR 2018 KAR 300(Para 20 & 25).
"20. Now coming to the consequence of not taking
over possession of the land and not paying compensation
to the land losers, it is well established by a catena of
judgments that the Authority vested with the power has
to exercise the said power in a reasonable manner and
reasonable exercise of power includes exercising the
same within a reasonable period. The BDA is not entitled
to have the land acquired, pass award and then, ignore
the rights of land losers. It is enjoined with a duty to pay
compensation to the land losers and take over possession
of the land. If the possession of the land is not taken over
and the land losers have not been paid compensation, the
land does not vest with the BDA.
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25. Contention urged by learned Counsel for the
BDA that as award has been passed, the only remedy for
the land owners is to receive the compensation
determined in the year 2003 along with interest payable
under Section 35 of the Land Acquisition Act, cannot be
accepted. Petitioners can not be deprived of their valuable
property except by due process of law. This constitutional
mandate presupposes payment of compensation soon
after passing of the award while taking over possession.
In the instant case neither possession is taken over nor
compensation is paid for the last 13 years. The BDA has
consciously excluded these lands while forming the layout
as these lands consisted of constructed houses and school
buildings. It is for this reason the BDA has not taken over
the possession of these lands and it is for the very same
reason, they have not paid the compensation. Thus, this
is a case of abandonment of acquisition by the BDA. In
such circumstances, petitioners are entitled to succeed in
these writ petitions."
(vii) Bangalore Development Authority vs. State
of Karnataka, rep. by Principal Secretary,
Department of Housing and Urban Development
and others reported in ILR 2018 KAR 2144.(Para.8).
"8. In the present cases, though final notification was
issued in the year 1971 so far, neither award has been
passed nor possession has been taken over by paying
compensation. Therefore, the acquiring body has neither
exercised its powers in a reasonable manner nor has it
completed the acquisition proceeding within a reasonable
period. Hence, acquisition having been abandoned stands
20
lapsed on account of omission and commission on the part of
the CITB/BDA in respect of writ petitioners/respondents'
herein in so far as the land is concerned."
(viii) Sri B.A.Srinivasa Gupta vs. State of
Karnataka and others, W.P.No.8873/2011.(Para.7)
"7. Be that as it may, in the instant case, as
noticed the respondents also admit to the fact that the
extent of 18 Guntas only was taken possession on
06.11.1997 under the Mahazar at Annexure-H to the
petition. In such circumstance, in respect of the remaining
extent of 17 guntas, when the possession had not been
taken and nearly 15 years have lapsed by now and further
when no material is made available on the records to
indicate that the possession of that extent was also taken
and the said property had vested in the Bangalore
Development Authority, the Bangalore Development
Authority cannot issue the notice as has been presently
done as per annexure-R. In that regard, the Hon'ble
Supreme Court in the above cited decision has also indicated
that respondents would have to reacquire the property, if
the same is found necessary and shall not seek for
possession of the same after the scheme has lapsed.
Therefore, keeping this aspect in view, I am of the opinion
that the notice dated 24.02.2011, Annexure-R is not
sustainable and the same is accordingly quashed."
(ix) M.Somashekar and others vs. State of
Karnataka, Department of Industries and
Commerce and others reported in ILR 2017 KAR
1470.
21
"Acquisition notification issued by the BDA-Possession
not taken and compensation not paid for 13 years and
therefore, Article 300-A of the Constitution of India
violated-Acquisition quashed."
(x) D.V.Lakshmana Rao vs. State of Karnataka
and others reported in ILR 2001 KAR 2689.
"18. Even if Section 11A of LA Act is not applicable,
it does not follow that the passing of the award can be
unduly delayed. In Ramchand v. Union of India [(1994)
1 SCC 44.] the Supreme Court held that even when
Section 11A is not applicable, if there is inordinate
delay in making the award and such delay is not
satisfactorily explained, the Court may either quash the
acquisition proceedings or postpone the relevant date
for fixing market value to a suitable later date or award
some additional compensation."
15. Per contra, Sri Murugesh V Charati, learned counsel
representing the BDA supported the order under review by
bringing to the notice of the Court that, in the grounds of writ
petition, Sri R.Narayana Prasad has specifically mentioned
about applicability of Section 24 of the Right to Fair
Compensation & Transparency in land Acquisition,
Rehabilitation & Resettlement Act, 2013 ('said Act' for short).
