Partly allowed

Sri. M. Srinivasa v. the State of Karnataka

Karnataka HC11 Jul 2023WA/894/2019

Case brief

AI extract

What is this about?

This judgment declares that the order dismissing the appellants' writ petitions without recording findings on merits violated procedural mandates. Consequently, the dismissal was set aside, the review petitions were affirmed, and the writ petitions were remanded for fresh hearing after impleading the Cooperative Society.

What did the court decide?

Order dated 01.03.2019 dismissing writ petitions set aside; review petitions affirmed; matter remanded for fresh hearing after impleading the Society.

Sri. M. Srinivasa Vs the State of Karnataka — Civil Procedure and Limitation | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11TH DAY OF JULY 2023

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR.JUSTICE ANANT RAMANATH HEGDE

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W.A. No.894 OF 2019 (LA-BDA)

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C/W

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W.A.No.896 OF 2019 (LA-BDA)

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W.A.No.897 OF 2019 (LA-BDA)

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IN W.A. No.894 OF 2019

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BETWEEN:

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SRI. M. SRINIVASA S/O LATE MUNISWAMAPPA AGED ABOUT 77 YEARS R/AT NO.8, 4TH CROSS 7TH BLOCK, JAYANAGAR BENGALURU-560 082.

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... APPELLANT

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(BY MR. VIVEK SUBBA REDDY, SR. COUNSEL FOR MR. B.R. NISHCHAL DEV., ADV.,)

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AND :

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1 . THE STATE OF KARNATAKA VIDHANA SOUDHA AMBEDKAR VEEDHI,, BENGALURU-560001 REPRESENTED BY ITS CHIEF SECRETARY.

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2 . BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD

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KUMARA PARK WEST

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BENGALURU-560020 REPRESENTED BY ITS COMMISSIONER.

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3 . THE LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560 020 REPRESENTED BY ITS COMMISSIONER.

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4 . POORNAPRAJNA HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., NO.552, POORNAPRAJNA SUVARNA BHAVANA UTTARAHALLI-KENGERI MAIN ROAD BENGALURU-560 061 REPRESENTED BY ITS CEO SRI. L. NANJAPPA.

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5 . SRI. B. RAMEGOWDA S/O SRI. BUDI GOWDA AGED ABOUT 49 YEARS NO.1284, 39TH MAIN 48TH CROSS, POORNAPRAJNA NAGAR BENGALURU-560 061.

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6 . SRI. RAMAKRISHNA S/O H. RAMAIAH AGED ABOUT 48 YEARS NO.1284, 39TH MAIN 48TH CROSS, POORNAPRAJNA NAGAR BENGALURU-560 061.

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7 . SRI. K. THIMMASETTY S/O LATE THIMMASETTY AGED ABOUT 79 YEARS NO.1294, 39TH MAIN 48TH CROSS, POORNAPRAJNA NAGAR BENGALURU-560 061.

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8 . SMT. M. NIRMALA W/O G.N. MURALI KRISHNA AGED ABOUT 49 YEARS NO.1292, 39TH MAIN

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48TH CROSS, POORNAPRAJNA NAGAR BENGALURU-560 061.

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9 . SMT. M. VANAJAKSHI W/O SRI M. RAMACHANDRA RAO AGED ABOUT 61 YEARS NO.1305, 41ST MAIN 48TH CROSS, POORNAPRAJNA NAGAR BENGALURU-560 061.

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10 . SRI. R N PRASAD S/O. LATE. SRI. G. RAMACHANDRA, AGED ABOUT 53 YEARS, NO. 1281, 48TH CROSS, 38TH MAIN, POORNAPRAJNA NAGAR, UTTARHALLI, BENGALURU 560061.

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11 . K N SUDHARSHAN S/O LATE. K L NARASIMHAMURTHY AGED ABOUT 57 YEARS, NO.1198, 29TH MAIN, 47TH CROSS POORNAPRAJNA NAGAR UTTARHALLI, BENGALURU 560061.

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12 . SMT. VASANTHA VISWANATH W/O SRI. VISHWANATH AGED ABOUT 50 YEARS NO. 237, II-D-CROSS 1ST PHASE, GIRINAGAR BENGALURU 560085.

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13 . SMT. L. KAMALAKSHI W/O. SRI. V. LAKSHMINARAYANA, AGED ABOUT 75 YEARS, NO.39, 3RD MAIN, BASAVSESHWARANAGAR BENGALURU 560079.

