Disposed

Sri M S Shiva Kumar v. the State of Karnataka

Karnataka HC28 Sept 2021WP/12261/2021

Case brief

AI extract

What is this about?

Single Bench disposed of a writ petition filed by a petitioner seeking to quash impugned orders regarding land-based industries. The court directed the petitioner to follow procedure laid down by a Division Bench in a related matter, requiring conversion permission under the Karnataka Land Revenue Act and Town and Country Planning Act before reviving operations. The pending petition did not decide

What did the court decide?

Petition disposed; liberty to apply if permission is granted as per Division Bench order dated 01.09.2021; amendment prayer disposed as not surviving.

Sri M S Shiva Kumar Vs the State of Karnataka — Land Acquisition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

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WRIT PETITION No.12261 OF 2021 (LB- RES)

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BETWEEN

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SRI M.S.SHIVA KUMAR S/O LATE SHAMANNA AGED ABOUT 47 YEARS, RESIDING AT MANDUR VILLAGE AND POST, BIDARAHALLI HOBLI, BENGALURU EAST TALUK BENGALURU – 560 049.

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... PETITIONER

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(BY SRI BHADRINATH R., ADVOCATE (VIDEO CONFERENCING))

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AND

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THE STATE OF KARNATAKA REVENUE DEPARTMENT M.S.BUILDING BENGALURU – 560 001 REPRESENTED BY PRINCIPAL SECRETARY.

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THE COMMISSIONER BENGALURU METROPOLITAN REGION DEVELOPMENT AUTHORITY NO.1, ALI ASKAR ROAD BENGALURU – 560 001.

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THE JOINT DIRECTOR / MEMBER SECRETARY TOWN AND COUNTRY PLANNING AUTHORITY HOSAKOTE PLANNING AUTHORITY

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MISSION HOSPITAL ROAD, 1^ST CROSS, SRI VENKATADRI LAYOUT, HOSAKOTE, BENGALURU RURAL DISTRICT – 562 114.

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THE DEPUTY COMMISSIONER BENGALURU URBAN DISTRICT K G ROAD, KANDAYA BHAVAN BENGALURU – 560 009.

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THE KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD REPRESENTED BY ITS CHIEF EXECUTIVE NO.49, 4^TH AND 5^TH FLOOR, KHANIJA BHAVAN RACE COURSE ROAD BENGALURU – 560 001.

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... RESPONDENTS

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(BY SRI NITHYANANDA K.R., HCGP FOR R1 & R4

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(PHYSICAL HEARING) SRI YOGESH D.NAIK, ADVOCATE FOR R2 (PHYSICAL HEARING) SRI A.V.GANGADHARAPPA, ADVOCATE FOR R3 (VIDEO CONFERENCING) SRI BASAVARAJ V.SABARAD, ADVOCATE FOR R5 (PHYSICAL HEARING))

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS BEFORE THE R2 AS FOUND AT ANNEXURE-A AND L AND TO CALL FOR RECORDS BEFORE THE R3, HOSAKOTE PLANNING AUTHORITY AS FOUND AT ANNEXURE-J; QUASH THE IMPUGNED ORDER /ENDORSEMENT DATED 02.09.2020 PASSED BY R2 AS FOUND AT ANNEXURE-A AND ETC.,

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THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner in this writ petition seeks the following prayer:

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“(a) To call for the records on the file of BMRDA/TP-3/HPA/03/2020-21 before the respondent No.2 as found at Annexure- A & L and to call for records on the file of HOYOPRA/I.N.D./04/2019- 20, before the respondent No.3/Hosakote Planning Authority as found at Annexure - J;

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(b) To pass an order of writ of certiorari, or order or to quash the impugned order/endorsement dated 02.09.2020 in BMRDA/TP-3/HPA/03/2020-21 passed by the respondent No.2 as found at Annexure - A;

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(c) To pass an order of writ of certiorari, or order or to quash the impugned order dated 10.06.2020 vide No HOYOPRA/I.N.D./04/2019- 20, passed by the respondent No.3/Hosakote Planning authority as found at Annexure - J; &

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(d) To issue any other appropriate writ /s order /s direction /s as this Hon’ble Court deems fit to grant under the facts and circumstances of the case, in the interest of justice and equity.”

