Allowed

Smt Areyada S Akkavva v. State of Karnataka

Karnataka HC13 Sept 2021WP/24638/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka held that under Section 95(5) of the Karnataka Land Revenue Act, failure of the Deputy Commissioner to decide a land conversion application within four months results in deemed conversion. The court quashed subsequent rejection orders passed beyond this period and declared the lands commercially usable from the deemed conversion date.

What did the court decide?

Quashed impugned endorsement orders; declared lands deemed converted from 20.01.2018; directed issuance of formal conversion orders within 30 days.

Smt Areyada S Akkavva Vs State of Karnataka — Writ and Judicial Review | Karnataka HC (2021)

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 1 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.24638 OF 2019 (KLR-CON) C/W WRIT PETITION NO.24639 OF 2019 WRIT PETITION NO.24640 OF 2019 WRIT PETITION NO.50220 OF 2019

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IN W.P.NO.24638 OF 2019 BETWEEN:

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SMT. AREYADA S. AKKAVVA AGED ABOUT 65 YEARS W/O A.D. SOMAPPA NAPOKLU VILLAGE AND POST MADIKERI-571214 KODAGU DISTRICT

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...PETITIONER

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(BY SRI. AKHIL.S, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY ITS SECRETARY TO REVENUE DEPARTMENT VIKAS SOUDHA BANGALORE-560001

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THE DEPUTY COMMISSIONER KODAGU DISTRICT MADIKERI-571201

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… RESPONDENTS

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(BY SRI. SRINIVAS.A.R-AGA)

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 2 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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PROPERTY FROM AGRICULTURE TO COMMERCIAL PURPOSE DATED 25.11.2017 VIDE ANNEXURE-A AND ETC.

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*********

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IN W.P.NO.24639 OF 2019: BETWEEN:

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SMT. AREYADA S. AKKAVVA AGED ABOUT 65 YEARS W/O A.D. SOMAPPA NAPOKLU VILLAGE AND POST MADIKERI-571214 KODAGU DISTRICT

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...PETITIONER

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(BY SRI. AKHIL.S, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY ITS SECRETARY TO REVENUE DEPARTMENT VIKAS SOUDHA BANGALORE-560001

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THE DEPUTY COMMISSIONER KODAGU DISTRICT MADIKERI.

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… RESPONDENTS

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(BY SRI. SRINIVAS.A.R-AGA)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENTS TO CONSIDER THE APPLICATION MADE BY THE PETITIONER TO 2^ND RESPONDENT TO CONVERT THE SCHEDULE PROPERTY FROM AGRICULTURE TO COMMERCIAL PURPOSE DATED 25.11.2017 VIDE ANNEXURE-A AND ETC.

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*********

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IN W.P.NO.24640 OF 2019 BETWEEN:

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M/S LA FLORA HOLIDAY RESORT PVT LTD HAVING ITS OFFIE AT BILIGERI VILLAGE

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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SAMPAJE HOBLI, MADIKERI TALUK - 571201 KODAGU DISTRICT REPRESENTED BY ITS DIRECTOR SMT. MAHESHWARI RAVIKUMAR W/O RAVIKUMAR AGED ABOUT 46 YEARS

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...PETITIONER

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(BY SRI. AKHIL.S, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY ITS SECRETARY TO REVENUE DEPARTMENT VIKAS SOUDHA BANGALORE-560001

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THE DEPUTY COMMISSIONER KODAGU DISTRICT MADIKERI.

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… RESPONDENTS

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(BY SRI. SRINIVAS.A.R-AGA FOR R1 & R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENTS TO CONSIDER THE APPLICATION MADE BY THE PETITIONER TO 2^ND RESPONDENT TO CONVERT THE SCHEDULE PROPERTY FROM AGRICULTURE TO RESORT/HEALTH RESORT PURPOSE DATED 27.7.2018 VIDE ANNEXURE-A AND ETC.