Therefore, even though there is no specific mention in the
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order of the learned Single Judge in Writ Petition
No.2262/2016 which was questioned in W.A.No.2500/2018,
that Writ Petition came to be allowed on the ground of
Section 24 of the said Act and it should be construed that the
order of the learned single Judge is in conformity with
Section 24 of the said Act. Therefore the order passed by
the Appellate Court in W.A.No.2500/2018 applying the
principles of law enunciated in Indore Development
Authority case, supra, cannot be faulted with.
16. He further emphasised that in the case on hand, the
fact of non-payment of compensation alone would not be
sufficient enough to hold that the very acquisition has lapsed
inasmuch as entire layout is developed and a regular road is
also carved out in the acquired land, whereby land is now
divided into two portions. Land in which Ramaswamy Gowda
husband of Smt. Bhagyalakshmi (review petitioner in
R.P.No.72/2023) was running a temporary theatre has also
now practically come to an end.
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17. On the Southern portion of the land there exists an
illegal petrol bunk, which shows that the acquisition is
complete in all respects and it has been put to public use.
18. It is his further argument that Ramaswamy Gowda has
applied for benefit under Section 38-C(2) of the BDA Act.
Therefore, it should not lie in the mouth of review petitioners
that acquisition has lapsed. Suppressing said aspect of the
matter, an order is obtained by Narayana Prasad in
W.P.No.2262/2016 which has been rightly re-appreciated by
the Appellate Court in W.A.No.2500/2018. Thus, there is no
error apparent on the record either on facts or on law calling
for review of the order passed W.A.No.2500/2018 and sought
for dismissal of the review petitions.
19. Insofar as review request of Bhagyalakshmi is
concerned, Sri Murugesh Charati, contended that question of
a non-party seeking review of the order in
W.A.No.2500/2018 would not arise at all.
20. He further contended that, at any rate, there cannot be
any independent challenge by Smt. Bhagyalakshmi as it is
24
not Bhagyalakshmi who was the beneficiary under the order
of learned Single Judge in W.P.No.2262/2016. Therefore,
Bhagyalakshmi is not the aggrieved party by the order
passed in W.A.No.2500/2018. Further, inter se dispute
between Narayana Prasad and Bhagyalakshmi itself exposes
the hollowness in the claim of review petitioners in both the
cases and thus sought for dismissal of the review petitions.
21. Insofar as the authorities that has been relied upon by
the learned counsel for review petitioners filed by
Bhagyalakshmi and Narayan Prasad, are concerned, Sri
Charati contended that facts and circumstances of the case
on hand are altogether different from facts involved in those
cases; as such, those decisions are not of any avail in
advancing the case of review petitioners and thus sought for
dismissal of the review petitions.
22. In reply, Sri C.M.Nagabhushana, learned counsel for
the review petitioner in R.P.No.313/2022 contended that
since the possession is still retained by the review petitioner
-Bhagyalakshmi (wife of Ramaswamy Gowda), compensation
amount has not been withdrawn by Narayana Prasad, the
25
finding recorded by the learned single Judge that the 'claim
has lapsed', needs to be maintained as learned single Judge
has not resorted to Section 24 of the said Act, as could be
seen from the order of the learned single Judge.
23. Sri Udaya Holla, learned Senior Advocate for review
petitioner in R.P.No.72/2023, in his reply, contended that
acquisition of the land of the original owner is under the BDA
Act. Therefore, the provisions of the Right to Fair
Compensation & Transparency in land Acquisition,
Rehabilitation & Resettlement Act, 2013 would not apply to
the case on hand.
24. He also contended that when there is a specific
provision under the BDA Act for acquiring the land, importing
the provisions of Right to Fair Compensation & Transparency
in land Acquisition, Rehabilitation & Resettlement Act, 2013
would not get attracted as is held in the case of Bangalore
Development Authority vs. State of Karnataka in Misc.
Application No.(S)1614-1616/2019 in Civil Appeal
No.(s)7661-7663/2018 dated 20.01.2022.
26
25. As such, the Division Bench committed a grave error
which is apparent on the face of the record in not properly
resolving the issue involved, with the aid of BDA Act and thus
sought for allowing the review petitions.
26. In the light of rival contentions of the parties, we have
given our anxious consideration to the material on record,
meticulously.
27. On cumulative consideration of the material on record,
following admitted facts would emerge:
• Land in Sy.No.329/3 of Kempapura Agrahara village,
Bengaluru North Taluk, measuring 2 acres 2 guntas
('schedule property' for short) was notified for
acquisition and final notification came to be issued on
10.05.1978 and award came to be passed.
