Allowed

Sri K Balakrishna Gowda v. State of Karnataka

Karnataka HC11 Oct 2019WP/3018/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka held that the Deputy Commissioner exceeded his powers by rejecting a land conversion application after the statutory four-month period had lapsed, making the approval deemed under Section 95(4) of the Karnataka Land Revenue Act 1964. The Court quashed the rejection and issued a writ of mandamus directing the issuance of the conversion order.

What did the court decide?

The notice dated 14.10.2016 rejecting the applications was quashed and a writ of mandamus was issued directing the respondent to pass an order of conversion within the terms of Section 95(2) & (4) of

Sri K Balakrishna Gowda Vs State of Karnataka — Land Acquisition | Karnataka HC (2019)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 11^TH DAY OF OCTOBER, 2019

¶3

BEFORE

¶4

THE HON' BLE MR.JUSTICE ARAVIND KUMAR

¶5

WRIT PETITION No.56386/2018

¶6

C/W

¶7

WRIT PETITION Nos.3018-3020/2019 (KLR –CON)

¶8

IN W.P.NO.56386/2018

¶9

BETWEEN:

¶10

SMT. LAKSHMAMMA, W/O LATE B.C.MARIGOWDA, AGED ABOUT 69 YEARS, R/AT MAKALI VILLAGE, MAKALI POST, ALOORU ROAD, DASANAPURA HOBLI, BANGALORE NORTH TALUK.

¶11

…PETITIONER

¶12

(BY SMT.ANJANA A.V., FOR SMT.VIDYULATHA, ADV.,)

¶13

AND:

¶14

STATE OF KARNATAKA, DEPARTMENT OF REVENUE, VIKASA SOUDHA, BANGALORE – 560 001.

¶15

DEPUTY COMMISSIONER, OFFICE OF THE DEPUTY COMMISSIONER, MYSORE DISTRICT, MYSORE – 571 313.

¶16

¶17

TAHASILDHAR, MYSORE TALUK,

¶18

MYSORE DISTRICT – 571 313.

¶19

…RESPONDENTS

¶20

(BY SRI.A.C.BALARAJ, AGA FOR R1 – R3)

¶21

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTICE DATED 14.10.2016, ISSUED BY THE RESPONDENT No.2 AT ANNEXURE – G TO THE W.P. AND ETC.,

¶22

IN W.P.NOS.3018-3020/2019

¶23

BETWEEN:

¶24

SRI.K.BALAKRISHNA GOWDA, S/O LATE DUGGAPPA GOWDA, AGED ABOUT 68 YEARS, R/AT No.3/153, KANILE BETTU MANE, KAARANJI POST, KAAVALAPADOORU VILLAGE, BANTWALA TALUK AND HOBLI, DAKSHINA KANNADA – 574 265.

¶25

SRI.K.LOKESH, S/O LATE DUGGAPPA GOWDA, AGED ABOUT 59 YEARS, R/AT NO.3/153, KANILE BETTU MANE, KAARANJI POST, KAAVALAPADOORU VILLAGE, BANTWALA TALUK AND HOBLI, DAKSHINA KANNADA – 574 265.

¶26

SRI.PATILA JAGADEESHA @ JAGADEESH V PATIL, S/O V.L. PATIL @ VIRUPAKSHAPPA, AGED ABOUT 48 YEARS, R/AT HOUSE NO.286,

¶27

¶28

20^TH MAIN ROAD, NANDINI LAYOUT, NORTH BANGALORE, BANGALORE CITY – 560 096.

¶29

…PETITIONERS

¶30

(BY SMT. ANJANA A.V., FOR SMT.B.V.VIDYULATHA, ADV.,)

¶31

AND:

¶32

STATE OF KARNATAKA, DEPARTMENT OF REVENUE, VIKASA SOUDHA, BANGALORE – 560 001. BY ITS SECRETARY.

¶33

DEPUTY COMMISSIONER, OFFICE OF THE DEPUTY COMMISSIONER, MYSORE DISTRICT, MYSORE – 571 313.

