Karnataka High Court
Kirloskar Electrical Company Limited vs The State Of Karnataka on 8 September, 2020
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 30 T H DAY OF JULY, 2020
BEFORE
THE HON'BLE MR. JUSTICE ASHOK G NIJAGANNAVAR
WRIT PETI TION NO.106705/2019 (KLR-CON)
BETWEEN:
KIRLOSKAR ELECTRIC COMPANY LIMITED,
A COMPANY INCORPORATED UNDER
THE COMPANIEX A CT- 1956,
PB NO.112, GOKU L ROAD, HUBBALLI,
PIN: 580030, REPRESENTED BY ITS
MANAGING DIRECTOR-MR.A.B.HUNNUR.
... PETITIONER
(BY SRI MANMOHAN P.N., * COUNSEL
FOR SRI SHIVARAJ C.BELLAKKI, ADVOCATE)
AND
1. THE S TA TE OF KA RNATAKA
DEPARTMENT OF REVENUE (LAND G RANT NO.3)
REPRESENTED BY ITS
UNDER SECRETARY
M.S.BUILDING, BENGALURU.
2. THE DEPU TY COMMISSIONER,
DHARWAD-580001.
... RESPONDENTS
(BY SMT.VIDYAVA THI, ADDL.ADVOCA TE GENERAL
*S R I. PRAVEEN UPPAR, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLE
226 AND 227 OF THE CONS TITUTION OF INDIA
PRAYING TO QUASH THE COMMUNICATION DATED
03.08.2017 IN NO.RD 40 LGD 2016 ISSUED BY
RESPONDENT NO.1 (PRODUCED AS ANNEXURE-Q);
QUASH THE NO TICE DATED 30.11.2018 IN NO.LNA/CR-
*Deleted and inserted vide Court order dated 08.09.2020
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287/15-16 (PRODUCED AS ANNEXURE-L) ., NO TICE
DATED 25.01.2019 BEARING NO.LNA/CR-287/15-16
(PRODUCED AS ANNEXURE- N), NOTICE DA TED
13.02.2019 BEARING NO.LNA/CR-287/15-16 ISSUED
BY RESPONDENT NO.2 (PRODUCED AS ANNEXURE-N1)
AND CONSEQUENTLY QUASH THE ENTIRE
PROCEEDINGS BEFORE THE RES PONDENT NO.2 IN
LNA/CR-287/15-16.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
MADE THE FOLLO WING:
ORDER
This writ petition is filed challenging the communication dated 03.08.2017 issued by the 1st respondent-Under Secretary, Revenue Department (Land Grant-3) as per Annexure-Q and the notices dated 30.11.2018, 25.01.2019 and 13.02.2019 as per Annexure-L and N issued by the 2nd respondent-Deputy Commissioner, Dharwad calling upon the petitioner to show cause as to why the property should not be forfeited for the alleged violation of grant conditions.
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2. The facts leading up to the petition are that in the year 1964, the State Government decided to grant the land in favour of petitioner, a Company registered under Companies Act, which is engaged in manufacturing in electrical motors and generators for establishing a factory at Hubballi. Accordingly, on the directions of the State Government vide its letter dated 07.09.1964 and Government Order dated 05.01.1965, the 2nd respondent-Deputy Commissioner, Dharwad issued order dated 28.01.1965 granting land bearing Sy.No.88 measuring 80.27 acres and Sy.No.89 measuring 8.26 acres along with pot-kharab lands measuring 10 guntas of Raynal village in favour of the petitioner as per Annexure-A. The agreement was executed between the petitioner and Tahsildar, Hubballi on 05.03.1965 as per Annexure-B. On 02.07.1965, the 2 n d respondent- 4 Deputy Commissioner passed an order for conversion of the land to industrial purpose subject to payment of conversion fee at Rs.500/- per acre as per Annexure-C.
3. Condition No.8 of the agreement dated 05.03.1965 i.e. non-alienation of land for 15 years came to be deleted as the petitioner company had paid the market value of the property at the rate of Rs.2,000/- per acre. The 2 n d respondent passed an order for deletion of the condition No.8 of the agreement, which provided for non-alienation of land for a period of 15 years as per Annexure-D.
4. During the year 2015, the petitioner company was facing financial crisis as such the petitioner decided to develop a residential layout in the remaining 20 acres of land in Sy.No.88. Hence, the petitioner sought change of the land 5 use from Hubballi-Dharwad Urban Development Authority (hereinafter referred to as 'HUDA'). The said authority vide order dated 28.10.2015 granted the change of land use from industrial to residential purpose in respect of 20 acres out of 81.12 acres in Sy.No.88/P-1 of Raynal village as per Annexure-E and the same was communicated to the 2 n d respondent vide letter dated 22.02.2016 as per Annexure-F. Thereafter the HUDA vide order dated 17.06.2016 rejected the request of the petitioner for sanction of layout on the ground that the petitioner has not obtained conversion order from the 2nd respondent.
