Karnataka High Court
M/S Ravindra Energy Limited vs State Of Karnataka on 4 July, 2017
Author: B.S.Patil
Bench: B.S.Patil
WP 27418-420/2017
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.Nos.27418-420/2017 (KLR-CON)
BETWEEN
1. M/s RAVINDRA ENERGY LIMITED,
A COMPANY REGISTERED UNDER THE PROVISIONS
OF COMPANIES ACT, 1956,
BC 109, DAVIDSON ROAD CAMP,
BELGAUM,
REP.BY ITS AUTHORISED REPRESENTATIVE-
MR. VINAYAK PURANIK.
2. SRI GURUGUNDA BRAHESHWARA SWAMY MUTT,
PATTANAYAKANAHALLI, SIRA TALUK,
TUMKUR DISTRICT- 572135,
REP. BY ITS PEETHADYASKSHRU-
SRI SRI NANJAVADHUTHA SWAMIJI. ... PETITIONERS
(By Sri ASHOK HARANAHALLI, SR.COUNSEL FOR
Sri MANMOHAN P.N., ADV.)
AND
1. STATE OF KARNATAKA,
DEPARTMENT OF REVENUE,
M.S.BUILDING,
DR. AMBEDKAR VEEDHI,
BENGALURU - 560009,
REP. BY ITS PRINCIPAL SECRETARY.
2. THE DEPUTY COMMISSIONER,
TUMKUR DISTRICT, TUMKUR - 572135.
3. THE TAHASILDAR,
SIRA TALUK - 572135. ... RESPONDENTS
(By Sri T.S.MAHANTESH, AGA)
WP 27418-420/2017
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THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE
THAT THE P-2 IS ENTITLED FOR DEEMED CONVERSION AS PER
SECTION 95[10] OF THE KARNATAKA LAND REVENUE ACT, 1964 IN
RESPECT OF THE SCHEDULE PROPERTY AND ETC.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. These writ petitions are filed by M/s. Ravindra Energy Limited, a company registered under the provisions of the Companies Act - petitioner no.1 along with Sri Gurugunda Braheshwara Swamy Mutt as petitioner no.2. Petitioners are seeking a direction that petitioner no.2 is entitled for deemed conversion as per Section 95(10) of the Karnataka Land Revenue Act, 1964 (for short, 'the Act') in respect of the schedule properties. They have also sought for a direction to respondent no.2 to issue order of conversion in favour of petitioner no.2 in respect of schedule properties as per application dated 05.11.2016 submitted by petitioner no.2. Challenge is also laid to the notice dated 24.03.2017 issued by respondent no.3 - Tahsildar, Sira Taluk, as per Annexure-K, whereby the Tahsildar has notified petitioner no.2 to stop the work undertaken in schedule properties to establish a solar plant.
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2. Petitioner no.1-company is engaged in the business of solar power generation. Petitioner no.2 is a Mutt. Government of Karnataka has introduced a solar policy known as Solar Policy 2014-2021 as per notification dated 22.05.2014 with the object of harnessing the potential of solar resources in the State. Pursuant to this, the Karnataka Renewable Energy Development Limited (for short, 'KREDL') issued notification dated 09.10.2014 inviting online applications for facilitating the development of renewable energy in Karnataka. Petitioner no.2 submitted its application seeking permission for establishing the solar plant in the schedule lands belonging to the Mutt. The committee appointed in this regard by the competent authority accepted the proposal of petitioner no.2 regarding allotment of solar project in the schedule lands. A communication was issued by the Managing Director of KREDL on 16.03.2015 addressed to petitioner no.2 authorizing establishment of solar plant. This communication is produced at Annexure-A. Pursuant to this letter, petitioner no.2-Mutt and Bengaluru Electricity Supply Company (for short, 'BESCOM') entered into a power purchase agreement dated 14.07.2015 for supply of power to be generated by petitioner no.2. Copy of this agreement is produced at Annexure-B. WP 27418-420/2017 4
3. It is the case of petitioners that establishment of solar power plant required huge investment and as such petitioner no.2 being a Mutt not being in a position to invest such huge amount entered into an agreement with petitioner no.1, whereunder the Mutt by way of Assignment Deed dated 07.12.2016 assigned the rights and obligations under the power purchase agreement in favour of petitioner no.1. Thereafter, the Mutt submitted an application dated 05.11.2016 addressed to the Deputy Commissioner seeking conversion of petition schedule lands totally measuring 15 acres for the purpose of establishing the solar power plant. The said application is produced at Annexure-C.
