Karnataka High Court
H P Manjunath vs State Of Karnataka on 14 September, 2020
Author: S.G.Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER 2020
BEFORE
THE HON' BLE MR. JUSTICE S.G. PANDIT
WRIT PETITION No.31598/2019 (KLR-CON)
BETWEEN:
H.P. MANJUNATH
AGED ABOUT 52 YEARS
S/O H.N. PREMAKUMAR
R/AT NO.410, 'B' BLOCK
MYTHRI APARTMENT
SARASWATHIPURAM
MYSORE-09.
...PETITIONER
(BY SRI. RAVI L VAIDYA, ADV.)
AND:
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY
DEPARTMENT OF REVENUE
VIDHANA SOUDHA
BENGALURU-01.
2. THE DEPUTY COMMISSIONER
MYSORE DISTRICT
MYSORE-570001.
3. THE TAHSILDAR
MYSORE TALUK
MYSORE-570001.
...RESPONDENTS
(BY SRI SRIDHAR HEGDE, HCGP)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARE THAT THE LANDS MENTIONED IN THE
APPLICATION DATED 20.02.2018 AT ANNX-A TO E ARE
DEEMED TO HAVE CONVERTED FOR NON-
AGRICULTURAL RESIDENTIAL PURPOSES U/S 95 (5) OF
THE KARNATAKA LAND REVENUE ACT, 1964 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THROUGH VIDEO CONFERENCE
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Petitioner is before this Court under Article 226 of the Constitution of India praying for a direction to declare that the lands mentioned in the applications dated 20.02.2018 as per Annexures-A to E are deemed to have been converted for non-agricultural purposes under Section 95(5) of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'the Act' for short) and for a direction to issue necessary orders of conversion in respect of the lands covered under the applications, by collecting conversion charges/fees. 3
2. Heard the learned counsel for the petitioner Sri.Ravi L.Vaidya and Sri.Sridhar Hegde, learned High Court of Government Pleader for respondents through video conference.
3. Learned counsel for the petitioner submits that the petitioner is the absolute owner in possession and enjoyment of the agricultural properties bearing Sy.No.241/3 measuring 3.25 acres, Sy.No.242/1 measuring 32 guntas, Sy.No.242/4 measuring 7 guntas, Sy.No.242/5 measuring 7 guntas, Sy.No.246/1 measuring 18 guntas, Sy.No.255/3B measuring 15 guntas, Sy.No.255/16 measuring 8 guntas, Sy.No.255/9 measuring 21 guntas, Sy.No.255/10 measuring 1 acre 16.5 guntas, Sy.No.255/11 measuring 8 guntas, Sy.No.255/7 measuring 20 guntas, Sy.No.257/5 measuring 32 guntas, Sy.No.257/12 measuring 11 guntas, Sy.No.257/3 measuring 25 guntas, Sy.No.257/11 measuring 15 guntas, 4 Sy.No.257/7 measuring 30 guntas, Sy.No.257/9 measuring 4 guntas, Sy.No.257/10 measuring 6 guntas, Sy.No.257/14 measuring 6 guntas, Sy.No.257/6 measuring 17.5 guntas, Sy.No.257/13 measuring 17.5 guntas, situated at Keragalli village, Jayapura Hobli, Mysore Taluk and District. In respect of those lands, the petitioner states that he made applications dated 20.02.2018 as per Annexures-A to E to the second respondent/Deputy Commissioner under Section 95 (2) of the Act seeking conversion of the agricultural lands to non-agricultural residential purposes. The said applications were received in the office of the Deputy Commissioner on 21.01.2018, but no action has been taken on the said applications. The Deputy Commissioner has failed to grant conversion under Section 95(2) of the Act nor rejected the request of the petitioner. Hence, the petitioner is before this Court invoking Section 95(5) of the Act seeking declaration to declare that the lands deemed to have 5 been converted for non-agricultural residential purposes.
4. Learned High Court Government Pleader Sri.Sridhar Hegde submits that on receipt of the applications of the petitioner, the second respondent/Deputy Commissioner has written to the Commissioner, Mysore Urban Development Authority (for short 'the MUDA') as to whether the lands are the subject matter of any acquisition or whether the MUDA is intending to acquire the lands. As such, the applications are pending and if the subject matter is under correspondence, the petitioner cannot seek deemed conversion of the lands. Even after sufficient opportunity, no objection has been filed by the State.
