Sri K K Aiyappa Vs State of Karnataka

SRI K K AIYAPPA S/O LATE K A KALAIAH, AGED ABOUT 43 YEARS, MEMBER OF K-NIDUGANI GRAMAPANCHAYATH, RESIDENT OF HEBBATTAGERI VILLAGE, K.NIDUGANI POST, MADIKERI TALUK-571201

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…PETITIONER

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(BY SRI. SRINIVAS V.,ADVOCATE)

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AND:

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Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA BY ITS SECRETARY TO TOWN PLANNING AND URBAN DEVELOPMENT DEPARTMENT, VIKAS SOUDHA, BANGALORE-560001

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THE COMMISSIONER MADIKERI URBAN DEVELOPMENT AUTHORITY (MUDA) MADIKERI-571201

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THE PRESIDENT MADIKERI URBAN DEVELOPMENT AUTHORITY (MUDA) MADIKERI-571201

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THE DEPUTY COMMISSIONER KODAGU DISTRICT, MADIKERI-571201

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SRI ANAJANEYALU PRATHIPATI MANAGING DIRECTOR, RASASRI DEVELOPERS (P) LTD., NO.18, 3RD FLOOR, RASASRI CHAMBERS, NEW BEL ROAD, JALADARSHINI LAYOUT., BANGALORE-54

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…RESPONDENTS

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(BY SMT. CHANDINI SINGH., HCGP FOR R1 TO R4; SRI. B.L. RUDRESH., ADVOCATE FOR R5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OF LIKE NATURE QUASH THE RESOLUTION DTD.19.5.2017 PASSED BY THE R-2 AND 3 VIDE ANNEX-D TO THE W.P. AND ETC.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

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ORAL ORDER

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The Petitioner is before this Court seeking for the

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following reliefs;

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a) Issue a writ of certiorari or any other writ of like nature and quash the resolution dated 19.07.2017 passed by the respondent no. 2 and 3 vide Annexure-D to the writ petition and;

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b) Grant any other remedy that this Hon’ble Court deems fit in the facts and circumstances of the case.

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The Petitioner claims to be the Member of K-Nidugani Gram Panchayat. The 5^th respondent being the owner of land bearing Sy.No.4/3A measuring 30 acres and Sy.No.4/3B measuring 30 acres situate at Karnangeri Village had submitted an application for conversion of the said lands from agriculture to nonagricultural/commercial use to the Grama Panchayath. The said application was rejected by the Grama Panchayath.

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Subsequently, the 5^th respondent had approached the 2^nd respondent-Madikeri Urban Development Authority seeking change of land use and a no objection certificate to convert the land for commercial purposes, which came to be allowed vide resolution dated 19.05.2017 it is challenging the same, the petitioner is before this court.

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The submission of Sri Srinivas V., learned counsel for the Petitioner, is that the Grama Panchayat, having

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rejected the application for conversion, the Urban Development Authority ought not to have issued a no-objection certificate for conversion. The stand of the Grama Panchayat ought to have been appreciated by the Urban Development Authority, and it is in that background that he submits that no objection certificate is required to be quashed. Lastly, he submits that before issuing the no-objection certificate, prior notice of 60 days had to be issued under Section 14A of the Karnataka Town and Country Planning Act, 1961.

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Learned counsel for respondent Nos.2 and 3 - Urban Development Authority submits that the Urban Development Authority has followed the due procedure inasmuch as the land in question, coming within the development plan, is under the jurisdiction of the Urban Development Authority and not the Gram Panchayath. As such, the Grama Panchayath has nothing to do with the said land, and the Urban

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Development Authority has exercised its

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administrative jurisdiction. The development plan demarcating/reserving the land for commercial purposes has been taken note of by the Urban Development Authority, and no objection certificate was issued for formal conversion of the land from agriculture to non-agriculture purposes in terms of Section 95 of the Karnataka Land Revenue Act, 1964. His submission, therefore, is that the action taken by respondents 2 and 3 is proper and correct and does not require any interference.

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Heard the learned counsel for the respective parties and perused the papers.

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The short question that would arise for consideration is:

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“Whether the entire procedure under Section 14A of the Karnataka Town and Country Planning Act, 1961 is required to be followed and complied with as regards agricultural land forming part of the development plan of the Development Authority.”

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Sub-section (2) of Section 14 of the Karnataka Town and Country Planning Act, 1961, (hereinafter referred to as ‘the KTCP Act’ for short) is reproduced hereunder for easy reference:

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“14. [Enforcement of the Master Plan and the Regulations]

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(1) xxxx

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(2)1[x x x]1, no such change in land use or development as is referred to in subsection (1) shall be made except with the written permission of the Planning Authority which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed.

