Karnataka High Court
Chairman, Bda vs Shivanna on 30 March, 1992
Equivalent citations: ILR1992KAR1504, 1992(3)KARLJ96
ORDER Rama Jois, J.
1. The facts of this Review Petition show how inadvertance, negligence and dereliction of duty on the part of the Advocate appearing for a public authority and the officers of the Authority could create enormous problems for it and complicate an otherwise simple matter, causing considerable amount of inconvenience and hardship to large number of people.
2. Brief facts of the case giving rise to the presentation of the Review Petition and which are necessary for the disposal of the Review Petitions are as follows:-
(i) By Notification dated 3rd January, 1977, the Bangalore Development Authority ('B.D.A.' for short) published a Scheme under Section 17 of the Bangalore Development Authority Act, 1976 (herein- after referred to as 'the Act') for formation of Gokul II Stage Rajamahal Vilas II Stage Lay Out. The development scheme covered an area of 1,334 acres 12 guntas of land situate in 8 villages including Mathikere, Chikkamarenahalli and Dyavasandra villages in Bangalore North Taluk, The Notification was published in the official gazette on 24-2-1977. The Final Notification under Section 19 of the Act dated 2-8-1978 acquiring the land for the purposes of the scheme was published in the official gazette on 31st August 1978, Awards were passed on various dates. Thereafter, according to the BDA possession of the lands were also taken over and handed over to it for the formation of the lay out, in particular.
(a) Possession of 9 acres 4 guntas of land in Sy. No. 1/1 of Chikkamaranahalli village was taken on 30th July 1981 and a notification to that effect in terms of Section 16(2) of the Land Acquisition Act was published on 4-2-1982 and was published in the gazette;
(b) Possession in respect of 7 acres 32 guntas in Sy. No,44 of Chikkamaranahalli village was taken on 6-5-1982 and a notification under Section 16(2) of the Land Acquisition Act was issued on 2-9-1983;
(c) Possession of the lands in Sy. Nos. 28 and 34/1 of Dyavasandra village measuring 4 acres 35 guntas and possession of 14 guntas of land in Sy. No. 125/1 of Mathikere village was also taken in or about the same time in accordance with law.
(ii) After the possession was taken W.P.No. 29276/1981 was presented by the Writ Petitioner Shivanna challenging the legality of the acquisition of the following items of lands:-
Village Sy.No. Extent A-G
1) Mathikere 48/1 1 - 18 48/8
-- 1 48/9
- 2 125/1
- 14 Total 1-35
2) Chikkamarenahalli 1/1 9-4 44 7-32 Total 16-36 The total extent of land, acquisition of which was challenged in the Writ Petition was 18 acres 31 guntas. The relevant portion of the prayer made in the Writ Petition reads:-
"a) Issue a Writ of Certiorari quashing the impugned preliminary notice vide bearing No. A-3/PR.511/SLAO/76-77 dated 3-1-1977 and also the final notification bearing No. HUD 39 MNJ 78 dated 2-8-1978 issued at the instance of Respondents 1 and 2 and published by the III respondent in Karnataka Gazette dated 31st August 1978 which is produced at Annexure-A, as null and void as it relates to the lands of the petitioner."
(iii) W.P.No. 29355/1981 was presented by Smt. Sunandamma. In the said Writ Petition, she challenged the legality of the acquisition of 4 acres of land in Sy. No. 28 and 35 guntas of land in Sy. No. 34/1 of Dyavasandra village. The total extent of the lands in respect of which the acquisition was challenged in this Writ Petition was 4 acres 35 guntas.
(iv) The two Writ Petitions were disposed of by Bopanna, J., by a common order dated 27th July, 1984. The main ground of challenge to the acquisition in the Writ Petitions was that after the publication of the Scheme as required under Section 17 of the Act, no individual notice as required under Sub-section (5) of Section 17 of the Act was issued to the petitioner and therefore the acquisition was illegal. No statement of objection was filed on behalf of the Bangalore Development Authority controverting the submission made in the Writ Petition to the effect that no individual notice in terms of Sub-section (5) of Section 17 of the Act was issued. In the circumstances, the Court proceeded on the basis that no individual notice was issued and therefore there was contravention of Section 17(5) of the Act. In the result, the learned Judge proceeded to allow the Writ Petitions and quash the impugned notifications. The relevant portion of the Judgment reads:-
"2. These Writ Petitions are disposed of by a common order since a common point arises for consideration in these petitions.
3. The grievance of the petitioners in these Writ Petitions is that the impugned notifications are violative of the mandatory requirement of Section 17(5) of the Bangalore Development Authority Act, 1976 (in short the Act) read with the provisions of Sections 4 and 6 of the Land Acquisition Act.
