Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NO.31476/2019 (KLR-CON) BETWEEN:
H.N.PREMAKUMAR AGED ABOUT 74 YEARS, S/O. LATE NANJUNDA SETTY, R/AT NO.410, ‘B’ BLOCK, MYTHRI APARTMENT, SARASWATHIPURAM, MYSORE – 09 (BY RAVI L VAIDYA, ADVOCATE) AND:
1. STATE OF KARNATAKA BY ITS PRINCIPA SECRETARY DEPARTMENT OF REVENUE, VIDHANA SOUDHA, BENGALURU-01 2. THE DEPUTY COMMISSIONER MYSORE DISTRICT, MYSORE-570001 3. THE TAHSILDAR MYSORE TALUK, MYSORE-570001 (BY SRI.Y.D.HARSHA, AGA) ... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE LANDS MENTIONED IN THE APPLICATIONS DTD.20.02.2018 AT ANNEXURE-A AND B ARE DEEMED TO HAVE CONVERTED FOR NON AGRICULTURAL RESIDENTIAL PURPOSES U/S 95(5) OF THE KARNATAA LAND REVENUE ACT, 1964.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though matter is listed for Preliminary Hearing by consent of learned Advocates appearing for parties it is taken up for final disposal.
2. Petitioner has sought for declaring that lands specified in the applications dated 20.02.2018- Annexures-A and B are deemed to have been converted from agricultural purposes to non agricultural purposes in the light of Section 95(5) of the Karnataka Land Revenue Act, 1964 (for short ‘Act’). Petitioners have also sought for a writ of mandamus to direct second respondent to issue necessary orders of conversion in respect of lands mentioned in said applications by receiving necessary conversion charges/fee/fine from the petitioner.
3. Petitioner had filed applications under Section 95(2) of the Act seeking conversion of agricultural lands bearing Sy.No.241/1 measuring 3 acres 37 guntas; Sy.No.241/5 measuring 3 acres 29 guntas; and Sy.No.246/2 measuring 0.19 acres situated at Karegalli Village, Jayapura Hobli, Mysore Taluk from agricultural to non agricultural purposes. Petitioner had also enclosed requisite certificates and revenue records for considering said applications. Said applications have been submitted to second respondent on 20.02.2018, which have been acknowledged on 21.02.2018 as is evident from Annexures-A and B. Said applications have neither been approved/granted nor rejected as contemplated under Section 95(2) of the Act. Hence, petitioner has pressed into service deemed clause namely, sub-section (5) of Section 95 of the Act to contend that there is a deemed approval and as such prayer aforestated has been sought for.
4. Sri.Y.D.Harsha, learned AGA appearing for respondent-authorities would submit that opinion had been sought for from Mysore Urban Development Authority (for short ‘MUDA’) by addressing communication dated 28.02.2018, 26.03.2018 and on account of information or clarification expressing no objection for issuance of conversion order having not been furnished, second respondent could not take any steps to process the applications and as such he contends deemed clause cannot be pressed into service. He has also placed on record communication dated 21.10.2019 received from MUDA whereunder said authority has clearly held that lands in question though was proposed to be acquired for formation of a layout, have not been included in the final notification. However, MUDA having said so, has further opined that Deputy Commissioner should not grant conversion order permitting lands to be converted from agricultural to non agricultural residential purposes.
5. In fact, appropriate Government has itself issued a notification bearing No.RD.56.LGP 2008 dated 10.09.2008 whereunder it has clearly held that Deputy Commissioner while considering an application for conversion would not be required to call upon the applicants to furnish No Objection or certificates from other statutory authorities except a finding to consider the application in accordance with Section 95 of the Act. As such it was not necessary on the part of the Deputy Commissioner to seek for an opinion from MUDA calling the said authority to furnish the same, since said authority namely, MUDA not being party to present proceedings no opinion is expressed in that regard.
6. This Court in the matter of SRI.ARADHYA C.B. AND OTHERS vs. STATE OF KARNATAKA AND OTHERS in W.P.No.40441/2019 disposed of on 25.09.2019 while considering a similar plea has held to the following effect:
“6. Sub-section (3) of Section 95 enables the Deputy Commissioner to refuse permission on the ground that diversion is likely to defeat the provisions of any law for the time being in force or it is likely to cause public nuisance and not being in the interest of general public or on the ground that occupant is unable or unwilling to comply with the conditions that may be imposed under sub-section (4) of Section 95 of the Act.
7. Sub-section (4) enables the Deputy Commissioner to impose such conditions as he deems fit in order to secure the health, safety and convenience and in case of land which is to be used as building sites, additional conditions can also be imposed which would not contravene the provisions of any law relating to town and country planning or erection of the buildings. As per the mandate of sub-section (5) of Section 95 if the Deputy Commissioner fails to inform the applicant of his decision on the application made under sub-section (2) of Section 95 within a period of four months from the date of receipt of such application, then permission applied for would be deemed to have been granted.
8. In other words, by a deeming fiction, the permission is ought to be accorded. There cannot be any dispute with regard to the proposition of law that a deeming provision has to be given its full effect. In other words, where there is a deeming provision and same applies, the jurisdiction of the authority of the Deputy Commissioner to further consider the application ceases to exist or it gets exhausted and thereby, no power would be available to the Deputy Commissioner to further exercise the power after the period of four (4) months. However, in the event of such application having been taken up for consideration before said period and defects in the application is / are pointed out to such applicants, then in such an event said provision would not be applicable at all.
