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2021 DIGILAW 300 (KAR)

Ningappa Urf Lingappa Shriyammanavar S/o. Mahadevappa Shiriyammanavar v. Deputy Commissioner Dharwad District Dharwad

2021-02-23

HANCHATE SANJEEVKUMAR

body2021
ORDER : The present writ petitions are filed praying this Court to exercise writ jurisdiction in the nature of writ of certiorari quashing the impugned order bearing No.LNA/M/CR-12/2012-13 dated 11.09.2012 passed by the respondent No.1-Deputy Commissioner vide Annexure-H and also to quash the order passed by the Karnataka Appellate Tribunal, Bengaluru (for short KAT) in Appeal No.1173/2012 dated 30.10.2015 vide Annexure-J. 2. It is stated that the petitioners are the owners of agricultural land bearing Sy.No.345 to the extent of 3 acres situated at Nalavadi village, Navalagund taluk. Later, the petitioners have applied before the respondent No.1-Deputy Commissioner for conversion of the said land from agricultural to non-agricultural for residential purpose under Section 95 of the Karnataka Land Revenue Act (for short Act). It is stated that at the time of considering the application under Section 95 of the Act, the power and jurisdiction was vested with respondent No.2-Assistant Commissioner and respondent No.2 has passed order on 30.04.1994 granting permission for conversion of the land above stated from agricultural to non-agricultural for residential purpose vide Annexure-B. It is also stated that the layout map was approved by the local authority i.e. panchayat which is local planning authority. It is also stated that KJP was also prepared for conversion as per Annexure-D. As per the said conversion order and approved layout plan, certain sites were formed. Among the said plots, the petitioners intended to get conversion of four plots from residential to commercial purpose. In this regard, the petitioners made application. Then, respondent No.1 has revoked the order of the conversion dated 30.04.1994 on the ground that the petitioners have not developed the land for 18 years. Therefore, respondent No.1 had revoked the said conversion order. Being aggrieved by the said revocation, the petitioners have preferred appeal No.1173/2012 before the KAT under Section 49 of the Act calling in question the order passed by respondent No.1. The KAT by order dated 30.10.2015, has dismissed the appeal confirming the order passed by respondent No.1 revoking the said conversion order. Therefore, being aggrieved by the order passed by respondent No.1 vide Annexure-H and the order passed by KAT vide Annexure-J, the present writ petitions are filed praying to exercise writ of certiorari by this writ Court. 3. The KAT by order dated 30.10.2015, has dismissed the appeal confirming the order passed by respondent No.1 revoking the said conversion order. Therefore, being aggrieved by the order passed by respondent No.1 vide Annexure-H and the order passed by KAT vide Annexure-J, the present writ petitions are filed praying to exercise writ of certiorari by this writ Court. 3. Learned counsel for the petitioners vehemently argued that respondent No.1 has no power or is not vested with any authority or jurisdiction to revoke the conversion order granted earlier in the absence of any other statute. Therefore, submitted that once the Deputy Commissioner/Assistant Commissioner grants conversion order as per Section 95 of the Act, then they become functus officio. Therefore, they do not have any power or authority to review/revoke/cancel the order of conversion granted earlier. Therefore, it is submitted that the impugned order at Annexure-H is one without authority or jurisdiction of respondent No.1 and which is not correctly appreciated by the KAT resulting into passing erroneous order. Therefore, prays to allow the writ petitions and quash the impugned orders. 4. On the other hand, learned Additional Government Advocate submitted that in the present case, condition No.8 is imposed while granting conversion order that the petitioners shall develop the land within a period of 3 years for which purpose permission is granted. But even after lapse of 18 years, the petitioners have not developed the land for which purpose the permission was granted. Therefore, respondent No.1 has rightly revoked the conversion order. Further, it is submitted that respondent No.1 has revoked the order after giving notice to the petitioners and after giving an opportunity of hearing to them and after complying the principles of natural justice. Therefore, it is submitted that there is no error committed by respondent No.1 while revoking the order. 5. Further, the learned Additional Government Advocate submitted that if the land is not developed within the stipulated period as imposed in condition, then the land neither would be an agricultural land nor can it be used for non-agricultural purpose. In this context, the land becomes barren land and therefore for this object, conditions are imposed for development of the land. Further, the learned Additional Government Advocate submitted that if the land is not developed within the stipulated period as imposed in condition, then the land neither would be an agricultural land nor can it be used for non-agricultural purpose. In this context, the land becomes barren land and therefore for this object, conditions are imposed for development of the land. It is further submitted that as per Section 25 of the Act, respondent No.1 has inherent power to pass order, therefore the order of revocation of grant of conversion is not the one which is without jurisdiction and the order passed by respondent No.1 is very well correct and justified and thus prays to dismiss the writ petitions. 