P SABITHA PAI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE land measuring 9,800 sq. ft. , which is a part of Survey No. 122 of kothanur village, was purchased by the petitioner under a registered sale deed dated 8th November, 1990 from one Sri B. A. Nagaraj for valuable consideration. This has made the petitioner to come to this court to challenge the final notification dated 19-10-1994 issued under section 19 of the Bangalore Development Authority Act (hereinafter referred to as 'act' ). The facts in this case are as follows: the B. D. A. had issued a notification dated 23-3-1988 under Section 17 (1) and (3) of the Act, published in the Official Gazette dated 2-6-1988, proposing to acquire several lands for the purpose of implementing the scheme called J. P. Nagar, 8th Stage. The land in Survey No. 122 of kothanur village was not included in the said notification. But, the b. D. A. , issued an addendum dated 7-11-1990 published in the Gazette dated 15-11-1990, stating that while issuing the preliminary notification referred to above, certain omissions have been noticed and this omission made the issuance of addendum to include the land in Survey No. 122 as one of the land proposed for acquisition in the preliminary notification dated 23-3-1988. Thereafter, a final notification was issued on 19-10-1994 under Section 19 (1) of the Act, declaring the land in Survey No. 122 of Kothanur village along with other lands are required for public purpose. This notification has been questioned by the petitioner in this writ petition on the ground that land in Survey No. 122 of Kothanur village, was not proposed for acquisition in the preliminary notification and therefore, no final notification could be issued declaring the said land as required for the public purpose. Further, it is submitted that the addendum dated 7-11-1990 published in the Gazette dated 15-11-1990 cannot be treated as a preliminary notification as there is no proper publication as provided under the Act for the purpose of issuing the final notification. In reply to the said submission, Sri N. K. Patil, learned counsel for B. D. A. , submitted that since the Survey No. 122 is included in the draft notification and by mistake the printing press, while printing the notification, had not printed the land in Survey No. 122 and therefore, the addendum is to be treated as the preliminary notification proposing to acquire the said land for public purpose. He nextly contended that the petitioner having purchased this land subsequent to the addendum, is to be treated as a purchaser subsequent to the preliminary notification and therefore, the writ petition filed by him is to be dismissed as not maintainable in view of the decision of the Supreme Court and this Court.

(2.) UNDER the scheme of the Act, if a notification is published under section 17 (1) and (3) of the Act, the said notification is to be published in the Official Gazette and is to be affixed in some conspicuous part of its own office, the Deputy Commissioner's office, the office of the Corporation and in such other places the authority may consider necessary. It is an admitted fact that after issuance of the addendum dated 7-11-1990, the copy of the addendum has not been affixed in the conspicuous part of the office of the B. D. A. , the office of the Deputy Commissioner and the office of the Corporation. If that is so, the addendum cannot be treated as a preliminary notification issued under Section 17 (1) and (3) of the act proposing to acquire the said land for the purpose of implementation of the scheme as there is no notice to public. In the absence of such notice, there cannot be any final notification issued under Section 19 (1)of the Act, since it results in taking away the valuable right of objecting the proposed acquisition by the landowner.

(3.) THE addendum issued on 7-11-1990 is only to add Survey No. 122 in the preliminary notification dated 23-3-1988. In the normal course, such additions shall not be permitted as it dates back to the date of preliminary notification dated 23-3-1988. In respect of the land acquisition under B. D. A. Act, the provisions of the Land Acquisition Act are made applicable for the purpose of determining the market value of the land. Under the Land Acquisition Act, the landowner is entitled for a market value as on the date of the preliminary notification. From the facts narrated above, the land of the petitioner is not included in the preliminary notification dated 23-3-1988. The addendum was issued on 7-11-1990 published in the Official Gazette on 15-11-1990 and the consequence of publication of this addendum is to treat the land in Survey No. 122 as the land proposed for acquisition in the preliminary notification dated 23-3-1988. Even though the land of the petitioner was notified by way of an addendum in the year 1990, the petitioner will not be entitled for the market value of the land as on 7-11-1990 since the said addendum dates back to the date of preliminary notification dated 23-3-1988. Therefore, even on this ground also, the addendum cannot be treated as a preliminary notification.