Karnataka High Court
H M Krishnamurthy vs The State Of Karnataka on 7 June, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION NO. 31926/2009 &
WRIT PETITION NO.32386/2009(KLR-CON)
BETWEEN:
Sri.H.M.Krishnamurthy
S/o. Munibyraiah
Aged about 50 years, Residing at
Hutchahanumegowdanapalya,
Kasaba Hobli, Magadi Taluk. ...PETITIONER
(By M/s.K.S.Nagaraja Rao & Associates, Advocate)
AND:
1. The State of Karnataka
By its Secretary
Urban Development Authority
M.S.Building, Dr.B.R.Ambedkar
Veedhi, Bangalore-01
2. The Deputy Commissioner
Ramanagara District,
Ramanagara.
3. The Bangalore Metropolitan Region
Development Authority,
Ali Askar Road,
Bangalore. ...RESPONDENTS
(By Sri. Vijaykumar A. Patil, HCGP,)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 & 227 OF THE CONSTITUTION OF
INDIA WITH A PRAYER TO QUASH THE
2
ENDORSEMENT DATED 09.09.2009 VIDE ANNEXURE-
L BY DIRECT THE R2 TO ISSUE CONVERSION
CERTIFICATE PERTAINING TO THE LAND BEARING
SY. NO.127 TO THE EXTENT OF 1 ACRE 31 GUNTAS
AND SY. NO.45/P1 TO THE EXTENT OF 1 ACRE 05
GUNTAS, SITUATED AT GORUR VILLAGE, SOLUR
HOBLI, MAGADI TALUK FROM AGRICULTURAL TO
NON-AGRICULTURAL RESIDENTIAL PURPOSES AS
THE CONVERSION CHARGES OF RS.1,26,519/- HAS
ALREADY BEEN REMITTED ON 19.09.2006.
THESE PETITIONS COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY THE
COURT MADE THE FOLLOWING:
ORDER
Petitioner has questioned the endorsement dated 09.09.2009 issued by second respondent rejecting the application of petitioner for conversion of agriculture land from agriculture to non agricultural - residential purposes vide Annexure-L.
2. Heard learned Advocates appearing for the parties. Perused the impugned endorsement.
3. Sri.S.G.Pandit, learned counsel appearing for third respondent has filed a memo enclosing the Government Order bearing No. Na.Aa.E 64 BMR 2010 dated 29.09.2011. Same is placed on record. 3
4. Petitioner having acquired the land bearing Survey No.127 to an extent of 1 acre 31 guntas in Survey No.45/P1 to an extent of 1 acre 5 guntas under
a sale deed dated 30.07.1999 and land bearing Survey No.31/1 to an extent of 2 acres and sale deed dated 06.02.2003 both situated at Gorur Village, Solur Hobli, Magadi Taluk, submitted an application to the Tahsildar, Magadi, for conversion of lands bearing Survey Nos.127 and 45/p1 for residential purposes and Survey No.31/1 for industrial purposes. Tahsildar by his recommendation dated 25.05.2006, Annexure-D recommended the application of the petitioner for being considered to the higher authorities. The Karnataka State Pollution Control Board after conducting a enquiry by communication dated 05.07.2006, Annexure-E also granted its 'No Objection'. The Nelamangala Development Authority by its communication dated 11.07.2006 also granted its 'No Objection' for conversion of the said lands as sought for by the petitioner vide Annexure-F. Second respondent-Deputy Commissioner by proceedings dated 14.07.2006 4 sanctioned the conversion of the lands sought for by the petitioner, which was prior to the establishment of Ramanagar District as per Annexure-G. On being directed to remit a sum of ` 1,26,519/- towards the conversion charges for residential purposes same was remitted. Insofar as conversion of land for industrial purposes same was exempted. The communications sent to the petitioner by the Office of the second respondent in this regard which dated 29.07.2006 and 17.10.2006 are at Annexures - H1 and H2. Petitioner has remitted the amount as evidenced from the challan dated 19.09.2006, which reflects that amount of ` 1,26,519/- has been remitted. Subsequently thereafter petitioner submitted a representation on 21.02.2009 to the second respondent contending that by mistake he had applied for conversion of land in Survey No.31/1 to an extent of 2 acres for industrial purposes though land is situated in residential zone and as such he submitted a separate application on 21.02.2009 for conversion of the said land namely land bearing Survey No.31/1 to an extent of 2 acres also for residential purposes instead of 5 industrial purposes and accordingly sought for conversion of the said land in Survey No.31/1. Second respondent by endorsement dated 09.09.2009, Annexure-L intimated the petitioner declining conversion of the said land namely Survey No.31/1 by intimating the petitioner that lands in question cannot be converted as sought for on the ground that the said State had proposed to develop a Satellite Township as per Government Order No.AE 97 BMR 2006 dated 18.10.2006 and as such it rejected the application of the petitioner by endorsement dated 09.09.2009, Annexure-L. It is this endorsement which is questioned in the present writ petition.