6. Upon hearing both sides and on perusal of the records available before this Court, the short question arises for consideration of this Court is, whether the respondent No.1-Deputy commissioner was justified in canceling/revoking the order of conversion granted on 30.04.1994 in proceedings No.LNA:CR:64:93-94 in respect of the land in question and also the order passed by KAT in appeal No.1173/2012 is justifiable? 7. Annexure-H is the order passed by respondent No.1 revoking/canceling the conversion order dated 30.04.1994 granted on earlier occasion. Annexure-B is the conversion order dated 30.04.1994 granted by respondent No.2-Assistant Commissioner. The only reason assigned by respondent No.1 is that there is violation of condition No.8 that the petitioners have not developed the land for which purpose the permission was granted. The same is affirmed by the KAT vide Annexure-J. In this regard, I place reliance on the judgment of this Court passed in W.P.No.45634/2013 (KLR-CON) disposed of on 14.11.2013 in the case of Smt. Rathna Vs. Deputy commissioner, D.K. District and Another. The facts therein are also having more or less similar points as involved in the present case. In the said writ petition, this Court has observed that the Deputy Commissioner has exercised administrative power under Section 95 of the Act and once the order is passed under that Section, the authority becomes functus officio. Therefore, there can be no review of administrative action unless specifically provided in the statute. Therefore, the order of the Deputy Commissioner in canceling/revoking the conversion order granted earlier is quashed. Furthermore, it is also observed that Sections 24 or 25 of the Act are not applicable for the administrative action taken under Section 95 of the Act. 8. Therefore, there can be no review of administrative action unless specifically provided in the statute. Therefore, the order of the Deputy Commissioner in canceling/revoking the conversion order granted earlier is quashed. Furthermore, it is also observed that Sections 24 or 25 of the Act are not applicable for the administrative action taken under Section 95 of the Act. 8. Further, this Court in W.P.No.107658/2017 disposed of on 09.08.2017 in the case of Venkatesh and Another Vs. The State of Karnataka and Others also held that the Deputy Commissioner has no jurisdiction to cancel any order of conversion passed under Section 95 of the Act as there was no specific provision under the Act to empower the Deputy Commissioner to pass such an order. This Court also in a very similar set of facts and circumstances in W.P.Nos.65338-340/2016 disposed of on 09.10.2017 by placing reliance on the order passed by this Court in W.P.No.45634/2013 stated supra, held that once the decision is taken by the Deputy Commissioner in granting permission for conversion, he becomes functus officio and would not be entitled to sit in judgment over it to either modify it or cancel it. 9. Further, this Court in W.P.No.44580/2017 disposed of on 11.10.2017 in the case of Smt. Parvathamma Vs. The State of Karnataka and Others by following the order passed in W.P.No.45634/2013 (supra) held that the Deputy Commissioner has no jurisdiction or authority to recall his own order and when an administrative order under Section 95 of the Act is passed, the Deputy Commissioner becomes functus officio. The orders in W.P.No.24459/2018 disposed of on 31.07.2018 and W.P.No.110220/2019 and connected matters disposed of on 23.10.2020 are also on similar lines. 10. Therefore, the present case is also squarely covered by the judgments of this Court stated supra. Upon considering the dictum of this Court in the above referred cases, there is no more res integra that once the Deputy commissioner has passed an order under Section 95 of the Act, it is within the realm of administrative power and once the conversion order is granted for conversion of agricultural land into non-agricultural land, then the Deputy Commissioner becomes functus officio. Therefore, he cannot revoke/recall/cancel the earlier conversion order granted. Therefore, in the present case also, the Deputy Commissioner has no authority or power to revoke/cancel/recall the earlier conversion order. 11. Therefore, he cannot revoke/recall/cancel the earlier conversion order granted. Therefore, in the present case also, the Deputy Commissioner has no authority or power to revoke/cancel/recall the earlier conversion order. 11. Further, upon considering the submission made by the learned Additional Government Advocate that condition No.8 is put to the effect that the petitioner should develop the land within a period of 3 years, but even after lapse of 18 years, the land was not developed and hence, it is a case of violation of condition imposed while granting conversion order, cannot be said that the said contention is having merit for the reason that there is no power or jurisdiction or authority vested with the Deputy Commissioner to put such a condition. Even though the Deputy Commissioner without backed by a statute puts condition in his discretion, that discretion must be exercised judicially considering all the factual aspects. Admittedly, the land involved is in village area, namely, Nalavadi village of Navalagund taluk. The development may take time. Once the order of conversion is granted, if it is made applicable in all cases that development to be taken place within a period of two or three years as it is to be done in urban/city areas, in village areas then once again NA lands would be converted into agriculture purpose, but it is not possible and not practical. Therefore, just because the land is not developed within a period of three years, that cannot be made ground to revoke/cancel the conversion order granted earlier. Therefore, on this count also, I do not find any merit in the contention urged that the Deputy Commissioner was right in revoking the conversion order granted earlier. 