Karnataka High Court
Smt. Sunanda W/O Vijaykumar Gotadke vs The State Of Karnataka on 14 February, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC-D:3494
WP No. 100951 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 100951 OF 2024 (KLR-CON)
BETWEEN:
1. SMT. SUNANDA W/O VIJAYKUMAR GOTADKE
AGE 70 YEARS,
OCC. HOUSEHOLD,
2. SRI SHITAL S/O VIJAYKUMAR GOTADKE
AGE. 50 YEARS,
OCC. BUSINESS,
3. SRI VIMAL S/O VIJAYKUMAR GOTADKE
AGE. 49 YEARS,
OCC. BUSINESS
4. MISS MAHI D/O VIMAL GOTADKE
AGE 19 YEARS,
OCC. STUDENT
5. KUMAR ACHAL S/O SHITAL GOTADKE
AGE 26 YEARS,
SUJATA SUJATA OCC. STUDENT
SUBHASH SUBHASH
PAMMAR PAMMAR
PETITONER NO.5 REP BY THE GPA HOLDER
SRI. SHITAL VIJAYKUMAR GOTADKE
PETITIONER NO.2
R/O. NEAR GUJARAT BHAVAN
DESHPANDE NAGAR
HUBBALLI
DIST. DHARWAD
...PETITIONERS
(BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
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NC: 2024:KHC-D:3494
WP No. 100951 of 2024
AND:
1. THE STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPARTMENT OF REVENUE
M.S.BUILDING, BENGALURU-01.
2. THE DEPUTY COMMISSIONER
DHARWAD DISTRICT, DHARWAD
...RESPONDENTS
(BY SRI.V.S.KALASURMATH, HCGP)
THIS WP FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO:
A) ISSUE A WRIT OR CERTIORARI OR ANY OTHER ORDER AND
QUASH THE IMPUGNED ORDER PASSED BY THE 2ND
RESPONDENT DEPUTY COMMISSIONER, DHARWAD, BEARING
NO BEARING NO.LNA/VAHI-04/2017-2018 DATED 02-
07/08/2023, COPY AS PER ANNEXURE-E AS ARBITRARY,
UNREASONABLE, OPPOSED TO, AND IN DEROGATION OF THE
ORDER PASSED BY THE APPELLATE AUTHORITY AND ULTRA-
VIRES OF SECTION 95A OF THE KARNATAKA LAND REVENUE
ACT, AND/OR,
B) ISSUE A WRIT OF MANDAMUS OR ANY OTHER APPROPRIATE
WRIT OR DIRECTION AND DIRECT THE 2ND RESPONDENT TO
CONVERT THE LAND MEASURING 21 GUNTAS 8 ANNAS OF
SHEREWAD VILLAGE, HUBLI TALUKA, DHARWAD DISTRICT,
COPY BY RE-CONSIDERING THE APPLICATION DATED
1.4.2017, COPY AS PER ANNEXURE-B.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:3494
WP No. 100951 of 2024
ORDER
The petitioners' claim to be the owners of land in Sy.No.543/2 situated at Sherewad village, Chebbi Hobli, Hubli Taluk, measuring 2 acres 12 guntas.
2. The petitioners submitted an application with the respondent No.2 to convert 1 acre 12 guntas of land for non- agricultural purpose. The respondent No.2 partly allowed the application permitting conversion of land to an extent of 21.08 guntas, however, rejected the application for the remaining extent of land stating that, the said land falls within the building line. The petitioners filed an appeal before the Karnataka Appellate Tribunal. The Tribunal held that the conversion of land cannot be refused even if the land comes within the building line, and remitted the matter to the respondent No.2 for reconsideration of the application to the extent of remaining extent of land. The respondent No.2 rejected the application reiterating that, permission cannot be granted in respect of the subject land, which falls within the building line. Hence, this petition.
3. Heard the learned counsel for the petitioners and the learned High Court Government Pleader for the State.
4. The Karnataka Appellate Tribunal in its order has held that, the refusal to grant permission for conversion of remaining extent of land, which falls within the building line, cannot be sustained, and the respondent No.2 ought to have -4- NC: 2024:KHC-D:3494 WP No. 100951 of 2024 granted permission to the entire extent of land. This Court in WP No.100442/2022 at para 5 has held as follows:
"5. The second reason regarding the non availability of an access road, it has to be stated here that this cannot be a consideration for the Deputy Commissioner to refuse permission. On permission being granted by the Deputy Commissioner, the petitioner cannot automatically start using the land for the purpose for which it is converted and the petitioner would still have to secure appropriate approvals would still have to secure appropriate approvals from the planning authorities to utilize the land and those planning authorities are required to take into consideration the feasibility of the petitioner utilizing the land in a proper and effective manner."
5. The purpose of seeking diversion to non-agricultural purposes is to obtain approval from the competent Authorities to develop the land for residential purposes, and it is for the competent Authority, which is empowered to grant approval for utilising the said land for non-agricultural purposes, and whether the property can be developed for non-agricultural purpose is a matter, which can be considered only by the competent Authority, and not by the respondent No.2 in exercise of power under Section 95 of the Karnataka Land Revenue Act. Therefore, the impugned order passed by the respondent No.2 is not sustainable in law. Accordingly, I proceed to pass the following:
ORDER
i) The petition is allowed. -5-
NC: 2024:KHC-D:3494 WP No. 100951 of 2024
ii) The impugned order dated 2.7/8.2023 passed by respondent No.2 at Annexure-E is hereby quashed.
iii) The respondent No.2 is hereby directed to issue challans to the petitioners to enable them to deposit conversion fee prescribed and issue of formal order of conversion.
iv) The said exercise shall be concluded within a period of two months from the date of receipt of the certified copy of this order.
v) This order shall not be construed as giving right to the petitioners to develop the subject properties, and it is for the competent Authority to decide whether the subject properties can be developed or not in accordance with law.
Sd/-
JUDGE BKM List No.: 1 Sl No.: 19