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14 . SMT. B S SOUMYA W/O SRI. SATISH S AGED ABOUT 35 YEARS NO. 68, "SREEVASA"

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NEAR BUS DEPO. 21, BEHIND R K MESS, SAI LOTUS LAYOUT CHANNASANDRA, BENGALURU 560068.

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15 . SRI. L. RAVI PRASAD S/O. V. LAKSHMI NARAYANA, AGED ABOUT 38 YEARS, NO. 91/1, GANDHI BAZAR MAIN ROAD, BASAVANAGUDI, BENGALURU 560004.

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16 . SRI. M. KRISHNAMURTHY RAO S/O. LATE. SRI. M. MADHAVA RAO, AGED ABOUT 72 YEARS, NO. 250/I, 1ST PHASE ADDITIONAL IIND-C-MAIN, HEMAVATHI ROAD, GIRINAGAR, BENGALURLU 560085.

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17 . SRI. GOPALA S/O. A. CHOWDAPPA, AGED ABOUT 39 YEARS, NO. 22, 8TH MAIN, ANANDNAGAR, HOSAKEREHALLI, BSK-IIIRD STAGE BENGALURU 560085.

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18 . SRI. MAHESH G S/O. GATTAIAH AGED ABOUT 31 YEARS NO. 975, 7TH MAIN, 2ND CROSS RAGHAVENDRA BLOCK, BENGALURU 560050 SINCE DECEASED.

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18A. SRI. GATTAIAH AGED MAJOR.

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18B. SMT. RATHANAMM AGED ABOUT 55 YEARS WIFE OF SRI. GATTAIHA BOTH OF THEM R/A TNO.390 5TH MAIN ROAD, NAGENDRA BLOCK

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BENGALURU-560 050.

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19 . SRI. K O MAHADEV S/O. KODHALINGEGOWDA AGED ABOUT 35 YEARS NO. 142, 15TH MAIN RAGHAVENDRA BLOCK KALIDASA LAYOUT BENGALURU 560050.

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20 . SRI. M. NARASIMHA MURTHY S/O. LATE. M. MADHAVA RAO AGED ABOUT 56 YEARS, NO. 250/I, 1ST PHASE ADDITIONAL IIND-C-MAIN, HEMAVATHI ROAD GIRINAGAR, BENGALURU 560085.

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... RESPONDENTS

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(BY MR. B. RAJENDRA PRASAD, HCGP FOR R1 MR. K. KRISHNA, ADV., FOR R2 & R3 MR. S.S. NAGANAND, SR. COUNSEL FOR MR. B.N. PRAKASH, ADV., FOR R4 MR. G. KRISHNA MURHTY, SR. COUNSEL FOR MR. CHANDRAKANTH PATIL K, ADV., FOR R5 - R8, R10, R11, & R14, R9, R12, R13, R15-17 R18 (A&B) R19 & R20)

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 01/03/2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP NOS.51417-51433/2016 [LA-BDA] AND THEREBY CONFIRM THE ORDER DATED 15/07/2016 PASSED IN THE WRIT PETITIONS IN WP NO.35912/2016 [LA-BDA] AND WP NO.35913/2016 [LA-BDA].

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IN W.A. No.896 OF 2019

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BETWEEN :

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SRI. M. SREENIVASA S/O LATE MUNISWAMAPPA

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AGED ABOUT 78 YEARS R/AT NO.8, 4TH CROSS 7TH BLOCK, JAYANAGAR BENGALURU - 560 082.

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... APPELLANT

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(BY MR. VIVEK SUBBA REDDY, SR. COUNSEL FOR MR. B.R. NISHCHAL DEV, ADV.,)

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AND :

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1 . THE STATE OF KARNATAKA VIDHANA SOUDHA, AMBEDKAR VEEDHI, BENGALURU-560 001. REPRESENTED BY ITS CHIEF SECRETARY.

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2 . BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560 020. REPRESENTED BY SPECIAL LAND ACQUISITION OFFICER, BDA, BANGALORE-560 001.

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3 . THE LAND ACQUISITION OFFICER, BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST, BENGALURU-560 020. REPRESENTED BY ITS SPECIAL LAND ACQUISITION OFFICER.

