Chairman, Bda vs Shivanna on 30 March, 1992

Karnataka High Court

Chairman, Bda vs Shivanna on 30 March, 1992
Equivalent citations: ILR 1992 KAR 1504, 1992 (3) KarLJ 96
Author: R Jois
Bench: R Jois
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

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 Chairman, Bda vs Shivanna on 30 March, 1992

1) Mathikere 1 - 18

-- 1

-2

- 14 Total 1-35

2) Chikkamarenahalli 9-4 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

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 Chairman, Bda vs Shivanna on 30 March, 1992

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)

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 Chairman, Bda vs Shivanna on 30 March, 1992

(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"

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 Chairman, Bda vs Shivanna on 30 March, 1992

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

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 Chairman, Bda vs Shivanna on 30 March, 1992

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

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 Chairman, Bda vs Shivanna on 30 March, 1992

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

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 Chairman, Bda vs Shivanna on 30 March, 1992

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

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 Chairman, Bda vs Shivanna on 30 March, 1992

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

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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

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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

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 Chairman, Bda vs Shivanna on 30 March, 1992

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

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 Chairman, Bda vs Shivanna on 30 March, 1992

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.

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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,

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 Chairman, Bda vs Shivanna on 30 March, 1992

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 1 -18 0 - 1 0- 2 0-14 Chikkamaranahalli 9- 4 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;

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 Chairman, Bda vs Shivanna on 30 March, 1992

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 4- 0 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.

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