4. As no steps were taken pursuant to the application and instead a notice was issued by the Tahsildar on 23.04.2017 calling upon petitioner no.2 not to carry on any work regarding establishment of solar plant in the petition lands, petitioners were constrained to approach this Court in W.P.Nos.16562- 63/2017 & 16664/2017. The said writ petition was disposed of on 19.04.2017 recording the submission made by the learned Government Pleader that the application of the petitioners would be considered in accordance with law and orders would WP 27418-420/2017 5 be passed within eight weeks. This Court further made it clear that till such orders were passed, notice issued by the Tahsildar shall not be given effect to.
5. On 10.05.2017, an endorsement was issued to petitioner no.2 informing that as there were objections raised with regard to grant of permission for conversion and having regard to the judgments in different litigations concerning the properties, the request made by the petitioners had been kept pending awaiting clarification from the State Government. This was followed by notice dated 15.05.2017 issued by the Tahsildar again asking the petitioners not to proceed with any work regarding establishment of solar plant in the lands in question. This notice is produced at Annexure-Q.
6. Petitioners again approached this Court in W.P.Nos.22649-651/2017 challenging the action of the authority. This writ petition was disposed of as the notice at Annexure-Q dated 15.05.2017 calling upon the petitioners to stop the work came to be withdrawn as per the endorsement dated 31.05.2017. In view of the withdrawal of the said notice, the Court was of the view that nothing survived for consideration in the petition. It is thereafter the impugned WP 27418-420/2017 6 endorsement dated 13.06.2017 produced at Annexure-X in these writ petitions has been issued by the Deputy Commissioner, Tumakuru.
7. A perusal of this endorsement discloses that though petitioners had obtained permission to establish solar electricity plant in the petition lands from KREDL and although there was a power purchase agreement entered into between petitioner no.2 and BESCOM, name of petitioner no.2-Mutt viz., Sri Gurugunda Braheshwara Swamy Mutt was not found in the RTC extract and that there were disputes initiated before different courts and several orders had been passed, and therefore, it was clear that the lands were disputed lands, hence, the request made for conversion of the lands could not be considered. By virtue of the impugned endorsement, request of the petitioners has been rejected. Aggrieved by the same, the present writ petitions are filed.
8. An impleading application is filed by S.Someshaiah S/o late Somelingappa and P.S.Eswaraiah S/o late Somanna requesting the Court to permit them to come on record as respondents 4 & 5 and to contest the present petitions filed by WP 27418-420/2017 7 the petitioners. They have produced certain documents along with the application.
9. I have heard the learned Senior Counsel Mr. Ashok Haranahalli appearing for the petitioners and the learned Additional Government Advocate and Mr. M.R.Rajagopal, learned Counsel representing the applicants who have sought for impleading.
10. As per the provisions contained in the Act as amended by the Karnataka Act No.31 of 2015 by which Clause no.10 of Section 95 has been inserted, "If any occupant of any agriculture land assessed or held for the purpose of agriculture wishes to divert such land or part thereof for the purpose of setting up of solar power generation in accordance with Karnataka Solar Policy 2014-2021 issued in G.O.No.EN 21 VSC 2014, dated 22.05.2014 which has been approved by the Competent Authority, the permission applied for conversion of such land shall be deemed to have been granted for that purpose so long as they use for purpose for which permission is granted subject to payment of the conversion fine and all such other fees payable if any, in this regard." This provision inserted by way of amendment has come into effect from 13.08.2015. Petitioner WP 27418-420/2017 8 has filed application on 05.11.2016. The Deputy Commissioner was required to consider the application in the light of the amended provision introduced as per Act No.31 of 2015. The requirement as spelt out in clause no.10 of Section 95 of the Act is, that the applicant must show that he was an occupant of the agricultural land. If he desired to divert such land or part thereof for setting up solar generation and that such desire should be in accordance with the Karnataka Solar Policy 2014- 2021 issued vide Government Order dated 22.05.2014 and also that the same ought to have been approved by the competent authority. In that event, the permission applied for conversion of such land shall be deemed to have been granted.
11. Petitioner no.2 is the applicant. Name of Sri Gurugunda Brahmeshwara Swamy Mutt is recorded in the record of rights pertaining to the lands in question both in Col. No.9 & Col. No.12. The impleading applicants have raised objections before the Deputy Commissioner contending that owner and occupier is Gurugunda Brahmeshwara Swamy (Deity) and not Gurugunda Brahmeshwara Swamy Mutt. In support of their objection, they have placed reliance on the order dated 14.07.1995 passed on IA No.4 in O.S.No.98/1998 and the WP 27418-420/2017 9 judgment dated 28.07.2016 passed in O.S.No.1/1996. I have perused these orders.