¶34

…RESPONDENTS

¶35

(BY SRI.A.C.BALARAJ, AGA)

¶36

THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT RESPONDENT No.2 TO FORMALLY ISSUE AN ORDER OF CONVERSION UNDER THE PROVISIONS OF SECTION 95 OF KARNATAKA LAND REVENUE ACT 1964 BY COLLECTING CONVERSION FINE AS REQUIRED U/S 95(7) OF THE KARNATAKA LAND REVENUE ACT 1964 IN RESPECT OF THE SCHEDULE LAND BELONGING TO THE PETITIONERS.

¶37

THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

¶38

¶39

ORDER

¶40

These two writ petitions are taken up together for

¶41

consideration since common question of law is involved. Prayers sought for in the respective writ petitions reads:

¶42

RE. W.P. No.56386/2018:

¶43

Issue a writ of certiorari or any other similar writ or order or direction quashing the notice dated 14.10.2016 bearing

¶44

No.A.L.N.(3)C.R.18/2016-17, issued by the 2^nd respondent at Annexure-G to the writ petition.

¶45

Issue a writ of mandamus or any other similar writ or order or direction, directing respondent No.2 to formally issue an order of conversion under the provisions of Section 95 of Karnataka Land Revenue Act, 1964 (hereinafter referred to as ‘Act’), by collecting conversion fine as required under Section 95(7) of the Act, in respect of the schedule land belonging to the petitioner.

¶46

Pass such other suitable writ or order or direction as this Hon’ble Court deems fit to grant in the facts and circumstances of the case and in the interest of justice and equity.

¶47

¶48

RE. W.P. Nos.3018-3020/2019:

¶49

Issue a writ of mandamus or any other similar writ or order or direction, directing respondent No.2 to formally issue an order of conversion under the provisions of Section 95 of Karnataka Land Revenue Act, 1964, by collecting conversion fine as required under Section 95(7) of the Karnataka Land Revenue Act, 1964 in respect of the schedule land belonging to the petitioners.

¶50

Pass such other suitable writ or order or direction as this Hon’ble Court deems fit to grant in the facts and circumstances of the case and in the interest of justice and equity.

¶51

In W.P. No.56386/2018, petitioner submitted an application to 2^nd respondent on 22.4.2016 Annexure-F seeking conversion of land bearing Sy.No.6/2 measuring 19 guntas situated at Yandahalli, Varuna Hobli, Mysuru Taluk and District, which she claims to have purchased under a registered sale deed dated 21.11.2012. Said application was neither rejected nor disposed of by intimating the petitioner within four months from date of application. On the

¶52

¶53

other hand, by impugned endorsement dated 14.10.2016 (Annexure-G), petitioner has been

¶54

intimated that her application for diversion of land from agricultural purpose to non-agricultural purpose is not being considered and it has been rejected in view of resolution dated 11.2.2010 passed by Mysuru Urban Development Authority (for short ‘MUDA’) whereunder the earlier resolution of Mysuru Urban Development Authority dated 6.11.2009 to drop survey No.6/2 for acquisition namely for formation of Lala Bahadur Shastry Layout has been kept pending and accordingly petitioner has been intimated that her application has been rejected.

¶55

Insofar as W.P. Nos.3018-3020/2019 are concerned, petitioner No.1 was the owner of land measuring 19 guntas situated at Sy. No.6/3 of Yandahalli Village, Varuna Hobli, Mysuru Taluk and District and he had sought for diversion of said land from agricultural purposes to non-agricultural purposes by submitting an application on 22.4.2016, which was

¶56

¶57

duly acknowledged by the office of respondent No.2 vide Annexure-C and C1 respectively. Petitioner No.1 claims to have purchased said property under a registered sale deed dated 21.11.2012. It is also stated by first petitioner that out of 19 guntas of land owned by him, he had executed a gift deed to an extent of 9 guntas in favour of petitioner No.2 and remaining 10 guntas have been sold in favour of petitioner No.3 under registered deeds dated 13.4.2017 as per Annexures-D and D1 respectively. Pursuant to same, katha of said lands have also been mutated to the names of petitioner Nos.2 and 3 respectively. In the light of application for conversion of land in question having been filed by petitioner No.1 under Section 95(1) of the Act, it is contended by petitioners 2 and 3 that, under Section 95(5) of the Act, there is deemed conversion and they are entitled to the benefit flowing to petitioners, being successors in interest.

¶58

Hence, petitioners are before this Court seeking for a writ of mandamus to direct respondent

¶59

¶60

No.2 to formally issue an order of conversion by collecting conversion fine as prescribed under Section 95(7) of the Act.

