Karnataka High Court
Sri M Krishna vs Deputy Commissioner on 14 February, 2020
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.3614/2020(KLR-CON)
BETWEEN:
1. SRI M. KRISHNA
S/O LATE MARIYAPPA
AGED ABOUT 53 YEARS
2. SMT. VASANTHA
W/O SRI M. KRISHNA
AGED ABOUT 45 YEARS
3. SRI K SHAMANTH,
S/O SRI M KRISHNA
AGED ABOUT 45 YEARS
PETITIONERS ARE ALL
R/AT NO.EWS 149
13TH C MAIN ROAD
J BLOCK, KANAKADASA NAGAR
DATTAGALLI 3RD STAGE,
RAMAKRISHNA NAGARA
MYSORE-570022.
...PETITIONERS
(BY SMT. B. V. VIDYULATHA, ADVOCATE)
2
AND:
DEPUTY COMMISSIONER
OFFICE OF THE DEPUTY COMMISSIONER
MYSORE DISTRICT
MYSORE-570001
...RESPONDENT
(BY SRI Y.D. HARSHA, AGA)
****
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSEMENT ORDERS ISSUED BY THE RESPONDENT, IN
RESPECT OF LANDS IN SY. NOS. 271/9, 271/10 AND 271/11
SITUATED AT KERAGALLI VILLAGE, JAYAPURA HOBLI, MYSORE
TALUK AND DISTRICT AT ANNEXURE-D, D1 AND D2
RESPECTIVELY ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners who claim to be the absolute owners of the agricultural lands bearing Sy.Nos.271/9 (measuring 30 guntas), 271/10 (measuring 33 guntas) and 271/11 (measuring 37 guntas), situated at Keragalli village, Jayapura Hobli, Mysore taluk and district, morefully described in the writ petition (hereinafter referred to as 'the schedule lands'), are before this Court for a writ of certiorari 3 to quash the Endorsement orders issued by the Deputy Commissioner in respect of the schedule lands as per Annexures - D, D-1 and D-2 and a writ of mandamus directing the Deputy Commissioner to formally issue an order of conversion under the provisions of Section 95 of the Karnataka Land Revenue Act, 1964 ('the Act' for short) by collecting conversion fine as required under Section 95(7) of the Act in respect of the schedule lands belonging to the petitioners.
I Facts of the Case
2. It is the case of the petitioners that they are the absolute owners of the schedule lands and filed applications under Section-95 of the Act seeking conversion of the land use of the schedule land from agricultural to residential purposes. The Deputy Commissioner has issued online Endorsement orders, rejecting the applications filed by the petitioners in respect of schedule lands without giving any reasons. It is further contended that Mysore Urban 4 Development Authority ('MUDA' for short) has issued a 'land use certificate' as per Annexure-C dated 23.8.2019 confirming that the schedule lands belonging to the petitioners are situated within the residential zone in the Master plan - 2031. Inspite of the same, the Deputy Commissioner without issuing the conversion order exercising the powers under the provisions of Section 95 of the Act, proceeded to issue the impugned Endorsement orders erroneously. Hence, the present writ petition is filed for the relief sought for.
II Statement of objections on behalf of the Respondents - State
3. Learned AGA adopted the objections filed in W.P. No.462/2020, wherein it is contended that the State Government in order to expedite the process of conversion, has issued the Government Order dated 20.2.2019 and formulated the procedure for conversion of lands from agricultural purpose to non-agricultural purpose and some 5 conditions are imposed. It is contended that the lands in question fall within the jurisdiction of MUDA and accordingly, as per the online procedure, the applications have been forwarded to the concerned authority to obtain NOC. As per the procedure, the MUDA has sent the remarks online, that the purpose of conversion applied by the applicant does not match with the purpose for which it is reserved in 'Master Plan to proposed Land use Map plan' and recommended to reject the said applications.
4. It is further contended that as per the procedure, since the report sent by the MUDA that the purpose of conversion applied by the applicant does not match with the purpose for which it is reserved in 'Master Plan to Proposed Land Use Map', the applications of the petitioners came to be rejected by the impugned Endorsement Orders. It is further contended that the petitioners have not produced 'Land Use Certificate' issued by the MUDA along with the applications. Therefore, the impugned Endorsement orders 6 issued by the Deputy Commissioner are just and proper and the petitioners are not entitled to any relief before this Court and sought to dismiss the writ petition.