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1[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.]1

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Explanation.— For the purpose of this Section, —

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(a) the expression “development” means the carrying out of building or other operation in or over or under any land or the making of any material change in the use of any building or other land;

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(b) the following operations or uses of land shall not be deemed to involve a development of any building or land, namely:—

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(i) the carrying out of works for maintenance, improvement or other alteration of any building, being works which affect only the interior of the building or which do not materially affect the external appearance of the building;

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1[XXX]1

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(iv) the use of any building or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such;

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(v) when the normal use of land which was being temporarily used for any other purpose on the day on which the declaration of intention to prepare the outline development plan is published under sub-section (1) of section 10 is resumed;

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(vi) when land was normally used for one purpose and also on occasions for any other purpose, the use of the land for that other purpose on similar occasions."

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Section 14 of the Karnataka Town and Country Planning Act, 1961 (for short, “the KTCP Act” ) governs the enforcement of the Master Plan and zoning regulations. Sub-section (2) mandates that no change in land use or development shall be undertaken except with the written permission of the Planning Authority, evidenced by a commencement certificate.

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The proviso to Section 14(2) assumes relevance in cases involving agricultural land. It stipulates that where the proposed use or change of land use necessitates diversion of agricultural land to nonagricultural purposes, such use or change shall not be permitted unless diversion permission is obtained in accordance with the provisions of the Karnataka Land Revenue Act, 1964.

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Thus, the proviso does not independently mandate a change of land use in every case of agricultural land, but only requires compliance with the Land Revenue

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Act when diversion from agriculture to nonagriculture is involved.

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A plain reading of the proviso to Section 14(2) of the KTCP Act makes it evident that where a proposed use or change of land use necessitates diversion of agricultural land to non-agricultural purposes, such change cannot be permitted unless diversion is

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obtained in accordance with the Karnataka Land Revenue Act, 1964 ( “the KLR Act” ). It is in this context that an application under Section 14A of the KTCP Act ordinarily arises.

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Sub-section (2) of Section 95 of the Karnataka Land Revenue Act, 1964, (hereinafter referred to as ‘the KLR Act’ for short) is reproduced hereunder for easy

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reference:

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95. Uses of agricultural land and the procedure for use of agricultural land for other purpose.— (1) xxxx

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(2) If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall 4 [notwithstanding anything contained in any law for the time being in force]4 apply for permission to the Deputy Commissioner who may, subject to the provisions of this section and the rules made under this Act, refuse permission or grant it on such conditions as he may think fit.

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[Provided that in case of any agricultural land assessed or held for the purpose of agriculture, falling within the Local Planning Area for which the Master Plan has been duly published under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963) and such land and such diversion is in accordance with the purpose of land use specified in such Master plan. The permission

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therefore shall be deemed to have been granted subject to payment of fine prescribed under subsection (7).]

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[Provided further that] in Dakshina Kannada District, subject to any law for the time being in force regarding erection of buildings or the construction of wells or tanks, an occupant of 5 [dry (punja) land, wet land or garden land]5 who is not,—

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(a) a person registered or liable to be registered as an occupant of such land under section 48A of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962); or

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(b) a grantee of such land under section 77 of the said Act, may, without obtaining the permission required under this sub-section and notwithstanding anything contained therein, divert such land or part thereof to any other purpose after sending a prior notice in that behalf, in the prescribed form to the Tahsildar and paying in the prescribed manner, the fine prescribed under sub-section (7).]3 7 [(2A) Where any occupant of land assessed or held for the purpose of agriculture has diverted such land or part thereof to residential purpose without obtaining the permission of Deputy Commissioner under subsection (2), prior to 31st day of December 2008 and desirous to get such diversion be regularised, shall, apply 1964: KAR. ACT 12] Land Revenue 499 8 [within the period of one year from the date of commencement of the Karnataka Land Revenue (Amendment) Act, 2011] 8 in such form, alongwith such fee and penalty, as may be prescribed, to the Deputy Commissioner. On receipt of such application, the Deputy Commissioner may, notwithstanding anything contained in this Act, but subject to the provisions of any other law for the time being in force and subject to such conditions

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and in such manner as may be prescribed, on production of such evidence as he may require it to be necessary and after an enquiry, regularise or refuse to regularize except where such land,-

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(i) lies in the line of natural drains or course of valley;

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(ii) belongs to the State Government or an authority owned or controlled by the State Government or any local Authority;

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(iii) coming in the way of existing or proposed roads, inner or outer ring roads, national high ways, by pass over ring roads including those proposed for widening and railway lines, tram ways, mass rapid transit system projects, communications and other civic facilities or public utilities;

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(iv) is a forest land;

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(v) belonging to another person over which the applicant has no title;