¶61

I have heard the arguments of Smt. Anjana A.V., learned Counsel appearing on behalf of Smt. B.V. Vidyulatha for petitioner and Sri. A.C. Balaraj, learned AGA appearing for respondents. Perused records.

¶62

This Court in W.P. No.33585 of 2019 c/w. W.P. No.33587 of 2019 and W.P. No.33589 of 2019 disposed of on 25.9.2019, while examining the right of an applicant to seek for an order of deemed conversion being passed in his/her favour had held to the following effect:

¶63

“ 6. Sub-section (3) of Section 95 enables the Deputy Commissioner to refuse permission on the ground that diversion is likely to defeat the provisions of any law for the time being in force or it is likely to cause public nuisance and not being in the interest of general public or on the ground that occupant is unable or unwilling to comply

¶64

¶65

with the conditions that may be imposed under sub-section (4) of Section 95 of the Act.

¶66

Sub-section (4) enables the Deputy Commissioner to impose such conditions as he deems fit in order to secure the health, safety and convenience and in case of land which is to be used as building sites, additional conditions can also be imposed which would not contravene the provisions of any law relating to town and country planning or erection of the buildings. As per the mandate of subsection (5) of Section 95 if the Deputy Commissioner fails to inform the applicant of his decision on the application made under sub-section (2) of Section 95 within a period of four months from the date of receipt of such application, then permission applied for would be deemed to have been granted.

¶67

In other words, by a deeming fiction, the permission is ought to be accorded. There cannot be any dispute with regard to the proposition of law that a deeming provision has to be given its full

¶68

¶69

effect. In other words, where there is a deeming provision and same applies, the jurisdiction of the authority of the Deputy Commissioner to further consider the application ceases to exist or it gets exhausted and thereby, no power would be available to the Deputy Commissioner to further exercise the power after the period of four (4) months. However, in the event of such application having been taken up for consideration before said period and defects in the application is / are pointed out to such applicants, then in such an event said provision would not be applicable at all.

¶70

The Hon’ble Apex Court in case of CONSOLIDATED COFFEE LTD. AND ANR vs. COFFEE BOARD, BANGALORE, ETC. ETC (AIR 1980 SC 1468) has held, when the law provides that an assumption is deemed to have been happened then in the eyes of law, it will be taken as happened though it might not have occurred in fact. In fact, effect of deemed provision under Section 95(5) of the Act had come up for consideration before the Coordinate Bench of this Court in the case of RUDRASWAMY vs.

¶71

¶72

DEPUTY COMMISSIONER reported in ILR 1994 KAR 2958 and held as under:

¶73

‘ 8. Under sub-section (5) of Section 95, it has been provided that if the Deputy Commissioner fails to inform the applicant of his decision on the application made under sub-section (2) within a period of 4 months from the date of receipt of the application, the permission shall be deemed to have been granted. The deeming clause, it is well known, leads to an assumption in law of a fact as if the fact has taken place in reality though it might not have taken place. When law provided that thing is deemed to have happened, then in the eye of law, it will be taken as happened though it might not have occurred in fact. It is well settled principle of law and rule of interpretation that a deeming provision has to be given its full effect. Reference in this regard may be made to the following Decisions of the Supreme Court.

¶74

(a) STATE OF BOMBAY vs PANDURANG VINAYAK AND OTHERS

¶75

(b) CONSOLIDATED COFFEE LTD vs COFFEE BOARD.

¶76

Then it means that the permission is to be deemed to have been granted on the expiry of the period of 4 months i.e., on

¶77

¶78

the expiry of four moths period as aforesaid. It shall be deemed that the Deputy Commissioner has granted permission and once this deeming clause applies, the jurisdiction of the authority of the Deputy Commissioner to reject the application ceases and gets exhausted.’

