Karnataka High Court
Sri L Vinayraju vs The State Of Karnataka on 3 January, 2023
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
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WP No. 22205 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT PETITION NO. 22205 OF 2022 (GM-MM-S)
BETWEEN:
1 . SRI L VINAYRAJU
AGED ABOUT 39 YEARS
NO.122 A AND B BLOCK
NAVELU ROAD, 7TH CROSS
KUVEMPUNAGARA
MYSURU-570001.
2 . M NAGARAJ
SON OF LATE MAYEGOWDA
AGED ABOUT 76 YEARS
NO.59, ESHWARA TEMPLE ROAD
DODDAPALYA
SRIRANGAPATNA TALUK
Digitally signed MANDYA DISTRICT-571807.
by R DEEPA 3 . M CHANDRU
Location: High SON OF LATE MAYEGOWDA
Court of AGED ABOUT 57 YEARS
Karnataka
A DODDAPALYA, DODDAPALYA
SRIRANGAPATNA TALUK
MANDYA DISTRICT-571807.
...PETITIONERS
(BY SRI. LAKAMAPURMATH CHIDANANDAYYA.,ADVOCATE)
AND:
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WP No. 22205 of 2022
1. THE STATE OF KARNATAKA
REPRESENTED BY THE ADDL. CHIEF SECRETARY
TO THE DEPARTMENT OF FOREST
VIDHANA SOUDHA
BENGALURU-560001.
2. THE DIRECTOR OF MINES AND GEOLOGY
THE DEPARTMENT OF MINES AND GEOLOGY
FOR THE STATE OF KARNATAKA
KHANIJA BHAVAN, RACE COURSE ROAD
BENGALURU-560001.
3. THE DEPUTY COMMISSIONER
MANDYA DISTRICT
MANDYA-571401.
4. THE SENIOR GEOLOGIST
THE DEPARTMENT OF MINES AND GEOLOGY
AND THE MEMBER SECRETARY
VIDYA NAGAR, FIRST CROSS, MANDYA DISTRICT
MANDYA-571401.
5. THE DEPUTY CONSERVATOR OF FORESTS
MANDYA SUB DIVISION
MANDYA-571401.
....RESPONDENTS
(BY SRI. S.S. MAHENDRA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL
FOR THE RECORDS WHICH ULTIMATELY RESULTED IN ISSUING
THE ONLINE ENDORSEMENTS DATED 02/04/2022 ISSUED BY
THE 3RD RESPONDENT/DEPUTY COMMMISSIONER, MANDYA
DISTRICT, MANDYA, WHICH IS PRODUCED AT ANNEXURES-A
TO A2, REJECTING THE APPLICATION FOR DEEMED
CONVERSION OF THE LAND UNDER SECTION 95(9) OF THE
KARNATAKA LAND REVENUE ACT AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, ASHOK S. KINAGI, J., MADE THE
FOLLOWING:
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WP No. 22205 of 2022
ORDER
The order, subject matter of challenge in this writ petition under Article 226 of the Constitution of India, is of the endorsement dated 02.04.2022, passed by respondent No.3 vide Annexure-A to A2, rejecting the application for deemed conversion of the land under Section 95(9) of the Karnataka Land Revenue Act, 1964 (for short 'the Act of 1964'), has been rejected.
2. The petitioners are claiming to be the owners of land in Sy.No.18 of Neelanakoppalu Village, Shrirangapattana Taluk. The said land in Sy.No.18 was never treated as a forest land at any point of time earlier. The Tahsildar of Shrirangapattana Taluk granted land to Sri M.Nagaraj S/o Mayegowda on 05.06.1997 and also to M.Chandru i.e., petitioner Nos.2 and 3. Petitioner Nos.2 and 3, as the owners of the land, made an application for phodi and durasti work. After phodi, the land in Sy.No.18 was granted to petitioner Nos.2 and 3 was renumbered as Sy.Nos.82 and 83 of Neelanakoppalu Village, -4- WP No. 22205 of 2022 Shrirangapattana Taluk, Mandya District. Petitioner No.1 with a view to obtain the quarrying licence under the provisions of Karnataka Minor Mineral Concession Rules, 1994 (for short 'the Rules of 1994') submitted an application in the prescribed form and petitioner No.1 also made an application for issuance of licence for establishment of the stone crusher unit in the Sy.No.82 to an extent of 1 acre. In pursuance to the application submitted by the petitioner, the revenue authority and the forest department issued NOC under Rule 8(5) of the Rules of 1994 for grant of quarrying licence in favour of the petitioners. The petitioners with a view to obtain the conversion of the land under Section 95(9) of the Act of 1964 submitted an application to respondent No.3 seeking conversion of the schedule properties for industrial and quarrying purposes. Respondent No.3 has rejected the said application. Hence, this writ petition.