4. The petitioners had purchased the lands in question some time in the year 1961 and they had applied for conversion of these lands some time in the year 1962. Their applications before the Deputy Commissioners were pending consideration at the relevant time. However, it transpires that the 1st respondent-Authority in pursuance of the scheme prepared under Section 17 of the Act had sought the acquisition of these lands by the impugned notifications. The grievance of the petitioners is that they were not aware of the scheme nor were they called upon to file their objections against the proposed acquisition and that apart, to the best of their knowledge, their lands had been excluded from the scheme for development of 'RAJAMAHAL VILAS SECOND STAGE LAY OUT' Bangalore. In support of this assertion they have also filed the sketch of the said layout as Annexure-L in W.P.29365/81. Section 17(5) of the BDA Act reads as under:-
"During the thirty days next following the day on which such notification is published" in the official Gazette the Authority shall serve a notice on every person whose name appears in the assessment list of the local authority or in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on any building or land which is proposed to be acquired in executing the scheme or in regard to which the authority proposes to recover betterment tax requiring such person to show cause within thirty days from the date of the receipt of the notice why such acquisition of the building or land and the recovery of betterment tax should not be made."
The preliminary notification issued by the BDA, which is produced as Annexure-H in W.P. 29335/1981 only says "that all persons interested in the said lands are hereby warned not to obstruct or interfere with any Surveyors or other persons employed upon the said land for the purpose of the said acquisition. Any contracts for the disposal of the said lands by sale, lease, mortgage, assignment, exchange or otherwise or any outlay or improvements made therein without the sanction of the Deputy Commissioner Bangalore District, Bangalore after the date of publication of the notification shall be disregarded by the Officer Assessing compensation for such parts of the said lands as may be finally acquired." The said notification does not provide for filing the objections by the petitioners against the proposed acquisition. Therefore, the said notification, on the face of it, is bad in law. Though these Writ Petitions were filed in the year 1981, the BDA has not chosen to file any return controverting the averments made by the petitioners in these Writ Petitions. In the circumstances, I will have to proceed on the basis of the averments made by the petitioners that they were not served with the notice as required under Section 17(5) of the B.D.A. Act. Further, their assertion that the lands had been excluded from the scheme of the 'RAJAMAHAL VILAS SECOND STAGE LAY OUT', Bangalore is also well founded in the absence of any return by the B.D.A, However, the High Court Government Pleader for the State Government submitted that the petitioners have not satisfactorily explained the delay in filing these Writ Petitions, The petitioner in paragraph-II of Writ Petition No. 29335/1981 has explained the delay in approaching this Court and that apart in view of the fact that the entire acquisition proceedings were wholly without jurisdiction since the BDA had not complied with the mandatory requirements of Section 17(5) of the 8DA Act read with Sections 5 and 6 of the Land Acquisition Act, the impugned proceedings are liable to be quashed.
5. Accordingly, these Writ Petitions are allowed, the impugned notifications are quashed reserving liberty for the authorities to initiate fresh proceedings, if so advised, in accordance with law."
(Underlined by me)
(v) As stated earlier in the Writ Petitions, the Writ petitioners, had challenged the legality of the acquisition of the lands belonging to them on the ground personal to them i.e. that they were not served with the notice as required under Section 17(5) of the Act, But while allowing the writ petitions, the Court quashed the entire final notification and the preliminary notification regarding acquisition which covered 1,334 acres 12 guntas of land without restricting the quashing only to the petitioners' lands.
(vi) Within about a month after the disposal of the Writ Petitions, an application was filed on 20-8-1984 praying for recalling the order. In the affidavit filed in support of the application, it was stated that the learned Counsel, who was appearing for the B.D.A. had moved for an adjournment before the learned Judge and the same had been granted orally, but by oversight the matter was subsequently taken up when the learned Counsel for the B.D.A. was not present and was disposed of without hearing the learned Counsel for B.D.A. That application came to be posted before the Court after about one year on 5-8-1985. Strangely, the Counsel who was appearing for the B.D.A. even after the final order in the Writ Petitions was made, quashing the entire acquisition failed to act in a diligent manner and remained absent when the application came up for orders on 5-8-1985. The application was dismissed for default on that date. Thereafter, another application was filed on 2-9-1985 praying for restoring the application dated 20-8-1984, in which there was a prayer for recalling the order made in the Writ Petition. There appeared to be no limit for the negligence and dereliction of duty on the part of the Counsel for the B.D.A. The application was dismissed on 16-9-1985 on the ground that the Advocate was absent.
(vii) Thereafter the Counsel for the B.D.A, did nothing to repair the damage caused, for nearly three years. It was only on 1 -8-1988 C.P. No. 144/1989 was filed by the BDA under Order 47 Rule 1 of the C.P.C. praying for review of the order made in W.P. No. 29726/1981, entrusting the matter to another Counsel. In the affidavit filed in support of the application for condonation of delay in filing the Review Petition, the lapses on the part of the Counsel who appeared for the B.D.A. earlier were set out and it was further stated that all the papers relating to the case were sent to the B.D.A. some time in 1988 without appraising the B.D.A. of all the facts and circumstances of the case. The Review Petition was posted before Bopanna, J., and he admitted the Review Petition on 13-4-1989 on which date he made the following order:-
"Learned Counsel for the respondents is absent though he was personally served with the notice of I.A. No. 1 on 21-2-1989. The order in W.P. was made without hearing the learned Standing Counsel for the B.D.A. Since the then Standing Counsel for the B.D.A. Mr. S. Shivaswamy is no more in the panel of Counsel, when the Writ Petition was posted for hearing, I did not have the benefit of the arguments for the B.D.A. In the circumstances, delay in filing the C.P. is condoned, I.A. No. I is allowed.
