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2011 DIGILAW 66 (KAR)

N. Nanjappa v. State Of Karnataka

2011-01-17

D.V.SHYLENDRA KUMAR

body2011
Judgment :- 1. Misc W No 328 of 2011 for early hearing is allowed and the writ petition is taken up for hearing. 2. Writ jurisdiction is not meant for issue of declaration in favour of a private person even assuming reliance is placed on some statutory provisions such as sub-section 5 of Section 95 of the Karnataka Land Revenue Act, 1964 [for short, the Act]. 3. The present petition is by a person who, it appears had applied for conversion of his agricultural land for non-agricultural use to an extent of 4 acres 14 guntas in Sy No 155/2 of Kuduvathi village, Nandi hobli, Chikkaballapur taluk and district, in terms of his application dated 13-7-2009. 4. It is because the petitioner was aggrieved by the endorsement dated 19-4-2010 [copy at Annexure-K to the writ petition] issued by the Deputy Commissioner apprising the petitioner that the said application has been rejected for the reason that the petitioner has conveniently fenced of a public pathway that was existing in the subject land, as apprised by the tahsildar of the taluk etc. 5. Appearing on behalf of the petitioner, submission of Sri S R Krishnakumar, learned counsel, is that the statuary provisions enable the petitioner to claim a deemed permission in terms of subsection (5) of Section 95 of the Act with the moment the period of four months expired from the date of application and if the Deputy Commissioner concerned had not indicated the applicant that the application has been rejected, the statute operates for a deemed permission and when the petitioner enabled under a deemed permission, there is no question of Deputy Commissioner issuing an endorsement to the petitioner subsequent to the expiry of the period of four months and in the instant case as per the endorsement dated 19-4-2010.6. It is also submitted that the Deputy Commissioner ceased to have jurisdiction after the expiry of four months period from the date of application. In support of his submission, learned counsel for the petitioner has placed reliance on the decisions of this court in the case of RUDRASWAMY vs DEPUTY COMMISSIONER [ILR 1994 KAR 2958] and B DOLLAIAH vs DEPUTY COMMISSIONER [1995(1) KAR LJ 525]. 7. In support of his submission, learned counsel for the petitioner has placed reliance on the decisions of this court in the case of RUDRASWAMY vs DEPUTY COMMISSIONER [ILR 1994 KAR 2958] and B DOLLAIAH vs DEPUTY COMMISSIONER [1995(1) KAR LJ 525]. 7. It is not necessary for this court to go into these questions, inasmuch as in the first instance, the petitioner has a statutory remedy by way of an appeal to the Karnataka Appellate Tribunal in terms of Section 49 of the Act. 8. However, learned counsel for the petitioner has relied not only on the judgment in the case of RUDRASWAMY [supra], but also another judgment of this court in the case of NARAYANA SHETTY vs DEPUTY COMMISSIONER [WP No 455 OF 1971, rendered on 11-10-1973, and reported as Short Note Case item No 87 in 1974(1) KAR LJ 25], to submit that al alternative remedy cannot come in the way of the petitioner seeking relief before this court, more so when there is an order without jurisdiction etc. 9. To make good this submission, Sri Krishnakumar, learned counsel for the petitioner, has drawn my attention to Annexure-J, purported to be a copy of the application made to the tahsildar in Annexure-I dated 4-7-2009. It is seen that the application is addressed to the tahsildar, Chikkaballapur taluk. 10. Learned counsel for the petitioner has also drawn my attention to a government circular issued vide Notification No RD 7 LGP 95, dated 7-6-1999, published in the Karnataka gazette dated 8-6-1999, issued guidelines for simplifying and for maintaining a uniformity in granting permission to conversion to non-agricultural purpose with the stipulation that the authorities have to scrupulously adhere to the guidelines, reading as under: 1. The process of Granting/Rejecting conversion shall be completed within 45 days of the receipt of the application. If the concerned sanctioning authorities do not adhere to the time schedule, they will be liable to disciplinary action. 2. The applications seeking conversion of land shall be received in duplicate by the Tahsildar’s office in the form prescribed at Annexure-1 to the circular. The Tahsildar shall forward a copy of the application to the sanctioning authority immediately. A weekly statement of number of applications received by the Tahsildar shall be sent to the sanctioning authority. 3. If any additional information is required the applicant shall be intimated within one week of receipt of the application. 4. The Tahsildar shall forward a copy of the application to the sanctioning authority immediately. A weekly statement of number of applications received by the Tahsildar shall be sent to the sanctioning authority. 3. If any additional information is required the applicant shall be intimated within one week of receipt of the application. 4. The sanctioning authorities shall maintain a single register for all applications of conversion of land as prescribed in Annexure-2. 5. It is clarifiedthat the revenue authorities are only dealing with conversion of agricultural land for non-agricultural purpose. But mere conversion does not entitle the occupant to utilize the land for the non-agricultural purpose without obtaining sanction/permission from concerned Competent Authority like urban development authority, local bodies like (CMC, TMC, Gram Panchayat, and also Pollution Control Board. These bodies will, subsequent to the conversion order, give necessary sanctions after following due process of Law with necessary safeguards. Therefore obtaining clearances prior to sanction of conversion order is not required. 