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4 . POORNAPRAJANA HOUSE BUILDING CO OPERATIVE SOCIETY LTD NO.552, POORNAPRAJNA SUVARNA BHAVANA, UTTARAHALLI-KENGERI MAIN ROAD POORNAPRAJNA NAGAR, BENGALURU-560 061. REPRESENTED BY ITS CEO SRI.L.NANJAPPA.

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5 . SRI.B.R.RAMEGOWDA S/O SRI.BUDI GOWDA

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AGED ABOUT 50 YEARS NO.1284, 39TH MAIN, 48TH CROSS POORNAPRAJNA NAGAR, BENGALURU-560 061. 6 . SRI.RAMAIKRISHNA S/O SIR.H.RAMAIAH AGED ABOUT 49 YEARS NO.1285, 39TH MAIN, 48TH CROSS POORNAPRAJNA NAGAR, BENGALURU-560 061.

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7 . SRI.K.THIMMASHETTY S/O LATE THIMMASETTY AGED ABOUT 80 YEARS NO.1294, 39TH MAIN, 48TH CROSS POORNAPRAJNA NAGAR, BENGALURU-560 061.

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8 . SMT.M.NIRMALA W/O SRI.G.N.MURALI KRISHNA AGED ABOUT 50 YEARS NO.1292, 39TH MAIN, 48TH CROSS POORNAPRAJNA NAGAR, BENGALURU-560 061.

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9 . SMT.M.VANAJAKSHI W/O. SRI.M.RAMACHANDRA RAO AGED ABOUT 62 YEARS NO.1305, 41ST MAIN, 48TH CROSS, POORNAPRAJNA NAGAR BENGALURU-560 061.

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10 . SRI. R.N. PRASAD S/O LATE G.RAMACHANDRA AGED ABOUT 54 YEARS NO.1281, 48TH CROSS, 38TH MAIN POORNAPRAJNA NAGAR, BENGALURU-560 061.

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11 . SRI. K.N. SUDHARSAHAN S/O LATE K.L.NARASIMHAMURTHY AGED ABOUT 58 YEARS NO.1198, 29TH MAIN, 47TH CROSS POORNAPRAJNA NAGAR UTTARAHALLI, BENGALURU.

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12 . SMT. VASANTHA VISWANATH W/O SRI VISHWANATH AGED ABOUT 51 YEARS R/AT NO.237, II D CROSS, 1ST PHASE GIRINAGAR, BENGALURU - 560085. 13 . SMT. L. KAMALAKSHI S/O SRI. V. LAKSHMINARAYANA AGED ABOUT 76 YEARS R/AT NO.39, 3RD MAIN BASAVESHWARANAGAR BENGALURU - 560079. 14 . SMT. B.S. SOUMYA W/O SRI SATISH S. AGED ABOUT 36 YEARS NO.68, SREEVASA NEAR BUS DEPO. 21 BEHIND R.K. MESS SAID LOTUS LAYOUT CHANNASANDRA BENGALURU - 560068. 15 . SRI L. RAVI PRASAD S/O LAKSHMI NARAYANA AGED ABOUT 39 YEARS NO.9/1, GANDHI BAZAR MAIN ROAD BASAVANAGUDI, BENGALURU - 560004. 16 . SRI. M. KRISHNAMURTHY RAO S/O LATE SRI. M. MADHAVA RAO AGED ABOUT 73 YEARS NO.250/I, 1ST PHASE ADDITIONAL IIND-C-MAIN HEMAVATHI ROAD GIRINAGAR BENGALURU - 560085. 17 . SRI. GOPALA S/O A. CHOWDAPPA

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AGED ABOUT 39 YEARS NO.22, 8TH MAIN, ANANDNAGAR HOSAKEREHALLI, BSK-IIIRD STAGE BENGALURU - 560085.

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18 . SRI. MAHESH G. S/O GATTAIAH AGED ABOUT 31 YEARS NO.975, 7TH MAIN , 2ND CROSS RAGHAVENDRA BLOCK BENGALURU - 560050. 18A. SRI. GATTAIAH AGED MAJOR 18B. SMT. RATHANAMM AGED ABOUT 55 YEARS WIFE OF SRI GATTAIHA. BOTH OF THEM RESIDING AT NO.390 5TH MAIN ROAD, NAGENDRA BLOCK BENGALURU-560050. 19 . SRI. K.O. MAHADEV S/O KODHALINGEGOWDA AGED ABOUT 35 YEARS R/AT NO.142, 15TH MAIN RAGHAVENDRA BLOCK KALIDASA LAYOUT BENGALURU - 560050. 20 . SRI. M. NARASIMHA MURTHY S/O LATE M. MADHAVA RAO AGED ABOUT 56 YEARS NO.250/1, 1ST PHASE ADDITIONAL IIND C MAIN, HEMAVATHI ROAD GIRINAGAR BENGALURU - 560085.