5. I have heard the learned counsel for the parties to the lis.
III Arguments advanced by the counsel for the Petitioners
6. Smt. B.V. Vidyulatha, learned counsel for the petitioners contended that the impugned Endorsement orders issued by the Deputy Commissioner rejecting the applications made by the petitioners for conversion to residential purpose, are erroneous and contrary to the material on record. She further contended that in the impugned Endorsements, except mentioning the survey numbers of the petitioners' lands and stating that the purpose of conversion applied by the applicant does not match with purpose for which it is reserved in master plan proposed land use map, the Deputy Commissioner has not 7 assigned any reason for rejection of the applications and therefore, the impugned Endorsement orders cannot be sustained.
7. The learned Counsel for the petitioners further contended that the provisions of Section 95 of the Act do not give any option to the Deputy Commissioner to get opinion from the Urban Development Department, but the Deputy Commissioner has to apply his mind independently to the provisions of the Act and pass orders on the applications filed for diversion within four months from the date of the applications and non-performance of the statutory duty by the Deputy Commissioner amounts to deemed conversion of land under Section 95(5) of the Act. The impugned Endorsements issued by the Deputy Commissioner are in utter violation of Articles 14 and 21 of the Constitution of India. She further contended that the Deputy Commissioner has rejected the applications based on the opinion from the UD Department, which is 8 impermissible as per the provisions of the Act and the impugned Endorsement orders are not speaking orders and cannot be sustained and therefore she sought to allow the writ petition.
8. In support of her contentions, learned counsel for the petitioners relied upon the dictum of this Court in the case of Smt. Lakshmamma vs. State of Karnataka and others in Writ Petition No.56386/2018 and connected matters disposed off on 11.10.2019.
IV Arguments advanced by the learned AGA
9. Per contra, Sri Y.D. Harsha, learned AGA while reiterating the averments made in the statement of objections, contended that the petitioners have not produced the 'Land Use Certificate' issued by the MUDA along with the applications. Therefore based on the opinion expressed by the MUDA, the impugned Endorsement orders came to be issued. The petitioners are not entitled to the 9 relief sought for and the question of conversion of petitioners' lands under the provisions of section 95(5) of the Act would not arise. Therefore, he sought to dismiss the writ petition.
V Point for determination
10. In view of the rival contentions urged by the learned Counsel for the parties, the only point that arises for consideration is:-
"Whether the respondent - Deputy Commissioner is justified in issuing the impugned Endorsement orders rejecting the applications for conversion under the provisions of section 95 of the Karnataka Land Revenue Act, 1964, in the facts and circumstances of the present case ?"
V Determination
11. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the material on record carefully. 10
12. It is an undisputed fact that the petitioners are the owners of the schedule lands morefully described in the writ petition and the petitioners filed applications for conversion of schedule lands from agricultural to residential purpose under the provisions of Section 95 of the Act. In view of the provisions of Section 95 of the Act, the Deputy Commissioner has to consider the applications and pass appropriate orders within the stipulated time. The provisions of Section 95(5) of the Act prescribes that, 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 applied for shall be deemed to have been granted.
13. On careful perusal of the impugned Endorsement orders issued by the Deputy Commissioner, it clearly depicts that except mentioning the survey numbers of the petitioners' lands and stating that the purpose of 11 conversion applied by the applicant does not match with purpose for which it is reserved in master plan proposed land use map, the Deputy Commissioner has not assigned any reason for rejection of the applications in the impugned Endorsements. The Deputy Commissioner is the only authority to consider the applications for conversion from agricultural to residential purpose under the provisions of Section 95(2) of the Act. Under the provisions of Section 95 of the Act, the UD Department has no role to consider the applications for conversion and the Deputy Commissioner alone has to consider the applications based on the provisions of Section 95 of the Act and the Government Orders and Circulars issued from time to time. The petitioners have produced the 'Land Use Certificate' issued by MUDA as per Annexure-C dated 23.8.2019, wherein it is stated that the subject matter of the present writ petition falls within the residential zone. In the circumstances, the Deputy Commissioner ought not to have 12 rejected the applications for conversion by the impugned Endorsements.