Post the C.P. for admission in the usual course.
In the meanwhile, respondent-1 shall not alter the nature of the land so as to prejudice the rights of the B.D.A"
The Review Petition was not disposed of till the date on which Justice Bopanna retired. Thereafter, by the order of Hon'ble the Chief Justice, the Review Petition came to be posted before me, and I admitted the petition on 19-6-1989. However, it was posted for hearing only on 18-1-1991. Then I noticed another serious procedural lapse on the part of the present Counsel for the B.D.A., in that though the order quashing the entire acquisition was passed on two Writ Petitions, viz., W.P. No. 29726/81 and W.P. No. 29355/81, only one review petition was filed, in the circumstances, f made the following order: -
"This Review Petition is filed praying for reviewing the order made in Writ Petition 29728/1981 by which the Notification issued by the Bangalore Development Authority under Section 17 of the B.D.A. Act acquiring large extent of lands for the purpose of Development Scheme was quashed.
The ground urged in the Writ Petition is that in the Writ Petition the B.D.A. could not file statement of objection and place the records and to demonstrate that there was no merit in the Writ Petition and therefore, the order should be set aside as it causes serious prejudice to public interest and the Writ Petition be disposed of after giving an opportunity to the B.D.A. to file statement of objection and to place all relevant records.
As can be seen from the order of the learned Judge allowing the Writ Petition, there were serious laches on the part of the B.D.A in not filing the statement of objection and contesting the case.
Even after having suffered such an order, there is no abatement in the laches on the part of the B.DA What is surprising is even though the order dated 27th July 1989 was passed in two Writ Petitions viz. 29726/81 and 29355/81 only one review petition is filed and there is a prayer for reviewing the order passed by this Court on 27-7-1984 in W.P. 29726/81.
Even if this Review Petition were to be allowed, it would be of absolutely no use for the B.D.A for the reason the order passed by this Court in W.P. 39355/81 on 27-7-1984 (common order passed in the two Writ Petitions) remains and as result the order of this Court quashing the entire acquisition notification would still stand.
Apart from the laches in filing only one Review Petition, it should also be pointed out that the petitioner in Writ Petition 29355/81 was one Sunandamma and she is not even made a party to this Review Petition.
When this infirmity was pointed by the Court, the learned Counsel for the petitioner requested for time to do the needful.
Matter is adjourned by four weeks."
(Underlined by me)
3. Thereafter, I.A. 4 was filed praying for impleading Smt Sunandamma, petitioner in W.P. No. 29355/1981 as a respondent to the Review Petition, I.A. 5 praying for amendment of the Review Petition by adding an additional prayer to review the order made in W.P. No. 29355/1981 also and I.A. 3 for condonation of delay in presenting I.As. 4 and 5 were made. On 29-5-1991 notice was ordered on the applications and after service of notice on Sunandamma and after hearing the parties the applications were allowed on 25-11-1991 and the C.P. was directed to be posted for final hearing.
4. The learned Counsel for the Writ petitioners submitted that though Sunandamma is made a party to the Review Petition, the B.D.A. should have filed two separate Review Petitions. Sri H.B. Datar, learned Senior Counsel appearing for the B.D.A submitted that as a common order had been passed on the Writ Petitions, one Review Petition was filed. He, however, stated that this may be treated as two Review Petitions in the two Writ Petitions and the Review petitioner would pay the deficit court fee. In the circumstances, in the interest of justice, the Petition is treated as two Review Petitions (C.P. 144 of 1989 and C.P. 144-A of 1989) and the petitioners are directed to pay the deficit court fee within two weeks.
5. Now I shall refer to number of I.As. filed for impleading. After the disposal of the Writ Petitions and the delay in filing as well as disposal of the Review Petition, taking advantage of the quashing of the acquisition, number of transactions of sale of lands, which are the subject matter of acquisition under the impugned notification have taken place and those who have acquired such interest have filed the applications. The particulars of the persons who have filed the application are as below:-
(a) I.A. 7 is filed by M/s. Nikhil Construction Company on 7-12-1991 claiming to have purchased 2 acres of land in Sy. No. 1/1 and 35 guntas in Sy. No. 44 on 17-6-1991 from one Smt. Sonnamma, who is stated to be the Sister-in-law of Shivanna, the Writ petitioner in W.P. No. 29726/1981, who had already filed a suit in O.S. No. 3356/1984 before the City Civil Court seeking injunction against the B.D.A. not to interfere with her possession of the said piece of land.
(b) I.A. 8 is filed by the aforesaid Sonnamma claiming to be the owner of land measuring 3 acres 9 guntas and stating that she had sold the lands to M/s. Nikhil Construction Co. on 7-12-1991.
(c) I.A. 9 is filed by Smt. Aswathamma and Y.N. Srinivas on 25-2-1992 claiming to be the owners of Sy. Nos. 26/3 26/5 of Chikkamarenahalli village measuring 4 acres 8 guntas, though they had not challenged the legality of the acquisition at any time earlier.