• On 23.06.1986, Narayana Prasad being the owner of
the schedule property, leased the same in favour of Sri
B.B.Ramaswamy Gowda (husband of review petitioner
- Bhagyalakshmi).
• Narayana Prasad entered into an agreement of sale on
14.11.1986 in favour of B.B.Ramaswamy Gowda and
27
executed general power of attorney and parted the
possession of the property and put Ramaswamy Gowda
in possession of the property.
• On 04.07.1986, Ramaswamy Gowda constructed a
touring cinema talkies on the northern side of the
acquired land and put up a petrol bunk on the southern
side, after obtaining approval from the District
Magistrate (photographs furnished by Bhagyalakshmi
depict the same).
• On 06.11.1986, Ramaswamy Gowda filed suit in
O.S.No.10891/1986 before City Civil Court praying to
restrain the BDA from interfering with the possession of
Ramaswamy Gowda and obtained an order of
temporary injunction.
• BDA demolished the building treating it as
unauthorized construction resulting in Ramaswamy
Gowda filing W.P.No.19885/1986.
• By virtue of the interim order passed therein,
Ramaswamy Gowda completed the construction of
touring cinema theatre in the name and style 'Maruthi
Chithramandira'.
28
• Ramaswamy Gowda was successful in getting khatha
transferred in his name in the revenue records of
BBMP.
• Writ Petition No.19885/1986 filed by Ramaswamy
Gowda got disposed of on 20.09.1994, relegating the
parties to the Civil Court to work out the appropriate
remedy.
• On 24.12.1988, Ramaswamy Gowda filed one more
writ petition in W.P.No.20892/1986 challenging the
refusal of the permission to convert touring cinema
theatre to semi-permanent touring cinema. Writ
Petition ended in his favour. Ramaswamy Gowda
converted Maruthi Chithramandira into semi-permanent
theatre.
• On 12.04.2001 Ramaswamy Gowda filed suit in O.S.
No.2519/2001 against BDA for the relief of declaration
and permanent and mandatory injunction restraining
the BDA from interfering with his possession.
• Said suit came to be decreed and BDA filed an appeal
in RFA No.646/2001 on 16.01.1994.
29
• Appeal came to be allowed in part by setting aside the
decree of declaration, but upholding the decree of
permanent injunction.
• On 30.04.2013 Ramaswamy Gowda settled the subject
property in favour of his wife Bhagyalakshmi and put
her in possession of the property.
• In the mean time, writ petition filed by Narayana
Prasad in W.P.No.2262/2016 came to be allowed on
05.07.2017.
• Bhagyalakshmi filed an application to implead herself in
the said writ petition, but the same was dismissed
reserving liberty for her to agitate the same in
appropriate proceedings.
• BDA filed W.A.No.2500/2018 challenging the Order
passed in W.P.No.2262/2016 filed by Narayana Prasad
and by Order dated 04.02.2021 writ appeal came to be
allowed and order of the learned single Judge was set-
aside.
28. Following facts are in dispute:
• Review Petitioners contend that acquisition has lapsed
for want of payment of compensation.
30
• Inter se dispute between Narayana Prasad,
Ramaswamy Gowda and his wife - Bhagyalakshmi.
• Possession of the property not being established as
now property is divided into two parts inasmuch as on
the northern part, as on today, only vacant land is
available (semi permanent theatre building not in
existence). On the Southern part, petrol bunk is in
existence. In between the two parts main road to
Chandra Layout is in existence connecting West of
Chord Road.
• Photographs filed by review petitioner Bhagyalakshmi
shows existence of petrol bunk only on Southern side.
29. With the above admitted and disputed facts, on
cumulative analysis of the material on record, it is crystal
clear that main ground on which Narayana Prasad has sought
for review of the impugned order W.A.No.2500/2018 is that
the review petitioner did not press into service Section 24(2)
of the Right to Fair Compensation & Transparency in land
Acquisition, Rehabilitation & Resettlement Act, 2013.
31
30. But, the Division Bench in the impugned order has
placed reliance on the principles of law enunciated in the
case of Indore Development Authority supra, resulting in
error apparent on record. It is also mentioned that BDA did
not bring to the notice of the Division Bench that there is an
order protecting the possession of the disputed property in
RFA No.646/2001 and therefore, even assuming that
principles of law enunciated in the case of Indore
Development Authority supra, is taken into consideration
the acquisition of the land belonging to the review petitioner
cannot held to be valid.