6. Deputy Commissioners and the Assistant Commissioners should only look into the provisions of the Karnataka Land Revenue Act and other allied laws like the Land Reforms Act, PTCL Act, Land Grant Rules, Land Acquisition Act, etc. 7. As soon as the application is received by the Tahsildar, the same shall be verified by the Tahsildar. He shall verify the following: (i) Only the occupant of the land has filed the application. (ii) The conversion will not defeat any of the following laws, in particular: (a) Sections 48-A, 77 and 77-A of Karnataka Land Reforms Act, 1961: (b) Rule 9 of Land Grant Rules: (c) Section 4(1) and 4(2) and prohibition of PTCL Act: (d) Rule 102-B of Land Revenue Rules relating to Green Belt. (iii) The land has not been notified for acquisition under Sections 4 and 6 of Land Acquisition Act. 8. The burden of verification regarding the above laws lies solely on the Tahsildar and the applicant shall not be asked to produce any documents for the same. 9. The Tahsildar shall forward the application along with his report to the Deputy Commissioner/ Assistant Commissioner within 15 days of the receipt of the application. The report should contain a revenue sketch of the area to be converted. 10. 9. The Tahsildar shall forward the application along with his report to the Deputy Commissioner/ Assistant Commissioner within 15 days of the receipt of the application. The report should contain a revenue sketch of the area to be converted. 10. The Deputy Commissioner/Assistant Commissioner shall inspect the land to satisfy themselves that the diversion is not likely to cause public nuisance and does not violate the existing provisions of law administered by this department. In areas where the C.D.P./O.D.P. has been published under the K.T.C.P. Act the Deputy Commissioner shall not refuse permission of conversion of such land if it is for the same purpose as specified in the C.D.P./O.D.P. 11. If conversion is to be granted then the applicant has to be issued a notice to pay the conversion fine within 15 days of the notice as per the proforma at Annexure-3. 12. The applicant has to pay the required amount either through the challan/D.D. and give an undertaking a per the proforma at Annexue-4. 13. After payment the Deputy Commissioner/Assistant Commissioner shall issue the conversion order as per the proforma enclosed at Annexure-5. Note: The conditions enumerated in Annexures 4 and 5 are not exhaustive and the sanctioning authorities may impose additional conditions to ensure compliance with any law, regulation applicable to the particular areas. 14. The rejection order shall be speaking order containing specific reasons for rejection and should not have vague reasons like, it will cause public nuisance or these is objection from public etc. 11. The application while is required to be made to the Deputy Commissioner, it can be received at the office of the tahsildar’s office, whereas the present application appears to be addressed the tahsildar himself. 12. Though normally for the implementation or effectuation of the statutory provisions and rules provided for prescribing a format and the procedure, very surprisingly in the matter of implementation of a very important provision such as the provisions to convert agricultural land for non=agricultural use, the state government appears to have slept over the matter and has not framed corresponding rules, though Sri Krishna Kumar, learned counsel for the petitioner, would point out to the circular, the circular cannot take the position of a statutory provisions and if at all can act as a guideline within the government for the purpose of guiding the Deputy Commissioner, who is the authority to sanction permission. 13. 13. It is also the manner of receiving the application at the tahsildar’s office and with no proper recording normally available in such offices, and with Sri Krishna Kumar, learned counsel for the petitioner, submitting that no fee is required to be paid at the time of filing the application and with mal-practices being rampant in this field, there is no proper recording of a receipt of an application, the provision is nothing short of a fertile field of mal-practice and corruption. 14. More often than not, the Deputy Commissioners act by their whims and fancles rather than go by merit or relevant consideration and it at all only relevant guidelines that one can notice in the circular is that a mandate on the Deputy Commissioner not to reject an application for conversion, if the application is found to be in the format with the plan has been prepared by the planning authority of the area. 15. Be that as it may, in a matter of this nature, I am of the opinion that it is most hazardous for the High Court to venture to examine an application which is asserted to have been made before the tahsildar and to grant relief as a) Declare that Land bearing Sy.No.155/2 measuring 4 Acres 14 Guntas situated at Kuduvathi Village, Nandi Hobli, Chikkaballapur Taluk belonging to the Petitioner is deemed to have been converted for non-agricultural purposes by virtue of Section 95(5) of the Karnataka Land Revenue Act. b) Quash the impugned Endorsement at Annexure K bearing No. ALN SR 366/09-10 dated 19-4-2010 issued by the Respondent No.2 by issue of a Writ of Certiorari or any other appropriate Writ or Direction as the case may be: c) Direct the Respondent No.2 to issue Conversion Certificate in respect of Land bearing Sy.No.155/2 measuring 4 Acres 14 Guntas situated at Kuduvathi Village, Nandi Hobli, Chikkaballapur Taluk: d) Grant such other relief’s that this Hon’ble Court deems fit to grant in the circumstances of the case. 16. 