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... RESPONDENTS (BY MR. B. RAJENDRA PRASAD, HCGP FOR R1 MR. K. KRISHNA, ADV., FOR R2 & R3

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MR. S.S. NAGANAND, SR. COUNSEL FOR MR. B.N. PRAKASH, ADV., FOR R4 MR. G. KRISHNA MURHTY, SR. COUNSEL FOR MR. CHANDRAKANTH PATIL K, ADV., FOR R9, R12 R13, R15, R16, R17, R18 (A&B) R19,& R20, R5-R8, R10, R11 & R14

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 01/03/2019 PASSED BY THE LEARNED SINGLE JUDGE IN REVIEW PETITION NO.512/2016 FILED IN WP NO.35912/2016 [LA-BDA] AND THEREBY CONFIRM THE ORDER DATED 15/07/2016 PASSED IN WP NO.35912/2016 [LA-BDA], AND PASS SUCH OTHER ORDERS AS THIS COURT DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE.

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IN W.A. No.897 OF 2019

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BETWEEN:

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SRI. M. SREENIVASA S/O LATE MUNISWAMAPPA AGED ABOUT 77 YEARS R/AT NO.8, 4TH CROSS 7TH BLOCK, JAYANAGAR BENGALURU-560 082.

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... APPELLANT

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(BY MR. VIVEK SUBBA REDDY, SR. COUNSEL FOR MR. B.R. NISHCHAL DEV., ADV.,)

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AND :

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1 . THE STATE OF KARNATAKA VIDHANA SOUDHA AMBEDKAR VEEDHI,, BENGALURU-560001 REPRESENTED BY ITS CHIEF SECRETARY.

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2 . BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD

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KUMARA PARK WEST BENGALURU-560020 REPRESENTED BY ITS COMMISSIONER.

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3 . THE LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560 020 REPRESENTED BY ITS SPECIAL LAND ACQUISITION OFFICER.

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4 . POORNAPRAJNA HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., NO.552, POORNAPRAJNA SUVARNA BHAVANA UTTARAHALLI-KENGERI MAIN ROAD BENGALURU-560 061 REPRESENTED BY ITS CEO SRI. L. NANJAPPA.

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5 . SRI. B. RAMEGOWDA S/O SRI. BUDI GOWDA AGED ABOUT 49 YEARS NO.1284, 39TH MAIN 48TH CROSS, POORNAPRAJNA NAGAR BENGALURU-560 061.

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6 . SRI. RAMAKRISHNA S/O H. RAMAIAH AGED ABOUT 48 YEARS NO.1284, 39TH MAIN 48TH CROSS, POORNAPRAJNA NAGAR BENGALURU-560 061.

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7 . SRI. K. THIMMASETTY S/O LATE THIMMASETTY AGED ABOUT 79 YEARS NO.1294, 39TH MAIN 48TH CROSS, POORNAPRAJNA NAGAR BENGALURU-560 061.

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8 . SMT. M. NIRMALA W/O G.N. MURALI KRISHNA

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AGED ABOUT 49 YEARS NO.1292, 39TH MAIN 48TH CROSS, POORNAPRAJNA NAGAR BENGALURU-560 061.

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9 . SMT. M. VANAJAKSHI W/O SRI M. RAMACHANDRA RAO AGED ABOUT 61 YEARS NO.1305, 41ST MAIN 48TH CROSS, POORNAPRAJNA NAGAR BENGALURU-560 061.

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10 . SRI. R N PRASAD S/O. LATE. SRI. G. RAMACHANDRA, AGED ABOUT 53 YEARS, NO. 1281, 48TH CROSS, 38TH MAIN, POORNAPRAJNA NAGAR, UTTARHALLI, BENGALURU 560061.

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11 . SRI. K N SUDHARSHAN S/O LATE. K L NARASIMHAMURTHY AGED ABOUT 57 YEARS, NO.1198, 29TH MAIN, 47TH CROSS POORNAPRAJNA NAGAR UTTARHALLI, BENGALURU 560061.

