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2008 DIGILAW 326 (KAR)

Subramanyaswamy Trust (R) v. State of Karnataka Rep. by its Principal Secretary & Others

2008-06-27

MOHAN M.SHANTANAGOUDAR

body2008
ORDER Mohan Shantanagoudar, J. The petitioner has sought for quashing the order atAnnexure-S and consequently, sought for a direction to respondent to waive the conversion charges (fine) in respect of land bearing Sy.No.125 of Hadhonahalli Village, Thubagere Hobli, Doddaballapura Taluk, Bangalore Rural District. 2. The records disclose that the agricultural land bearing Sy.No. 125, measuring 2 acres 03 guntas is purchased by the petitioner Trust through registered sale deed dated 14.6.1999. Copy of the sale deed is produced at Annexure-C. Initially the petitioner had filed application praying to convert 24 guntas of the said agricultural land for non-agricultural purposes. When the conversion fine was demanded by the Deputy Commissioner, the petitioner herein filed Appeal No.504/2000 before the KarnatakaAppellate Tribunal, Bangalore. The said appeal came to be allowed and the matter was remanded back to the Assistant Commissioner, for fresh consideration. Thereafter the State Government by issuing an order as per Annexure-L, dated 8.7.2002, directed the Deputy Commissioner to exempt the petitioner from paying the conversion fine under Rule 108(1) of the Karnataka Land Revenue Rules (for short hereinafter referred to as the ‘Rules). Accordingly, 24 guntas of land in Sy.No.125 was got converted for non-agricultural purposes without payment of conversion fine. 3. Subsequently, the petitioner filed one more application before the Assistant Commissioner for conversion of the land to the remaining extent of 1 acre 19 guntas of land. The conversion fine was demanded by the Assistant Commissioner. Thus, the petitioner filed a petition before the Deputy Commissioner praying for direction to the Assistant Commissioner to waive off the conversion fine under Rule 108(1) of the Rules. The Deputy Commissioner seems to have recommended for waiver of the conversion fine to the State Government, but the State Government by issuing order dated 10.1.2007 vide Annexure-S, refused the prayer of the petitioner aIld consequently directed the petitioner to pay the conversion fine. The State Government has relied upon the Circular dated 13.11.2006 for coming to the conclusion. The said circular is in consonance with Rule 108 of the Rules. It merely clarified certain doubts. It is only consequential to Rule 108 of the Rules. 4. The State Government has relied upon the Circular dated 13.11.2006 for coming to the conclusion. The said circular is in consonance with Rule 108 of the Rules. It merely clarified certain doubts. It is only consequential to Rule 108 of the Rules. 4. Sri Shashidhar, Learned Counsel appearing on behalf of the petitioner submits that the State Government is not justified in refusing the prayer of the petitioner in respect of 1 acre 19 guntas, when the State Government had granted exemption earlier in respect of 24 guntas in the very Sy.No.125. He submits that the State Government has ignored the provisions of Rule 108 of the Rules. The writ petition is opposed by Sri Chandrashekar, learned Government Ad vocate. 5. It is relevant to note Rule 108 of the Karnataka Land Revenue Rules, which reads thus: “108. Fine not to be levied in certain cases: (1) Notwithstanding anything contained in the foregoing rules, no fine shall be imposed for the appropriation of agriculture lands made over to or acquired under the Land Acquisition Act at the instance of a Government Department, Municipal Council, Local Board, Village Panchayat, Charitable of Education Institution for charitable or public purposes from which the Government, Department, Muncipal Council, local Board, Village Panchayat, Charitable or Educational Institution concerned does not derive any profit and the land is used for the purposes such as construction of a School Building laying out of play ground roads, hospitals, dispensaries or rest houses, (2) The exemption under sub-rule(1) shall also apply in cases of lands. (i) made over to or acquired: (a) for Village extension and for the improvement of village sanitation at the instance of the village panchayat; (b) for construction of houses by the Karnataka Housing Board; (c) for the purpose of market yards by the Agricultural Produce Marketing Committee constituted under the Karnataka Agricultural Produce Marketing Regulation Act, 1966. (i-a) proposed to be converted for the purpose of poultry farming; (ii) not exceeding two acres, proposed to be converted for the purpose of locating new, tiny and small scale industrial units set up in Zone III and zone IV areas specified in Government Order No.CI 30 SPC 96, dated 27th March 1996, certified as such by the Director of industries and Commerce in Karnataka, Bangalore any other officer of the Department of Industries and Commerce authorised by the Director in this behalf” 6. A plain reading of the said Rule makes it amply clear that the conversion fine cannot be imposed ‘for conversion of the lands from agricultural to non-agricultural purposes if such lands are made over to or acquired at the instance of the Government Department, Village Panchayats, Charitable or Educational Institutions or for public purpose, from which the Government Department, etc. does not derive any profit. In this case, admittedly, the land in question was purchased by the petitioner from the third party through the registered sale deed. The land in question is not made over to the petitioner through acquisition at the instance of the Government Department, etc. under the Land Acquisition Act. Under such circumstances, the provisions of Rule 108 of the RUles are inapplicable to the facts of the case. Thus, the order passed by the State Government in consonance with Rub 108 of the Rules. It is no doubt true that on the earlier occasion, the State Government by its order dated 8.7.2002 directed the Deputy Commissioner to exempt the petitioner from paying conversion fine in respect of 24 guntas in the very Sy.No.125, as could be seen from Annexure-L. On the said basis, the petitioner claimed exemption from paying conversion fine in respect of remaining portion of the very survey number. As aforementioned, the State Government refused the prayer of the petitioner by the impugned order vide Annexure-S. Learned Counsel appearing on behalf of the petitioner submits that the impugned order runs contrary to the earlier order passed by the State Government vide Annexure- L. According to him, if the impugned order is allowed to stand, then, there would be two contradictory orders passed by the same authority on the same subject, which is not permissible. The said contention cannot be accepted. As concluded above, the impugned order at Annexure-S is in consonance with Rule 108 of the Rules. But the earlier order vide Annexure- L, granting exemption to the petitioner from paying conversion fine was in fact contrary to Rule 108 of the Rules. Consequently, the same is illegal. However, the petitioner has already enjoyed the benefit of an illegal order of the State Government. Merely because the petitioner was granted the benefit of exemption at an earlier point of time by passing the order vide Annexure-L in respect of 24 guntas, the same will not enure to the benefit of the petitioner subsequently. Consequently, the same is illegal. However, the petitioner has already enjoyed the benefit of an illegal order of the State Government. Merely because the petitioner was granted the benefit of exemption at an earlier point of time by passing the order vide Annexure-L in respect of 24 guntas, the same will not enure to the benefit of the petitioner subsequently. The illegality committed by the State Government cannot be allowed to perpetuate. Wrong decision of the State Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. The right of a person must be founded uponenforceable right to entitle him to the equality treatment for enforcement thereof. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters, there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India, cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. If the petitioner derived benefit out of illegal orderand had escaped from the clutches of law, he cannot plead, nor the Court can countenance that benefit had from infraction of law must be allowed to be retained. Can one illegality be compounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously “No”. The wrong exemption under wrong action taken by the authorities will not clothe the petitioner or others to get the same benefit. It is not necessary to burden the judgment any further. Suffice it to hold that the illegal exemption granted earlier in favour of the petitioner would nor form legal premise to repeat, or to perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the legalities. In this view of the matter, this Court does not find any error in the impugned order. Accordingly, the writ petition is dismissed.