14. The provisions of sub-section (3) of Section 95 of the Act 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 the provisions of sub-section (4) of Section 95 of the Act.
15. The provisions of sub-section (4) of Section 95 of the Act 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 13 law relating to town and country planning or erection of the buildings. As per the mandate of sub-section (5) of Section 95 of the Act, if the Deputy Commissioner fails to inform the applicant of his decision on the 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.
16. 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 14 the period of four (4) months, if the application is filed within time and in accordance with law.
VII The dictums of the Apex Court and
this Court
17. The Hon'ble Supreme Court while considering the deemed provisions under Section 95(5) of the Act in the case of Consolidated Coffee Limited and another vs. Coffee Board, Bangalore etc., reported in AIR 1980 SC 1468 held that 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.
18. The Coordinate Bench of this Court in the case of Rudraswamy vs. Deputy Commissioner reported in ILR 1994 Kar. 2958 while considering the effect of deemed provision under Section 95(5) of the Act held at paragraph- 8 as under:
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' 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, 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.
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(a) STATE OF BOMBAY vs PANDURANG VINAYAK AND OTHERS (AIR 1953 SC 244)
(b) CONSOLIDATED COFFEE LTD vs COFFEE BOARD (AIR 1980 SC 1468) 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.'
19. The Hon'ble Supreme Court while considering the effect of deemed provision in the case of MANISH TRIVEDI vs. STATE OF RAJASTHAN reported in (2014) 14 SCC 420, has held at paragraph-14 as under: 17
"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 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."18
20. The Deputy Commissioner while examining the application for conversion 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 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 permission/clearance from the other statutory authorities. In the absence thereof, the deeming provision would surface and come to the aid of such applicant.
VIII Conclusion
21. In view of the provisions of Section 95 of the Act and the dictum of this Court and the Hon'ble Supreme Court stated supra, the impugned Endorsement orders issued by the Deputy Commissioner are contrary to the 'Land Use Certificate' issued by the MUDA as per Annexure-C and the same cannot be sustained and the Deputy Commissioner has to reconsider the applications of 19 the petitioners for conversion afresh under the provisions of Section 95 of the Act and in the light of the law declared by the Hon'ble Supreme Court stated supra .
22. It is also made clear that while considering the provisions of Section 95 of the Act, the Deputy Commissioner shall not be influenced by the observations made by the Urban Development Authority, who is not the authority under the provisions of Section 95 of the Act, and it is for the Deputy Commissioner to apply his mind independently to the provisions of the Act and pass appropriate orders in accordance with law.
23. For the reasons stated supra, the point raised for determination is answered in the negative holding that the Deputy Commissioner is not justified in issuing the impugned Endorsement orders rejecting the applications for 20 conversion under the provisions of Section - 95 of the Act and the same are liable to be quashed.
IX Result/Decision
23. For the reasons stated above, the writ petition is allowed. The impugned Endorsement orders as per Annexures - D, D-1 and D-2 are hereby quashed. A writ of mandamus is issued to the 2nd respondent - Deputy Commissioner to reconsider the applications of the petitioners for conversion of the schedule lands from agriculture to residential purpose afresh and pass appropriate orders exercising the powers under the provisions of Section 95 of the Act within a period of four weeks, in the light of the 'Land Use Certificate' issued by MUDA as per Annexure-C dated 23.8.2019 and the judgments of this Court and the Hon'ble Supreme Court stated supra. The Deputy Commissioner shall independently consider the applications without being 21 influenced by any observations made by the Urban Development Department and pass appropriate orders strictly in accordance with the provisions of the Act.
24. It needs to be observed that if the applications filed by the petitioner are in accordance with the provisions of Section 95 of the Act and if not considered within time stipulated under the provisions of the Act, the permission applied for shall be deemed to have been granted. If the applications are in order, the Deputy Commissioner shall take necessary steps to issue formal order of conversion.
Ordered accordingly.
Sd/-
JUDGE Gss/-