¶79

The effect of deemed provision had come up for consideration before Hon’ble Apex Court in the case of MANISH TRIVEDI vs. STATE OF RAJASTHAN reported in (2014) 14 SCC 420 and held that legislature has created a legal fiction. It has been further held:

¶80

“14. Section 87 of the Rajasthan Municipalities Act, 1959 xxxxx Section 21 of the Penal Code. It is well settled that the legislature is competent to create a legal fiction. A deeming provision is enacted for the purpose of assuming the existence of a fact which does not really exist. When the legislature creates a legal fiction, the court has to ascertain for what purpose the fiction is created and after ascertaining this, to assume all those facts and consequences which are incidental or inevitable corollaries for giving effect to the fiction. In our opinion, the legislature, while enacting Section 87 has, thus, created a legal fiction for the purpose of assuming that the Members, otherwise, may not be public servants

¶81

¶82

within the meaning of Section 21 of the Penal Code but shall be assumed to be so in view of the legal fiction so created. In view of the aforesaid, there is no escape from the conclusion that the appellant is a public servant within the meaning of Section 21 of the Penal Code.”

¶83

In this background and, at the cost of repetition, if sub-section (5) of Section 95 is perused, it would clearly indicate that in the event of Deputy Commissioner failing to inform the applicant of his decision on the application made under sub-section (2) within a period of four months from the date of receipt of such application, then permission is deemed to have been granted. The deeming cause, it is well-known, leads to an assumption in law of a fact as if the fact has taken place in reality though it might not have taken place.

¶84

In fact the appropriate Government by notification No.RD.56.LGP 2008 dated 10.09.2008 has held that revenue authorities while dealing with applications for conversion of agricultural land to non-agricultural purposes, would not insist the applicants to obtain clearance

¶85

¶86

prior to sanction of conversion order, from the competent authorities like Urban Development Authority, Local bodies like CMC, TMC, Grama Panchayath and also Pollution Control Board since they would be required to grant permission for utilizing the land for non-agricultural purposes for which permissions for conversions have been granted after following due process of Law with necessary safeguards. It is also indicated in said circular that Deputy Commissioners and Assistant Commissioners should only look into the provision of Karnataka Land Revenue Act and other allied Laws.

¶87

In other words, while examining the applications for conversion, the Deputy Commissioner would not be competent to decide as to whether the said land would fall within the Urban Zone or otherwise to accord such permission. It would be outside the scope of his jurisdiction or in other words, it can be said that the Deputy Commissioner would be at liberty to impose the condition of directing the applicant to obtain appropriate permissions / clearance

¶88

¶89

from the other statutory authorities. In the absence thereof, the deeming provision would surface and come to the aid of such applicant.

¶90

In fact, under somewhat similar circumstances where an endorsement came to be issued to an applicant after considering his application by rejecting it on the ground that the land proposed for conversion would fall within the zone of ‘National Investment and Manufacturing Zone’, came to be examined by a Division Bench of this court in W.A.No.200561/2016 and 200013/2017 and was disposed of on 1.2.2017 holding that immediately after lapse of four months, a right had accrued to the applicant to press into service the deeming clause. It was further held that mere proposal to reserve a land for a particular purpose by the statutory authority, which had not blossomed itself into decision having been taken or State having taken steps to acquire the said land, as on the date when an applicant makes an application for conversion, such rights cannot be scuttled or in other words, it cannot be gainsaid by the

¶91

¶92

State that applicant does not have any right to seek such conversion of land. ”

¶93

Keeping in mind the above principles laid

¶94

down, when facts on hand as pleaded in W.P. No.56386/2018 is perused, it would clearly indicate that petitioner had submitted an application under Section 95(1) of the Act for conversion of land bearing Sy. No.6/2 measuring 19 guntas from agricultural to non agricultural purposes. Vide application dated 22.4.2016 (Annexure-F). Receipt of said application has been duly acknowledged by respondent No.2 as is evident from the acknowledgment Annexure-F1. Said application having not been rejected or disposed of under section 95(3) of the Act by 2^nd respondent, the deeming provision under Section 95(4) of the Act, would surface or come into play. In other words, the right of the applicant to contend that there is a deemed approval gets accrued to such applicant. In the instant case, as noticed above, application for conversion having been filed on 22.4.2016, four months stipulated under Section 95(4) of the Act would lapse on

¶95

¶96

22.8.2016. In other words, right available to petitioner to such for deemed conversion under Section 95(4) of the Act had accrued on 23.8.2016 i.e., much prior to the impugned endorsement dated 14.10.2016 (Annexure-G) came to be issued. Hence, respondents cannot contend that vested right of the petitioner to seek benefit of deemed conversion would be unavailable to her that too for the reasons, indicated under the impugned endorsement dated 14.10.2016 Annexure-G. In the instant case, right having been accrued to the petitioner on 23.8.2016, the impugned endorsement rejecting the request of the petitioner is not sustainable in law.

