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1987 DIGILAW 40 (KAR)

M. SHANKAR RAO v. CITY IMPROVEMENT BOARD, SHIMOGA

1987-02-11

R.G.DESAI

body1987
DESAI, J. ( 1 ) THE petitioner is the owner in possession of Sy. No. 58 of Kallahalli village, Shimoga Taluk, measuring 18 acres 18 guntas. The said land is proposed for the residential use as per approved outline development plan of, shimoga. On 20-6-1983, the petitioner made an application to the respondent under Section 31 of the Karnataka improvement Boards Act, 1976 (for short the 'act') for grant of sanction for the purpose of forming a layout as per the original of Annexure-A. The respondent-Board passed a resolution on 18-11-1983 refusing permission to the petitioner on the ground that the respondent itself was forming a layout including the land of the petitioner. It was, however, communicated to the petitioner on 10-1-1984 as per the original of Annex- ure-B ie. , beyond six months from the date of his application. Therefore, according to the petitioner, as the respondent did not refuse sanction to the petitioner within six months from the date of the receipt of his application, such sanction shall be deemed to have been granted to him according to sub-section (8) of section 31 of the Act. By its communication dated 18-11-1986, the respondent directed the petitioner not to proceed with any development activities in the said land. Hence, the petitioner has filed this writ petition for quashing Annexure-F and for declaration that the sanction sought for by him under section 31 of the Act for forming layout in Sy. No. 58 of Kallahalli village is deemed to have been granted. ( 2 ) THE respondent has filed written objections contending inter alia, that the notice Annexure-F is valid, that as the respondent-Board refused the request of the petitioner for sanction within six months, it is valid refusal as it is not required to be communicated according to sub-section (8) of Section 31 of the act and that the application of the petitioner is not a valid application as it was not accompanied by plans and estimates as required by sub-section (2) of Section 31 of the Act. ( 3 ) THE first contention of Mr. Jayakumar S. Patil, learned counsel for the respondent is that the application of the petitioner was not according to subsection (2) of Section 31 of the Act in as much as it was not accompanied by the plans and estimates. ( 3 ) THE first contention of Mr. Jayakumar S. Patil, learned counsel for the respondent is that the application of the petitioner was not according to subsection (2) of Section 31 of the Act in as much as it was not accompanied by the plans and estimates. Sub-section (2) of Section 31 of the Act reads thus : "any person intending to form an extension or layout or to make a new private street shall send to the Chairman, a written application with plans and estimates showing such particulars, as may be prescribed by-laws made by the Board". In this case, it is admitted by Mr. Patil that no bye-laws have been made by the Board regarding the particulars to be mentioned in the plans and estimates. Moreover, it was open to the board to call for further information from the applicant regarding the plans and estimates if it needed them. That also has not been done by the Board. The application of the petitioner has been rejected on the ground that the board itself is executing the scheme including the land of the petitioner and not on the ground that his application was not accompanied by plans and estimates. Therefore, I see no force in the said contention of Mr. Patil. ( 4 ) THE next contention of Mr. Patil is that the Board had passed the resolution dated 18-11-1983, within six months from the date of the application of the petitioner ie. , 20-6-83 and therefore the application of the petitioner is deemed to have been refused within six months. Nodoubt, the Board did pass a resolution as per Ex. R. 1 dated 18 11-1983 rejecting the application of the petitioner on the ground that the Board itself is forming a layout including the land of the petitioner. ( 5 ) MR. , 20-6-83 and therefore the application of the petitioner is deemed to have been refused within six months. Nodoubt, the Board did pass a resolution as per Ex. R. 1 dated 18 11-1983 rejecting the application of the petitioner on the ground that the Board itself is forming a layout including the land of the petitioner. ( 5 ) MR. R. V. Jayaprakash, learned counsel for the petitioner, relying upon the decisions in (1) State of Karnataka and others v M. V. Chandrashekhar murthy and others [1984 (2) K. L. J. 48] and (2) Bachhittar Singh v State of punjab ( AIR 1963 SC 395 ), urged that the said resolution will not take effect unless it is communicated and as the date of communication to the petitioner is beyond six months from the date of his application, the sanction prayed for by the petitioner is deemed to have been granted in accordance with subsection (8) of Section 31 of the Act. In bachhittar Singh v State of Punjab ( AIR 1963 SC 395 ), the supreme Court dealt with the case of a Departmental enquiry. There, the question for consideration was as to what amounts to an order of state Government. The Supreme Court held that before something amounts to an order of the State Government two