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2013 DIGILAW 359 (KAR)

Narayanappa v. Deputy Commissioner Bangalore

2013-03-20

MOHAN M.SHANTANAGOUDAR

body2013
Judgment :- 1. Petitioner has sought for quashing the order passed by the 1st respondent dated 29.6.2010 vide Annexure-K and the No Objection Certificate issued by the 3rd respondent dated 6.4.2010 vide Annexure-J. He has also sought for quashing the order passed by the 6th respondent dated 19.11.2010 vide Annexure-P4. Certain consequential reliefs are also sought for. 2. The lands bearing Sy.Nos.14/7A and No.14/7B situated at Govenahalli village and the lands bearing Sy.Nos.6/7A and No.6/7B situated at Halanayakanahalli village are the subject matters of these writ petitions. The 5th respondent purchased an extent of 1 acre 6 guntas out of Sy.No.14/7A and 15 guntas out of Sy.No.14/7B situated at Govenahalli village; so also he has purchased an extent of 2 acres 12 guntas out of Sy.No.6/7A and 16 guntas out of Sy.No.6/7B situated at Halanayakanahalli village, under the registered sale deed dated 7.11.2006 from one Mr. Narasegowda. Petitioner claims to be the member of the joint family, of which Mr. Narasegowda is also a member. Petitioner filed O.S. No.2562/2007 before the Civil Court (Sr.Dn.), Bangalore claiming his share in the joint family properties including the petition schedule properties. According to the petitioner, Mr. Narasegowda has no exclusive right over the properties in question and consequently, he has no right to alienate the schedule properties treating the properties as his own. On the other hand the contention of the 5th respondent is that he purchased the above properties after taking into consideration the earlier partition deed entered into between the owners of the properties dated 15.12.1978 and the registered gift deed dated 28.5.1970 apart from mutation and revenue entries. Thus according to the 5th respondent, he is the exclusive owner of the petition schedule properties. Later O.S. No.2562/2007 is renumbered as O.S. No.1077/2009 and the matter is transferred to the jurisdictional Court at Nelamangala. An interim order was passed by the trial Court. Ultimately, the matter reached this Court in Writ Petition No.9450/2008 questioning the interim order granted by the trial Court as well as the first appellate Court. Writ Petition No.9450/2008 was disposed of on 26.8.2009 directing the trial Court to dispose of the interim applications relating to Temporary Injunction as well as restraining alienation of the properties. Thus it is clear that the matter is pending before the Civil Court with regard to possession and ownership of the properties in question. 3. Writ Petition No.9450/2008 was disposed of on 26.8.2009 directing the trial Court to dispose of the interim applications relating to Temporary Injunction as well as restraining alienation of the properties. Thus it is clear that the matter is pending before the Civil Court with regard to possession and ownership of the properties in question. 3. In the meanwhile, the 5th respondent started constructing factory and godown in the petition schedule properties. According to the petitioner, the properties are situated in greenbelt area and therefore the properties cannot be used for non-agricultural purposes. Petitioner relied upon the Notification - Annexure-D relating to interim Master Plan of Nelamangala LPA-2021, issued by the Government of Karnataka dated 18.11.2003 to contend that the zone of about 10 kilometers radius around Tippagondanahalli Reservoir is declared as area of protection and so also to contend that a buffer of around two kilometers on eitherside of Arkavathi and Kumudvathi courses (within the catchment) are to be regulated for protecting the Tippagondanahalli Reservoir from further deterioration. The very notification reveals that the Karnataka State Pollution Control Board has taken the decision not to accord consent for any industry, as it is bound to change the surface contours and affect the catchment's drainage pattern. The Karnataka State Pollution Control Board has also recommended to the Government that the area identified by ISRO be declared as a sensitive zone under Environment (Protection) Act, 1986 and also suggested to constitute a separate Authority for the conservation of Thippagondanahalli catchment area. 4. Nelamangala Planning Authority is one of the authorities responsible to oversee the implementation of master plan of Nelamangala. The No Objection Certificate is issued by the Nelamangala Planning Authority to the Deputy Commissioner as per Annexure-J dated 6.4.2010 for converting the land bearing Sy.No.14/7A to an extent of 1 acre 6 guntas situated at Govenahalli village and Sy.No.6/7A to an extent of 20 guntas situated at Halanayakanahalli village in favour of the 5th respondent to establish