3. The respondents have the filed the statement of objections contending that originally the land in Sy.Nos.82 -5- WP No. 22205 of 2022 and 83/1 was a Government land and the said lands were granted in favour of the different grantees. It is submitted that the petitioners are in possession and enjoyment of the said lands and the name of the petitioners are entered in the revenue records and also admitted that the petitioners have filed an application seeking for conversion of the land under Section 95(9) of the Act of 1964 on 04.01.2019 before respondent No.3. Respondent No.3 issued an impugned endorsement rejecting the application of the petitioners as per Annexrure-A to A2 on the ground that as per the revenue records, Sy.No.18 (old) was large extent, approximately 115-39 acres and as per the notification dated 04.03.1982, transferred the said extent of lands to the forest department was without any identification and without demarked the boundary of the revenue department and the forest department such being the case, the forest department raised an objection. It is contended that unless the same is demarked to ascertain as to whether the land of the petitioners are in the land transferred and the forest department it is not possible to -6- WP No. 22205 of 2022 grant conversion. Hence, prayed to dismiss the writ petition.
4. Heard the learned counsel for the petitioners and also the learned Additional Government Advocate for the respondents.
5. Learned counsel for the petitioners submits that under Section 95(9) of the Act of 1964, the grant of conversion is an automatic when an application is made under Section 95(9) of the Act of 1964 together with the fine applicable, the conversion is deemed to have been granted and there is no question of rejection of the said application, as respondent No.3 has no power to reject the said application. He further submits that in view of the deeming fiction, there is no question of exercising the power of rejection of application for the deemed conversion. He further in order to buttress his arguments, he has placed the reliance on the order passed by the Co- ordinate Bench in W.P.No.35133/2019 disposed of on -7- WP No. 22205 of 2022 21.11.2019 in the case of SMT. RATHNAVVA RAVI SHIGGAVI VS. THE STATE OF KARNATAKA AND OTHERS.
Learned counsel appearing for the petitioners relied upon the circular dated 17.09.1991 and contended that some portion of the land in Sy.No.18 is ordered for retransfer of all C and D class of lands from the forest department to the revenue department with the exception of the land already been notified as reserved forest by the forest department and the said lands stands resumed in the revenue department as on 03.01.1991. He further submits that the petitioners have produced the copy of record of rights pertaining to Sy.Nos.82 and 83, which discloses that the said properties are owned and possessed by the petitioners. Hence on these grounds he prays to allow the writ petition.
6. Per contra, learned Additional Government Advocate opposed the petition by pointing out that the petitioners are entitled for conversion of the said land as the said lands which is sought to be used for industrial -8- WP No. 22205 of 2022 purpose is a forest land. Hence, he submits that respondent No.3 was justified in passing the impugned order. Hence he prays to dismiss the writ petition.
7. Heard and perused the records and considered the submissions made by the learned counsel appearing for the parties.
8. In order to consider the contention of the parties, it is necessary to examine Section 95(9) of the Act of 1964, which reads thus:
"95(9) whenever any occupant of land assessed or held for purpose of agriculture wishes to divert such land or any part thereof for the purpose of quarrying of minor minerals, whether specified or non specified in accordance with the rules governing quarrying of minor minerals or stone crushing activity under the Karnataka regulation of stone crushers Act, 2011 (Karnataka Act 8 of 2012), shall make an application along with the fine applicable to the Deputy Commissioner for diversion of such land. On such application, the permission for diversion of such land shall be deemed to have been granted subject to obtaining lease or licence or working permission under the said enactments."-9- WP No. 22205 of 2022
Section 95 deals with the change of use of an agricultural land and the procedure for use of agricultural land for other purposes. Sub Section 9 is applicable if an occupant of the land held for the purpose of agriculture wishes to divert such land for the purpose of quarrying of minor minerals, whether specified or nor-specified, or stone crushing activities under the Karnataka Regulation of Stone Crushers Act, 2011 (for short 'the Act of 2011'). The said occupant is required to make an application along with the fine applicable to the Deputy Commissioner for diversion of such land. Sub section 9 provides that when such application is made along with the deposit of payment of fine, a permission for diversion of the said land shall be deemed to have been granted subject to obtaining lease or licence or working permission, as the case may be, for quarrying minor minerals or for stone crushing activity. Thus, the grant of permission for diversion is automatic under Section 95(9) of the Act of 1964 on an application being made for diversion along with the fine applicable to the Deputy Commissioner. If an application
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WP No. 22205 of 2022for conversion is made after making the payment prescribed fine, the conversion under Sub section 9 is automatic, which cannot be stopped by any order passed by the Deputy Commissioner or any other authority.