(d) I. As. 10 and 11 are filed by Dr. K. Savithri on 3-3-1992 praying for impleading herself and one Rupa Shenoy as parties to the Review Petition. They claimed to have purchased a site formed in Sy. No. 1/1 of Chikkamarenahalli measuring 49' x 30'.
(e) I.A. 12 is filed by one B.C. Chandrappa claiming to have purchased a site from Smt. Sunandamma, petitioner in W.P. No. 29355/ 1981 formed out of Sy. No. 34/1 measuring 60' x 70' on 25- 6-1990.
(f) I.A. 13 is filed by Smt. Rafique Begum on 3-3-1992 claiming to have purchased site Nos. 18 and 21 formed out of Sy. No. 1/1 of Chikkamarenahalli village under a sale deed dated 13-10-1980 i.e. subsequent to 6-9-1980 on which date the possession of the lands have already been taken by the B.D.A.
(g) I.A. 14 is filed by one M.N. Keshavaraju claiming to have purchased site No. 19 formed out of Sy. No. 34/1 of Dyavasandra village from Smt. Sunandamma on 1-10-1980, which was also subsequent to the issue of final notification by the B.D.A. and the taking of possession by the B.D.A. of the lands on 6-9-1980.
6. Sri Lakshmi Tathachar has got himself impleaded as respondent stating that site bearing No. 540 in R.M. Vilas Extension II Stage was allotted to him by the B.D.A on 12-6-1988 which lay in Sy. No. 1/1 of Chikkamarenahalli village, the acquisition of which by the B.D.A. has been quashed by the order made in the Writ Petitions.
7. Sri H.B. Datar, learned Senior Counsel for the petitioner-B.D.A., submitted that the order of this Court passed on the two Writ Petitions should be reviewed as it suffers from patent errors of law, namely, (1) Actually the notice under Sub-section (5) of Section 17 of the Act had been issued but the Court had proceeded on the basis that there was no compliance with the provisions of Sub-section (5) of Section 17 of the Act and therefore the acquisition was illegal.
(2) Even assuming that there was non-compliance with Sub-section (5) of Section 17 of the Act, this Court could have quashed the acquisition notification only in so far it related to the lands belonging to the two Writ petitioners, and that the entire notification acquiring 1,334 acres 12 guntas of land could not have been quashed.
(3) Even if there was non-compliance with Sub-section (5) of Section 17 of the Act, the only final notification should have been quashed, that too only in so far it related to the lands belonging to the Writ petitioners and the B.D.A. should have been directed to proceed to issue individual notice as required under Section 17(5) of the Act to the petitioners and to proceed in accordance with law, from the stage at which the illegality was found to have been committed.
8. Sri Karisidda Devaru, learned Counsel for the Writ petitioner Shivanna raised a preliminary objection to the effect that as the order on the Writ Petitions was passed by Bopanna, J., and he has since retired from service, Review Petitions cannot be heard and decided by another Judge in view of the ratio of the Decision of the Supreme Court in DEVARAJU PILLAI v. SELLAYYA PILLAI, . The Judgment on which the learned Counsel relies reads:-
"We are afraid that the order of the High Court which is under appeal cannot stand a moment's scrutiny. The question in this case was whether a certain document of title was a deed of settlement or a will. The learned single Judge of the High Court sitting in Second Appeal considered the document and held that it was a deed of settlement. He noticed that, apart from the deed being styled as a deed of settlement and registered as such, one of the recitals in the document was that the disposition was irrevocable. On an application being filed for review of the judgment of the learned single Judge, another learned single Judge of the High Court the Judge who heard the Second Appeal not being available - virtually sitting in Judgment over the Decision of the learned Judge who decided the Second Appeal construed the document differently and held that it was a will and not a deed of settlement. This the learned single Judge was not entitled to do. If the party was aggrieved by the judgment of the learned single Judge sitting in Second Appeal the appropriate remedy for the party was to file an appeal against the judgment of the learned single Judge. A remedy by way of an application for review was entirely misconceived and we are sorry to say that the learned single Judge who entertained the application totally exceeded his jurisdiction in allowing the review and upsetting the judgment of the learned single Judge, merely because he took a different view on a construction of the document. These appeals are, therefore, allowed with costs. The Judgment of the learned single Judge in Second Appeal No. 1048 of 1966 is restored. Appeals allowed."
The learned Counsel submitted that in view of the above Decision, no other Judge other than the Judge, who decided the Writ Petition can hear and decide the Review Petition.
8. The contention urged by the learned Counsel and his submission that in the above Decision the Supreme Court has laid down that no Judge other than the Judge who made an order can review it is totally misconceived. What the Supreme Court has held in the above Decision is, when the question decided by the Judge who decided the second appeal was as to whether a document was a will or a deed of settlement and on consideration of the recitals in the document, the Judge had come to the conclusion that it was a deed of settlement, the only course open to the party aggrieved by such a finding was, to prefer an Appeal and not a Review Petition. In that case what had happened was another Judge before whom the Review Petition was posted consequent on the retirement of the Judge, who decided the matter originally, proceeded to hear the Review Petition as if he was hearing the original matter and decided the very question in a different manner and held that the document was a will. The Supreme Court held, the Judge who heard the Review Petition exceeded his jurisdiction. There can be no doubt that even if the same Judge who had decided the matter originally had heard the Review Petition and did so, it would also be a clear case of exceeding the jurisdiction and power conferred on the Court under Order 47 Rule 1. The said Judgment is no authority for the proposition that only the Judge who decided the matter, in the first instance, alone can hear a Review Petition presented under Order 47 Rule 1 of the C.P.C. and if for any reason he is unavailable, no Review Petition lies, as sought to be made out by the learned Counsel.