things are necessary, namely, (1) that the order has to be expressed, in the name of the Governor as required by clause (1) of Article 166 of the Constitution, and (2) that it has to be communicated. The Supreme Court has observed thus :"indeed it is possible that after expressing one opinion about a particular matter at a particular stage a minister or the Council of Ministers may express quite a different opinion one which may be completely opposed to the earlier opinion, which of them can be regarded as the 'order' of the state Government ? Therefore, to make the opinion amount to a decision of the Government, it must be communicated to the person concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab v sodhi Sukhadev Singh ( AIR 1961 SC 493 at page 512) : 'mr. Therefore, to make the opinion amount to a decision of the Government, it must be communicated to the person concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab v sodhi Sukhadev Singh ( AIR 1961 SC 493 at page 512) : 'mr. Gopal Singh attempted to argue that before the final order was passed council of Ministers had decided to accept the respondent's representation and to reinstate him, and that, according to him, the respondent seeks to prove by recalling the two original orders. We are unable to understand this argument. Even if the Council of ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent'. Thus it is of the essence that the order has to ba communicated to the person who would be effected by that order before the State and that person can be bound by that order. "for, until the order is communicated to the person affected by it, it would be open to the Council of ministers to consider the matter over and over again and therefore till its communication the order cannot be regarded as anything more than provisional in character''. In State of Karnataka and others v m. V. Chandrasekhara Murthy and others (1984 (2) KLJ 48) the decision to modify the approved scheme taken by the then chief Minister was neither published nor communicated to any one and it was held that until the said decision was communicated or published, it cannot be regarded as anything but provisional and tentative in character which is amenable to alteration or modification before its publication or communication. ( 6 ) IN view of the said decisions, it follows that mere passing a resolution by the respondent-Board will not amount to an order of refusal and it will be effective only from the date of communication to the petitioner. ( 6 ) IN view of the said decisions, it follows that mere passing a resolution by the respondent-Board will not amount to an order of refusal and it will be effective only from the date of communication to the petitioner. As the date of communication was after the period of six months, the sanction prayed for by the petitioner shall be deemed to have been granted according to sub-section (8) of section 31 of the Act although sub-section (8) does not require communication and it requires only refusal. Refusal has to be deemed to be effective only from the date of communication. Therefore, the fact there is no provision requiring refusal to be communicated will not make any difference. ( 7 ) ACCORDING to sub-section (6) of section 31 of the Act, the sanction prayed for may be refused only on four grounds stated in sub-clause (i) to (iv) of the Section. The grounds stated by the Board for refusing the sanction prayed for by the petitioner does not fall within the ambit of any one of the four grounds mentioned in sub-section (6 ). Therefore, the order of refusal passed by the Board is not in accordance with sub-section (6) of Section 31 of the Act. Hence, even if it is held that the order was passed within six months, as it is not in accordance with sub-section (6) of Section 31 of the Act, it is ineffective. ( 8 ) MR. Patil, learned counsel for the respondent, urged that as no bye- laws have been framed by the Board, the Board could not have determined the question as to whether the scheme of the petitioner was in accordance with bye-law or not. The Board itself was competent to frame the bye-laws and if it has failed to do it, it cannot be allowed to take advantage of its own lapse. It was also open to it to call for further information from the petitioner to find out as to whether the scheme of the petitioner should be sanctioned or not. Under the circumstances, I see no force in the said contention of Mr. Patil. It was also open to it to call for further information from the petitioner to find out as to whether the scheme of the petitioner should be sanctioned or not. Under the circumstances, I see no force in the said contention of Mr. Patil. ( 9 ) AS the sanction prayed for by the petitioner is deemed to have been granted as his prayer was not refused within six months from the date of his application, the respondent-Board could not have issued a direction as per annexure-F to the petitioner. ( 10 ) IN the result, the writ petition is allowed and Annexure-F dated 18-11-1986 of the respondent-Board is quashed. It is declared that the sanction prayed for by the petitioner as per his application dated 20-6-83 is deemed to have been granted to him according to sub-section (8) of section 31 of the Act. No costs. Writ Petition Allowed --- *** --- .