Karnataka High Court
Sri Suhail Rehaman vs State Of Karnataka on 14 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 253
Author: B.Veerappa
Bench: B. Veerappa
1
R
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.461/2020 (KLR-CON)
BETWEEN:
SRI SUHAIL REHAMAN,
S/O MOHAMMED OMER ABDUL
REHAMAN SAIT
AGED ABOUT 55 YERAS
R/AT NO.201, PRESTIGE ORCHID
37 BERLIE STREET
NEAR HOCKEY STADIUM
LANGFORD TOWN, MUSEUM ROAD
BENGALURU-560 025.
...PETITIONER
(BY SMT. B.V. VIDYULATHA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF REVENUE
VIKASA SOUDHA
BANGALORE-560 001.
2. DEPUTY COMMISSIONER
OFFICE OF THE DEPUTY COMMISSIONER
MYSORE DISTRICT
MYSORE-570001.
2
3. TAHASILDHAR
MYSORE TALUK,
MYSORE DISTRICT-570001.
...RESPONDENTS
(BY SRI Y.D. HARSHA, AGA FOR R1 TO R3)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSEMENT ORDER ISSUED BY THE R-2 IN RESPECT OF
LAND IN SY. NO.177/5 AT ANNEXURE-C TO THE WRIT PETITION
AND DIRECT THE R-2 TO FORMALLY ISSUE AN ORDER OF
CONVERSION UNDER THE PROVISIONS OF SECTION 95 OF
KARNATAKA LAND REVENUE ACT 1964 BY COLLECTING
CONVERSION FINE AS REQUIRED UNDER SECTION 95(7) OF
THE KARNATAKA LAND REVENUE ACT 1964 IN RESPECT OF THE
SCHEDULE LAND BELONGING TO THE PETITIONER.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner who claims to be the absolute owner of the agricultural land bearing Sy.No.177/5 (old No.177) measuring to an extent of 0-35 ½ guntas situated at Lalithadripura village, morefully described in the schedule to the writ petition (hereinafter referred to as 'the schedule land'), is before this Court for a writ of certiorari to quash 3 the Endorsement order dated nil issued by the Deputy Commissioner in respect of the schedule land as per Annexure-C 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 land belonging to the petitioner.
I Facts of the Case
2. It is the case of the petitioner that he purchased the schedule land under the registered sale deed and filed an application 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 an online Endorsement order, rejecting the application filed by the petitioner in respect of schedule land without giving any reasons. It is further contended that Mysore Urban Development Authority 4 ('MUDA' for short) has issued a 'land use certificate' as per Annexure-D dated 23.12.2019 confirming that the schedule land belonging to the petitioner is 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 order 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 filed statement of objections and 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 land from agricultural purpose to non- agricultural purpose, wherein some conditions are imposed. It is contended that the land in question falls within the 5 jurisdiction of MUDA and accordingly, as per the online procedure, the application has 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 application.
4. It is further contended in the statement of objections 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 application of the petitioner came to be rejected by the impugned Endorsement Order. It is further contended that the petitioner has not produced 'Land Use Certificate' issued by the MUDA along with the application. Therefore, the impugned Endorsement order issued by the Deputy 6 Commissioner is just and proper and the petitioner is 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 Petitioner
6. Smt. B.V. Vidyulatha, learned counsel for the petitioner contended that the impugned Endorsement order dated nil issued by the Deputy Commissioner rejecting the application made by the petitioner for conversion to residential purpose, is erroneous and contrary to the material on record. She further contended that in the impugned Endorsement, except mentioning the survey number of the petitioner's land and stating that the petitioner's application for conversion to residential purpose has been rejected by the UD Department for contrary to master plan, the Deputy Commissioner has not assigned 7 any independent reason for rejection of the application and therefore, the impugned Endorsement cannot be sustained.
7. The learned Counsel for the petitioner 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 application filed for diversion within four months from the date of the application 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 Endorsement issued by the Deputy Commissioner is in utter violation of Articles 14 and 21 of the Constitution of India. She further contended that the Deputy Commissioner has rejected the application based on the opinion from the UD Department, which is impermissible as per the provisions of the Act and the 8 impugned Endorsement order is not a speaking order and cannot be sustained and therefore she sought to allow the writ petition.
8. In support of her contentions, learned counsel for the petitioner 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 petitioner has not produced the 'Land Use Certificate' issued by the MUDA along with the application. Therefore based on the opinion expressed by the MUDA, the impugned Endorsement order came to be issued. The petitioner is not entitled to the relief sought for and the question of conversion of petitioner's land under 9 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 2nd respondent - Deputy
Commissioner is justified in issuing the
impugned Endorsement order dated nil as per Annexure-C, rejecting the application 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 petitioner is the owner of the schedule land morefully described in the schedule to the writ petition and the petitioner filed an application for conversion of schedule land 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 application 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. Admittedly in the present case, the application came to be filed in the month of June-2019. According to the petitioner, the impugned Endorsement order came to be issued in December-2019 after lapse of four months. Therefore, according to the 11 petitioner, the permission applied for shall be deemed to have been granted.
13. On careful perusal of the impugned Endorsement order issued by the Deputy Commissioner as per Annexure- C, it clearly depicts that except mentioning the survey number of the petitioner's land and stating that the petitioner's application for conversion to residential purpose has been rejected by the UD Department for contrary to master plan, the Deputy Commissioner has not assigned any independent reason for rejection of the application in the impugned Endorsement. The Deputy Commissioner is the only authority to consider the application 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 application for conversion and the Deputy Commissioner alone has to consider the application based on the provisions of Section 95 of the Act and the 12 Government Orders and Circulars issued from time to time. The petitioner has produced the 'Land Use Certificate' issued by MUDA as per Annexure-D dated 23.12.2019, wherein it is stated that the subject matter of the present writ petition falls within the residential zone. The petitioner has also produced the true copy of portion of the Master plan as per Annexure-E showing that the schedule land is in the residential zone. In the circumstances, the Deputy Commissioner ought not to have rejected the application for conversion by the impugned Endorsement.
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 13 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 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.
14
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 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 15 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:
' 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 16 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 (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 17 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:
"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 18 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."
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. 19
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 order issued by the Deputy Commissioner is contrary to the 'Land Use Certificate' issued by the MUDA as per Annexure-D and the sketch as per Annexure-E and the same cannot be sustained and the Deputy Commissioner has to reconsider the application of the petitioner 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 20 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 2nd respondent - Deputy Commissioner is not justified in issuing the impugned Endorsement order dated nil as per Annexure-C, rejecting the application for conversion under the provisions of Section - 95 of the Act and the same is liable to be quashed.
IX Result/Decision
23. For the reasons stated above, the writ petition is allowed. The impugned Endorsement order dated nil as per Annexure-C is hereby quashed. A writ of mandamus is issued to the 2nd respondent - Deputy Commissioner to reconsider the application of the petitioner for conversion of 21 the schedule land 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-D dated 23.12.2019 and the master plan issued by the competent authority as per Annexure-E and the judgments of this Court and the Hon'ble Supreme Court stated supra. The Deputy Commissioner shall independently consider the application without being 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 application filed by the petitioner is 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 22 application is in order, the Deputy Commissioner shall take necessary steps to issue formal order of conversion.
Ordered accordingly.
Sd/-
JUDGE Gss/-