5. Having heard the learned counsel for the parties and on perusal of the writ petition papers, I am of the view that the petitioner would be entitled for the reliefs sought for by him in the writ petition. 6
6. Section 95(2) of the Act reads as follows:
(2) If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall (notwithstanding anything contained in any law for the time being in force) apply for permission to the Deputy Commissioner who may, subject to the provisions of this section and the rules made under this Act, refuse permission or grant it on such conditions as he may think fit.
Provided that in case of any agricultural land assessed or held for the purpose of agriculture, falling within the Local Planning Area for which the Master Plan has been duly published under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963) and such land and such diversion is in accordance with the purpose of land use specified in such Master Plan.
The permission therefore shall be 7 deemed to have been granted subject to payment of fine prescribed under sub- section (7).
Provided further that in Dakshina Kannada District, subject to any law for the time being in force regarding erection of buildings or the construction of wells or tanks, an occupant of (dry (punja) land, wet land or garden land) who is not -
(a) a person registered or liable to be registered as an occupant of such land under Section 48-A of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962); or
(b) a grantee of such land under Section 77 of the said Act, may, without obtaining the permission required under this sub-section and notwithstanding anything contained therein, divert such land or part thereof to any other purpose 8 after sending a prior notice in that behalf, in the prescribed form to the Tahsildar and paying in the prescribed manner, the fine prescribed under sub-section (7)." The above provision would enable a person who is the owner in possession of the agricultural lands to seek conversion of lands into non-agricultural residential purposes. If such an application is made, the Deputy Commissioner has to examine the application independently and it would not be necessary for the Deputy Commissioner to seek for an opinion from the MUDA with regard to acquisition.
7. Section 95(5) of the Act reads as follows:
(5) Where the Deputy Commissioner fails 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 the application, the permission 9 applied for shall be deemed to have been granted.
The above provision evidently makes it clear that if the Deputy Commissioner fails to inform the applicant of his decision on the application made by the petitioner for conversion of land, within a period of four months from the date of receipt of the application, the permission is deemed to have been granted. In the instant case, the application for conversion is dated 20.02.2018 and the said application was received in the office of the Deputy Commissioner on 21.02.2018. But, no decision has been communicated to the petitioner within four months from the date of receipt of the application for conversion of lands.
8. This Court, while dealing with the identical facts in W.P.No.40441/2019 disposed of on 25.09.2019, in the case of Sri.Aradhya C.B. and others V/S State of Karnataka and others has held as follows: 10
"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 11 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 12 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, 13 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."14
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 15 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 16 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 17 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 18 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."
9. For the reasons stated above and in the light of the principles laid down in the above decision, the petitioner would be entitled for the relief of deemed conversion of agricultural land to non-agricultural residential purpose as sought for by him in the writ petition. Hence, the writ petition is allowed. The second respondent/Deputy Commissioner is directed to issue an order of conversion in respect of the applications dated 20.02.2018 as per Annexures-A to E consisting of Sy.No.241/3 measuring 3.25 acres, Sy.No.242/1 measuring 32 guntas, Sy.No.242/4 19 measuring 7 guntas, Sy.No.242/5 measuring 7 guntas, Sy.No.246/1 measuring 18 guntas, Sy.No.255/3B measuring 15 guntas, Sy.No.255/16 measuring 8 guntas, Sy.No.255/9 measuring 21 guntas, Sy.No.255/10 measuring 1 acre 16.5 guntas, Sy.No.255/11 measuring 8 guntas, Sy.No.255/7 measuring 20 guntas, Sy.No.257/5 measuring 32 guntas, Sy.No.257/12 measuring 11 guntas, Sy.No.257/3 measuring 25 guntas, Sy.No.257/11 measuring 15 guntas, Sy.No.257/7 measuring 30 guntas, Sy.No.257/9 measuring 4 guntas, Sy.No.257/10 measuring 6 guntas, Sy.No.257/14 measuring 6 guntas, Sy.No.257/6 measuring 17.5 guntas, Sy.No.257/13 measuring 17.5 guntas, situated at Keragalli village, Jayapura Hobli, Mysore Taluk and District, after collecting necessary conversion charges/fees.
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It is open for the second respondent/Deputy Commissioner or any other statutory authorities including the Planning Authority to impose such terms and conditions in accordance with law.
Sd/-
JUDGE mpk/-* CT:bms