9. I am really amazed by the assertion of the learned Counsel to the effect that the Supreme Court has laid down such a law in the said Decision, though the Judgment is clear and no such view is expressed therein. Order 47 Rule 1 of the C.P.C. which provides for review of a Judgment reads:-
"1. APPLICATION FOR REVIEW OF JUDGMENT:- (1) Any person considering himself agrrived -
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.
Explanation:- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment."
(Underlined by me) As can be seen from the above provision Review Petition lies on the grounds mentioned therein to the Court which passed the decree or made the order and not to the Judge who passed it. If a matter was decided by the High Court, the High Court can entertain a Review Petition and if the Judge who decided the original matter is available, it has to be posted before him, if for any reason he is not available Hon'ble The Chief Justice has the power to post the case before any other Judge. Similarly, if a Division Bench has decided the matter and both the Judges are not available for any reason, a Review Petition filed for reviewing the Judgment can be posted before any other Division Bench as ordered by the Chief Justice. This is what is provided for in Rule 5 of Chapter 3 of the Karnataka High Court Rules.
It reads:-
" 5. Every petition or application for review, reconsideration or correction of a judgment, decree, order or sentence shall be posted before the original Bench which pronounced, made or passed such judgment, decree, order or sentence or if the Judge or any of the Judges who constituted the said Bench is not available by reason of death, retirement or absence, before any other Bench constituted in the same mariner as the original Bench."
Whether in view of the above Rule, the same Judge, who decided a matter originally hears the Review Petition or the Review Petition is posted before another Judge on account of the circumstances the Judge who decided the matter originally is not available, the ground on which the Review Petition can be entertained and allowed are those set out in Order 47 Rule 1 of the Code of Civil Procedure. The provisions of the Code of Civil Procedure as also the aforesaid Rule are made applicable to Writ Petitions by Rule 39 of the Writ Proceedings Rules, 1977 framed by this Court. Therefore, I hold the preliminary objection raised by Sri Karisidda Devaru is totally devoid of any merit.
10. Coming to the merits of the case, the only question for my consideration in this Review Petition is, whether, as contended by the learned Counsel for the petitioner - B.D.A., there is any patent error of law in the order of this Court which calls for its review. Therefore, I proceed to consider the three grounds urged by Sri H.B. Datar, the learned Counsel appearing for the B.D.A. - the Review petitioner.
11. As stated earlier, the first ground urged by the learned Counsel was that actually individual notice in terms of Sub-section (5) of Section 17 of the Act had been issued to the two Writ petitioners, namely Shivanna and Sunandamma and therefore the acquisition was not liable to be set aside on the ground of contravention of Section 17(5) of the Act. The relevant part of Section 17 of the Act reads:
"17. Procedure on completion of scheme:
(1) When a development scheme has been 'prepared, the authority shall draw up a notification stating the fact of a scheme having been made and the limits of the area comprised therein and naming a place where particulars of the scheme, a map of the area comprised therein, a statement specifying the land which is proposed to be acquired and of the land in regard to which a betterment tax may be levied may be seen at all reasonable hours.
xxx xxx xxx (3) The Authority shall also cause a copy of the said notification to be published in three consecutive issues of the official gazette and affixed in some conspicuous part of its own office, the Deputy Commissioner's office, the Office of the Corporation and in such other places as the Authority may consider necessary.
xxx xxx xxx (5) During the thirty days next following the day on which such notification is published in the official gazette the Authority shall serve a notice on every person whose name appears in the assessment list of the local authority or in the land revenue register as being primarily liable to pay the property tax or land revenue assessment on any building or land which is proposed to be acquired in executing the scheme or in regard to which the Authority proposes to recover betterment tax requiring such person to show cause within thirty days from the date of the receipt of the notice why such acquisition of the building or land and the recovery of betterment tax should not be made."