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12 . SMT. VASANTHA VISWANATH W/O SRI. VISHWANATH AGED ABOUT 50 YEARS NO. 237, II-D-CROSS 1ST PHASE, GIRINAGAR BENGALURU 560085.

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13 . SMT. L. KAMALAKSHI W/O. SRI. V. LAKSHMINARAYANA, AGED ABOUT 75 YEARS, NO.39, 3RD MAIN, BASAVSESHWARANAGAR BENGALURU 560079.

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14 . SMT. B S SOUMYA W/O SRI. SATISH S

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AGED ABOUT 35 YEARS NO. 68, "SREEVASA" NEAR BUS DEPO. 21, BEHIND R K MESS, SAI LOTUS LAYOUT CHANNASANDRA, BENGALURU 560068.

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15 . SRI. L. RAVI PRASAD S/O. V. LAKSHMI NARAYANA, AGED ABOUT 38 YEARS, NO. 91/1, GANDHI BAZAR MAIN ROAD, BASAVANAGUDI, BENGALURU 560004.

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16 . SRI. M. KRISHNAMURTHY RAO S/O. LATE. SRI. M. MADHAVA RAO, AGED ABOUT 72 YEARS, NO. 250/I, 1ST PHASE ADDITIONAL IIND-C-MAIN, HEMAVATHI ROAD, GIRINAGAR, BENGALURLU 560085.

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17 . SRI. GOPALA S/O. A. CHOWDAPPA, AGED ABOUT 39 YEARS, NO. 22, 8TH MAIN, ANANDNAGAR, HOSAKEREHALLI, BSK-IIIRD STAGE BENGALURU 560085.

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18 . SRI. MAHESH G S/O. GATTAIAH AGED ABOUT 31 YEARS NO. 975, 7TH MAIN, 2ND CROSS RAGHAVENDRA BLOCK, BENGALURU 560050 SINCE DECEASED.

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18A. SRI. GATTAIAH AGED MAJOR.

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18B. SMT. RATHANAMM AGED ABOUT 55 YEARS WIFE OF SRI. GATTAIHA

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BOTH OF THEM R/AT NO.390 5TH MAIN ROAD, NAGENDRA BLOCK BENGALURU-560 050.

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19 . SRI. K O MAHADEV S/O. KODHALINGEGOWDA AGED ABOUT 35 YEARS NO. 142, 15TH MAIN RAGHAVENDRA BLOCK KALIDASA LAYOUT BENGALURU 560050.

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20 . SRI. M. NARASIMHA MURTHY S/O. LATE. M. MADHAVA RAO AGED ABOUT 56 YEARS, NO. 250/I, 1ST PHASE ADDITIONAL IIND-C-MAIN, HEMAVATHI ROAD GIRINAGAR, BENGALURU 560085.

... RESPONDENTS

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED 1/3/2019, PASSED IN RP NO.513/2016 IN WP NO.35913/2016, BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE COURT AND THEREBY CONFIRM THE ORDER DATED 15.7/2016 PASSEDIN WP NO.35913/2016

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THESE W.A.s COMING ON FOR FURTHER HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

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COMMON JUDGMENT

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These intra court appeals, which have been

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filed by the land owner emanate from the common order dated 01.03.2019 passed in W.P.No.5141751433/2016 and in review petition Nos.512/2016 and 513/2016.

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Facts giving rise to filing of these

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appeals briefly stated are that the land owner and his brother viz., M.Krishnappa were owners of land measuring 4 acres and 9 guntas of Sy.No.97/1 situate at Uttarahalli Village, Bangalore (hereinafter referred to as 'the schedule land' for short). The appellant filed writ petitions viz., W.P.No.35912/2016 and W.P.No.35193/2016

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seeking to challenge the preliminary as well as final notifications issued for acquisition of the land dated 29.12.1988 and 07.12.1999. In the said writ

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petition, the land owner did not implead the beneficiary of the acquisition viz., Poorna Prajana House building Cooperative Society Ltd. (Hereinafter referred to as 'the Society' for short) as well as its members. The writ petitions preferred by the land owner was allowed by an order dated 15.07.2016 and it was held that the acquisition of the schedule land has lapsed under Section 27 of the Bangalore Development Authority Act, 1976 (hereinafter referred to as 'the Act' for short).

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The Society as well as its members filed a writ petition viz., W.P.No.51417-51433/2016, in which prayer was sought to set aside the order dated 15.07.2016 passed in W.P.No.35912/2016 and W.P.No.35913/2016 and to re-hear the matter afresh after directing the land owner to implead the Society and its members as party respondents.

