IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.44581/2017(KLR-CON) BETWEEN:
SMT. JAYAMMA, W/O LATE K. M. ESHWAR @ MUNISHAPPA, AGED ABOUT 74 YEARS, R/AT NO.84/4, BASU MANSION, 4TH CROSS, BASAVESHWARA LAYOUT VIJAYANAGAR, BENGALURU-560040. ALSO AT:
KACHANAYAKANAHALLI VILLAGE, JIGANI HOBLI, ANEKAL TALUK, BENGALURU DISTRICT.
(BY SRI HARISH H.V., ADV.) AND:
1. THE STATE OF KARNATAKA, THE DEPT OF REVENUE, DR. AMBEDKAR BEEDI, ... PETITIONER BANGALORE-560001. REPRESENTED BY ITS SECRETARY, 2. THE DEPUTY COMMISSIONER, BANGALORE DIST, BENGALURU 560001.
3. KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD(KIADB) KHANIJA BHAVAN, RACE COURSE ROAD, BENGALURU-560001. REPRESENTED BY ITS SPECIAL LAND ACQUISITION OFFICER, ... RESPONDENTS (By SMT. PRAMODHINI KISHAN, AGA for R1 & R2) **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER/ENDORSEMENT ISSUED BY THE DEPUTY COMMISSIONER, BANGALORE DISTRICT, BANGALORE DATED 11.9.2017, WHEREIN, THE DEPUTY COMMISIONER HAS OPINED NOT TO PROCESS THE CONVERSION OF LAND FROM AGRICULTURE TO NON- AGRICULTURE PURPOSE WITH RESPECT TO LAND IN SY NO.96/1, MEASURING 0-18 GUNTAS, AND SY NO.96/2, MEASURING 0-20.08 GUNTAS, TOTALLY MEASURING 0.38.08 GUNTAS OF KACHANAYAKANA HALLI, JIGANI HOBLI, ANEKAL TALUK, BENGALURU DISTRICT AS PER ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has sought for the following reliefs in the present writ petition:
(a) Issue a writ of certiorari or set aside the order/endorsement NO.ALN(AJ)SR-08/17- 18, issued by the Deputy Commissioner, Bangalore District, Bangalore, dated 11.9.2017, wherein, the Deputy Commissioner has opined not to process the conversion of land from agriculture to non-agriculture purpose with respect to land in Sy.No.96/1, measuring 0-18 guntas, and Sy.No.96/2, measuring 0-
20.08 guntas, totally measuring 0.38.08 guntas of Kachanayakanahalli, Jigani Hobli, Anekal taluk, Bengaluru district, Annexure- A.
(b) Consequently direct the 2nd respondent to pass such orders by following due process of law and consider application filed for conversion of the aforesaid land by petitioner.
2. It is the case of the petitioner that he is the absolute owner in possession of lands bearing Sy.No.96/1 measuring 0-18 guntas, Sy.No.96/4 measuring 0-20.08 guntas, totally measuring 0.38.08 guntas of Kachanayakanahalli village, Jigani hobli, Anekal taluk, Bengaluru district and she applied for conversion of the said lands under the provisions of Karnataka Land Revenue Act from agriculture to non-agriculture purpose. Accordingly, the 2nd respondent – Deputy Commissioner sought requisite permission/No Objection Certificate from the competent authorities. The Anekal Planning Authority issued No Objection Certificate on 24.7.2017. The Karnataka Industrial Areas Development Board (‘KIADB’ for short) has also issued ‘No Objection Certificate’ dated 19.7.2017 intimating the Deputy Commissioner that the said lands are acquired as per preliminary notification dated 4.10.2017 and thereafter no further proceedings are initiated in respect of the said lands and it is also recommended to drop the proceedings. It is further case of the petitioner that the Special Land Acquisition Officer of the KIADB had issued ‘No Objection Certificate’ to convert the said lands from agriculture to non-agriculture purpose.
3. It is further case of the petitioner that the Deputy Commissioner though sought the requisite information from the competent authorities as per the procedure contemplated under the provisions of the Karnataka Land Revenue Act, he proceeded to issue the impugned order mainly on the ground that lands in question were proposed to be acquired under the preliminary notification and therefore conversion sought for cannot be granted. Hence the present writ petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri Harish H.V., learned counsel for the petitioner vehemently contended that the impugned order passed by the Deputy Commissioner rejecting the application mainly on the ground that the preliminary notification issued on 4.10.2017 is erroneous since both the authorities viz., Planning authority and KIADB by letters dated 24.7.2017 and 19.7.2017 as per Annexures-B and C intimated the Deputy Commissioner that the further proceedings were not initiated in pursuance of the preliminary notification. According to the learned counsel for the petitioner, there is no objection for consideration of the application of the petitioner for conversion of the lands from agriculture to non-agriculture purpose and inspite of the same, the said application has not been considered by the Deputy Commissioner and proceeded to pass the impugned order which is erroneous and contrary to the material on record. He further contended that the preliminary notification was issued on 4.10.2007 and subsequently no final notification was issued by the competent authorities even after lapse of more than one year; if the final notification is not issued within one year from the date of the preliminary notification, the acquisition proceedings would lapse. The said aspect of the matter has not been considered by the Deputy Commissioner. In support of his contentions, he relied upon the judgments of this Court in the case of SRI MOHAMMED HASSAN FAZAL .vs. THE DEPUTY COMMISISONER AND OTHERS reported in ILR 1998 KAR 3165 and in the case of SRI TAYAPPA .vs. THE STATE OF KARANTAKA, THE DEPUTY COMMISSIONER, BAGALKOT reported in ILR 2015 KAR 3041. Therefore he sought to allow the writ petition by quashing the impugned order passed by the Deputy Commissioner.