xxx xxx xxx Sub-section (1) of Section 17 provides for publication of a development Scheme. Sub-section (5) requires service of individual notice and calling upon the person concerned to show cause against the acquisition. The learned Counsel fairly conceded, if there was any non-compliance with the provisions of Section 17(5) of the Act, in that, individual notice was not served on the person whose name appeared in the land revenue records as primarily responsible for paying the land revenue, there would be contravention of the mandatory requirement of Sub-section (5) of Section 17 of the Act, which results in the denial of valuable right of filing objections to the acquisition and therefore the acquisition would be liable to be set aside. But he contended that in this case there was compliance of Section 17(5) of the Act. But the question as to whether the provisions of Section 17(5) of the Act was complied with or not, is a question of fact. Unless the BDA had filed statement of objections and made specific averment to the effect that the notice had been served on the petitioners as required under Section 17(5) of the Act, and particulars of the same were furnished and in proof of the same original records were also produced and the factum of service of notice on the petitioners was established, there was no alternative for the Court than to accept the averment made by the petitioner on oath that no individual notice as required under Section 17(5) of the Act was served and to hold that there was non-compliance with Section 17(5) of the Act. Therefore, I am of the view that there is no patent error of law in the Judgment of Bopanna, J, in holding that there was non-compliance of the provisions of Section 17(5) of the Act. Even assuming that actually notice had been served on the petitioner and the B.D.A. is now in a position to prove by producing the relevant records that the notice had been served, that cannot constitute a ground for reviewing the order passed by this Court within the scope of the power conferred on the Court under Order 47, Rule 1 of the C.P.C., for these records were available with them when the case was heard, but the B.D.A, failed to produce it, whomsoever was responsible for such a lapse.
12. As far as the second contention is concerned, in my opinion, the patent error of law is writ large. As can be seen from the Writ Petitions, the petitioners had challenged the legality of the acquisition only in so far as it related to their lands. Therefore, even on the ground that the mandatory requirement of service of individual notice prescribed under Sub-section (5) of Section 17 was not complied with, this Court could have quashed the notification only insofar they related to the lands belonging to the petitioners and the entire acquisition notification could not have been quashed. The Writ Petitioners cannot also oppose the allowing of the Review Petitions and restricting the quashing of acquisition only in so far it related their lands. Therefore, there is no other alternative than to hold that the order passed in the Writ Petitions suffers from patent error of law by way of quashing the acquisition in respect of 1334 acres 12 guntas of land, though in the Writ Petitions the petitioner had given the description and extent of the lands, the legality of the acquisition of which by the impugned notification was challenged. Therefore, the Review Petition has to be allowed and the order quashing the acquisition made in the Writ Petition should be confined to the lands of the two Writ Petitioners.
13. The next question for consideration is, even on the ground that Sub-section (5) of Section 17 of the Act was not complied with, whether it could constitute a ground for quashing the preliminary notification issued under Section 17 of the Act. As far as this question is concerned, the learned Counsel for the BDA relied on the Division Bench Decision of this Court in JAFFER SHERIFF v. C.I.T.B., . In the said case the challenge was to the acquisition made under the City of Mysore Improvement Act. The provision of Section 16 of the said Act are similar to Section 17 of the Act. The precise question considered by the Division Bench in that case was, whether on account of the non-compliance of the mandatory requirement of the provisions similar to Section 17(5) of the Act prescribing service of individual notice giving 30 days time to file objections, the preliminary notification was liable to be quashed. On a detailed examination of the question, the Division Bench ruled that the non-compliance with the service of individual notice, which has to complied with after the publication of the preliminary notification in the official Gazette constitutes no ground for quashing the preliminary notification. The relevant portion of the Judgment reads:
"Section 16(1) of the Act corresponds to Section 4(1) of the Land Acquisition Act. In particular, the substance of Clause (b) of Section 16(1) is similar to Sub-section (1) of Section 4 of the Land Acquisition Act. Sub-section (1) of Section 4 of the Land Acquisition Act requires not only the publication of the preliminary notification in the official Gazette but also the issue of public notice about it in the locality. Clause (b) of Section 16(1) of the Act requires the publication of the preliminary notification in the official Gazette during three consecutive weeks and further provides that it shall also be notified in some conspicuous part of the office of the Trust Board, office of the Deputy Commissioner and the office of the Municipal Council and in such other places as the Board may consider necessary. The requirement of publishing the Notification in the official gazette is common to both Sub-section (1) of Section 4 of the LA. Act and Clause (b) of Section 16(1) of the Act. As far as the additional requirement of publication is concerned, Section 4(1) of the LA.Act provides for publication in the locality whereas Clause (b) of Section 16(1) of the Act provides for publication in the locality, namely, office of the Trust Board, office of the Deputy Commissioner, the office of the Municipal Council and in such other places as the Board may consider necessary.
10. In the present case, there is no dispute that Section 16(1) (b) has been complied with. It is not even the case of the petitioners that the provisions of Section 16(1)(b) had not been complied with. Therefore, the crucial question that arises for consideration is whether non-issuing of individual notice as required under Sub-section (2) of Section 16 of the Act renders the preliminary notification invalid.
11. Learned counsel for the appellants submitted that the requirement of publication under Section 4(1) of the LA.Act is equivalent to the publication required under Clause (b) of Section 16(1) of the Act and also the individual notice required to be given under Sub-section (2) of Section 16 of the Act, and if any one of them had not been complied with, the preliminary notification is liable to be set aside having regard to the principles laid down in the aforesaid decisions.