However, such conversion is subject to obtaining lease or license or a working permission as the case may be, for the purpose of quarrying or for carrying on stone crushing activity. As such, a deemed permission is subject to grant of lease or a license, the occupant can act upon such a deemed permission under Sub Section 9 of the Act of 1964, only when a quarrying lease is granted if he wants to use the agricultural land for quarrying of minor minerals or only when a licence is granted to him under the Act of 2011, when he intends to use the said land for stone crushing activity. The occupant can commence the use of agricultural land for quarrying or for stone crushing only when a lease or a license as aforesaid is granted.
9. In the instant case, the petitioners have submitted an application for deemed conversion. In the
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WP No. 22205 of 2022instant case, petitioner No.1 with the consent of petitioner Nos.2 and 3 made an application to the Senior Geologist for grant of quarrying license for extracting, removing and transporting building stone from Sy.Nos.82 and 83 measuring 3 acres on 04.06.2017. Further, petitioner No.1 made an application on 04.07.2017 seeking the licence Form - C for establishing the stone crusher unit to an extent of 1 acre in Sy.No.82. The licencing authority issued Form - B1 i.e., certificate of compliance permitting the petitioners to obtain consent for establishment and consent for operation from the Karnataka State Pollution Control Board. Petitioner No.1 with a view to obtain the conversion of the land from agricultural to non- agricultural/industrial submitted an application on 04.01.2019 under Section 95(9) of the Act of 1964. The petitioners filed a manual application requesting respondent No.3 to grant the deemed conversion of schedule property. Respondent No.3 rejected the application on the ground that the schedule properties are a deemed forest even though the Deputy Conservator of
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WP No. 22205 of 2022Forest, Mandya Division, Mandya submitted no objection stating that schedule property is a private patta land and the said area is not coming within the reserved forest area as per Annexure-J1 dated 22.02.2018. Whether the schedule land is a forest or deemed forest is required to be gone into when the application for grant license under the Act of 2011 is considered by the concerned competent Authority.
10. Once an application is made under Section 95(9) of the Act of 1964, respondent No.3 is under an obligation to communicate the fine payable to the petitioner in accordance with Rule 107 of the Karnataka Revenue Rules, 1966 (for short 'said Rules of 1966') and once such fine is paid, the deeming fiction under Section 95(9) of the Act of 1964 immediately comes into operation. The issue involved in this writ petition is squarely covered by the order of the Co-ordinate Bench of this Court in the case of Smt. Rathnavva Ravi Shiggavi (Supra). Hence, in view of the above discussion, the
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WP No. 22205 of 2022impugned endorsement dated 02.04.2022 at Annexure-A to A2, are liable to be set aside. Accordingly, we proceed to pass the following:
ORDER i. The writ petition is allowed.
ii. The impugned order dated 02.04.2022, passed by respondent No.3 vide Annexure-A to A2, are set aside on the ground that the Deputy Commissioner had no power to do so.
iii. The application made by the petitioners under Section 95(9) of the Act of 1964 dated 04.01.2019 is restored.
iv. Respondent No.3 shall communicate the amount fine payable for conversion in accordance with rule 107 of the said rules of 1966 to the petitioners within a period of three weeks from today.
v. As the applications for conversion are treated as pending by setting aside the orders of rejection, on payment of fine as demanded by the Deputy Commissioner, deemed conversion in respect of the lands as prayed for in the
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WP No. 22205 of 2022applications shall be granted to the petitioners under Section 95(9) of the Act of 1964.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE SSB