12. So far as first order passed on IA No.4 in O.S.No.98/1998 is concerned, though the Trial Court had rejected the application filed by one Girish to come on record as legal representative of the plaintiff therein - Gurukumara Avadhootha Swamigalu based on the Will executed. It is observed therein that the plaintiff had no absolute right to execute the Will appointing the applicant as Matadhyaksha. The said order was challenged by the applicant who wanted to come on record in the suit in C.R.P.No.2871/1995 and in the said CRP, the High Court clarified the position stating that whatever view expressed by the Trial Court was neither conclusive nor would bar any further proceedings, on the basis of the principles of res judicata and the said decision of the Trial Court was only for the purpose of continuing the suit. It is, therefore, clear that in the said proceedings in O.S.No.98/1988, viewed in the wake of the order passed in the CRP, nothing conclusive emerged with regard to the right, title and interest of anybody in the matter. Thereafter, two of the devotees filed O.S.No.1/1996 praying for framing a scheme for proper WP 27418-420/2017 10 administration of Sri Gurugunda Brahmeshwara Swamy Deity. This suit came to be dismissed as per the judgment and decree dated 28.07.2016. Therefore, no scheme is framed for the purpose of managing the Mutt or the Deity. No other decree is passed holding that the Mutt was not entitled to be the occupant of the land in question.
13. It can be also noticed that father of the present applicant
- Someshaiah by name Somelingappa along with certain others had made a representation to the revenue authorities alleging maladministration of Gurugunda Brahmeshwara Swamy Mutt and to cancel the name of the Swamiji from the record of rights and register the name of Mutt in the revenue records. After conducting necessary inquiry on the said representation, the Assistant Commissioner reported to the Deputy Commissioner vide his communication dated 07.07.1975 which is produced at Annexure-Z that the Swamiji had agreed to get the lands transferred in the name of Mutt, and therefore, the Tahsildar was asked to take steps to get the lands transferred in the name of the Mutt as per the request made by Somelingappa - father of the applicant - Someshaiah and other villagers. It is based on this decision taken by the revenue authorities, WP 27418-420/2017 11 particularly the Assistant Commissioner and the direction issued by him to the Tahsildar, entries made in the individual name of Swamiji were deleted and name of Gurugunda Brahmeshwara Swamy Mutt was entered. This action of the authorities has attained finality, in as much as, these entries have not been so far set aside.
14. As things stand, the order passed in RRT(A) No.47/1984- 85 by the Assistant Commissioner, Madhugiri Sub-Division, as per Annexure-AA declaring that the mutation effected as per M.R.No.10/1984-85 in the individual name of Swamy was null and void and that the mutation entry effected earlier in the name of Mutt as Anubhavadar had to be restored has become final. Therefore, in the absence of any proceeding wherein the rights of the Mutt have been called in question and any judgment or decree obtained from the Civil Court to the effect that the Mutt had no existing right over the lands in question, the Deputy Commissioner was not right and justified in rejecting the application filed by the petitioners for conversion of the land.
15. It is also necessary to notice that as long as petitioners satisfy the requirement spelt out in clause no.10 of Section 95 WP 27418-420/2017 12 as amended, petitioners are entitled for an order regarding deemed conversion. Merely because objections were raised by some of the devotees, it cannot be said that request for deemed conversion cannot be granted. If the applicants or any other devotees of the deity or the Mutt intend to establish their rights or claims as asserted in their objections, they are required to approach the Competent Court seeking appropriate declaration in that regard pertaining to the lands in question. The said question cannot be decided in this proceedings nor the Deputy Commissioner can embark upon an inquiry into the same. Hence, as all the requirements of clause 10 of Section 95 of the Act having been complied with by the petitioners in this case, they are entitled for a declaration that benefit of deemed conversion shall accrue to them in view of the application filed by them.
16. Hence, these writ petitions are allowed. The impugned notice at Annexure-K and the endorsement at Annexure-X are quashed. It is declared that the request made by the petitioners for conversion of the lands in question for the purpose of establishing solar plant shall be deemed to have been granted by the Deputy Commissioner. The Deputy Commissioner is WP 27418-420/2017 13 directed to collect the conversion fee from the petitioners in respect of the lands in question, immediately.
17. In the light of the discussion made above, question of entertaining the application filed by the impleading applicants does not arise as they are neither proper nor necessary parties to the proceedings and as it is open for them to agitate their grievance before the court of law in accordance with law. Hence, I.A.No.2/2017 is dismissed.
Sd/-
JUDGE KK