IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA WRIT PETITION NOs.24983/2018 & 45525/2018 (KLR-CON) BETWEEN SRI N THIMMEGOWDA S/O LATE NARAYANAPPA AGED ABOUT 54 YEARS KAKOLU VILLAGE & POST HESARAGHATTA HOBLI BENGALURU NORTH (ADDL.) TALUK – 560 090 ... PETITIONER (BY SRI R S RAVI, ADVOCATE) AND 1. THE DEPUTY COMMISSIONER BENGALURU DISTRICT BENGALURU -560 001.
2. BENGALURU INTERNATIONAL AIRPORT AREA PLANNING AUTHORITY No.333/1, 1ST FLOOR, V J COMPLEX SHANTHINAGAR SULIBELE ROAD, DEVANAHALLI TOWN BENGALURU RURAL DISTRICT REP. THE JOINT DIRECTOR & MEMBER SECRETARY 560 090.
3. HINDUSTAN PETROLEUM CORPORATION LIMITED NO.77, OLD MADRAS ROAD, DOORVANINAGAR POST, KRISHNARAJAPURAM BENGALURU-560 016 REP. CHIEF REGIONAL MANAGER-RETAIL 560 001 4. DODDABALLAPURA LOCAL PLANNING AUTHORITY, REP., BY ITS MEMBER SECRETARY, DODDABALLAPURA, BENGALURU RURAL DISTRICT 561 203 RESPONDENTS (RESPONDENT No.4 IMPLEADED VIDE COURT ORDER DATED 03.04.2019 SRI YOGESH D. NAIK, ADVOCATE FOR RESPONDENT NOs.2 AND 4 RESPONDENT No.3 IS SERVED BUT UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DATED 24.03.2018 MADE IN ALN.(NAH).SR/30/17-18 ISSUED BY THE FIRST RESPONDENT VIDE ANNEXURE ‘L’ TO THE PETITIONS AND TO DECLARE THAT THE LAND BEARING SY. Nos.86/3 AND 86/4 MEASURING 20 GUNTAS SITUATE AT SHANUBHOGANAHALLI VILLAGE, HESARAGHATTA HOBLI, BENGALURU NORTH ADDITIONAL TALUK, SHALL BE DEEMED TO HAVE BEEN CONVERTED FROM AGRICULTURAL PURPOSES TO THAT OF COMMERCIAL PURPOSES UNDER SECTION 95(5) OF THE ACT, AS REQUESTED VIDE ANNEXURE ‘F’.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner herein is impugning the endorsement dated 24.03.2018 bearing No.ALN(NAH).SR/30/2017-18 (Annexure ‘L’ to the petitions) issued by Additional Deputy Commissioner, Bengaluru District, and also seeking declaration that the land measuring to an extent of 20 guntas comprised in Sy. Nos.86/3 and 86/4 situate at Shanubhoganahalli village, Hesaraghatta hobli, Bengaluru North Additional Taluk, shall be deemed to have been converted from agricultural purpose to that of commercial purpose under Section 95(5) of the Karnataka Land Revenue Act, 1964, as per his application vide Annexure ‘F’ to the petitions.
2. Petitioner would state that he is the owner of the land measuring to an extent of 20 guntas comprised in Sy. Nos.86/3 and 86/4 situate at Shanubhoganahalli village. The third respondent – Hindustan Petroleum Corporation Limited issued notification dated 10/10/2014 inviting applications from the general public for the award of MS/HSD Retail Outlet Dealership at Rajankunte – Madhure Temple road situate at the aforesaid Shanubhoganahalli.
3. The petitioner is stated to have entered into partnership with one Sri M. Venugopal on 05.11.2014 with a view to carry on the business of running petrol bunk. The petitioner and Sri Venugopal have made separate application before the third respondent for selection as retail outlet dealer. It is stated that the third respondent being satisfied with the title and location of the petition land, selected the petitioner and his partner in connection with Retail Outlet Dealership through the process of draw of lots. In that behalf, the third respondent has issued letter of intent dated 31.10.2017 (Annexure ‘E’ to the petitions) to the petitioner and his partner imposing certain conditions including the condition that in case the petitioner and his partner failed to provide the land / develop facilities within the specified time or failed to fulfill the terms and conditions of letter of intent, then the same would be withdrawn. It is in this background that the petitioner made an application on 18.11.2017 before the first respondent – Deputy Commissioner under Section 95 of the Karnataka Land Revenue Act, 1964, (for short, ‘the Act’) for conversion of the petition land from agricultural purpose to that of commercial purpose i.e., for setting up of a petrol bunk. In that behalf, office of Deputy Commissioner has issued acknowledgement dated 18.11.2017 vide Annexure ‘F’ to the petitions. Pursuant to the said application, Deputy Commissioner has secured report from Tahasildar, Bengaluru North (Additional) Taluk, Yelahanka, Karnataka Industrial Area Development Board, Karnataka Housing Board and respondent No.2 – Bengaluru / Bangalore International Airport Area Planning Authority (BIAAPA) in respect of conversion of the petition land. Subsequently, Additional Deputy Commissioner has issued the impugned endorsement rejecting the application of the petitioner. Hence, this writ petition.