unit for service and repairs of farm machinery. Certain conditions are also imposed under the very No Objection/recommendation vide Annexure-J. The Deputy Commissioner by an order Annexure-K dated 29.6.2010 granted the permission to convert the land bearing Sy.No.14/7A of Govenahalli village measuring 1 acre 6 guntas for non-agricultural purposes with a condition that the land should be utilised only for the unit of service and repair of farm machinery. Certain other conditions are also imposed. Based on such permission granted by the Deputy Commissioner, it seems the 5th respondent has constructed the building and obtained the electricity connection also. 5. This Court by the order dated 3.2.2011 issued Rule and granted the interim order staying the operation of the order dated 29.6.2012 vide Annexure-K. The order of stay is also granted in respect of the order dated 19.11.2010 issued by the Executive Engineer - Electrical (O & M) Division, BESCOM, Nelamangala. 6. The sum and substance of the case of the petitioner is that as per interim master plan of 3rd respondent, no activities like establishment of industry, establishment of unit for services & repairs of farm machinery should have been permitted even under special circumstances within 10 kilometers radius of Thippagondanahalli Reservoir; since the petition properties fall within three kilometres from the said reservoir, interim master plan of 3rd respondent applies to the facts of this case and consequently, the schedule lands should not have been permitted to be converted for non-agricultural purposes, more particularly having regard to the fact that suit is pending consideration before the civil Court and that the petitioner intends to continue with the agriculture. Further, according to the petitioner, the 5th respondent under the garb of setting up the unit for service and repairs of farm machinery has established an industry in the name of 'Sharan Punch Fab' for the purpose of industrial fabrication and stampings. On the other hand the case of the 5th respondent is that the Deputy Commissioner is justified in granting the order of conversion inasmuch as he has passed the order only after issuing notice to the public at large. None of the members of the public including the petitioner have filed objections for conversion and therefore the Deputy Commissioner has proceeded to pass the order of conversion. It is the further contention of the 5th respondent that number of constructions have already come up in the neighbouring land. Since the recommendation by the 3rd respondent to the Deputy Commissioner is just and proper, the Deputy Commissioner has relied upon the said recommendation also while coming to the conclusion. The 5th respondent denies the allegation of the petitioner that 5th respondent is running an industry of fabrication and stampings. Since the recommendation by the 3rd respondent to the Deputy Commissioner is just and proper, the Deputy Commissioner has relied upon the said recommendation also while coming to the conclusion. The 5th respondent denies the allegation of the petitioner that 5th respondent is running an industry of fabrication and stampings. Finally it is contended that the lands falling under Zone-4 are acquired by the KIADB and therefore there is no hurdle for the 5th respondent to set up a unit for service and repairs of farm machinery. This writ petition is filed only with an oblique motive and not for bonafide reasons. 7. Thippagondanahalli reservoir is a major source of water for the city of Bangalore. The petition schedule properties are situated within three kilometres from Thippagondanahalli reservoir. According to the petitioner, if industries are allowed to be set up, then the major portion of city of Bangalore will be affected. Be that as it may, since this Court is of the opinion that the petitioner and other villagers should be given an opportunity of being heard before the Deputy Commissioner, particularly when the valuable rights of the public are affected, this Court does not wish to enter into the merits of the matter at this stage. No prejudice would be caused to the 5th respondent if an opportunity of being heard is given to the petitioner and others. The question as to whether the properties are situated in Zone-1, Zone-2, Zone-3 or Zone-4 also has to be clarified by the Deputy Commissioner before passing the order of conversion. Though the recommendation made by the 3rd respondent reveals that an area of 1 acre 6 guntas in Sy.No.14/7A situated at Govenahalli village falls in Zone-4 and Sy.No.6/7A to an extent of 20 guntas of Halanayakanahalli village falls within Zone-1, the order of the Deputy Commissioner vide Annexure-J does not clarify the said aspect. The Deputy Commissioner shall independently apply his mind for coming to the conclusion. It is relevant