Allowed

Smt Ramakka v. the State of Karnataka

Karnataka HC29 Jun 2021WP/18062/2019

Case brief

AI extract

What is this about?

Writ petitions challenging rejection of land diversion applications claimed as non-est under Section 95(5) of the Karnataka Land Revenue Act, 1964 due to statutory delay, and seeking direction to issue conversion certificates.

What did the court decide?

Order directing the Deputy Commissioner to issue conversion certificates for the subject properties on such terms and conditions as he may deem fit under Section 95(4) of the KLR Act within three mont

Smt Ramakka Vs the State of Karnataka — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO. 18062/2019 C/W WRIT PETITION NO. 18063/2019 (KLR/RES)

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IN WP NO. 18062/2019

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BETWEEN :

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SMT. RAMAKKA W/O LATE E. B. APPANNAREDDY, AGED ABOUT 70 YEARS, R/AT ERABANAHALLI, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 130. ... PETITIONER

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(By SRI. JAYA KUMAR S. PATIL., SENIOR ADVOCATE FOR SRI. SRIHARI A.V., ADVOCATE)

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AND :

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THE STATE OF KARNATAKA VIDHANA SOUDHA, BENGALURU - 560 001 REP. BY ITS CHIEF SECRETARY.

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THE SECRETARY DEPARTMENT OF REVENUE, STATE OF KARNATAKA, M.S.BUILDING, BENGALURU - 560 001.

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3. THE DEPUTY COMMISSIONER KOLAR DISTRICT, KOLAR - 563 130.

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... RESPONDENTS

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(By SRI. A.R. SRINIVAS., AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF MANDAMUS OR ANY OTHER WRIT OR ORDER DECLARING LAND MEASURING 5 ACRES IN SY.NO. 69/2 OF HEDAGINABELE VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT AS DEEMED TO HAVE BEEN CONVERTED FROM AGRICULTURAL USE TO NON AGRICULTURAL COMMERCIAL USE AS ENVISAGED UNDER SECTION 95(5) OF KARNATAKA LAND REVENUE ACT, 1964; ISSUE A WRIT IN THE NATURE OF MANDAMUS DIRECTING THE THIRD RESPONDENT-DEPUTY COMMISIONER TO ISSUE CONVERSION CERTIFICATE IN RESPECT OF LAND MEASUIRNG 5 ACRES IN SY.NO. 69/2 OF HEDAGINABELE VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT AFTER DETERMINING AND COLLECTING CONVERSION FEE BY THE PETITIONER. IN WP NO. 18063/2019

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BETWEEN :

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SHRI A. NAGIREDDY @ A NAGARAJ S/O LATE E. B. APPANNAREDDY, AGED ABOUT 51 YEARS,

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SHRI A. ASHWATHREDDY S/O LATE E. B. APPANNAREDDY, AGED ABOUT 47 YEARS

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SHRI A. VASANTHA REDDY S/O LATE E. B. APPANNAREDDY, AGED ABOUT 45 YEARS

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SHRI A. SIDDAREDDY S/O LATE E. B. APPANNAREDDY, AGED ABOUT 43 YEARS,

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ALL ARE R/AT ERAVANAHALLI, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT - 563 130. ... PETITIONERS

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(By Sri. JAYA KUMAR S. PATIL., SENIOR ADVOCATE FOR SRI. SRIHARI A.V., ADVOCATE)

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AND :

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THE STATE OF KARNATAKA VIDHANA SOUDHA, BENGALURU - 560 001 REPRESENTED BY ITS CHIEF SECRETARY.

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THE SECRETARY DEPARTMENT OF REVENUE, STATE OF KARNATAKA, M.S.BUILDING, BENGALURU - 560 001.

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THE DEPUTY COMMISSIONER KOLAR DISTRICT, KOLAR - 563 130. ... RESPONDENTS

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(By SRI. A.R. SRINIVAS., AGA)

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IN THE NATURE OF MANDAMUS DIRECTING THE THIRD RESPONDENT-DEPUTY COMMISIONER TO ISSUE CONVERSION ORDER IN RESPECT OF LAND MEASUIRNG 19 ACRES 23 GUNTAS IN SY.NO. 68 OF HEDAGINABELE VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT AFTER DETERMINING AND COLLECTING CONVERSION FEE BY THE PETITIONER.

