ORDER
Desai, J.
1. The petitioner is the owner in possession of Sy. No. 58 ofKallahalli village, Shimoga Taluk, measuring 18 acres 18 guntas. Thesaid land is proposed for the residential use as per approved OutlineDevelopment Plan of Shimoga. On 20-6-1983, the petitioner made anapplication to the respondent under Section 31 of the KarnatakaImprovement Boards Act, 1976 (for short the 'Act') for grant ofsanction for the purpose of forming a layout as per the original ofAnnexure-A. The respondent-Board passed a Resolution on 18-11-1983refusing permission to the petitioner on the ground that therespondent itself was forming a layout including the land of thepetitioner. It was, however, communicated to the petitioner on10-1-1984 as per the original of Annexure-B i.e., beyond six monthsfrom the date of his application. Therefore, according to thepetitioner, as the respondent did not refuse sanction to thepetitioner within six months from the date of the receipt of hisapplication, such sanction shall be deemed to have been granted to himaccording to Sub-section (8) of Section 31 of the Act. By itscommunication dated 18-11-1986, the respondent directed the petitionernot to proceed with any development activities in the said land.Hence, the petitioner has filed this Writ Petition for quashingAnnexure-F and for declaration that the sanction sought for by himunder Section 31 of the Act for forming layout in Sy. No. 58 ofKallahalli village is deemed to have been granted.
2. The respondent has filed written objections contending interalia, that the notice Annexure-F is valid, that as therespondent-Board refused the request of the petitioner for sanctionwithin six months, it is valid refusal as it is not required to becommunicated according to Subsection (8) of Section 31 of the Act andthat the application of the petitioner is not a valid application asit was not accompanied by plans and estimates as required bySubsection (2) of Section 31 of the Act.
3. The first contention of Mr. Jayakumar S. Patil, learned Counselfor the respondent is that the application of the petitioner was notaccording to Sub-section (2) of Section 31 of the Act inasmuch as itwas not accompanied by the plans and estimates. Sub-section (2) ofSection 31 of the Act reads thus;
'Any person intending to form an extension or layout or tomake a new private street shall send to the Chairman, a writtenapplication with plans and estimates showing such particulars, as maybe prescribed by Bye-taws made by the Board.'
In this case, it is admitted by Mr. Patil that no Byelaws have beenmade by the Board regarding the particulars to be mentioned in theplans and estimates. Moreover, it was open to the Board to call forfurther information from the applicant regarding the plans andestimates if it needed them. That also has not been done by the Board.The application of the petitioner has been rejected on the ground thatthe Board itself is executing the scheme including the land of thepetitioner and not on the ground that his application was notaccompanied by plans and estimates. Therefore, I see no force in thesaid contention of Mr. Patil.
4. The next contention of Mr. Patil is that the Board had passedthe Resolution dated 18-11-1983, within six months from the date ofthe application of the petitioner i.e., 20-6-1983 and therefore theapplication of the petitioner is deemed to have been refused withinsix months. No doubt, the Board did pass a Resolution as per Ex.R.1dated 18-11-1983 rejecting the application of the petitioner on theground that the Board itself is forming a layout including the land ofthe petitioner.
