Gopala Gowda, J.:—
This matter is listed for dictating orders. Objections statement to I.A II filed by the petitioner for urging additional grounds in the review petition is filed and the arguments are heard both on the application as well as on the merits of the review petition again.
2. The learned Counsel for the 3rd respondent strongly objected for allowing the application I.A No. II placing reliance upon the Division Bench decision of this Court reported in 2001 (4) KCCR 26981 at paragraph 2:
3. The learned Sr. Counsel appearing for the petitioner placing reliance upon the provisions of Rule 3(3) of the Karnataka Urban Development Authorities (Allotment of Civic Amenity Sites) Rules, 1991 (for short “Rules, 1991”) and Rule 7(1) of the Rules has contended that the above said Rules have been blatently violated by the respondents 1 and 2 at the time of passing the impugned allotment order; since the said ground goes to the root of the matter and falls within the ground enumerated under Order 47 Rule 1 CPC, it is one of the grounds for reviewing the impugned order and as such the learned Senior Counsel submits that the application I.A No. II has to be allowed.
4. Heard the learned Counsel for the parlies. Perused the additional grounds sought to be urged in the application I.A No. II. Keeping in view the grounds on which the order of this Court passed in the Writ Petition can be reviewed as provided under Order 47 Rule 1 CPC, I am of the considered view that the application for urging additional grounds has to be allowed as non-consideration of the said grounds has vitiated the impugned order and further non-compliance of the aforesaid Rules by the second respondent has vitiated the impugned order of allotment made in favour of the 3 respondent by respondents 1 and 2 which is an error apparent on the face of the record and on this ground this Court has to review the order under review. The objections and the reliance placed upon the Division Bench decision of this Court are wholly inapplicable to the facts of the present case and as such the objection statement and submissions made in this regard has to be rejected. For the reasons stated supra, I.A No. 11/2002 is allowed.
5. After allowing the application for urging additional grounds, this Court has examined as to whether the petitioner has made out the case for reviewing the impugned order dated 12.9.2000
6. The learned Senior Counsel contended that the allotment of the civic amenity site bearing plot No. 79 in favour of the 3 respondent is contrary to Rules (3)(2) and Rules 3(3) read with Rule 7(1) of Clauses (a) to (f) and also Rule 7(2); that the provisions of Section 39 of the Karnataka Urban Development Authority Act, which would clearly state that the 2nd respondent shall not sell or otherwise dispose of any area reserved for public parks and playgrounds and Civic Amenities, for any other purpose and any disposition so made shall be null and void and Rule 3(3) provides that due publicity shall be given in respect of Civic Amenity sites so offered for leasing to the Institutions, specifying their location, number, dimension, purpose and last date for submission of application and such other particulars as the Commissioner may consider necessary, by affixing a notice on the notice board of the office of the authority and also by publishing in not less than two daily news papers in English and Kannada having vide circulation in the Urban Area concerned. Further, it is urged that the 2 respondent has not complied with the above mandatory requirement as required under the above Rules. Further, it is urged that Rule 7(1) of the Rules states that second respondent has got the statutory duty to consider the application under Sub-rule (3) of Rule 7 and examine with reference to the claim of the applicants and record a finding after following the procedures enumerated under Clauses (a) to (f) of Rule 7(1) of the Rules. Further, the learned Senior Counsel has drawn my attention to the document at Annexure-F, the resolution passed by the 2 respondent wherein it is pointed out that mandatory requirement of due publicity has not been made and the application of the 3 respondent has not been examined keeping in view the guiding principles enumerated under Clauses (i) to (1) under Rule 7(1) of the Rules.
7. I have carefully examined the order under review with reference to the aforesaid rules and the provisions of the Act. By a careful reading of Rule 3(3) of the Rules. It is clear that due publicity has to be given in respect of allotment of civic amenity site which is earmarked in the layout plan. The 2 respondent has not produced any material to show that the said statutory requirement has been complied with. By a perusal of Annexure-F, it is clear that the authority has considered the application of the petitioner and the 3 respondent and recommended for allotment of civic amenity site in question in favour of the 3 respondent without following the principles enumerated under Clauses (a) to (f) of Rule 7(1) of the Rules for the purpose of allotting the civic amenity site. Therefore, there is blatant violation of the above said Statutory Rules by the 2 respondent in passing the impugned resolution at Annexure-F which resolution has been approved by the first respondent though, it is not necessary under law. The Supreme Court in the case reported in Babu Verghese v. Bar Council of Kerala2 after considering the Privy Council Judgment in Nazir Ahmad v. King Emperor . AIR 1936 PC 253. and its earlier judgments reported in Rao Shiv Bahadur Singh v. State of U.P . 1954 SCC 322. Deep Chand v. State of Rajasthan . AIR 1961 SC 1527. and State of U.P v. Singhara Singh . AIR 1964 SC 358. has at paragraphs 31 and 32 clearly held as follows:—
“31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable, to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmed v. Kind Emperor who stated as under:
“Where a power is given to do certain thing in a certain way the thing must be done in that way or not at all.”
(32) This Rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of U.P and again in Deep Chand v. State of Rajasthan. These cases were considered by a Three Judge Bench of this Court in State of U.P v. Zinbhara Singh and the rule laid down in Nazeer Ahmed Case was again upheld. This Rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salutary principle of administrative law.”
8. In the absence of producing any material documents by respondents 1 and 2 to show that the 2 respondent before passing the resolution at Annexure-F, has complied with the mandatory requirement of due publicity as required under Rule 3(3) of the Rules, it amounts that it has not complied with the mandatory requirements as provided in the said Rule. Therefore, the action of passing the resolution by the 2 respondent is contrary to the statutory and mandatory duty by it as held by the Supreme Court in the case referred to supra. Further, the 2 respondent has not complied with Rule 7(1) in not examining the claim of the petitioner and the 3 respondent keeping in view the guiding principles enumerated under Clauses (a) to (f) of the above said Rule. This is also one more error which has crept in, in the impugned order passed by the 2 respondent which important aspect of the matter has not been taken into consideration by the first respondent at the time of approving the resolution of the 2 respondent Though, non-compliance of Rules 3(3) and 7(1) of the Rules was not urged in the Writ Petition, this Court should have examined the legality and validity of the order from the record of the respondents 1 and 2 while exercising its writ of certiorari jurisdiction keeping in view the law applicable to the case on hand. However, this Court has not noticed the above said provisions of the Act and Rules referred to supra which is one of the ground for reviewing the impugned order in this petition as it has rendered the impugned order void-ab initio in law for non-compliance of the mandatory statutory duty by respondent No. 2.
9. For the reasons stated supra, this review petition is allowed. The impugned order is recalled and the impugned orders at Annexures ‘F’ and ‘G’ in the Writ Petition are hereby quashed. Rule issued and made absolute.