31. To ascertain the said aspect of the matter, this Court
has taken into consideration the grounds urged in the writ
petition No.2262/2016, filed by Narayana Prasad (Smt.
Bhagyalakshmi - petitioner in R.P.No.72/2023 had not filed
any writ petition nor was a party in W.A.No.2500/2018).
32. It is pertinent to note that in paragraphs 28 and 32 of
the writ petition No.2262/2016, the very same petitioner
namely Narayana Prasad has urged the ground of Section 24
32
(2) of the said Act. For ready reference, those two
paragraphs are culled out hereunder:
"28. The Judgment of this Hon'ble Court in RFA
No.646/2001 clearly establishes that, the possession of
the land as is not taken by the BDA and owners of the
land are in possession and enjoyment. As a consequent
the acquisition proceedings in so far as the petitioner's
land is concerned has been deemed to have lapsed and
Section 24(2) of the Right to Fair Compensation,
Transparency in the Land Acquisition and Rehabilitation
Resettlement Act 2013 becomes applicable rendering
the acquisition proceedings lapse.
32. Though the respondents have not issued
necessary notification as required under law to delete
the petitioner's land, the Acquisition in so far as the
petitioner's land is concerned has lapsed due to the
operation of law i.e., as per Sub-Section (2) of Section
24 of the Right To Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement
Act, 2013. In this Regard, the Hon'ble Apex Court in
the Case of Pune Municipal Corporation and Anr., -Vs-
Harakchand Misirimal Solanki & ors, in Civil Appeal
No.877/2014 dated 24-01-2014, has held that "Under
Section 24(2) land acquisition proceedings initiated
under the 1894 Act, by legal fiction, are deemed to
have lapsed where award has been made five years or
more prior to the commencement of 2013 Act and
possession of the land is not taken or compensation
33
has not been paid. The legal fiction under Section 24(2)
comes into operation as soon as conditions stated
therein are satisfied."
33. No doubt, the learned Single Judge in the final order
passed on W.P.No.2262/2016 has not specifically mentioned
in the order about Section 24(2) of the said Act. But, has
clearly held that if the award is not passed and compensation
is not paid in a reasonable period of time, acquisition
proceedings stand lapsed and shall be treated as having been
abandoned.
34. In this regard, it is relevant to extract Section 24(2) of
Right to Fair Compensation Transparency in land Acquisition,
Rehabilitation & Resettlement Act, 2013 which reads as
under:
"24. (2) Notwithstanding anything contained in
sub-section (1), in case of land acquisition
proceedings initiated under the Land Acquisition
Act, 1894, where an award under the said Section
11 has been made five years or more prior to the
commencement of this Act but the physical
possession of the land has not been taken or the
compensation has not been paid the said
proceedings shall be deemed to have lapsed and
34
the appropriate Government, if it so chooses, shall
initiate the proceedings of such land acquisition
afresh in accordance with the provisions of this Act:
Provided that where an award has been
made and compensation in respect of a majority of
land holdings has not been deposited in the
account of the beneficiaries, then, all beneficiaries
specified in the notification for acquisition under
section 4 of the said Land Acquisition Act, shall be
entitled to compensation in accordance with the
provisions of this Act."
35. The learned Single Judge also took into consideration
that Sections 30 and 31 of the BDA Act, wherein it would
envisage that any dispute arising between BDA and
Corporation shall be determined by Government and decision
of the Government would be final. In Section 31 authority is
not allowed to sell or otherwise dispose of any sites for the
purpose of construction until all improvements specified in
Section 30 has taken place.
36. For ready reference, Sections 30 and 31 of the
Bengaluru Development Authority Act, 1976 reads as under:
35
"30. Streets on completion to vest in and be
maintained by Corporation.- (1) The Government
after consulting the Corporation and on being satisfied
that any street formed by the Authority has been duly
levelled, paved, metalled, flagged, channelled, drained
and sewered in the manner provided for in the plans of
any scheme sanctioned by the Government and that
such lamps, lamp posts and other apparatus as are in its
opinion necessary for the lighting thereof and should be
provided by the Authority have been so provided, shall
declare such street to be a public street, and such street
shall thereupon vest or revest, as the case may be, in
the Corporation and the Corporation shall thereafter
maintain, keep in repair, light and cleanse such street.
