IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P.NO.36551/2017 (KLR-CON) BETWEEN:
SRI. M. CHANDRASHEKAR REDDY S/O SRI. MUNISWAMAPPA REDDY AGED ABOUT 67 YEARS HOUSE NO.5748, NEW NO.1 4TH MAIN, 5TH ‘C’ CROSS HAL-III STAGE, NEW THIPPASANDRA BANGALORE – 560 075.
(BY SRI. P.B. RAJU, ADVOCATE) AND:
1. THE SECRETARY DEPARTMENT OF REVENUE STATE OF KARATAKA M.S. BUILDING AMBEDKAR VEEDHI BANGALORE – 560 001.
2. THE DEPUTY COMMISSIONER OFFICE OF THE DEPUTY COMMISISONER BANGALORE DISTRICT BANGALORE EAST TALUK BANGALORE – 560 009.
(BY SRI. Y.D. HARSHA, AGA) ... PETITIONER ... RESPONDENTS THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT RESPONDENT TO REIMBURSE THE AMOUNT OF RS.17,32,500/- DEPOSITED BY THE PETITIONER, VIDE CHALLAN NO.J 564358 DATED:28.04.2017 TOWARDS 9 GUNTAS OF "A" KHARAB LAND; JUST ONLY TO COMPLY WITH THE TERMS OF THE DEMAND LETTER DATED: 10.04.2017 WHEREBY THE R-2 HAS MADE A DEMAND ON THE PETITIONER FOR PAYMENT OF A SUM OF RS. 17,32,500/- BEING THE VALUE OF 9 GUNTAS "A" KHARAB LAND, AND CONVERSION FEE OF RS.12,252/- (I.E., RS. 17,32,252/- + RS. 12,252/-) = RS.17,44,752/- ALONG WITH THE INTEREST AT 9 P.A. WHICH LAND IS OWNED BY THE PETITIONER IN HIS PROPERTY BEARING SY. NO.27/1 OF BIDRA AGRAHA VILLAGE, BIDARHALLI HOBLI, BANGALORE EAST TALUK, BANGALORE DISTRICT.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The short point that arises for consideration in this writ petition is:
“Whether the appropriate Government is empowered to collect market value of the ‘A’ Kharab land which is sought to be diverted from agricultural to non agricultural purposes or not?.
2. Petitioner herein acquired title to the land measuring 1 Acre in Sy.No.27/1 situated at Bidara Agraha village, Bidarahalli Hobli, Bengaluru East Taluk under partition effected as per judgment and decree passed in O.S.No.131/1991. Said 1 Acre of land consisted of 9 guntas of ‘A’ kharab land. Pursuant to decree, revenue records came to be mutated in the name of petitioner in MR No.16/2004-05 and an application came to be submitted by the petitioner on 30.05.2013 before second respondent seeking for conversion of said land from agricultural purposes to non agricultural/residential purposes. Second respondent by order dated 16.08.2003-Annexure-F ordered to delete 9 guntas of ‘A’ kharab land for being treated as ‘B’ kharab land.
3. Being aggrieved by the same petitioner has filed an appeal before Karnataka Appellate Tribunal in Appeal No.933/2013 and when appeal was pending, a fresh application came to be submitted by petitioner on 12.01.2017 requesting for 9 guntas of kharab land being treated as ‘A’ kharab land instead of ‘B’ kharab land. An endorsement came to be issued on 10.04.2017 by second respondent to the petitioner whereunder demand for Rs.17,32,500/- towards market value of 9 guntas of ‘A’ kharab land and Rs.12,252/- as conversion fee for grant of conversion of 1 Acre was sought for. Petitioner deposited said amount i.e. in all Rs.17,44,752/- as evident form Treasury challan- Annexure-J1. Subsequently, on 20.05.2017 vide Annexure-K conversion order for the entire 1 Acre of land was accorded which included 9 guntas of kharab land also. On account of amount of Rs.17,32,500/- having been realized from the petitioner towards market value of ‘A’ kharab land, petitioner is before this Court seeking for directions to respondent to reimburse the amount of Rs.17,44,752/- deposited by petitioner on 24.08.2017- Annexure-J towards market value of 9 guntas of ‘A’ kharab land.