9. The Hon’ble Apex Court in case of CONSOLIDATED COFFEE LTD. AND ANR vs. COFFEE BOARD, BANGALORE, ETC. ETC (AIR 1980 SC 1468) has held, when the law provides that an assumption is deemed to have been happened then in the eyes of law, it will be taken as happened though it might not have occurred in fact. In fact, effect of deemed provision under Section 95(5) of the Act had come up for consideration before the Coordinate Bench of this Court in the case of RUDRASWAMY vs. DEPUTY COMMISSIONER reported in ILR 1994 KAR 2958 and held as under:
“8. Under sub-section (5) of Section 95, it has been provided that if the Deputy Commissioner fails to inform the applicant of his decision on the application made under sub-section (2) within a period of 4 months from the date of receipt of the application, the permission shall be deemed to have been granted. The deeming clause, it is well known, leads to an assumption in law of a fact as if the fact has taken place in reality though it might not have taken place. When law provided that thing is deemed to have happened, then in the eye of law, it will be taken as happened though it might not have occurred in fact. It is well settled principle of law and rule of interpretation that a deeming provision has to be given its full effect. Reference in this regard may be made to the following Decisions of the Supreme Court.
(a) STATE OF BOMBAY vs PANDURANG VINAYAK AND OTHERS (b) CONSOLIDATED COFFEE LTD vs COFFEE BOARD.
Then it means that the permission is to be deemed to have been granted on the expiry of the period of 4 months i.e., on the expiry of four moths period as aforesaid. It shall be deemed that the Deputy Commissioner has granted permission and once this deeming clause applies, the jurisdiction of the authority of the Deputy Commissioner to reject the application ceases and gets exhausted.”
10. The effect of deemed provision had come up for consideration before Hon’ble Apex Court in the case of MANISH TRIVEDI vs. STATE OF RAJASTHAN reported in (2014) 14 SCC 420 and held that legislature has created a legal fiction. It has been further held:
“14. Section 87 of the Rajasthan Municipalities Act, 1959 xxxxx Section 21 of the Penal Code. It is well settled that the legislature is competent to create a legal fiction. A deeming provision is enacted for the purpose of assuming the existence of a fact which does not really exist. When the legislature creates a legal fiction, the court has to ascertain for what purpose the fiction is created and after ascertaining this, to assume all those facts and consequences which are incidental or inevitable corollaries for giving effect to the fiction. In our opinion, the legislature, while enacting Section 87 has, thus, created a legal fiction for the purpose of assuming that the Members, otherwise, may not be public servants within the meaning of Section 21 of the Penal Code but shall be assumed to be so in view of the legal fiction so created. In view of the aforesaid, there is no escape from the conclusion that the appellant is a public servant within the meaning of Section 21 of the Penal Code.”
11. In this background and, at the cost of repetition, if sub-section (5) of Section 95 is perused, it would clearly indicate that in the event of Deputy Commissioner failing to inform the applicant of his decision on the application made under sub-section (2) within a period of four months from the date of receipt of such application, then permission is deemed to have been granted. The deeming cause, it is well- known, leads to an assumption in law of a fact as if the fact has taken place in reality though it might not have taken place.
12. In fact the appropriate Government by notification No.RD.56.LGP 2008 dated 10.09.2008 has held that revenue authorities while dealing with applications for conversion of agricultural land to non-agricultural purposes, would not insist the applicants to obtain clearance prior to sanction of conversion order, from the competent authorities like Urban Development Authority, Local bodies like CMC, TMC, Grama Panchayath and also Pollution Control Board since they would be required to grant permission for utilizing the land for non-agricultural purposes for which permissions for conversions have been granted after following due process of Law with necessary safeguards. It is also indicated in said circular that Deputy Commissioners and Assistant Commissioners should only look into the provision of Karnataka Land Revenue Act and other allied Laws.
13. In other words, while examining the applications for conversion, the Deputy Commissioner would not be competent to decide as to whether the said land would fall within the Urban Zone or otherwise to accord such permission. It would be outside the scope of his jurisdiction or in other words, it can be said that the Deputy Commissioner would be at liberty to impose the condition of directing the applicant to obtain appropriate permissions / clearance from the other statutory authorities. In the absence thereof, the deeming provision would surface and come to the aid of such applicant.
14. In fact, under somewhat similar circumstances where an endorsement came to be issued to an applicant after considering his application by rejecting it on the ground that the land proposed for conversion would fall within the zone of ‘National Investment and Manufacturing Zone’, came to be examined by a Division Bench of this court in W.A.No.200561/2016 and 200013/2017 and was disposed of on 1.2.2017 holding that immediately after lapse of four months, a right had accrued to the applicant to press into service the deeming clause. It was further held that mere proposal to reserve a land for a particular purpose by the statutory authority, which had not blossomed itself into decision having been taken or State having taken steps to acquire the said land, as on the date when an applicant makes an application for conversion, such rights cannot be scuttled or in other words, it cannot be gainsaid by the State that applicant does not have any right to seek such conversion of land.”
7. In the light of aforesaid analysis of law, this Court is of the considered view that issue involved in this petition is squarely covered by aforesaid order. Hence, petitioner is entitled to the relief sought for as ordered herein below.
Hence, I proceed to pass the following:
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