6. Per contra, Smt. Pramodini Kishan, learned Additional Government Advocate fairly submits that mere initiation of the acquisition proceedings will not be a bar for the Deputy Commissioner to consider the application of the petitioner under the provisions of Section 95 of the Karnataka Land Revenue Act to convert the lands from agriculture to non-agriculture purpose. Therefore she submits that the matter requires reconsideration by the Deputy Commissioner.
7. Having heard the learned counsel for the parties, it is not in dispute that the petitioner is the absolute owner of the properties in question and accordingly, he has filed an application on 19.5.2017 for conversion of lands from agriculture to non-agriculture purpose by producing all the material documents and by paying the prescribed fee. It is also not in dispute that the lands were acquired by the KIADB issuing the preliminary notification as long back as on 4.10.2007 and subsequently no final notification is issued by the competent authorities. It is also not in dispute that the KIADB has issued the letter on 19.7.2017 intimating the Deputy Commissioner that no further proceedings were initiated to acquire the said lands and also recommended to drop the proceedings under the Land Acquisition Act. The Planning Authority also issued permission on 24.7.2017 to convert the lands in question from agriculture to non-agriculture purpose. The Deputy Commissioner mainly rejected the conversion application on the ground that the acquisition proceedings were initiated.
8. The Division Bench of this Court while considering the very provisions of Section 95 of the Karnataka Land Revenue Act in the case SRI TAYAPPA .vs. THE STATE OF KARNATAKA, THE DEPUTY COMMISISONER, BAGALKOT reported in ILR 2015 KAR. 3041 held at paragraphs 10 to 13 as under:
10. Thus, it is clear that even under the New Act, there is no prohibition for the land owner to seek conversion of his land. What has been prohibited is entering into any transaction in respect of the land which is the subject matter of notification under Section 11(1) or to create any encumbrances in respect of such land. In view of the above and keeping in mind, the language of the provisions contained under Section 4 of the Central Act No.1 of 1894, Section 11(4) of New Act and bearing in mind the judgment referred herein above, we are 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 appellant seeking conversion of the land for non- agricultural purpose. In fact, the said factor is not a relevant material to be taken into consideration for deciding the application filed under Section 95 of the Karnataka Land Revenue Act, seeking conversion.
11. The matter also does not fall under sub- section (3) of Section 95 as urged by the learned Government Advocate 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 or is likely to cause public nuisance. No such ground is made out in the impugned order. 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.
12. Though it is contended by counsel for the appellant that the appellant is entitled for the benefit of deemed conversion of the land as provided under sub-section (4) of Section 95, we do not wish to express any opinion on this aspect.
13. Accordingly, the appeal is allowed. The order passed by the Deputy Commissioner and also the order passed by the learned Single Judge are set aside. The matter is remitted back to the Deputy Commissioner for fresh consideration of the application filed by the appellant seeking conversion of the land. The application shall be considered within a period of three months from the date of receipt of a copy of this order. No costs.
9. The same is also reiterated by this Court as long back in the year 1998 in the case of SRI MOHAMMED HASSAN FAZAL .vs. THE DEPUTY COMMISSIONER & OTHERS reported in ILR 1998 KAR 3165.
10. In view of the above, the impugned order dated 11.9.2017 passed by the Deputy Commissioner is erroneous and contrary to the material on record and is liable to be quashed and the Deputy Commissioner has to reconsider the matter afresh in accordance with the provisions of Section 95 of the Karnataka Land Revenue Act.
11. For the reasons stated above, the writ petition is allowed. The impugned order dated 11.9.2017 passed by the Deputy Commissioner as per Annexure-A is quashed. The matter is remanded to the Deputy Commissioner to reconsider the application dated 19.5.2017 filed by the petitioner for conversion of the lands from agriculture to non-agriculture purpose afresh and pass orders strictly in accordance with the provisions of Section 95 of the Karnataka Land Revenue Act within a period of four months from the date of receipt of copy of the order.
Sd/-
JUDGE Gss/-