4. I have heard the arguments of Sri. P.B. Raju, learned Advocate appearing for petitioner and Sri.
Y.D. Harsha, learned AGA appearing for respondents.
5. It is noticed that issue relating to the entitlement of appropriate Government to demand for payment of market value of ‘A’ kharab land is no more res-integra.
6. Coordinate bench of this Court in W.P.No.52803/2015 and W.P.No.59505/2015 (KLR-
RES) disposed on 13.06.2016 having followed the judgment rendered by another Coordinate bench in the matter of L.A. Krishnappa vs. The State of Karnataka represented by its Secretary, Revenue Department and others reported in ILR 2009 Kar. 938 as well as Division Bench judgment rendered in W.A.No.3524/2009 dated 28.07.2010 in the matter of The Government of Karnataka vs Smt.G.Anuradha has held that applicant would not be liable to pay market value of the ‘A’ Kharab land to the Government. Finding recorded by Coordinate Bench of this Court reads:
“7. The perusal of the afore-extracted provisions reveals that ‘A’ phot kharab land is that which is not under cultivation for the time being on account of the existence of the threshing floors, etc., but it continues to be a part of the mainland. It can be brought under cultivation any time. On the contrary, ‘B’ kharab land does not belong to any private individual. ‘B’ phot kharab land is vested in the Government for being used as footpath, tank, burial ground, cremation ground, etc., Considering the said classification of ‘A’ phot kharab and ‘B’ phot kharab lands, this Court, in the cases of L.A. KRISHNAPPA AND G. ANURADHA (supra), has expressed the considered view that the applicant for conversion of the lands is not liable to pay the market value of the phot kharab ‘A’ land to the Government.
8. Considering the provisions contained in Rule 21(2) of the Karnataka Land Revenue Rules, 1956 and the ratio laid down in the cases of L.A. KRISHNAPPA AND G. ANURADHA (supra), I allow these petitions by quashing the impugned intimation insofar as it pertains to the demand for the payment of market value of Phot kharab ‘A’ land. Consequently, the respondent No.2 is directed to refund Rs.15,75,000/- to the petitioners”.
In the light of said finding recorded by Coordinate Bench, contentions raised by Sri. Y.D. Harsha, learned AGA appearing for respondents that Rule 107 (a)(a) of the Act would be applicable is an argument which requires to be considered for being brushed aside, for the simple reasons that order of conversion insofar as present case is concerned, came to be passed on 20.05.2017 and amended provision namely Section 107(a)(a) came into effect from 20.07.2017 i.e., subsequent to order of conversion. This Court is of the considered view that extant rules, governing prior to the introduction of rule 107(a)(a) would be attracted and not the amended rule.
In the light of aforestated discussion, this Court is of the considered view that petitioner would be entitled to the relief sought for in the present writ petition.
Hence, I proceed to pass the following:
ORDER (1) Writ petition is allowed.
(2) Respondent No.2 is hereby directed to refund to petitioner a sum of Rs.17,44,752/- deposited by petitioner under challan No.J 564358 dated 28.04.2017, expeditiously and at any rate within an outer limit of three months from the date of receipt of copy of this order.
(3) In the light of amount to which respondent not being entitled to have been retained, necessarily, respondent will have to pay interest on the amount so retained and similar claim for payment of interest was also considered by the co- ordinate Bench while adjudicating W.P.No.52083/2015 and interest @ 8% p.a. have been awarded and as such same benefit deserves to be extended to the petitioner herein. However, it is made clear that petitioner having deposited the amount for the first time when the demand was raised on 5th July, 2017, though amount was paid on 28.04.2017, in other words, petitioner would be entitled to interest @ 8% p.a. on Rs.17,32,500/- from 05.07.2017 till date of payment. Time for compliance of this order, as already noticed herein above, is three months.
Learned Government Advocate is permitted to file memo of appearance for respondents within four weeks from today.
All pending applications shall stand consigned to records.
SD/- JUDGE RU