5. It is the contention of the learned counsel for petitioner that impugned endorsement is contrary to its earlier endorsement dated 29.07.2006 and 17.10.2006, Annexure-H and H1 whereunder conversion has been granted, pursuant to which the petitioner has remitted the amount and the fact that these lands being situated within the residential zone there was no impediment for the authorities to grant conversion of the land in 6 question to residential purposes, particularly when the conversion has already been granted in respect of other lands. Learned counsel would elaborate his submission by contending that once an order of conversion is passed without withdrawing the same the endorsement issued cannot be sustained since it relates to the land already converted and same is impermissible and at the most it can be construed as an order of rejection in so far as the application made on 21.02.2009 for conversion of the land bearing Survey No.31/1 to the extent of 2 acres to which the petitioner had sought for conversion from agricultural purposes to non- agricultural industrial purposes and such rejection cannot be made in respect of the land for which already conversion order has been issued by competent authorities. On these grounds he seeks for setting aside the impugned endorsement.
6. Per contra, Sri.Vijaykumar A.Patil, learned Government Pleader would submit that petitioner had to obtain approval from Local Planning Authority and 7 while issuing the endorsement dated 29.07.2006, Annexure-H1 petitioner had been intimated that he had to obtain approval of the layout plan from the Jurisdictional Development Authority which according to the learned Government Pleader is Nelamangala Planning Authority and on account of not obtaining approval the layout plan and furnishing the same to the second respondent the impugned endorsement has been issued and submits that it does not suffer from any infirmity whatsoever and prays for dismissal of the writ petition.
7. Learned counsel appearing for third respondent who has filed memo enclosing the Government Order dated 29.09.2011 would submit that in view of said order passed by the Government, third respondent would examine applications on case to case basis and after prior approval of the Government and necessary orders would be passed and contends that if a fresh application is made by the petitioner it would be considered on merits and in accordance with law by taking into consideration the notification dated 8 29.09.2011 and as such he seeks for appropriate orders being passed in this present writ petition.
7. Having heard the learned Advocates appearing for the parties and on perusal of the impugned endorsement as also the earlier orders passed by the second respondent it would emerge that undisputedly petitioner is the owner of the lands in question bearing Survey Nos. 127 to an extent of 1 acre 31 guntas, Survey No.45/p1 to an extent of 1 acre 5 guntas and Survey No.31/1 to an extent of 2 acres which lands are situated at Gorur Village, Solur Hobli, Magadi Taluk, having acquired the same under registered sale deeds for valuable consideration as per Annexure-A & B. Pursuant to purchase of these lands the khatha of the lands in question have been mutated to the name of petitioner as evidenced from Annexures- C1 to C6. It is not in dispute that petitioner submitted an application to the Tahsildar on 12.05.2006 for conversion of agricultural lands bearing Survey Nos. 127 and 45/p1 for residential purposes and land in Survey No.31/1 for industrial purposes. And on such 9 application being made the Jurisdictional Tahsildar, i.e., Tahsildar, Magadi, visited the spot conducted a enquiry and recommended for conversion of the lands by his recommendation dated 25.05.2006, Annexure-D. The Pollution Control Board as also Nelamangala Development Authority by communication dated 05.07.2006 and 11.06.2006 have also accorded their 'No Objection' for conversion of the lands as sought for by the petitioner, which is evidenced from Annexure-E and F respectively. After taking these aspects into consideration the Committee under the Chairmanship of the second respondent considered the application of the petitioner along with other applications and in its meeting held on 14.07.2006 recorded the proceedings by resolving to grant conversion of the lands as sought for by the petitioner. The proceedings of the said Committee is produced at Annexure-G, and petitioner was intimated by the Office of the second respondent by communication dated 29.07.2006 intimating that sanction has been accorded subject to conditions stated therein which also included payment of conversion 10 charges as stipulated therein. Thereafter by communication dated 17.10.2006, Annexure-H2, petitioner was informed that conversion fee insofar as it relates to land sought for conversion to industrial purposes in respect of Survey No.31/1 to the extent of 2 acres is exempted. In view of the same petitioner remitted a sum of ` 1,26,519/- as per challan dated 19.09.2006, Annexure-J as directed by the second respondent by its communication dated 29.07.2006, Annexure-H1 in respect of residential conversion.
