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2020 DIGILAW 1275 (KAR)

Anant v. State Of Karnataka

2020-06-29

SACHIN SHANKAR MAGADUM

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JUDGMENT Sachin Shankar Magadum, J. - The captioned writ petition is filed seeking writ of certiorari seeking quashing of the impugned endorsement dated 01.01.2019 as per Annexure-L issued by the 2nd respondent-Deputy Commissioner, Belagavi and also writ of certiorari to quash the impugned communication dated 17.06.2018 issued by the 3rd respondent as per Annexure- F. 2. The facts leading to the top noted writ petition are as under: The petitioners are claming to be the owners of lands bearing Sy.No.46/A/4 measuring 21 gunta 9 anas, 46/A/5 measuring 21 guntas 9 anas, 46/A/6 measuring 21 guntas 9 anas and 46/A/7 measuring 21 guntas 9 anas all situated at Anagol, Belagavi. 3. It is the case of the petitioners that land Tribunal, Belagavi has granted occupancy right to the petitioners and also other family members. The petitioners have averred at para 3 of the writ petition that the grant of occupancy right was questioned by the landlords in WP.No.23824/1997. This Court has confirmed the order of the Land Tribunal and has dismissed the writ petition filed by the owners. The order of the learned single Judge is confirmed by the Division Bench of this Court in Writ Petition No.1262/2007. The petitioners have also stated in the writ petition that the landlords questioned the order passed by this Court before the Hon'ble Apex Court in SLP.No.15686/2009 which was also dismissed. Petitioners have further stated in the writ petition that the competent authority has issued Form No.10 in favour of the petitioners. 4. The petitioners having taken note of the development in the abutting lands also resolved to seek conversion of the agricultural land for non-agricultural use and accordingly submitted application before the 2nd respondent Deputy Commissioner on 04.06.2018. The 2nd respondent on receipt of application sought information from the various authorities including Tahasildar and Commissioner, BUDA. It appears that Tahasildar and Commissioner, BUDA submitted a report to the Deputy Commissioner indicating that they have no objection for conversion. The petitioners also produced the resolution passed by the respondent No.3, dated 29.11.1990 wherein the 3rd respondent has resolved to drop the proceedings in respect of petition lands. This resolution was also placed on record before the 2nd respondent-Deputy Commissioner as per Annexure-H to the writ petition. The 2nd respondent- Deputy Commissioner vide impugned endorsement has rejected the application by order dated 01.01.2019. 5. This resolution was also placed on record before the 2nd respondent-Deputy Commissioner as per Annexure-H to the writ petition. The 2nd respondent- Deputy Commissioner vide impugned endorsement has rejected the application by order dated 01.01.2019. 5. Heard the counsel for the petitioners and also learned AGA for respondent Nos. 1 and 2 and M.A.Hulyal, learned counsel for respondent No.3. 6. Counsel for the petitioners would vehemently argue and contend that the contention raised by the petitioners also needs to be examined by this Court in regard to lapse of scheme as contemplated under Section 27 of the Karnataka Urban Development Authorities Act, 1987 (for short the Act) needs to be examined by this Court. 7. There is some force in the submission made by the learned counsel for the petitioners. In this regard, the impugned endorsement needs to be examined. 8. In the light of the resolution passed by the 3rd respondent wherein they have resolved to drop the scheme and accordingly, resolution is passed by the 3rd respondent on 29.11.1990. The copy of the resolution passed by the 3rd respondent is placed on record before this Court as per Annexure-H to the writ petition. 9. The relevant Section 27 of the Act is culled out for better understating which reads as under: "27. Authority to execute the scheme within five years.- Where within a period of five years from the date of publication in the Official Gazette of the declaration under sub7 section (1) of Section 19, the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become in-operative." 10. Counsel for the petitioners would also take this court to the conversion order passed by the 2nd respondent-Deputy Commissioner in respect of other lands which were part and parcel of Sy.No.46, which was also subject matter of Scheme No.12. 11. On perusal of the order passed by the 2nd respondent-Deputy Commissioner it is clearly evident that the endorsement issued by the 2nd respondent rejecting the application filed by the petitioner is beyond four months. 12. 11. On perusal of the order passed by the 2nd respondent-Deputy Commissioner it is clearly evident that the endorsement issued by the 2nd respondent rejecting the application filed by the petitioner is beyond four months. 