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*********

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IN W.P.NO.50220 OF 2019: BETWEEN:

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SRI. DINESH KARYAPPA S/O LATE K.B. KARYAPPA AGED ABOUT 29 YEARS R/AT KIRUNDADU VILLAGE NAPOKLU HOBLI, MADIKERI TALUK KODAGU DISTRICT-571214

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...PETITIONER

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(BY SRI. AKHIL.S, ADVOCATE)

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 4 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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AND:

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STATE OF KARNATAKA BY ITS SECRETARY TO REVENUE DEPARTMENT VIKAS SOUDHA BANGALORE-560 001

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DEPUTY COMMISSIONER KODAGU DISTRICT MADIKERI-571201

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… RESPONDENTS

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(BY SRI. SRINIVAS.A.R-AGA)

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*********

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

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ORDER

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The petitioners are before this Court seeking for a mandamus directing the respondents to consider the application made by the petitioners to the 2^nd respondent to convert the suit schedule property from agriculture to commercial purpose and to quash the impugned endorsement issued by the 2^nd respondent.

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 5 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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The petitioners are before this Court contending that the

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petitioners are owners of the following lands in:

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W.P.No.24638/2019 – Sy.No.457/9 measuring 0.26 acres;

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W.P.No.24639/2019 – Sy.No.273/A2 measuring 0.27 acres;

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W.P. No.24640/2019 - Sy.No.266/11 measuring 1.66 acres;

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W.P. No.50220/2019 - Sy.No.250 measuring 4 acres

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Situated at Kirandadu village, Napokly Hobli, Madikeri taluk, Kodagu District.

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The contention of petitioners is that the petitioners have filed necessary applications for conversion of the land in all the above petitions from agricultural purpose to a commercial purpose which has been acknowledged on 20.03.2017, despite the same, the said applications have not been considered and as such, the petitioners had approached this Court seeking for a mandamus directing the respondents to consider the applications made by the respective petitioners in the respective petitioned above mentioned, while the matters were pending, vide four different orders dated 20.11.2019

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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passed as regards lands subject matter of W.P.Nos.24638/2019, 24640/2019 and 50220/2019 and vide order 13.11.2019 passed as regards lands subject matter of W.P.No.24639/2019 impugned herein, the applications came to be rejected.

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The rejection was on the ground that the same could not be considered on account of the reason that recent heavy rain the soil had become loose and the property could not be converted from agricultural to commercial use. Subsequent to the issuance of the aforesaid rejection orders, the petitioner filed amendment application challenging the said rejection by virtue of which prayer (a1) was added seeking for quashing the aforesaid rejection orders.

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Learned counsel for the petitioners submits that in terms of Section 95(5) of the Karnataka Land Revenue Act [for short 'Act'] which envisages a deemed provision of an application made for conversion deemed to have been allowed on the expiry of four months from the date of application if the same is not rejected and he

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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submits that the applications having been filed for conversion on 25.11.2017 in W.P.Nos.24638 and 24639 of 2019, in W.P.No. 24640/2019 on 27.07.2018 and in W.P.No.50220/2019 on 20.03.2017, the period of four months expired on 24.03.2018, 26.11.2018 and 19.07.2017 respectively.

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Thus after expiry of four months from the date of applications, the lands as regards which conversion applications had been filed are deemed to have been converted since no order rejecting the said applications has been passed.

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He therefore submits that the orders dated 20.11.2019 and 13.11.2019 having been passed much beyond the period four months, the same cannot have an effect of negating the deemed provision under Section 95(5) of the Act and as such, the said orders need to be quashed

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and a declaration be made that the lands of the petitioners afore stated have been converted from agricultural to commercial purposes.

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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Per contra, Sri.Srinivas.A.R, learned Additional Government Advocate would submit that on account of the heavy rains in the Kodagu District, there was a bar on conversion by virtue of the Circular dated 23.11.2018 and as such, the application filed by the petitioner could not be considered. He further submits that subsequently a Committee has been formed vide Govt. Order 4.06.2020 to look into any application which shall be made for conversion as regards lands in Kodagu district. He submits that the purpose of conversion sought for by the petitioners is to set up a resort on the aforesaid land. The soil being weak, the resort cannot be set up on the said land and therefore, conversion was not permitted. On these grounds he submits that the above petitions are liable to be dismissed.

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Heard Sri.Akhil.S, learned counsel for the petitioners and Sri.Srinivas.A.R, learned Additional Government Advocate. Perused papers.