¶97

That apart, this Court and Division Bench of

¶98

this Court has consistently held that proposal to acquire land would not be a ground for rejection of prayer for conversion. For this proposition, judgment of Division Bench of this Court in case of SRI TAYAPPA

¶99

VS. THE STATE OF KARNATAKA, THE DEPUTY COMMISSIONER, BAGALKOT reported in ILR 2015

¶100

¶101

KAR 3041 can be looked up. In the said judgment, it came to be held that there is no prohibition disentitling the land owner to put his land for better use by seeking conversion after publication of the notification under Section 4(1) of the Land Acquisition Act 1894. In the instant case, as could be seen from the impugned endorsement dated 14.10.2016 Annexure-G, proposal to drop land in question from acquisition has been put on hold by Mysuru Urban Development Authority by resolution dated 11.2.2010 and on said ground, application of petitioner has been rejected. In other words, the alleged acquisition proceeding has not even commenced and even after nine years from the date of issue of preliminary notification, no final notification has been issued. Hence, respondent was not justified in rejecting the request of the petitioner to issue order converting the subject land to non agricultural purposes on such terms and conditions as may be deemed fit .

¶102

¶103

Insofar as W.P. Nos.3018-3020/2019 is concerned, petitioner No.1 submitted an application for conversion of land bearing Sy. No.6/3 measuring 19 guntas to respondent No.2 on 22.4.2016 and has sought for enforcement of right accrued to him under Section 95(4) of the Act, after lapse of four months, as prescribed under Section 95(4) of the Act, i.e., on 23.8.2016. It is not in dispute that first petitioner has conveyed an extent of 9 guntas of said land in favour of second petitioner by executing a registered gift deed and has also sold an extent of 10 guntas under a registered sale deed dated 13.4.2017 in favour of third petitioner. The right which accrued to petitioner No.1 would also enure to benefit of petitioner Nos.2 and 3, as successors in interest over the subject property particularly when they are also before this Court along with petitioner No.1 for enforcement of said right, which had accrued to 1^st Petitioner.

¶104

In the instant cases, there is no reason assigned by the respondent for application of petitioner submitted on 22.4.2016 and duly acknowledged by

¶105

¶106

respondent No.2 for having not been considered and/or disposed of. In the light of petitioners having acquired a right to demand for issuance of deemed conversion order on lapse of four months period i.e., on expiry of four (4) months namely on 22.8.2016, they are also entitled to plead that their application is deemed to have been approved and for declaring there is deemed conversion. In other words, these petitioners are also entitled to the reliefs sought for.

¶107

For reasons aforestated, I proceed to pass the following:

¶108

ORDER

¶109

(1) W.P. No.56386/2018 is hereby

¶110

allowed.

¶111

(2) Notice/endorsement dated 14.10.2016 bearing No.ALN(3)CR.18/201617 (Annexure-G) is quashed.

¶112

(3) W.P. Nos.3018-3020/2019 are hereby allowed.

¶113

(4) A Writ of mandamus is issued to respondent No.2, in both the writ petitions, to pass an order under Section 95(2) & (4) of the Act granting conversion of subject land

¶114

¶115

as sought for by the petitioners in respective applications by imposing such terms and conditions as may be deemed fit.

¶116

It is made clear that granting of such conversion order by respondent No.2 would not limit the power of other authorities to impose such terms and conditions as may be necessary while granting any other statutory approvals.

¶117

It is also made clear that it would be open to other statutory authorities to consider the claim/prayer of the petitioners for giving necessary sanctions or approvals by imposing such terms and condition/s as may be necessary in the public interest and security by following due process of law.

¶118

Cs/CT:SN

Sri K Balakrishna Gowda v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri K Balakrishna Gowda v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

A. M. Sathish Vs the State of Karnataka

Sri Haleshappa Vs State of Karnataka

Sri M Shettappa Vs Deputy Director of Land Records

The Union of India Vs Sri G P Chandrashekarappa

Kalamma Vs G P Chandrashekarappa

Sri. Choudary G. R. Vs the State of Karnataka