12. This Court in catena of judgments has held that if the Deputy Commissioner fails to examine the application submitted for conversion within the prescribed period contemplated under Section 95(5) of the Karnataka Land Revenue Act, 1964, the deeming clause would come into effect forthwith and Deputy Commissioner would lose jurisdiction to pass orders on the application submitted by the land owners seeking conversion of the petition lands. 13. In that view of the matter, I am of the view that the impugned endorsement issued by the 2nd respondent after expiry of 120 days from the date of application submitted to the 2nd respondent-Deputy Commissioner is one without jurisdiction and the impugned endorsement is liable to be quashed. 14. The impugned order passed by respondent No.2 as per Annexure-L is also not sustainable in the background of facts of the present case on hand. Though State Government issued a preliminary notification thereby proposing to acquire the present petition lands and subdivision land in Sy.No.46, however, the State Government has not proceeded to acquire the lands by issuing final notification. If this material aspect is examined in the context of respondent No.3 having resolved to drop the proceedings pertaining to petition lands, I am of the view that the impugned order passed by respondent No.2 as per Annexure-L suffers from serious material irregularity. Respondent No.2-Deputy Commissioner could not have rejected the application on the ground that land was proposed to be acquired as per the preliminary notification dated 11.05.1989. This Court is of the view that, merely because the land has been notified by issuing a preliminary notification for acquisition, the Deputy Commissioner cannot reject the application filed by the petitioners seeking conversion of the land for non-agricultural purpose. This Court is also of the view that mere proposal would not be a deciding factor for deciding the application under Section 95 of the KLR Act seeking conversion. This Court is also of the view that mere proposal would not be a deciding factor for deciding the application under Section 95 of the KLR Act seeking conversion. I am of the view that, the matter would not fall under sub- Section (3) of Section 95 of the KLR Act, to enable the Deputy Commissioner to refuse permission on the ground that diversion of the land use was likely to defeat the provisions of law for the time being in force. Mere possibility of the land being acquired in future by issuing a final notification cannot deprive the land owner from seeking permission to convert the land for non-agricultural purpose. The above said proposition has been laid down by the Division Bench of this Court in the case of Sri.Tayappa vs. The State of Karnataka, The Deputy Commissioner, Bagalkot, (2015) ILR(Kar) 3041 . 15. On perusal of the records at Annexures-M and M1, I am of the view that the 2nd respondent-Deputy Commissioner has discriminated the claim of the petitioners' land since he has allowed conversion in respect of other lands which were also subject matter of Scheme No.12. In the light of the deeming clause coming into force after lapse of four months, the impugned endorsement as per Annexure-L is liable to be quashed. 16. It is unfortunate to note that the 3rd respondent has also issued communication as per Annexure-F stating that there cannot be any conversion since petition lands is subject matter of Scheme No.12. This endorsement issued by the 3rd respondent runs contrary to their own resolution dated 29.11.1990 which is placed on record as per Annexure- H. 17. In that view of the matter, I am of the view that the impugned communication issued by the 3rd respondent dated 17.06.2018 baring No.BNP/Yo/NA/CR- 07/2018-19/793 as per Annexure-F is arbitrary, illegal and same is liable to be quashed. 18. On perusal of the material on record, this Court is of the view that since the 3rd respondent has resolved to drop the very scheme resolved under Scheme No.12. The preliminary notification issued by the State as per Annexure-G dated 11.05.1989 is also liable to be quashed since said notification is squarely hit by Section 27 of the Act. 19. On perusal of the material on record, this Court is of the view that since the 3rd respondent has resolved to drop the very scheme resolved under Scheme No.12. The preliminary notification issued by the State as per Annexure-G dated 11.05.1989 is also liable to be quashed since said notification is squarely hit by Section 27 of the Act. 19. This Court is of the view that scheme has expired and further it is evident that the authorities have passed conversion order in respect of lands in the same survey number which was subject matter of Scheme No.12. 20. For the reasons stated supra, the impugned communication issued by the 3rd respondent as per Annexure-F and preliminary notification issued by the 1st respondent as per Annexure-G are quashed. 21. The impugned endorsement issued by the 2nd respondent dated 01.01.2019 as per Annexure-L is quashed. The 2nd respondent is directed to accept the conversation fee, penalty in accordance with law and issue conversion certificate within a period of 12 weeks from the date of receipt of certified copy of this order.