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(vi) is reserved for parks, play grounds, open places or for providing any civic amenities;

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(vii) or building is abutting to neighbouring property, storm water drains, tank bed areas, river course or beds and canals or below the high tension electric line; (viii) use is against height restrictions specified in zoning regulations for heritage monuments, aerodrums and Defense Regulations;

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(ix) not conforms to any clearance from hightension lines or fire protection measures;

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(x) is in the area covered by the Coastal Zone Regulations of the Ministry Environment and Forest, Government of India;

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(xi) regularisation of violation in respect of change of land use shall be made as far as may be in accordance with section 14A of the Karnataka Town and Country Planning Act, 1961;

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(xii) or development in respect of any building having more than two floors shall be regularised unless,- (a) a certificate from a Structural Engineer is produced regarding the structural stability of such building; (b) a No Objection Certificate is obtained from the Fire Force Department.

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(xiii) or unauthorised development or construction made in agricultural zone of approved Master Plan or green belt area declared under Karnataka Land Revenue Act, 1964; and

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(xiv) is covered under any other prohibition as may be prescribed:

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(2AA) Burden of proving that the diversion or change of land use was made for residential purpose prior to 31st day of December 2008 shall lie on the applicant who seeks regularisation of such unauthorised diversion or change of land use.

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(2AAA) All such diversions or change of land use which are not regularised or where applicant does not apply within the time specified in sub-section (2A) shall be 500 Land Revenue [1964: KAR. ACT 12 liable to be demolished or brought back to their earlier use and expenses incurred thereon shall be collected from such person as arrears of land revenue.”

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A perusal of the first proviso to Sub-section (2) indicates that the Deputy Commissioner shall not refuse permission for diversion of such land included in the master plan published under the KTCP Act if such diversion is in accordance with the purpose of land use specified in respect of land in such plan. Thus, it is clear that though in other circumstances, the Deputy Commissioner may have a discretion to refuse permission for diversion of land, if the property subject matter of the application for conversion is a property which comes within the development plan and in the development plan the land use is specified for a particular purpose, then the Deputy Commissioner cannot refuse permission for diversion to that particular purpose.

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To illustrate this, if the land continues to be agricultural land but is classified for residential use in the Development Plan, if an application is filed with the Deputy Commissioner for conversion for

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residential purposes, the land use in the development plan being denoted as residential, such diversion cannot be refused by the Deputy Commissioner.

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Similarly, the land, though agricultural in nature, if in the development plan, is denoted to be reserved for commercial purposes, and if an application is made to the Deputy Commissioner for conversion to commercial purposes, the Deputy Commissioner cannot refuse such permission.

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Juxtaposing the Sub-section (2) of Section 95 of the KLR Act with Sub-section (2) of Section 14 of the KTCP Act, it is seen that where a change of land use under Section 14 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 KLR Act for such diversion.

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From the above it is clear that the KTCP Act and the KLR Act operate in distinct but complementary fields. While the KTCP Act regulates land use planning , the KLR Act regulates land diversion from agriculture purposes.

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A harmonious construction of Section 14(2) of the KTCP Act and Section 95(2) of the KLR Act leads to the following legal position:

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Where agricultural land is proposed to be diverted to a non-agricultural purpose which is inconsistent with the land use specified in the Development Plan , both:

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20.1. Diversion permission under the KLR Act, and

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20.2. Change of land use approval under Section 14 /

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14A of the KTCP Act are required.

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Conversely, where agricultural land is proposed to be diverted for the very purpose already designated in the Development Plan , there is:

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21.1. No “change of land use” within the meaning of Section 14 of the KTCP Act, and

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21.2. Only a statutory diversion under Section 95 of the KLR Act, which stands deemed under the first proviso.

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In such circumstances, invoking the procedure under Section 14A of the KTCP Act would amount to imposing an additional and unwarranted statutory burden not contemplated by the legislature.

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Accordingly, I answer the point framed by holding that t he procedure contemplated under Section 14A of the Karnataka Town and Country Planning Act, 1961 is required to be followed only where a proposed diversion of agricultural land involves a change of land use inconsistent with the land use specified in the Development Plan. Where the diversion sought is strictly in conformity with the land use already earmarked

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in the Development Plan, the procedure under

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Section 14A is not attracted.

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In the present case, the action taken by the respondent authorities is in strict conformity with the Development Plan and the statutory framework governing diversion of land. No illegality, arbitrariness, or jurisdictional error is made out warranting interference under Article 226 of the Constitution of India, the petition stands dismissed .

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SD/(SURAJ GOVINDARAJ) JUDGE

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PKS/KTY List No.: 1 Sl No.: 10

Sri K K Aiyappa v. State of Karnataka

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Sri K K Aiyappa v. State of Karnataka

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