(2) Any open space including such parks and play
grounds as may be notified by the Government reserved
for ventilation in any part of the area under the
jurisdiction of the Authority as part of any development
scheme sanctioned by the Government shall be
transferred on completion to the Corporation for
maintenance at the expense of the Corporation and shall
thereupon vest in the corporation.
(3) Any dispute which arises between the Authority and
the Corporation in respect of any of the provisions of this
section shall be determined by the Government, whose
decision shall be final.
31. Authority not to sell or otherwise dispose of
sites in certain cases.- The Authority shall not sell or
36
otherwise dispose of any sites for the purpose of
constructing buildings thereon for the accommodation of
persons until all the improvements specified in Section
30 have been substantially provided for in the
estimates."
37. While so applying the provisions of Sections 30 and 31
of BDA Act, the learned Single Judge failed to note about the
pending litigation among Narayana Prasad, Ramaswamy
Gowda, Bhagyalakshmi and the BDA. Further, learned single
Judge failed to note that Chandra Layout is fully formed
inasmuch as roads, gutters, underground drainage system,
water supply, electricity supply and parks etc., is completely
formed. Residential sites were also allotted and houses have
been built decades earlier. Moreover, entire lay out after
complete development is handed over to Bangalore City
Corporation, atleast three decades earlier.
38. Admittedly, the original suit as referred to supra is filed
by Ramaswamy Gowda, who is none other than the husband
of Smt. Bhagyalakshmi (review petitioner in R.P.No.72/2023
against BDA and another suit in O.S.No.10891/1986).
37
39. Trial Court decreed the suit of Ramaswamy Gowda
declaring that Ramaswamy Gowda had perfected title over
the suit property to the extent of 2 acres 2 guntas by
adverse possession and became absolute owner thereof and
BDA was restrained from dispossessing him. In other words,
the right and title of Narayana Prasad got extinguished by
such decree. It is pertinent to note that in the suit in
O.S.No.2519/2000 filed by Ramaswamy Gowda, Narayana
Prasad was not made as a party/defendant.
40. BDA preferred an appeal before this Court in RFA
No.646/2001. This Court by a considered judgment allowed
the appeal of BDA in part and held that declaration granted
by the Trial Judge that Ramaswamy Gowda perfected his title
by adverse possession is incorrect in view of acquisition of
land by issuing final notification and set aside the said
portion of the judgment and decree, but did not disturb the
possession of Ramaswamy Gowda over subject property.
41. Narayana Prasad being not a party to the said litigation
cannot take advantage of such a decree. At any rate, neither
Narayanswamy nor Ramaswamy Gowda cannot be treated as
38
owners of the property, in view of the fact that final
notification came to be issued and award came to be passed.
What remains for consideration is only the nonpayment of
the compensation.
42. Insofar as nonpayment of compensation is concerned,
the learned Single Judge in W.P.No.2262/2016, held that
despite lapse of nearly 40 years from the date of final
declaration acquiring the land, the BDA has not paid
compensation to the land loser who is an innocent citizen.
43. While so holding, the learned Single Judge has not
taken into consideration the developments that have taken
place with regard to the title and original owner having lost
his interest in view of the fact that the lease deed dated
23.06.1986 and agreement to sell dated 14.11.1986, coupled
with General Power of Attorney, (which is an agency coupled
with interest) executed by land owner in favour of
Ramaswamy Gowda and inter se dispute between
Ramaswamy Gowda and original land owner. Learned Single
Judge also failed to note the effect of judgment and decree in
O.S.No.10891/1986 and RFA No.646/2001. Moreover,
39
Ramaswamy Gowda had already filed an application under
Section 38-C of the BDA Act to avail the benefit thereof. In
fact, in suit O.S.No.2519/2000 filed by him against BDA
(Narayana Prasad is not a party) one of his prayers was to
consider his application filed under Section 38-C of the BDA
Act. Pertinently, he obtained such a decree in O.S.No.
2519/2000 in his favour which did not get altered in RFA
No.646/2001.
44. It is also pertinent to note that both Narayana prasad
and Ramaswamy Gowda and now Bhagyalakshmi are
agitating the matter by one or the other proceedings so as to
keep the lis alive even though the acquisition notification is
four decades old.
45. These aspects of the matter were highlighted by the
BDA in almost all proceedings including in the first appeal in
RFA No.646/2001.