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2. Heard Sri Bhadrinath R., learned counsel appearing for the petitioner, Sri Nithyananda K.R., learned High Court Government Pleader appearing for first and fourth respondents, Sri Yogesh D. Naik, learned counsel appearing for the second respondent, Sri A.V.Gangadharappa, learned counsel appearing for the third respondent and Sri Basavaraj V. Sabarad, learned counsel appearing for the fifth respondent and perused the material on record.

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3. Identical matters were seized by the Hon’ble Division Bench in writ petition No.13977 of 2019, wherein, the present petitioner was a party respondent No.11. The Hon’ble Division Bench considering the identical claims of all the stake holders, by its order dated 01.09.2021, directed as follows:

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“This Court on 20^th July of 2021 has passed the following order in W.P.No.13977 of

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2019: "The learned counsel appearing for the eleventh and fourteenth respondents states that the fourteenth respondent has stopped its activities and has vacated the site which was in its possession. We grant time to the contesting respondents to produce permissions under subsection(2) of Section 14 of the Karnataka Town and Country Planning Act, 1961 within a period of six weeks from today. On their failure to produce the permissions, the prayer for interim relief will have to be considered on merits. Hence, we adjourn this petition till 1st September 2021 to enable the contesting respondents to produce the permissions, if any. Writ Petition No.991 of 2021 shall be also listed on the same date". 2. It has been brought to the notice of this Court that Respondent No.9 is the land owner and over the land which is under the ownership of Respondent No.9, Respondent No.12 M/s.ICORE Concrete, an Industry is in existence. Respondent No.12 has not filed any permission under sub-section (2) of Section 14 of the Karnataka Town and Country Planning Act,

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1961 (for short, 'Act of 1961') as directed by this Court and therefore, we are left with no other choice except to direct closure of the Industry. It is ordered accordingly.

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3. It is made clear that in case, if the permission is granted under sub-section (2) of Section 14 of the Karnataka Town and Country Planning Act, 1961, the Respondent No.12 shall be free to revive its operations.

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4. Respondent No.10 is the land owner in respect of Respondent No.3 - Industry. No permission as required under sub-section (2) of Section 14 of the Karnataka Town and Country Planning Act, 1961 has been brought on record by Respondent No.10 and Respondent No.13 and therefore, their operations are to be closed forthwith. It is ordered accordingly.

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5. Respondent No.11 is a land owner and Respondent No.15 is the tenant having an Industry, i.e., M/s.India Cements Limited. It has been brought to the notice of this Court that a writ petition has been filed by Respondent No.15

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and it is pending before this Court i.e., W.P.No.12261 of 2021 and this Court on 13^th July, 2021 has granted an interim order to carry out the operations till the next date of hearing and therefore as the matter is sub-judiced before this Court, we are not passing any orders in respect of Respondent No.15.

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6. Respondent No.11 is the landlord again in respect of Respondent No.14 - Industry and it has been stated at the Bar that Respondent No.14 has stopped all the industrial operations as they do not have permission under subsection (2) of Section 14 of the Karnataka Town and Country Planning Act, 1961.

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7. The respondents are further granted time to produce permission required under the Act of 1961 and if such a permission is granted, they shall be free to bring it on record/ shall be free to apply for modification of the order passed today. The State Government is directed to ensure strict compliance of the order passed today. List this matter on 30th September, 2021.”

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and the writ petition is pending consideration before the Hon’ble Division Bench.