4. Heard the learned counsel for the petitioner, learned Additional Government Advocate appearing for respondent No.1, learned counsel appearing for respondent Nos.2 and 4. Perused the material on record.
5. It is stated that at the time of filing of these petitions, Bangalore International Airport Area Planning Authority was made as respondent No.2 on the premise that the petitioner’s land would fall within the jurisdiction of the said Authority. However, subsequent to filing of these writ petitions, the petitioner having realized that the area, where the petition land is situate, falls within the jurisdiction of Doddaballapura Local Planning Authority, he has impleaded the said authority as respondent No.4 in this proceedings and the said authority is represented by learned counsel, Sri Yogesh D. Naik.
6. Perusal of the impugned endorsement discloses that Additional Deputy Commissioner based on the report of Tahasildar as well as Joint Director of Urban and Rural Planning and Member-Secretary of the second respondent - BIAAPA, the application of the petitioner seeking conversion of land measuring to an extent of 10 guntas out of 01 Acre 20 guntas in Sy. No.86/3 and 10 guntas out of 01 Acre 15 guntas in Sy. No.86/4 situate at the said Shanubhoganahalli village, from agricultural to non-agricultural purpose i.e., commercial purpose for setting up of petrol bunk has been rejected on two counts, firstly the said land falls within ‘Agricultural Zone’ in the Comprehensive Development Plan 2015 and secondly, the said land is abutting District main road, but not National Highway.
7. Learned counsel appearing for respondent No.4 - Doddaballapura Local Planning Authority would try to assert that the impugned endorsement is just and proper inasmuch as the land of the petitioner is not abutting the National Highway and hence, the petitioner’s application for conversion of the petition land cannot be considered. To substantiate the same, he would rely upon the Circular No.Soona.AC.16 BIAAPA.2004 dated 20.12.2004 issued by BIAAPA.
8. In response to the said submission of learned counsel for respondent No.4, learned counsel for the petitioner would submit that the said circular has spent its life inasmuch as the right of the petitioner to locate the petrol bunk in the present place is governed by the order of the Government bearing No.Na.a.e.178.BMR.2011, Bengaluru, dated 26.04.2012, copy of which is produced as document No.2 along with memo filed by learned counsel for the petitioner, wherein it is stated that providing of highway facilities like petrol bunk etc. could be considered in respect of Main District Road (MDR) and other roads, where the width of such road is minimum 12 Meters. According to the petitioner, the road to which his property is abutted is more than 12 Meters in width. Therefore, the aforesaid Government Order would come to his rescue in securing necessary order for conversion of the petition land from agricultural to non-agricultural purpose i.e., commercial purpose for the purpose of setting up of petrol bunk.
9. At this juncture, so far as the second prayer of the petitioner to declare that there is deemed conversion of the land in question under Section 95(5) of the Act is concerned, this Court is not inclined to entertain the said prayer.
10. When the learned Additional Government Advocate is called upon to state as to why the prayer of the petitioner is not considered, he would place on record that the State is ready and willing to issue conversion order in respect of the petitioner’s land provided necessary technical opinion / No Objection Certificate (NOC) is issued by respondent No.4 – Doddaballapura Local Planning Authority. If the said NOC from respondent No.4 is secured by the petitioner, the conversion order would be issued. In the fact situation, this Court is of the considered opinion that the impugned endorsement is required to be quashed.
11. Accordingly, these Writ Petitions are allowed. The endorsement bearing No.ALN(NAH)SR/30/17-18 dated 24.03.2018 vide Annexure ‘L’ to the petitions issued by first respondent – Deputy Commissioner / Additional Deputy Commissioner, Bengaluru District, is hereby quashed. While doing so, respondent No.4 – Doddaballapura Local Planning Authority is directed to issue technical opinion / No Objection Certificate to enable the petitioner to secure conversion of his land from agricultural to non-agricultural i.e., commercial purpose. The said exercise shall be carried out within the period of thirty days from the date of receipt of certified copy of this order provided the petitioner deposits requisite fee and furnish necessary documents to secure the conversion order. At the same time, learned Additional Government Advocate for the State would place on record that as and when the application of the petitioner with No Objection Certificate issued by respondent No.4 is submitted to the State (Deputy Commissioner), the State will issue necessary order for conversion of petitioner’s land within 30 days from the date of receipt of such application and No Objection Certificate from the fourth respondent.
12. By placing the said submission of learned counsel for the parties, these Writ Petitions are allowed in the aforesaid terms. While doing so, it is made clear that if any of the party to these petitions does not adhere to the undertaking given before this Court, it is open for the petitioner to approach this Court for inaction on the part of respondent No.4 / concerned authority to consider his application.
13. Learned Additional Government Advocate is directed to file memo of appearance within two weeks from today.
Sd/- JUDGE sma