46. Whenever a positive action is taken by the BDA, it is
Ramaswamy Gowda, who has approached the Court stating
that he has got an independent right over the property,
40
keeping Narayana Prasad away from such proceedings.
Same is evident from the pleadings in original suit and writ
proceedings before this Court as referred to supra insofar as
Touring Talkies to convert it into semi permanent structure,
licence thereof etc. When the acquisition proceeding is
complete and Narayana Prasad has lost all his interest, at the
most, successor in interest is entitled to compensation and
nothing else. Since successor in interest namely,
Ramaswamy Gowda, (now Bhagyalakshmi) had already
sought for benefit under Section 38-C of the BDA Act,
question of non payment of compensation and finding
recorded by the learned single Judge that acquisition has
lapsed on that ground of non payment of compensation
cannot be countenanced in law.
47. Therefore, the Division Bench in paragraph No.9 of its
order took into consideration the principles of law enunciated
in the case of Indore Development Authority supra and
has categorically held that all issues urged/involved in the
writ appeal stands concluded and question of reverting the
land back to Narayana Prasad would not arise. More so,
41
when Narayana Prasad has lost all right, title and interest in
view of transactions between Narayana Prasad and
Ramaswamy Gowda.
48. Division Bench also took into consideration the
principles of law enunciated in the case of Prahlad Singh
referred to supra and has specifically held that in view of the
findings in Indore Development Authority, which is a
constitutional Bench judgment, principles of law enunciated
in the case of Prahlad Singh, would not help the first
respondent to somehow cling on to the subject property.
More so, when interest of first respondent is now being
agitated by Ramaswamy Gowda or Bhagyalakshmi.
49. Division Bench also held that decree of injunction
passed by the Civil Court would not be of much help to
neither Narayana Prasad nor Ramaswamy Gowda to continue
in possession of the property in view of the acquisition of the
land under a statute.
50. Now adverting to the decisions relied on by the parties
are concerned, there cannot be much dispute as to the
42
principles of law enunciated in those judgments. But, facts
and circumstances of the present case are different than the
facts and circumstances involved in those cases.
51. In case of Mayuram Subramanian Srinivasan vs.
Central Bureau of Investigation reported in (2006) 5
Supreme Court Cases 752, the Hon'ble Apex Court ruled
that to perpetuate an error is not heroism and to rectify the
error is the compulsion of judicial conscience.
52. In the case on hand, in view of foregoing discussion
there is no error committed by the Division Bench much less
patent error in the considered opinion of this Court.
Therefore, perpetuating the error would not arise at all in not
reviewing the impugned order.
53. As regards the maintainability of the review petition is
concerned, the review petitioner placed reliance on BCCI v.
Netaji Cricket Club, reported in 2005 (4) SCC 741 as
referred to supra. In paragraphs 89 to 93, it has been held
as under:
"89. Order 47 Rule 1 of the Code provides for filing an
application for review. Such an application for review
43
would be maintainable not only upon discovery of a new
and important piece of evidence or when there exists an
error apparent on the face of the record but also if the
same is necessitated on account of some mistake or for
any other sufficient reason.
90. Thus, a mistake on the part of the court which
would include a mistake in the nature of the undertaking
may also call for a review of the order. An application for
review would also be maintainable if there exists
sufficient reason therefor. What would constitute
sufficient reason would depend on the facts and
circumstances of the case. The words "sufficient reason"
in Order 47 Rule 1 of the Code are wide enough to include
a misconception of fact or law by a court or even an
advocate. An application for review may be necessitated
by way of invoking the doctrine "actus curiae neminem
gravabit".
91. It is true that in Moran Mar Basselios
Catholicos v. Most Rev. Mar Poulose Athanasius [(1955) 1
SCR 520 : AIR 1954 SC 526] this Court made
observations as regards limitations in the application of
review of its order stating: (SCR p. 529)
"Before going into the merits of the case it is as well to
bear in mind the scope of the application for review which
has given rise to the present appeal. It is needless to
emphasise that the scope of an application for review is
much more restricted than that of an appeal. Under the
provisions in the Travancore Code of Civil Procedure
44
which is similar in terms to Order 47 Rule 1 of our Code
of Civil Procedure, 1908, the court of review has only a
limited jurisdiction circumscribed by the definitive limits
fixed by the language used therein. It may allow a review
on three specified grounds, namely (i) discovery of new
and important matter or evidence which, after the
exercise of due diligence, was not within the applicant's
knowledge or could not be produced by him at the time
when the decree was passed, (ii) mistake or error
apparent on the face of the record and (iii) for any other
sufficient reason. It has been held by the Judicial
Committee that the words 'any other sufficient reason'
must mean 'a reason sufficient on grounds, at least
analogous to those specified in the rule'."
but the said rule is not universal.