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

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O R D E R

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The petitioners, who assert ownership of the lands measuring 5 acres in Sy.No.69/2 and 19 acres 23 guntas of land in Sy.No.68 of Hedaginabele, Kasaba Hobli, Malur Taluk, Kolar District (the subject properties, have filed these petitions for the following reliefs:

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[a] For declaration that the land measuring 5 acres in Sy.No.69/2 of Hedaginabele village, Kasaba Hobli, Malur Taluk, Kolar District is deemed to be converted from agricultural to non-agricultural commercial use as envisaged under

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section 95(5) of the Karnataka Land Revenue Act, 1964 (for short 'KLR Act').

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b) For a mandamus directing the Deputy Commissioner [the third respondent] to issue conversion certificate in respect of land measuring 5 acres in Sy.No.69/2 of Hedaginabele village, Kasaba Hobli, Malur Taluk, Kolar District after determining and collecting conversion fee by the petitioner in the interest of justice and equity.

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Sri Jayakumar S Patil, learned senior counsel for the petitioners, submits that it is undisputed that the petitioners, as the respective owners of the subject properties, have filed their separate applications under Section 95 of the Karnataka Land Revenue Act, 1964 [for short, ‘ the KLR Act’ ] for diversion of the subject properties from agricultural to non-agricultural purposes and no decision has been taken on these applications within four months contemplated under Section 95(5) of the KLR Act. As

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such the petitioners are entitled for the benefit of the deemed approval for conversion as contemplated under Section 95(5) of the KLR Act. In support of this canvass, the learned Senior Counsel relies upon the decision of this court in W.P.No.52736/2017 which is disposed of on 25.10.2019 and submits that it is settled that if a decision is not taken within the period of four months as contemplated under section 95(5) of the KLR Act, the applicants would be entitled for deemed approval. However, the Deputy Commissioner while issuing the Certificate would be at liberty to stipulate the terms and conditions as contemplated under section 95(2) and 95(4) of the KLR Act.

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The learned Additional Government Advocate

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submits that the petitioners' applications are rejected on 21.05.2019 though not within four months as contemplated under Section 95(5) of the KLR Act. The applications are rejected because of the Government

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Order dated 20.8.2018 which stipulates that as a declaration under Section 10 of the Karnataka Town and Country Planning Act, 1961 (for short 'KTCP Act') is published for the Malur Town Planning Area and because the master plan in terms of Section 14 thereof is yet to be finalized, no diversion under Section 95 of the KLR Act must be allowed within this planning area. The learned Additional Government Advocate, relying upon the decision of this Court in W.P.No.8501/2018 disposed of on 25.6.2018, submits that in similar circumstances this Court has directed the Deputy Commissioner to reconsider and dispose of the application strictly in accordance with law, and the writ petition could also be disposed of accordingly.

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In rejoinder, Sri Jayakumar S Patil submits that merely because a declaration under Section 10 of the KTCP Act has been published, given the Scheme under Sections 14 and 14A of the KTCP Act, the

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application for diversion under Section 95 of the KLR Act cannot be deferred infinitely. He emphasizes that the document relied upon by the learned Additional Government Advocate viz ., the Government Order dated 20.8.2018 is in fact not a government order but it is only a communication by the Government to the Member Secretary, Malur Town Planning Authority to defer granting permissions under the KTCP Act for a period of two months. This Government Order cannot be considered as a direction restraining diversion of land under section 95 of the KLR Act because of publication of intention under Section 10 of the KTCP Act.

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At the outset, it must be said that the provisions of Section 95(5) of the KLR Act has previously come up for consideration before this Court. This Court has reiterated that if the application submitted under Section 95(1) of the KLR Act is not considered and decision thereon informed to the applicant within the

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time contemplated under Section 95 (2) of the KLR Act, then the applicant would be entitled for the benefit of the deemed approval under Section 95(2) of the KLR Act. In which event the Deputy Commissioner would be bound to issue necessary Certificate after collecting the fee on conditions as contemplated under sections 95(2) and 95(4) of the KLR Act. In this regard, the observation by this Court in Para 7 of the writ petition in WP 52736/2000 would be significant and is extracted hereunder:

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"7. In the light of aforesaid analysis of the provision and case laws discussed herein above and the application submitted by petitioner not being in dispute and said application having been acknowledged by second respondent on 01.02.2017, period of 4 weeks prescribed under sub-section (5) of section 95 of the Act would lapse on 01.06.2017. During this interregnum period that is, from 01.02.2017 to 01.06.2017, second respondent has neither intimated the

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petitioner of rejection of application nor has sought for any document from petitioner so as to hold or arrive at a conclusion that application is still under its consideration. But, on the other hand, reports of the Revenue Inspector as well as jurisdictional Tahsildar which are at Annexures-D & E would clearly indicate that except portion of the land in Sy.No.174/2 wherein there is existing burial ground, there is no other remarks or opinion expressed by the jurisdictional revenue inspector who undisputedly had visited the spot and ascertained the topography of the existing land. Accordingly, he has reported to the Deputy Tahsildar, who in turn, has forwarded the reports to the Deputy Commissioner for according sanction or approval of conversion of land sought for by petitioner. In such circumstances, any communication which has emerged from the office of second respondent subsequent to lapse of four months prescribed under sub-section (5) of section 95 has to be necessarily held as non-est. However, it requires to be

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observed that even in case where deemed approval or permission is granted, terms and conditions can be stipulated by the Deputy Commissioner and as such, liberty requires to be reserved to the Deputy Commissioner to pass orders in terms of Section 95(5) read with Section 95(2) of the Act."

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(The underlining is by this Court)

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Further, this Court in WP No. 44398/2016 which is disposed of on 14.11.2016, has reiterated that an application under Section 95 of the KLR Act cannot be rejected or kept pending on the ground that publication of Master Plan under Section 14 of the KTPCL Act is being published. The reiteration reads as follows:

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“ 9. Section 95 of the Act provides for procedure for use of agricultural lands for other purpose. Permission of the Deputy Commissioner is necessary for such purposes. The permission sought for can be refused by the Deputy Commissioner is necessary for such purposes.

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The permission sought for can be refused by the Deputy Commissioner on the ground that such diversion would defeat the provisions of any law for the time being in force or that it is not in the interest of the general public or that the occupant is unable or unwilling to comply with the conditions that may be imposed under subsection (4) of Section 95 of the Act. This is evident from sub-section (3) of section 95 of the Act.

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10. Rejection of the request for permission to divert the land use in the instant case, is not on any of the grounds mentioned in sub-clause (3) of Section 95 of the Act. The sole ground mentioned is that the lands are yet to be included in the local planning area and there is a move for preparing a master plan to include this area and as no such master plan was yet prepared, the request for conversion could not be granted in view of letter addressed in this regard by the Commissioner, Urban Development.

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11. I have no hesitation to hold that the Deputy Commissioner has not acted within his power and jurisdiction in considering the matters, which are not provided for under sub-section (3)

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of Section 95 of the Act while rejecting the request for conversion.”

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It flows from these decisions that an

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application under Section 95 of the KLR Act cannot be rejected merely on the ground that master plan is on the anvil with the declaration of intention under section 10 of the KTCP Act, and that the rejection of such application on this ground after the lapse of four months from the date of submission, is non-est. Further, as rightly pointed out by Sri Jayakumar S Patil even if diversion is permitted under Section 95(2) of the KLR Act by express order or by deemed approval contemplated under section 95(5) of the KLR Act, the petitioners cannot put the properties to any use which is contrary to the classification in the declaration published under section 10(1) of the KTCP Act. The petitioners to put the properties to the contra use will have to obtain necessary permission under Sections 14 and 14-A of the KTCP Act. In the light of the above, the

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rejection of the petitioners' application on 21.05.2019 beyond the period of four months would be non est . This Court must opine that the petitioners cannot be denied the benefit of the deemed approval contemplated under Section 95(5) of the KLR Act on the ground that declaration of intention is published under Section 10(1) of the KTCP Act.

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Therefore these writ petitions are allowed directing the Deputy Commissioner, Kolar District, Kolar, the respondent No.3, to issue Certificate of conversion for the subject properties on such terms and conditions as he may deem fit under the provisions of the Section 95(4) of the KLR Act expeditiously, but within an outer limit of three months from the date of receipt of a certified copy of this order.

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SD/JUDGE

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Smt Ramakka v. the State of Karnataka

Case brief

What is this about?

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Smt Ramakka v. the State of Karnataka

Case brief

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