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The Bangalore Development Authority (hereinafter referred to as 'the Authority' for short) filed review petitions viz., R.P.No.512/2016 and R.P.No.513/2016, seeking review of the order dated 15.07.2016 passed in W.P.No.35912/2016 and W.P.No.35913/2016.

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The Learned Single Judge heard the aforesaid writ petition viz., W.P.No.5141751433/2016 and R.P.No.512/2016 and R.P.No.513/2016 together and by a common order dated 01.03.2016, allowed the review petitions filed by the Authority and recalled the order dated 15.07.2016 passed by Learned Single Judge in W.P.No.35912/2016 and W.P.No.35913/2016.

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The Learned Single Judge dismissed the writ petitions preferred by the land owner viz., W.P.No.35912/2016 and W.P.No.35913/2016 by

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imposing a cost of Rs.2,00,000/- to the Society and Rs.50,000/- each to other sixteen writ petitioners viz., members of the Society and a cost of Rs.1,00,000/- to the Authority. In the aforesaid factual background, these appeals have been filed.

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Learned Senior Counsel for the land

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owner while inviting the attention of this court to

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Rule 39 of the Writ Proceeding Rules, 1977 submitted that provisions of CPC apply to a writ petition. It is further submitted that Order XLVII Rule 8 of the Code of Civil Procedure contemplates that when an application for review is granted, the consequential re-hearing is an independent exercise. It is further submitted that after recall of the order dated 15.07.2016, after review petitions were allowed, the land owner was not heard on

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merits of the writ petition viz.,

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W.P.No.35912/2016 and W.P.No.35913/2016 and

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therefore, the order has been passed in infraction of mandate contained in Order XLVII Rule 8 of the Code of Civil Procedure. Learned Senior Counsel for the land owner has taken us through the order dated 01.03.2019 passed by the Learned Single Judge and has submitted that the order does not indicate that the land owner was heard on merits of the petition. It is also contended that Learned Single Judge has travelled beyond the scope of the writ petition filed by the Society viz., W.P.No.51417-51433/2016, in which the prayer was made only to recall the order dated 15.07.2016 and to re-hear the writ petitions preferred by the land owner viz.,

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W.P.No.35912/2016 and W.P.No.35913/2016. It

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is also argued that in view of law laid down by a 9

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Judge Bench of Hon'ble Supreme Court in

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'NARESH SHRIDHAR MIRAJKAR VS. STATE OF MAHARASHTRA', AIR 1967 SC 1 , that judicial proceeding in this court are not subject to writ jurisdiction. Therefore, it is contended that the Learned Single Judge erred in setting aside the order passed by a co-ordinate bench.

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It is also argued that from perusal of the order dated 10.07.2019, passed by a division bench of this court in these appeals, it is evident that the land owner has indicated the willingness to pay the cost subject to the condition that writ petitions preferred by him be heard on merits. It is also submitted that the land owner has agreed for setting aside of the order dated 15.07.2016 and not for dismissal of his writ petitions. In support of his submissions, Learned Senior Counsel for the

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land owner has placed reliance on decisions of

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Hon'ble Supreme Court in 'AJIT KUMAR BHARAT

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VS. SECRETARY, INDIAN TEA ASSOCIATION', AIR 2001 SUPREME COURT 2056, 'POHLA SINGH ALIAS POHLA RAM VS. STATE OF PUNJAB', AIR 2004 SUPREME COURT 3329 and decision of Bombay High Court in 'WAMAN RAMCHANDRA BHAYDE AND OTHERS VS. KANTA NARAYAN PATEL AND OTHERS', 2013 (1) MH.L.J.113.

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On the other hand, Learned Senior

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counsel for the respondents have invited the attention of this court to order dated 10.07.2019 passed by a division bench of this court in this appeal and has submitted that the scope of the writ appeal is confined to the question of possession. It is further submitted that the

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Learned Single Judge has recorded a finding that the land owner has played fraud and therefore, has dismissed the writ petition preferred by land owner with exemplary cost. It is also contended that the submission that the land owner has not been heard on merits is incorrect. In this connection, our attention has been invited to paragraph 9 of the order passed by Learned Single Judge.