92. Yet again in Lily Thomas [(2000) 6 SCC 224 :
2000 SCC (Cri) 1056] this Court has laid down the law in
the following terms: (SCC pp. 247-48, para 52)
"52. The dictionary meaning of the word 'review' is
'the act of looking, offer something again with a view to
correction or improvement'. It cannot be denied that the
review is the creation of a statute. This Court in Patel
Narshi Thakershi v.Pradyumansinghji Arjunsinghji [(1971)
3 SCC 844 : AIR 1970 SC 1273] , held that the power of
review is not an inherent power. It must be conferred by
law either specifically or by necessary implication. The
review is also not an appeal in disguise. It cannot be
denied that justice is a virtue which transcends all
barriers and the rules or procedures or technicalities of
45
law cannot stand in the way of administration of
justice. Law has to bend before justice. If the Court finds
that the error pointed out in the review petition was
under a mistake and the earlier judgment would not have
been passed but for erroneous assumption which in fact
did not exist and its perpetration shall result in a
miscarriage of justice nothing would preclude the Court
from rectifying the error."
93. It is also not correct to contend that the Court
while exercising its review jurisdiction in any situation
whatsoever cannot take into consideration a subsequent
event. In a case of this nature when the Court accepts its
own mistake in understanding the nature and purport of
the undertaking given by the learned Senior Counsel
appearing on behalf of the Board and its correlation with
as to what transpired in the AGM of the Board held on 29-
9-2004, the subsequent event may be taken into
consideration by the Court for the purpose of rectifying its
own mistake."
54. On close reading of above paragraphs, it is crystal clear
that the Hon'ble Apex Court has held that mistake on the
part of the Court would entitle a party to seek for review by
applying the doctrine 'actus curiae neminem gravabit'. Their
Lordships also referred to two more earlier judgments on the
46
same point and has held that subsequent event cannot be
lost sight of while considering the review of the order.
55. In the case on hand, no subsequent event has taken
place after passing of the impugned order so as to enable the
review petitioner to seek for review of the impugned order.
Nor there is any factual or legal mistake committed by the
Division Bench so as to apply the doctrine referred in the said
decision in advancing the case of Review Petitioners.
56. To substantiate that a third party can also seek a
review, Smt. Bhagyalakshmi placed reliance on the judgment
of the Hon'ble Apex Court in the case of Union of India v.
Nareshkumar Badrikumar Jagad and others, reported in
2019 (18) SCC 586.
57. This Court having entertained the review petition filed
by Smt.Bhagylakshmi, even though counsel for BDA has
opposed it, we are of the opinion that further discussion on
the said decision is not necessary.
58. The long possession of the acquired land, situation may
become irredeemable and irretrievable and acquisition needs
47
to be quashed is what has been held by the learned Single
Judge of this Court in the case of M/s. Poornima Girish vs.
Revenue Department, Government of Karnataka,
reported in ILR 2011 KAR 574, which was confirmed in
W.A.No.4824/2010.
59. Those decisions are of no avail in the case on hand, as
the prayer is not to quash the acquisition, but to hold that
the acquisition has lapsed on account of nonpayment of
compensation and not taking possession of land.
60. To establish the contention of lapse of acquisition for
want of payment of compensation, review petitioner placed
reliance on the principles of law enunciated in the cases of
Munibyrappa vs. State of Karnataka and BDA vs. State
of Karnataka as referred to supra.
61. In the case on hand, the award has been passed by
BDA. Insofar as payment of compensation is concerned,
there is a long standing dispute between Narayana Prasad
and Ramaswamy Gowda in view of the litigation filed by
Ramaswamy Gowda and his application filed under Section
48
38-C of BDA Act which ordered to be considered by BDA in
view of the decree of the Civil Court in O.S.No.2519/2000.
Therefore, even though the principles of law enunciated in
those decisions cannot be disputed, are distinguishable in the
facts and circumstances of the case on hand. As such, they
are not of much avail in advancing the case of the review
petitioners.