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4. In spite of all other land owners who had leased their premises for industrial purposes without obtaining permission under Sub-section (2) of Section 14 of the Karnataka Town and Country Planning Act, 1961 (hereinafter referred to as ‘the said Act’ for short), were all directed to be closed down and if the permission is sought and granted by the competent authority, liberty was also given to revive the operations.

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5. In the case at hand, it is not in dispute that there is no permission either sought or obtained from the hands of the competent Authority under the said Act.

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6. Learned counsel for the petitioner would seek to emphasize upon the conversion of the land from agriculture to non- agriculture under Section 95 of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as ‘the KLR Act’ for

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short) and in the light of no order being passed by the Deputy Commissioner, the land is deemed to have been converted under Sub-section (5) of Section 95 of the KLR Act. He would also submit that permission under the said Act is not required as the Planning Authority by its communication dated 10.06.2020, had issued a notice under Sections 15 and 17 of the said Act and has later passed a final order, declining to grant permission.

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7. Sri Yogesh D. Naik, learned counsel appearing for the second respondent would place reliance upon the judgment of the Co-ordinate Bench of this Court in the case of The Karnataka State Judicial Employees House Building CoOperative Society Limited and Others Vs. The State and Others¹ , wherein this Court has held as follows:

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“3. Sri T.S.Ramachandra, Learned Counsel for the petitioners submitted that the State Government has not authority to demand payment towards conversion fine relying upon Section 14 of the Karnataka Town and Country Planning Act, 1961 (for

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1 ILR 1997 Kar 3914

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short ‘the Act 1961’). It is in the submission of Sri T.S.Ramachandra, that the land which is proposed for acquisition is earmarked for a residential purpose in the C.D.P. published under the Act, 1961 and that the same shall not be used for any other purpose other than residential purpose except with the written permission of the planning authority. In view of this, it is contended that as the lands which were the subject matter of notifications issued under the LA Act, are all earmarked or reserved for residential purpose in the C.D.P. and the said land cannot be used for any purpose other than the residential purpose; therefore, the question of payment of conversion fine for the purpose of using the land for non- agricultural purpose under Section 95 of the Act, 1964 does not arise and therefore, the demand made by the State Government calling upon the petitioner to pay the conversion fine towards cost of acquisition is without authority of law. In support of this contention he relied upon the decision of this Court in Special Deputy Commissioner v. Narayanappa1 wherein it is held as follows:—

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“In view of the above provision a written permission for change of land use in respect of land falling within the Bangalore

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City Planning Area and covered by the CDP is mandatory. This subsequent notification also ousts the authority of the Deputy Commissioner under Section 95 of the Land Revenue Act in respect of lands falling within the Planning Area.”

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In reply to the said contention, Sri. K.P. Ashok Kumar, Learned Government Advocate submitted that the above said decision came up for consideration before the Division Bench in the case of DOULATRAJ Vs. THE STATE OF KARNATAKA AND OTHERS, wherein the Division Bench considering the subsequent amendment introduced to the Act, 1961 by Act 2/1991 has held that the Deputy Commissioner has got right to call upon the person to pay the conversion fine if he wishes to divert the agricultural land to any other purposes. The facts of the said case are - the petitioner in the said Writ Petition is the owner of the land filed an application under Section 95 of the Act, 1964 for conversion. The said application was allowed imposing a conversion fine of Rs.10,890/-. The same was paid pursuant to the order of conversion on 9.3.1990. Thereafter, the petitioner filed an application before the Deputy Commissioner for the refund of the

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amount relying upon the decision of this Court in the case of Narayanappa referred to above. The said application was rejected. This order of rejection was challenged on the ground that the Deputy Commissioner has no authority to collect conversion fine. The Division Bench (relying on the abovesaid decision) rejected the said Writ Petition in view of the amendment to Section 95 of the Act, 1964 by Act 2/91, which was subsequent to the pronouncement of the Judgment in the Narayanappa's case (supra). Admittedly, the lands which were proposed to be acquired or acquired by the State Government for the benefit of the societies are all agricultural lands. Under Section 95 of the Act, 1964 no person is permitted to use agricultural land for non-agricultural purpose without obtaining the permission of the Deputy Commissioner. Sub-section (2) of Section 95 of the Act, 1964 reads as follows:—

