IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2019 BEFORE:
THE HON’BLE MRS. JUSTICE S.SUJATHA WRIT PETITION No.43053/2017 (BDA) BETWEEN SMT. RAZIA B., W/O ABDUL JABBAR KHAN, AGED ABOUT 64 YEARS, RESIDING AT NO.10, BHOOPASANDRA MAIN ROAD, BANGALORE-560 094.
... PETITIONER (BY SRI SATISH.K, ADV. FOR SRI M S BHAGWAT, ADV.) AND 1. THE BANGALORE DEVELOPMENT AUTHORITY REPRESENTED BY ITS COMMISSIONER, T CHOWDIAH ROAD, KUMARAPARK WEST, BANGALORE-560 020 2. THE DEPUTY COMMISSIONER BANGALORE URBAN DISTRICT, BANGALORE -560 001 3. THE ASSISTANT EXECUTIVE ENGINEER, TOWN PLANNING DIVISION, BANGALORE DEVELOPMENT AUTHORITY, T CHOWDIAH ROAD, KUMARAPARK WEST, BANGALORE-560 020.
... RESPONDENTS (BY SRI B.J.ESHWARAPPA, AGA FOR R2 (VK NOT FILED) SRI. K.KRISHNA, ADV. FOR R1 AND R3.) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED COMMUNICATION/ ENDORSEMENT DTD.15.5.2017 ISSUED BY THE R-3 VIDE ANNEX-G AND ISSUE CONSEQUENTIAL DIRECTIONS ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has challenged the communication/endorsement dated 15.05.2017 issued by respondent No.3 at Annexure-G to the writ petition inter-alia seeking declaration that the land measuring 16.08 guntas in Survey No.6 of Bhoopsandra Village, Kasaba Hobli, Bangalore North Taluk is deemed to have been converted from agricultural use to non-agricultural use by virtue of Section 95(5) of the Karnataka Land Revenue Act, 1964 (in short ‘the Act’) and consequently to direct the respondent No.2 to issue conversion order after determining and collecting the conversion fees to issue conversion order in accordance with law.
2. The petitioner contends that he had purchased 31 guntas of land in Survey No.6 of Bhoopsandra Village, Kasaba Hobli, Bangalore North Taluk on 10.03.1969. The first respondent initiated acquisition proceedings to acquire the said land belonging to the petitioner for formation of RMV II Stage further extension by issuing final declaration on 28.12.1982. The petitioner had filed writ petition 27383/2012 challenging the said acquisition proceedings initiated in so far as the land belonging to the petitioner is concerned. The said writ petition came to be allowed holding that the notifications issued by the Bangalore Development Authority for acquisition of the land in question are lapsed and proceedings have been abandoned in so far as the petition schedule property is concerned. Writ Appeal No.736/2018 filed by the Bangalore Development Authority challenging the said order, has been dismissed on 09.10.2018.
3. It is the grievance of the petitioner that the application filed by the petitioner seeking conversion of the land measuring 16.08 guntas in Survey No.6 of Bhoopsandra Village, Kasaba Hobli, Bangalore North Taluk pursuant to the order passed by the Special Tahsildar, Bengaluru North Taluk mutating the said 16.08 guntas in the name of the petitioner out of 31 guntas notified for acquisition by the Bangalore Development Authority has not acted upon. It is the contention of the petitioner that Bangalore Development Authority by an endorsement dated 29.09.2015 has confirmed that out of the notified extent of 00-31 guntas of land in the lands in question 00-16.08 guntas was deleted from the acquisition proceedings. By virtue of the same, the land revenue entries were mutated in the name of the petitioner to the extent of 16.08 guntas to which change of land use was sought for in terms of Section 95(2) of the Act. However, the respondent-Bangalore Development Authority rejected the said application by the impugned communication/endorsement at Annexure-G mainly placing reliance on the writ appeal No.736/2018 filed against the order of the learned Single Judge in W.P. No.27383/2012. The said writ appeal being dismissed, the endorsement impugned deserves to be set-aside.
4. Learned counsel appearing for the respondent- Bangalore Development Authority justifying the order impugned submitted that the land in question has been acquired and possession was taken pursuant to the acquisition notifications issued. According to the learned counsel, the land in question is part of the area acquired by the Bangalore Development Authority for its layout. The decision passed in Writ Petition No.27383/2012 being challenged by the Bangalore Development Authority, the impugned endorsement was issued.
5. I have carefully considered the rival submissions of the learned counsel for the parties and perused the material on record.
6. The land of the petitioner was acquired by the Bangalore Development Authority by issuing preliminary and final notifications as aforesaid. However, Bangalore Development Authority by an endorsement dated 29.09.2015 deleted 16.08 guntas of land from the acquisition out of 31 guntas pursuant to which Special Tahsildar has mutated the land measuring 16.08 guntas out of 31 guntas in Survey No.6 of Bhoopsandra Village, Kasaba Hobli, Bangalore North Taluk in the name of the petitioner. These factual aspects are not disputed by respondent-Bangalore Development Authority.
7. Subsequently, the petitioner has filed the application under Section 95(2) of the Act seeking for conversion of land from agricultural to non-agricultural purposes through application dated 11.04.2017. In such circumstances, the impugned endorsement issued by respondent-Bangalore Development Authority contending that the said land is part of the acquired land and the matter is pending adjudication before the appellate court deserves to be negated for the reasons that the respondent-Bangalore Development Authority itself has issued the endorsement at Annexure-B dated 29.09.2015 deleting the land to an extent of 16.08 guntas out of 31 guntas in Survey No.6 of Bhoopsandra Village and further the writ appeal No.736/2018 filed by the Bangalore Development Authority against the order of writ petition No.27383/2012 has been dismissed.
8. Further the issue relating to the deeming provision under Section 95 (5) of the Act which contemplates that the permission for non-agricultural purpose deemed to have been granted and the lands deemed to have been converted, where the Deputy Commissioner fails to inform the applicant of its decision and application made under sub-section (2) of Section 95 of the Act within a period of four months from the date of receipt of the application is no more res-integra in view of catena of judgments rendered by this court in this regard. In W.P. Nos.50330- 50333/2018 and allied matters (DD:14.01.2019) this court considering the similar issue placing reliance on the orders of the cognate Bench of this court in W.P. Nos.12036-12039/2018 (DD:10.10.2018) allowed the writ petition observing that permission for conversion shall be deemed to have been granted in the light of the provisions enumerated under sub-section (5) of Section 95 of the Act however, subject to the payment of necessary fees as contemplated under law. The said ruling applies to the present facts of the case with all force. The respondent No.2 has failed to inform the petitioner of his decision on the application made under sub-section (2) of Section 95 of the Act within a period of four months from the date of receipt of the application as acknowledged in the communication of respondent No.2 dated 11.04.2017 at Annexure-F to the writ petition.
In view of the aforesaid, the writ petition is allowed;
i) Endorsement dated 15.05.2017 issued by respondent No.3 is quashed.
ii) Permission for conversion shall be deemed to have been granted in as much as the lands in question in the light of the provisions enumerated under Section 95 (5) of the Act subject to the payment of necessary fees as contemplated under law.
Sd/- JUDGE Chs* CT-HR