5. Mr. R.V.Jayaprakash learned Counsel for the petitioner, relyingupon the decisions in (1) STATE OF KARNATAKA AND OTHERS v. M.V.CHANDRASEKHARA MURTHY AND OTHERS, 1984(2) KLJ 48 and (2) BACHHITTAR SINGH v. STATEOF PUNJAB, : AIR1963SC395 , urged that the said Resolution will not take effectunless it is communicated and as the date of communication to thepetitioner is beyond six months from the date of his application, thesanction prayed for by the petitioner is deemed to have been grantedin accordance with Sub-section (8) of Section 31 of the Act. InBachhittar Singh v. State of Punjab, : AIR1963SC395 , the Supreme Court dealt withthe case of the Departmental enquiry. There, the question forconsideration was as to what amounts to an order of State Government.The Supreme Court held that before something amounts to an order ofthe State Government two things are necessary, namely, (1) that theorder has to be expressed in the name of the Governor as required byClause (1) of Article 166 of the Constitution, and (2) that it has tobe communicated. The Supreme Court has observed thus:
'Indeed it is possible that after expressing oneopinion about a particular matter at a particular stage a Minister orthe Council of Ministers may express quite a different opinion onewhich may be completely opposed to the earlier opinion. Which of themcan be regarded as the 'order' of the State Government? Therefore, tomake the opinion amount to a decision of the Government, it must becommunicated to the person concerned. In this connection we may quotethe following from the Judgment of this Court in the STATE OF PUNJABv. SODHI SUKHADEV SINGH : [1961]2SCR371 :
'Mr. Gopal Singh attempted to argue that before the final order waspassed the Council of Ministers had decided to accept the respondent'srepresentation and to reinstate him, and that, according to him, therespondent seeks to prove by recalling the two original orders. We areunable to understand this argument. Even if the Council of Ministershad provisionally decided to reinstate the respondent that would notprevent the Council from reconsidering the matter and coming to acontrary conclusion later on, until a find decision is reached by themand is communicated to the Rajpramukh in the form of advice and actedupon by him by issuing an order in that behalf to the respondent.'Thus it is of the essence that the order has to be communicated tothe person who would be affected by that order before the State andthat 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 matterover and over again and therefore till its communication the ordercannot be regarded as anything more than provisional incharacter.'
In State of Karnataka and Others v. M.V. Chandrashekhara Murthy andOthers, 1984(2) KLJ 48 the decision to modify the approved scheme taken by thethen Chief Minister was neither published nor communicated to any oneand it was held that until the said decision was communicated orpublished, it cannot be regarded as anything but provisional andtentative in character which is amenable to alteration or modificationbefore its publication or communication.
6. In view of the said decisions, it follows that mere passing aResolution by the respondent-Board will not amount to an order ofrefusal and it will be effective only from the date of communicationto the petitioner. As the date of communication was after the periodof six months, the sanction prayed for by the petitioner shall bedeemed to have been granted according to Sub-section (8) of Section 31of the Act although Sub-section (8) does not require communication andit requires only refusal. Refusal has to be deemed to be effectiveonly from the date of communication. Therefore, the fact there is noprovision requiring refusal to be communicated will not make anydifference.
7. According to Sub-section (6) of Section 31 of the Act, thesanction prayed for may be refused only on four grounds stated inSub-clauses (i) to (iv) of that Section. The grounds stated by theBoard for refusing the sanction prayed for by the petitioner does notfall within the ambit of any one of the four grounds mentioned inSub-section (6). Therefore, the order of refusal passed by the Boardis 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 Subsection (6) of Section 31 of theAct, it is ineffective.
8. Mr. Patil, learned Counsel for the respondent, urged that as noBye-laws have been framed by the Board, the Board could not havedetermined the question as to whether the scheme of the petitioner wasin accordance with Bye-laws or not. The Board itself was competent toframe the Bye-laws and if it has failed to do it, it cannot be allowedto take advantage of its own lapse. It was also open to it to call forfurther information from the petitioner to find out as to whether thescheme of the petitioner should be sanctioned or not. Under thecircumstances, I see no force in the said contention of Mr. Patil.
9. As the sanction prayed for by the petitioner is deemed to havebeen granted as his prayer was not refused within six months from thedate of his application, the respondent-Board could not have issued adirection as per Annexure-F to the petitioner.
10. In the result, the Writ Petition is allowed and Annexure-Fdated 18-11-1986 of the respondent-Board is quashed. It is declaredthat the sanction prayed for by the petitioner as per his applicationdated 20-6-83 is deemed to have been granted to him according toSubsection (8) of Section 31 of the Act. No costs.