8. Petitioner having realised that land in Survey No.31/1 measuring 2 acres to which conversion was sought for industrial purposes was within the zone of residential purposes, realised his mistake and as such submitted a application / representation to the second respondent dated 21.02.2009 and sought for converting the said land also namely Survey No.31/1 to an extent of 2 acres to non-agricultural residential purposes instead of industrial purposes and agreed to deposit the conversion fee. A perusal of the proceedings of the Committee dated 14.07.2006, Annexure-G, and 11 subsequent intimation dated 29.07.2006 at Annexure- H1 would go to show that in so far as the lands situated in Survey Nos.127 and 45/p1 to an extent of 1 acre 31 guntas and 1 acre 5 guntas respectively had been accorded the permission for being converted from agricultural purposes to non-residential purposes. It is at this juncture the contention of the Government Pleader requires to be examined as to whether second respondent was justified in issuing the impugned endorsement dated 09.09.2009 at Annexure-L in respect of all survey numbers for which conversion order had been issued, necessary fee had been collected and inspite of it whether impugned endorsement could have been issued. In the endorsement / communication dated 27.09.2006, Annexure-H1 issued to the petitioner intimating conversion order has been granted at condition No.2 petitioner has been directed to obtain the approval layout plan from concerned Authority and submit the approved plan within 30 days from the date of the said communication. In the impugned endorsement dated 09.09.2009, Annexure-L. 12 It is not stated that on account of non-compliance of such a condition permission granted for conversion is being rejected. Admittedly, two Survey Nos.127 & 45/p1 was ordered to be converted which is duly recorded in the proceedings of the meeting held on 14.07.2006 by second respondent and petitioner was duly communicated of such conversion order by second respondent by communication dated 29.07.2006, Annexure-H1 and as on date there is no order passed by the second respondent withdrawing said order granted in favour of the petitioner permitting conversion as sought for by the petitioner. In that view of the matter the contention of the learned Government Pleader cannot be accepted and it stands rejected.
9. It is only when the representation was submitted by the petitioner on 21.02.2009 to the second respondent contending that by mistake he had sought for conversion of land situated in Survey No.31/1 for industrial purposes instead of residential purposes since the said land is situated in residential zone, the second respondent has issued the endorsement in 13 question by rejecting the application and holding conversion order already issued in respect of other two survey numbers also which was not permissible. If for any reason including the alleged violation of the conditions stipulated in the endorsement dated 29.07.2006 was violated, it was open to the second respondent to pass suitable orders either withdrawing the order of conversion or intimating the petitioner of such cancellation of the conversion order already granted on that ground. However, this exercise has not been undertaken by the second respondent. On the other hand under the guise of the Government order dated 18.10.2006 whereunder the Government had proposed to develop satellite town in the villages on Bidadi, Ramanagar, Satanur, Soluru and Nagamangala, the order of rejection of all the three survey numbers have been passed, which cannot be sustained atleast in respect of Survey Nos. 127 and 45/1 for the following reasons.
10. Learned counsel appearing for the third respondent in the memo filed today has brought to the 14 notice of the court that in view of the order passed by the Government on 18.10.2006 prohibiting the grant of permission for conversion of lands in respect of the villages which includes the land situated in the villages in respect of which conversion orders have been passed has since been relaxed, third respondent has been directed to examine the application on case to case basis and then accord permission after obtaining prior approval of the Government. Hence, it would suffice if petitioner is directed to submit a fresh application in so far as Survey No.31/1 alone is concerned. In view of the fact that the respondent Nos.1 and 2 have not canceled, annulled, rescinded or withdrawn the order of conversion already granted in favour of the petitioner as per Annexure-G and H1 relating to Survey No.127 and 45/P1 and as such the impugned endorsement to the extent of canceling the conversion order already granted in respect of these two Survey numbers i.e., 127 and 45/P1 cannot be sustained. However, in so far as the reason assigned by the second respondent to reject the request of the petitioner relating to conversion of land in 15 Survey No.31/1 is concerned it is noticed that second respondent refused to entertain the prayer of petitioner on the ground that as per Government order dated 07.08.2009 a Satellite Township has been proposed in respect of villages falling under the said notifications which also includes the lands of petitioner and subsequently another Government order dated 29.09.2011 has been issued whereunder Government itself has resolved to examine the applications on case to case basis and as such it would suffice if petitioner is permitted to submit application afresh seeking conversion in respect of land in Survey No.31/1 and reserving the liberty to the respondents to consider such application if filed on merits and in accordance with law keeping in mind the Government Order No.AE 64 BMR 2010, Bangalore, dated 29.09.2011.
In the result, I pass the following:
ORDER i. Writ petitions are hereby allowed in part. 16 ii. Impugned endorsement dated 09.09.2009, Annexure-L in so far as it relates to rejection of conversion granted in respect of Survey No.127 to the extent of 1 acre 31 guntas and Survey No.45/p1 to the extent of 1 acre 05 guntas is hereby quashed. Respondents are at liberty cancel, annul, rescind or withdraw the order of conversion already granted and communicated to petitioner as per Annexure-G and H1 if there has been any violation after issuing notice to the petitioner of such violation and considering the objection filed, if any in accordance with law. iii. In so far as the rejection of the application of the petitioner relating to Survey No.31/same is upheld and petitioner is at liberty to submit application afresh and if such application is submitted respondents are at liberty to consider the same on merits and in accordance with law by keeping in mind the Government order No. AE 64 BMR 2010, Bangalore, dated 29.09.2011.
iv. Ordered accordingly.
17
Sri. Vijaykumar A.Patil, learned Government
Pleader is permitted to file memo of appearance within three weeks from today.
Sd/-
JUDGE DR