62. The possession of the acquired land by Ramaswamy
Gowda and Bhagyalakshmi for a sufficiently longer period is
sought to be protected by taking recourse to the judgment of
learned Single Judge of this Court in W.P.No.8873/2011 in
the case of B.A. Srinivasa Gupta vs. State of Karnataka
and others. We are of the considered opinion that those
principles of law are also of not much avail to the review
petitioners in advancing their case inasmuch as possession of
land has been taken by the BDA and a road has been formed
as is found from the photographs produced by the review
petitioner in page Nos.321 to 324. Further, it is found in
those photographs that petrol bunk is being run on Southern
side of land. Said possession of the review petitioner
49
(Bhagyalakshmi) is protected by an order of the Division
Bench in RFA No.646/2001, wherein Narayana Prasad is not a
party. Insofar as the northern portion is concerned, no semi
permanent theatre is existing as on today as is contended by
the counsel for BDA which is not denied by the review
petitioners. Therefore, the judgment in Srinivasa Gupta's
case will not improve the case of the review petitioners.
63. Insofar as the principles of law enunciated in ILR 2017
KAR 1470, in the case of Somashekar and others vs.
State of Karnataka is concerned, possession has been
taken by BDA, but compensation was not paid by BDA in
view of the aforesaid proceedings. Therefore, there is no
violation of Article 300-A of the Constitution of India,
resulting in holding that the acquisition has lapsed cannot be
countenanced, in view of the authoritative pronouncement of
the Constitution Bench in the case of Indore Development
Authority Supra.
64. Accordingly, none of the decisions relied on by the
counsel for review petitioners would be of any assistance to
50
accept the contentions of review petitioners that review
petitions needs to be allowed.
65. Having said thus, how a review petition has to be dealt
with in a given case and scope of review jurisdiction is no
longer res integra.
66. Recently, Hon'ble Apex Court in the case of S. Murali
Sundararm vs. Jyothibai Kannan and others reported in
2023 SCC OnLine SC 185, in paragraphs 14, 16 and 17,
has ruled as under:
"14. At the outset, it is required to be noted that by
the impugned judgment and order the High Court has
allowed the review application filed under Order 47
Rule 1 CPC and has set aside the judgment and order
dated 03.03.2017 passed in Writ Petition No. 8606 of
2010. While allowing the review application the High
Court has observed and held that the earlier judgment
and order dated 03.03.2017 in Writ Petition No. 8606
of 2010 was erroneous. Therefore, question which is
posed before this Court for consideration is whether in
the facts and circumstances of the case the High Court
is justified in allowing the review application filed under
Order 47 Rule 1 CPC and setting aside the reasoned
judgment and order passed in main writ petition?
51
16. It is further observed in the said decision that an
error which is required to be detected by a process of
reasoning can hardly be said to be an error on the face
of the record.
17. In the case of Shanti Conductors (P) Ltd. (supra),
it is observed and held that scope of review under
Order 47 Rule 1 CPC read with Section 114 CPC is
limited and under the guise of review, the petitioner
cannot be permitted to reagitate and reargue questions
which have already been addressed and decided. It is
further observed that an error which is not self-evident
and has to be detected by a process of reasoning, can
hardly be said to be an error apparent on the face of
record justifying the court to exercise its power of
review under Order 47 Rule 1 CPC."
67. Applying the aforesaid principles of law to the case on
hand, it is crystal clear that the disputed facts cannot form a
ground of review nor it could be considered as error apparent
on record.
68. As referred to supra, the main thrust of the review
petitioner seeking review of the order of the Division Bench is
based on the fact that the principles of law enunciated in the
52
case of Indore Development Authority is not applicable to
the case of review petitioners as the review petitioners did
not take recourse under Section 24(2) of the said Act. The
same is incorrect in view of the averments made in
paragraphs 28 and 32 referred to supra of the writ petition of
Narayana Prasad in W.P.No.2262/2016.
69. Merely, non mentioning of Section 24(2) of the said Act
and still holding that the acquisition has lapsed in view of the
fact that the compensation is not paid by the learned Single
Judge has been set right by the Division Bench by following
the principles of law enunciated in the case of Indore
Development Authority.
70. Therefore, viewed from any angle, this Court is of the
considered opinion that the grounds urged in the review
petitions are hardly sufficient to review the well reasoned
order of the Division Bench.
71. Accordingly, following:
53
ORDER
Review petitions are meritless and hereby dismissed.
No order as to costs.
Sd/-
(R.DEVDAS) JUDGE Sd/-
(V. SRISHANANDA) JUDGE kcm/MR