12. The argument, though attractive at first sight, on a careful scrutiny, is devoid of merit. The publication of the preliminary notification as required under Section 4(1) of the L.A.Act or as required under Clause (b) of Section 16(1) of the Act is mandatory. The publication of the notification as provided therein gives the jurisdiction to the acquiring authorities to proceed further with the acquisition of the land. As pointed out by the Supreme Court in the case of Khoob Chand and other cases, if such a mandatory requirement is not complied with, the acquisition proceedings would be void ab initio. Therefore, no further steps could be taken pursuant to such notification. A careful reading of the provisions of Section 16 of the Act would indicate that Clause (b) of Sub-section (1) of Section 16 of the Act prescribes the mandatory requirement of publishing the preliminary notification which corresponds to Sub-section (1) of Section 4 of the LA.Act and what is provided in Sub-section (2) of Section 16 of the Act is a procedural requirement which requires the issue of notice to an individual within 30 days from the date of publication of the notification under Section 16(1)(b). The said provision gives 30 days time to the concerned person to file his objection from the date on which the notice is served. If for any reason, in a given case, after the publication of notifications in terms of Clause (b) of Sub-section (1) of Section 16 of the Act, on account of practical difficulties, like not being able to trace the owner, the notice is not served on the individual within 30 days from the date of publication under Clause (b) of Sub-section (1) of Section 16 of the Act and the notice is served sometime after 30 days, then if the contention of the petitioners is correct the preliminary notification would have to be regarded as invalid. We do not think that that is the result which would be brought about by non-compliance with the provisions of Sub-section (2) of Section 16 of the Act. The object of individual notice required to be given under Section 16(2) is to give the party concerned 30 days time to file his objection. If the notice is served after thirty days from the date of publication of preliminary notification, still the party concerned would have 30 days time to file his objection. Therefore, while the service of notice is mandatory its service within 30 days cannot be regarded as mandatory. In this behalf the ratio of the decision in Remington Rand of India v. Their Workmen - 1967(2) LLJ 866 in which the Supreme Court held that publication of an award within thirty days as provided in Section 17(1) of the Industrial Disputes Act is not mandatory and that an award published after thirty days is valid and enforceable after thirty days after its publication.
13. Later service of notice under Section 16(2) causes no injury to the party because he will be entitled to file his objections within 30 days from the date of receipt of notice by him. For these reasons, in our view Sub-section (2) of Section 16 of the Act is a matter of procedure and non-compliance with that provision only renders the further proceedings invalid and would have no effect on the Notification which is validly issued and published under Section 16(1)(b) of the Act, after preparing a scheme in terms of Sections 14 and 15 of the Act. For these reasons we are unable to agree that the preliminary notification is also liable to be quashed."
The above Decision fully supports the contention of the petitioner, Special Leave Petition Nos. 17066 to 17075 of 1985 seeking leave to appeal to the Supreme Court against the above Judgment, was dismissed by the Supreme Court, by order dated 16th January, 1986.
14. Sri U.L. Narayana Rao, the learned Counsel appearing for one of the parties, submitted that a reading of the order of the learned Judge would indicate that the entire preliminary notification was held to be bad, for the reason that in the preliminary notification objections were not invited. No doubt, the learned Judge, in the course of his order has stated so. But a reading of the entire order indicates that the only ground on which the acquisition was quashed was the non-compliance with Section 17(5) of the Act, Further, it should be pointed out that there is no requirement in Section 17(1) & (3) of the Act that in the preliminary notification itself objections should be invited. On the other hand, what Section 17(1) & (3) requires Is that the draft scheme should be published. Sub-section (5) of Section 17 of the Act requires that within thirty days thereafter notice should be issued calling upon the concerned persons to file their objections within 30 days from the date of receipt of the notice, in Jaffer Sheriff's case, the Division Bench held that the issue of notice within thirty days of publication of the Scheme was not mandatory, but service of notice and giving 30 days time to file objections from the date of service of notice was mandatory. In view of the ratio in Jaffer Sheriff's case2, I am unable to agree that the preliminary notification was liable to be quashed on the ground that the notification itself did not invite the objections from the owners of the lands as that is not the requirement of Section 17(1) of the Act, but it is the requirement of Section 17(5) of the Act. I am also unable to agree that the preliminary notification was quashed by Bopanna, J., on the ground of not inviting objections in Section 17(1) notification, I am of the view that it was quashed only on the ground of non-compliance with Section 17(5) of the Act, as expressly stated in the order. Therefore, I am of the view that the third ground urged by the learned Counsel for the B.D.A. also is well founded and that even after coming to the conclusion that Sub-section (5) of Section 17 of the Act was not complied with, the preliminary notification could not have been quashed. To this extent also the order made in the Writ Petitions suffers from patent error of law.
15. Coming to the various applications filed in the Review Petition for impleading, I am of the opinion that they cannot be allowed to come on record in the Review Petition as party respondents, as the scope of it is limited. If what the applicants say is correct, it only shows that they have purchased the lands not only long after the preliminary notification but also even after the final notification and some of the purchasers have purchased lands covered by the scheme during the pendency of the Review Petitions. The learned Counsel for the applicants, however, submitted that since they have purchased the lands, which is the subject matter of acquisition earlier and some of them, after the notification, was quashed and they have invested money, they would be put to considerable hardship by the allowing of the Review Petition and restoring the preliminary notification.