12. Section 25 of the Act articulates regarding inherent powers of Revenue Court. Revenue Officers and Revenue Courts are two different authorities. The Revenue Officer is defined under Section 24 of the Act as under : “Revenue Officer” means every Officer of any rank whatsoever appointed under or employed for the purposes of this Act.” Section 25 of the Act reads as under : “25. Revenue Officers and Revenue Courts are two different authorities. The Revenue Officer is defined under Section 24 of the Act as under : “Revenue Officer” means every Officer of any rank whatsoever appointed under or employed for the purposes of this Act.” Section 25 of the Act reads as under : “25. Saving of inherent powers of Revenue Court: Nothing in this Act, shall be deemed to limit or otherwise affect the inherent power of the Revenue Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Revenue Court.” Section 9-A of the Karnataka Land Reforms Act defines Court as under : “Court” means the Court of Munsiff within the local limits of whose jurisdiction the land is situated.” 13. Therefore, the word used Revenue Court shall be construed as it is having meaning that where he passed order under Section 95 of the Act and discharged functions under Section 95 of the Act cannot be construed as functioning as a Revenue Court as provided under Section 25 of the Act. 14. Therefore, upon conjoint reading of Sections 24 and 25 of the Act, the Revenue Courts are having power to inquire into or to decide any question arising between the State Government or any person or between the parties to any proceedings. But, in the present case, the Deputy Commissioner passed order under Section 95 of the Act which is in the nature of administrative order and is not as if acting as a Revenue Court that is not permissible under the law. Section 25 of the Act deals with inherent powers of Revenue Court. There is always difference between Revenue Officers and Revenue Court. Revenue Officers to be Revenue Courts but that does not mean that Revenue Officers acting as Revenue Courts is always not performing functions as Revenue Courts. The Revenue Officers may be presiding over Revenue Courts being function in the nature of judicial or quasi-judicial nature of functions. Where the Revenue Officer is not functioning as Revenue Courts, then those functions are in the nature of administrative work. Exercising power under Section 95 of the Act is neither judicial nor quasi-judicial function; but it is purely administrative function only. Where the Revenue Officer is not functioning as Revenue Courts, then those functions are in the nature of administrative work. Exercising power under Section 95 of the Act is neither judicial nor quasi-judicial function; but it is purely administrative function only. Exercising power under Section 95 of the Act is controlling and regulating agricultural and non-agricultural lands and it is in better-interest of District Administration relating to Agricultural Revenue, Agricultural produce, Revenue Collection from non Agricultural land, Regulating and Controlling Development of non-Agricultural land, in the name of development of Residential, Commercial, Industrial Zones, etc. Therefore, the power exercising under Section 95 of the Act is purely in the nature of Administration. Therefore, exercising power under Section 95 of the Act is by a Revenue Officer but not by Revenue Courts. Therefore, Section 95 of the Act is not applicable while it is to be exercised in the case of Section 95 of the Act. Where inherent powers under Section 25 is not applicable in the case of considering matters under Section 95 of the Act. Therefore, revoking/reviving/canceling conversion order earlier granted cannot be made under Section 25 of the Act. Therefore, I do not find any merit in the contention of the learned Additional Government Advocate that Section 25 can be exercised in the case of revoking, reviving or canceling order. 15. Therefore, the Deputy Commissioner does not have any power, authority or jurisdiction to revoke/cancel/recall the conversion order granted earlier under Section 95 of the Act unless it is so detrimental to the public policy or contrary to any statute. Therefore, the petitioners have made out sufficient ground for exercising power of writ in the nature of certiorari by this writ Court. Accordingly, the impugned orders passed by respondent No.1-Deputy Commissioner and KAT are liable to be quashed. Hence, the following: ORDER The writ petitions are allowed. Order bearing No.LNA/M/CR-12/2012-13 dated 11.09.2012 passed by the respondent No.1-Deputy Commissioner vide Annexure-H and also the order passed by the Karnataka Appellate Tribunal, Bengaluru in Appeal No.1173/2012 dated 30.10.2015 vide Annexure-J are hereby quashed. Rule issued is made absolute.