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Learned Senior Counsel for the appellant

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submitted that he has sought a clarification from

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the Learned Single Judge who passed the order dated 01.03.2019 about hearing, which has been afforded to the land owner. Therefore, the proceeding of this appeal be deferred till the Learned Single Judge clarifies the aforesaid aspect of the matter as he alone can record a finding

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whether or not hearing has been afforded to the

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land owner on merits of the writ petition. It is also urged that once a fraud is proved, all advantages gained by playing fraud can be taken away. In support of aforesaid submission, reliance has been placed on decision of Hon'ble Supreme Court in

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'MEGH MALA AND OTHERS VS. G.NARSIMHA

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REDDY AND OTHERS', (2010) 8 SCC 383 . It is further submitted that provisions of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the 2013 Act' for short) do not apply in respect

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of acquisition of land under the Act. It is also argued that writ appeal deserves to be dealt with on merits and the matter should not be remanded to the Learned Single Judge. In support of

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aforesaid submissions, reliance has been placed

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on decision of Hon'ble Supreme Court in 'ROMA

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SOMKAR VS. M.P.STATE PUBLIC SERVICE

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COMMISSION', (2018) 17 SCC 106 . It is also urged that taking into account the conduct of the land owner, no interference is called for in the matter and a composite order under Order XLVII Rule 8 of Code of Civil Procedure can be passed. In support of aforesaid submission, reliance has been placed on decision of Andhra Pradesh High Court in 'MALLIKARJUNAPPA KALYANSHETTI VS. RUDRASETTI SANGASETTI PATIL

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MAHAGAMKAR', AIR 59 AP 305.

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We have considered the submissions

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made on both sides and have perused the record. Before proceeding further, so as to ascertain the scope of these appeals, it is apposite to take note

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of order dated 10.07.2019 passed by a division

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bench of this court in this appeal. The order is extracted below for the facility of reference:

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Heard the Learned Senior Counsel appearing for the appellant.

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The applications are allowed without prejudice to the rights and contentions of the parties. Accordingly, amendment to be carried out within two weeks and amended copy shall be filed within two weeks from today.

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After hearing the learned Senior counsel appearing for the appellant, we were of the view that there is no merit in the contentions raised on merits inasmuch as the view taken by the learned Single Judge after considering the conduct of the appellant, cannot be faulted with.

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We are not recording detailed reasons for the above conclusion as

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the Learned Senior Counsel appearing for the appellant has stated that the appellant is agreeable for paying the cots in terms of the impugned judgment and order. His prayer is that subject to payment of costs as directed by the Learned Single Judge, as prayed in the writ petition Nos.51417-51433/2016 by the petitioners therein, writ Petition Nos.35912-35913/2016 be ordered to be heard afresh after granting permission to implead the petitioners in the said petition as parties.

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Thus, the appellant has shown the willingness to accept the reasons recorded by the Learned Single Judge for setting aside the order dated 15th July 2016 in the aforesaid petitions except for the finding recorded by the Learned Single Judge as regards possession.

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In view of the aforesaid submissions made on instruction of the Learned Senior Counsel appearing for the appellant, we issue notice for final disposal of the respondents returnable on 7th August 2019.

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Learned Additional Government Advocate waives service for the first respondent as well as the third respondent (State of Karnataka and Land Acquisition Officer).

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In addition to usual notice, we grant liberty to the appellant to serve notice to the Learned counsel representing the concerned respondents before the Learned Single Judge.

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If the order is read in its entirety, it is

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evident that a division bench of this court has

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found that there is no merit in the contentions

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raised on merits of the matter as the view taken by Learned Single Judge after considering the conduct of the land owner cannot be faulted. In view of aforesaid finding recorded in the order, Learned Senior Counsel for the land owner agreed for payment of costs provided that

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W.P.No.35912/2016 and W.P.No.35913/2016 are

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heard afresh after impleading the Society and its members. The appellant has also shown its willingness to set aside the order dated 15.07.2016. Thus, in our opinion, from careful scrutiny of the order dated 10.07.2019, it is evident that the land owner has not given up his contention that writ petition preferred by him should be heard afresh after affording an

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opportunity of hearing to implead the society and its members.