to extract the following noting relating to Agricultural Zone as found in Interim Master Plan of Nelamangala LPA-2021 vide Annexure-H, which reads thus: 9. The Deputy Commissioner shall independently apply his mind for coming to the conclusion. It is relevant to extract the following noting relating to Agricultural Zone as found in Interim Master Plan of Nelamangala LPA-2021 vide Annexure-H, which reads thus: 9. AGRICULTURAL ZONE: a) xxx xxx b) Uses that are permitted under special circumstances by the Authority Agro processing units, places of worship, air terminal and helipads, Educational institutions, hospitals, libraries, sports clubs, stadiums, playgrounds, water sports, golf centres, race course, race/driving testing tracks, cultural buildings, exhibition centres, park and open spaces, graveyards/burial grounds. Rehabilitated schemes of government, institutions relating to agriculture, research centres, LPG bottling plant (Min.500 mts away from human habitation), warehouse, storage and sale of farm products locally produced, provided the Ground Coverage does not exceed 15 percent and subject to a maximum of Ground + First floor only. Service and repairs of farm machinery and agricultural supplies, old age and orphanages homes, Highway facilities (Truck terminals), residential developments within the area reserved for natural expansion of villages and buildings in such areas should not exceed two floors (Ground + one) In the catchment area of Tippagondanahalli Reservoir, developments listed under Para (b) are not permissible within a zone of about 10 KM radius around the reservoir area as area of protection and for protection of the reservoir from further deterioration. A buffer of 1 KM on either side of Arkavati and Kumudvathi courses within the catchment is also restricted for development (Please refer to Government Order No.FEE 215 ENV 2000 dated 18-11-2003 given in the Annexure-III) (Emphasis supplied) 8. From the aforementioned clause, prima facie it appears that that in the catchment area of Tippagondanahalli Reservoir, developments listed in Para (b) are not permissible within a zone of about 10 kilometers radius around the reservoir area as area of protection and for protection of the reservoir from further deterioration. It is also mentioned therein that a buffer of one kilometre on either side of Arkavati and Kumudvathi courses within the catchment is also restricted for development. It is also mentioned therein that a buffer of one kilometre on either side of Arkavati and Kumudvathi courses within the catchment is also restricted for development. The aforesaid clause is in consonance with the Government Notification dated 18.11.2003 vide Annexure-D. Thus it is clear that though under certain special circumstances, a unit for Service and repairs of farm machinery and agricultural supplies may be permitted generally, such privilege is not available in respect of the area falling within the catchment area of Thippagondanahalli reservoir within a zone of 10 kilometers radius from the reservoir. While recommending for grant of No Objection Certificate, the 3rd respondent authority has not got the report of the Tahsildar as well as the concerned Gram Panchayath as is clear from Annexure-S1 in order to verify such facts. Since the impugned order Annexure-K does not answer the aforementioned question, I deem it proper to direct the Deputy Commissioner to reconsider the matter afresh. 9. I am conscious of the fact that neither the petitioner nor any of the villagers have raised any objections for grant of conversion of land in favour of the 5th respondent. Nevertheless having regard to the totality of facts and circumstances and as the Deputy Commissioner has to reconsider the matter on merits, this Court proposes to afford final opportunity to the petitioner and others to have their say in the matter before the Deputy Commissioner. 10. In view of the above, the matter needs to be reconsidered by the Deputy Commissioner afresh. Accordingly, the following order is made: The impugned order Annexure-K passed by the 1st respondent dated 29.6.2010 stands quashed. The 1st respondent is directed to reconsider the application filed by the 5th respondent praying for conversion of the land for non-agricultural purposes and pass orders on merits and in accordance with law within two months from the date of receipt of this order. It is needless to observe that the Deputy Commissioner also should verify the orders passed by the Civil Court before proceeding further. It is open for the petitioner and others to file objections, if any within a period of one month from this date before the Deputy Commissioner. The observations made during the course of this order also will have to be taken into consideration while coming to the conclusion. Writ Petitions are allowed accordingly.