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“2) If any occupant of land assessed or held the purpose of agriculture wishes to divert such land or any part thereof to any other purpose he shall ‘Notwithstanding anything contained in any law for the time being in force apply for permission to the Deputy Commissioner who may subject to the

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provisions of this Section and the rules made under this Act, refuse permission or grant it on such condition as he may think fit.”

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(emphasis supplied)

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The insertion of the words “Notwithstanding anything contained in any law for the time being in force” is only to enable the Deputy Commissioner to collect conversion fine in the event if the agricultural land is permitted to be used for non-agricultural purpose, even though the said land use is shown in the C.D.P. published under the provisions of the Act of 1961 as residential. It is also necessary to mention that the Legislature introduced on amendment by Karnataka Act 2/1991 to Section 14 of the Act, 1961 by inserting the proviso to sub-Section (2) of Section 14 which reads as follows:—

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“Provided that where the use or change of land use under this section needs the diversion of agricultural land to non agricultural purposes, such use or change of use shall not be permitted unless permission is obtained in accordance with the provisions of the Karnataka Land Revenue Act, 1964 for such diversion.”

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The reading of the said proviso it is clear that any person who intends to have the change of land use as contemplated under Section (2) of Section 14 of the Act, 1961 is required to obtain permission from the Deputy Commissioner to use, the agricultural land for non-agricultural purpose under Section 95 of the Act, 1964. This proviso makes it clear that even though the land is covered under the CDP, conversion fine is required to be paid to get the change of land use from agricultural to non-agricultural use, as provided under Section 95 of the Act, 1964. The purpose of acquisition is to use the said land for non-agricultural purpose by the society. Therefore, the petitioners-societies are required to pay the conversion fine as contemplated under Section 95 of the Act, 1964, to the Deputy Commissioner before it uses the land for nonagricultural purpose. When such being the case, there is nothing wrong on the part of the State Government in calling upon the petitioners to pay the conversion fine which was payable by the societies to the Deputy Commissioner.

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Accordingly, for the reasons stated above, the Writ Petitions are rejected. Rule issued is discharged.”

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In the light of the direction of the Division Bench (supra) and the judgment in the case of the KARNATAKA STATE JUDICIAL EMPLOYEES’ HOUSE BUILDING CO-OPERATIVE SOCIETY LIMITED , the petitioner will have to follow the procedure as directed by the Division Bench, apply for such conversion in terms of the KLR Act and in the event, permission is granted, operation of the business of the petitioner in terms of the order of the Division Bench, would be revived.

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8. If the contention of the petitioner is accepted that in terms of Section 95 (5) of the KLR Act, the Deputy Commissioner having not passed order within the stipulated period, would be deemed conversion and no order need be passed by the Deputy Commissioner, it would run counter to what the Division Bench has directed. Therefore, the submission of the learned counsel appearing for the petitioner will have to be confined only to what the Division Bench has directed in which the petitioner was a party-respondent.

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9. For the aforesaid reasons, the writ petition stands disposed.

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If the application is made by the petitioner in terms of what is ordered by the Division Bench, the same shall be considered in accordance with law and such permission of change of land use in Sub-section (2) of Section 14 of the said Act, shall also be considered in terms of and within the conditions stipulated in the order dated 01.09.2021, passed in Writ Petition No.13977 of 2019.

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In view of the disposal of the main petition, I.A.No.2 of 2021 filed seeking amendment of prayer does not survive for consideration and the same is disposed.

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Sd/JUDGE

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nvj CT:MJ

Sri M S Shiva Kumar v. the State of Karnataka

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Sri M S Shiva Kumar v. the State of Karnataka

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