16. Though learned counsel for the petitioner has contended that the Deputy Commissioner is denude of his jurisdiction after the expiry of four months, it is not necessary to go into this question, as, primarily, I am of the opinion that this is not a fit case for exercising the discretionary jurisdiction in favour of a person like the opinion that this is not a fit case for exercising the discretionary jurisdiction in favour of a person like the petitioner, whose application, in the first instance, does not appear to be in order, as the application itself it addressed to tahsildar, who is not the authority to grant permission for conversion. 17. Though Sri Omkumar, learned AGA, in the absence of any statement of objections filed on behalf of respondents, seeks to place before the court the records maintained by the office of the Deputy Commissioner, to point out with the particular application etc., with the report of the tahsildar was received on 26.9.2009 and further with the Deputy Commissioner has passed an order on 27.11.2009, to which, Sri Krishna Kumar, learned counsel for the petitioner, joins issue and submits that though the record also does not inspire the confidence, as the matter has not gone about in any proper manner, I am still not satisfied for exercising the discretionary jurisdiction in favour of a person like the petitioner to entertain this petition for the simple reason that the application itself appears to be not in order and the petitioner however much fortified with earlier judgments of this court, having chosen not to go before the appellate authority, I do not find any justification to interfere with the order passed by the Deputy Commissioner, which, though has been passed in laconic manner, to indicate that the grant of permission is likely to affect public interest, which is undoubtedly a relevant consideration. 18. Orders/endorsements of this nature do not amount to a judicial pronouncements and as it is open to the petitioner to come with a proper application in accordance with law, I do not find any need to interfere. 19. 18. Orders/endorsements of this nature do not amount to a judicial pronouncements and as it is open to the petitioner to come with a proper application in accordance with law, I do not find any need to interfere. 19. Even in so far as the argument relating to a deemed permission is concerned, a deemed permission, if at all can operate only so long as an order is not passed and to hold that the Deputy Commissioner loses jurisdiction after the period of four months, is not only causing violence to the statutory provision, as it is only the Deputy Commissioner who is required to pass an order, one way or the other, but also that the deemed permission, if at all, can operate and be enforced till then and when once the Deputy Commissioner, after looking into the matter, has passed an order, even deemed permission cannot operate any further. 20. In an important area of this nature, involving deemed permission for use of land for non-agricultural purposes, it is highly desirable that the state government frames necessary rules to avoid uncertainty and ambiguity and to usher in an era of order of uniformity. 21. A statutory deemed permission is not a desirable provision, which is more often than nor misused or abused and what withy letharginess, being legendary on the part of revenue officials coupled with increasing corrupt elements in the revenue department, who can in a given case even where the application is totally undeserving or an application is in respect of some land belonging to some other person or even government land can deliberately be kept pending for four months to enable the statutory provision to operate for a deemed permission, is nothing short of an obnoxious provision and to the detriment of the larger public interest. 22. 22. It is high time the legislature bestows its attention to suitably re=legislate this provision to ensure that it is not retained on the statue book, but to suitably amend the law, so that the object of such a provision is only to instill a sense of urgency on the part of revenue authorities, which can be achieved even by other compelling methods on the revenue officials, but not by providing a deemed permission in favour of applicants, more so in the present scenario when the number of bona fide applicants are on the decline and all sorts of persons can come up with applications for conversion after purchase of land whenever they have acquired good title or not, or persons who could not have acquired land at all, as agricultural land cannot be sold in favour of non-agriculturists and for purpose other than agriculture, and when such is the statutory embargo under the Karnataka Land Reforms, 1961 sale of agricultural land being the order of the day, the so-called permission of Deputy Commissioner is another fertile field for corrupt practice. It is high time the government and the state legislature have a second look at this provision also, which has resulted in only the revenue officials to make merry and to indulge in all sorts of mal-practices. 23. Subject to the above observations, this writ petition is dismissed without prejudice to the rights of the petitioner to make a fresh application in accordance with law. 24. Registrar General of this court is directed to forward a copy of this order to the Chief Secretary and Revenue Secretary, Government of Karnataka and to the State Law Commission.