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The proceeding in a writ petition is governed by Writ Proceeding Rules, 1977. Rule 39 of the Rules inter alia provides that the provisions of Code of Civil Procedure shall apply, as far as may be, to proceeding under Article 226 and 227 of the Constitution of India and writ appeals, in respect of matters for which no specific provision has been made under the Rules. No specific provision has been made in the aforesaid Rules with regard to review. Therefore, the provisions of Order XLVII of the Code of Civil Procedure apply to the proceeding in a writ petition as well. Order XLVII Rule 8 of the Code of Civil Procedure is reproduced below for the facility of reference:

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O.47 Rule 8 Lays down that where an application for review is granted, a note thereof shall be made in the register and the Court may at once rehear the case or make such order in regard to the re-hearing as it thinks fit.

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Thus, from perusal of Order XLVII Rule 8 of the Code of Civil Procedure, it is evident that if

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the application for review is granted, the court may at once re-hear the case or make such an order in regard to re-hearing as it thinks fit. Thus, the court after granting review, has to pass an order either directing re-hearing of the case at once or has to make such an order in regard to rehearing as it thinks fit. A composite order under XLVII Rule 8 of the Code of Civil Procedure, can also be passed provided the court decides at once

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to re-hear the case or makes such an order with

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regard to re-hearing as it thinks fit. Thus, the fact that whether only review has been granted or a composite order has been passed has to be ascertained on perusal of the order.

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In the instant case, in the order dated 01.03.2019 passed by the Learned Single Judge,

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has not recorded that it is re-hearing the writ petition on merits as well. Therefore, the order passed by the Learned Single Judge has been passed in violation of the mandate contained in XLVII Rule 8 of the Code of Civil Procedure.

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For yet another reason, the order dated 01.03.2019 passed by Learned Single Judge cannot be sustained. It is pertinent to note that Society had filed a writ petition viz.,

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W.P.No.51417-51433/2016 in which following

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prayer is made:

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(b) Set aside the order dated 15.06.2016 passed by this Hon'ble Court in W.P.No.35912/2016 c/w W.P.No.35913/2016 (Annexure-P) and rehear the matter afresh after directing the petitions to be impleaded as party respondents and giving them an opportunity to put forth their case.

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Thus, the Society and its members had only sought recall of the order dated 15.07.2016 passed in W.P.No.35912/2016 and

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W.P.No.35913/2016 and had sought re-hearing of

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the writ petitions preferred by the land owner on merits after impleading them. The Learned Single Judge therefore, while dismissing the writ

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petitions preferred by the land owner viz., W.P.No.35912/2016 and W.P.No.35913/2016 has

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travelled beyond the prayer made in the writ petition itself. It is pertinent to note that no order

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has been passed in W.P.No.51417-51433/2016.

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We therefore, find force in the

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submission made on behalf of the land owner that he was not heard before the writ petitions preferred by him was dismissed. We are not inclined to accept the submission made on behalf of the respondents that hearing of this appeal be deferred till the Learned Single Judge records an opinion whether or not hearing was given is concerned, as the aforesaid issue has to be decided on the basis of material available on record in particular the order passed by the Learned Single Judge.

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The land owner has not been heard after

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the review was granted and before this writ petition was dismissed, therefore, the order dated 01.30.2016 passed by the Learned Single Judge insofar as it dismisses the writ petitions preferred by the land owner has to be set aside and therefore, the remand of the case in the facts and circumstances of the case is inevitable as the right of an intra court appeal of the parties would be affected.

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In view of our aforesaid conclusion, it is not necessary for us to deal with the other contentions raised by Learned Senior Counsel for the parties. As a result, impugned order dated 01.03.2019 insofar as it dismisses the writ petitions viz., W.P.No.35912/2016 and W.P.No.35913/2016 is set aside, whereas, the

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order allowing the review petitions viz.,

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R.P.No.512/2016 and R.P.No.513/2016 filed by the authority is affirmed. It is evident from the order dated 10.07.2019 that the land owner has accepted the findings with regard to his conduct and the circumstances warranting imposition of costs. Therefore subject to payment of costs as directed by Learned Single Judge, W.P.No.35912/2016 and W.P.No.35913/2016 shall be heard afresh. The land owner is directed to implead the society as well as its affected members viz., the 16 writ petitioners in W.P.No.51417-51433/2016. The Society as well as the members shall be granted an opportunity to file their statement of objections and thereafter, the writ petition preferred by land owner viz., W.P.No.35912/2016 and W.P.No.35913/2016

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shall be heard on merits, in the light of order dated 10.07.2019 passed in these appeals.

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Accordingly, the writ appeals are disposed of.

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Sd/JUDGE

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Sd/JUDGE

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