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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The short question that would arise for consideration of this Court is, whether the deeming fiction under Section 95(5) of the Karnataka Land Revenue Act can be ousted by a subsequent order passed beyond the deeming period of four months prescribed under Section 95(5) of the Act ?

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There is no dispute that the applications have been filed for conversion of all the aforesaids land in the above writ petitions. Section 95(5) of the Act reads thus:

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" 95. Uses of agricultural land and the procedure for use of agricultural land for other purpose :-

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(5) Where the Deputy Commissioner fails 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 the application, the permission applied for shall be deemed to have been granted"

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A reading thereof would categorically and unimpeachably establish that if the Deputy Commissioner to whom the application has been made failed to inform the applicant the decision taken on the application within a period of four months, the permission applied for is deemed to have been granted.

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 10 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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There is merit in the submission made by Sri.Akhil.S, learned counsel for the petitioners. There is deemed conversion of the land since the period of four months from the date of applications had expired and during the said period of four months, there has been no communication by the Deputy Commissioner either calling for any documents and/or rejecting the application filed. There being complete silence on part of the Deputy Commissioner, the deeming fiction under Section 95(5) of the Act would come into play and in my considered opinion, the lands would be deemed to be converted after expiry of four months from the date of respective applications made.

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The contention of learned AGA by relying upon the Circular dated 23.11.2018 is that there was an embargo on conversion of any land also would not apply since admittedly, the said Circular has been issued 23.11.2018 while the application for conversion had been made on 25.11.2017 in W.P.Nos.24638 and 24639 of 2019, in W.P.No. 24640/2019 on 27.07.2018 and in W.P.No.50220/2019 on 20.03.2017, it is only after 4

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 11 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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months thereafter when the deeming fiction kicked in that the has been issued, the same having been issued only on 23.11.2018 much after the deeming fiction came into force.

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The other contention of learned AGA is that there is a Committee which has been constituted vide Govt. Order dated 4.06.2020 to consider any application filed for conversion and as such, the petitioners would have to approach the said Committee for conversion. In my considered opinion, no such requirement is envisaged once the deeming fiction under Section 95(5) of the Act, the lands having been converted after expiry of four months from the date of application, there would be no requirement for the petitioners to file a fresh application which has to be considered by the Committee now formed on 4.06.2020. Be that as it may, the fact remains that neither the Committee nor any authority has passed any order on the application filed by the petitioner until 20.11.2019 and 13.11.2019 which is more than two years from the date of the application.

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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The last contention of learned AGA is that the land is not suitable for use as a commercial premises, more particularly as a resort since the land is situated in a hilly area and the soil is weakened due to rain. This aspect cannot be considered by this Court nor is a relevant aspect to be considered while granting of conversion from agricultural to non-agricultural purposes. The same if at all would have to be considered when any plans are applied for by the petitioners and or any other permissions are sought for, the same would not come within the purview of Section 95(5) of the Act. In view thereof this contention of the learned AGA is also rejected.

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In the circumstances, I pass the following Order:

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i) The impugned endorsements in the above petitions are hereby quashed.

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ii) It is declared that the lands of the petitioners: W.P.No.24638/2019 – Sy.No.457/9 measuring 0.26 acres;

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W.P.No.24639/2019 – Sy.No.273/A2 measuring 0.27 acres;

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W.P. No.24638 OF 2019 C/W W.P. NO.24639 OF 2019 W.P. NO.24640 OF 2019 W.P. NO.50220 OF 2019

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W.P. No.24640/2019 - Sy.No.266/11 measuring 1.66 acres;

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W.P. No.50220/2019 - Sy.No.250 measuring 4 acres

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Situated at Kirandadu village, Napokly Hobli, Madikeri taluk, Kodagu District, is deemed to have been converted from 20.01.2018. The respondents are directed to issue formal conversion orders withing a period of 30 days of receipt of a copy of this order by collecting necessary and applicable conversion fine.

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iii) The Respondents will act on a print out of the uploaded copy of this order on the website of this Court, if so furnished by the petitioner, without waiting for certified copy thereof. If respondents have any doubt about the order, respondents may verify the contents of the order from the website of this Court and or from the learned AGA.

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iv) The writ petitions are accordingly disposed of.

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Sd/JUDGE

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Smt Areyada S Akkavva v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt Areyada S Akkavva v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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