16. I am not impressed by the submission. If they have purchased the lands from the petitioners Sri Shivanna and Sunandamma or any other person claiming to be the owner of the lands, the acquisition in respect of which was the subject matter of challenge in the Writ Petition, what they got by such purchase is only the right which their vendors had, Therefore, all that can be said in their favour is they should also be given an opportunity to object to the acquisition when further proceedings are taken by the B.D.A. after the allowing of the Review Petition. The learned Counsel for the B.D.A. also submitted that he has no objection for the issue of a direction by this Court to the B.D.A. to give opportunity of hearing not only to the Writ petitioners but also to all the applicants who have purchased the lands subsequently and put forward all their legitimate objections in the further proceedings to be undertaken.
17. All the learned Counsel submitted that in the event of the Review Petitions being allowed, instead of directing issue of notice under Section 17(5), this Court itself might fix the date within which the objections should be filed, in order to avoid further delay in the matter.
18. Before parting with this case, I cannot omit to express my anguish about the negligent handling of the case concerning an important public authority like the B.D.A. by its officers and their Advocates, causing enormous injury to the public, for, if the order made in the Writ Petitions remains, the B.D.A. would have no title to the large extent of lands acquired for a development scheme and it will not be in a position to convey valid title to the allottees of sites formed in the layout. Further it will give scope to the erstwhile owners to indulge in alienation of the lands claiming that they continue to have title to the lands covered by the impugned notifications, even after collecting award amount and the allottees would be put to great inconvenience and hardship. In fact, some such transactions appears to have taken place also, resulting in unnecessary litigation. It is shocking to notice, at every stage of this case there has been want of professional competence, lack of sense of duty and responsibility, gross negligence on the part of the Counsel for the B.D.A. and gross negligence and dereliction of duty on the part of the officers of the B.D.A. The facts of several cases of time barred appeals filed before the Court on behalf of public authorities and not taking of appropriate steps in the prosecution of the cases of public authorities show that many persons concerned take no interest in such matters of public interest and many do not act with the required promptness. Unless some drastic action is initiated, serious damage would be caused to public interest in many cases, which would be taken advantage of by individuals concerned and majority of such cases would not come to light at all and the damage caused acquire finality. I hope, with the experience of this case, steps would be taken to be vigilant and diligent in prosecuting the cases on behalf of the B.D.A.
19. In the result, I make the following order:
(i) Office is directed to incorporate one more number as C.P.No. 144-A of 1989 in the relevant register and the petitioners shall furnish the deficit court fee within two weeks;
(ii) The Review petitions C.P.Nos. 144 of 1989 and 144-A of 1989 are allowed;
(iii) The order made in the Writ Petitions is modified as follows:-A. W.P.No.29726/1981
(i) The Writ Petition is allowed;
(ii) The impugned final notification (Annexure-A) is quashed, only in so far it relates to the following extent of lands:
Village Sy.No. Extent A. -G. Mathikere 48/1 1 -18 48/8 0 - 1 48/9 0- 2 120/1 0-14 Chikkamaranahalli 1/1 9- 4 44 7-32 Total 18-31
(iii) The B.D.A. is at liberty to proceed from the stage at which the illegality was committed;
(iv) The Writ petitioner and all the persons who are applicants in the interlocutory applications shall file their objections to the preliminary notification on or before 30th April 1992 before the Land Acquisition Officer;
(v) Respondent No. 4 or any other person similarly situated shall also be at liberty to present their case in writing before the Land Acquisition Officer and/or the B.D.A. in support of the acquisition of the lands in question on or before 30-4-1992;
(vi) The competent authority shall proceed to consider and hear objections, in accordance with law after 30th April 1992 and a final decision in the matter shall be taken in accordance with law;
(vii) The B.D.A. shall not demolish any structure put up on the land in question till the acquisition is completed and thereafter shall be at liberty to take appropriate steps in accordance with law;
(viii) The Writ petitioner or the applicants for impleading, by themselves or through any other person on their behalf, shall not put up any construction of continue any construction activity on the land concerned;
B.W.P.No. 29355/1981:
(i) The Writ Petition is allowed;
(ii) The impugned final notification (Annexure-A) is quashed only in so far it relates to the following extent of lands;
Village Sy.No. Extent A-G. Dyavasandra 28 4- 0 34/1 0-35 Total 4-35
(iii) The B.D.A. is at liberty to proceed from the stage at which the illegality was committed;
(iv) The petitioner and all the persons who are applicants in the interlocutory applications shall file their objections to the preliminary notification on or before 30th April 1992 before the Land Acquisition Officer;
(v) Respondent-4 or any other person similarly situated shall also be at liberty to present their case in writing before the Land Acquisition Officer and/or the B.D.A. in support of the acquisition of the lands in question on or before 30-4-1992;
(vi) The competent authority shall proceed to consider and hear objections in accordance with law, after 30th April, 1992 and a final decision in the matter shall be taken in accordance with law;
(vii) The B.D.A. shall not demolish any structure put up on the land in question till the acquisition proceedings are finalised and thereafter shall be at liberty to take appropriate steps in accordance with law;
(viii) The Writ Petitioner or the applicants for impleading, by themselves or through any other person on their behalf, shall not put up any construction or continue any construction activity on the lands concerned.