5. The petitioner being aggrieved by the order dated 17.06.2016 issued by HUDA, filed a Writ Petition No.105734/2016 for quashing of the said order and for writ of mandamus 6 directing the HUDA to consider the petitioner's application dated 15.06.2016 for sanction of layout plan. The said writ petition was allowed vide order dated 21.02.2018 and the order issued by HUDA was quashed and it was directed to consider the petitioner's application for approval of layout plan within two months from the date of receipt of copy of the order of writ petition. The HUDA challenged the order passed by the learned single Judge in Writ Petition No.105734/2016 by filing Writ Appeal No.100124/2018. The said writ appeal was dismissed vide order dated 22.10.2018. The Divisional Bench categorically held that the 2 n d respondent-Deputy Commissioner has no jurisdiction over the land as the property is within the jurisdiction of HUDA. Then HUDA filed S.L.P. (C) No.1951/2019 challenging the order passed in writ appeal. The said SLP was 7 dismissed on 01.03.2019. The respondents have not challenged the order passed by the single Judge or the order passed by the Division Bench, but the 2 n d respondent issued a notice dated 30.11.2018 calling upon the petitioner to submit its reply as to why the grant should not be cancelled for violation of the conditions of grant as per Annexure-L. Then the notice dated 25.01.2019 and 13.02.2019 were issued fixing the hearing dates. On 22.02.2019, written submissions were made by the petitioner contending that the 2nd respondent has no jurisdiction to initiate the proceedings and that the proceedings initiated are in violation of the order passed in writ petition. In the course of hearing, the petitioner was furnished with the copy of the communication dated 03.08.2017 issued by the 1 s t respondent directing the 2 n d respondent to submit a report regarding 8 violation of grant conditions by the petitioner. The copy of the communication is at Annexure- Q. The 1 s t respondent has unilaterally arrived at a conclusion that the petitioner has violated the grant conditions. As such the proceedings conducted by the 2 n d respondent is nothing but a eyewash and the 2nd respondent has no jurisdiction to conduct any enquiry with regard to alleged violation of grant conditions. Hence, the petitioner is constrained to challenge the communication issued by the 1 s t respondent as per Annexure-Q and the notices issued by the 2nd respondent-Deputy Commissioner as per Annexure-L.
6. The grounds for challenging the notices are as under:
a. The respondent No.1 has unilaterally arrived at a conclusion that the petitioner has violated the 9 grant conditions without hearing the petitioner. Hence, the said communication is liable to be quashed on the ground of violation of principles of natural justice.
b. The land in question is the absolute property of the petitioner in view of the payment of the market price of Rs.2,000/- per acre in the year 1966. In this background, the non-alienation of condition was also deleted. Hence, it is not open to the respondents to allege violation of grant conditions. c. The 2 n d respondent is not the Chief Controlling Authority with regard to land and land revenue administration. Therefore, this respondent has no jurisdiction to initiate proceedings against the petitioner. The 2 n d respondent has no inherent powers to initiate proceedings for alleged violation of grant conditions.
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d. The proceedings cannot be initiated after lapse of inordinate period of time as such the impugned communication and notices are liable to be quashed. e. Once the land in question falls within the jurisdiction of HUDA (Corporation limits), the provisions of Karnataka Land Revenue Act ceases to operate and the respondents cannot invoke the provisions of Karnataka Land Revenue Act.
f. The Town and Country Planning Act override the provisions of Karnataka Land Revenue Act.
Therefore, the KLR Act is not applicable and the very initiation of proceedings is bad in law.
g. The impugned communication as per Annexure-Q and notices as per Annexure-L lack statutory force and one without the jurisdiction. 11 h. In view of the Urban Land (Ceiling and Regulation) Repeal Act, 1999, the conditions said to have been imposed are not binding on the petitioner. Hence, the communication and notices are unsustainable in law.
7. The respondent No.2 has filed objections wherein the grant of land to the petitioner company is admitted and has further contended that the petitioner company has failed to develop the industrial activity. The object of granting the land is defeated as the petitioner has started the real estate activity such as developing the land and to sell the granted land by converting the same from industrial purpose to residential purpose. The land was granted to the petitioner at a subsidized rate. There are violations of conditions of grant and also the conversion as 12 such the respondent No.2 has been directed to issue show cause notice to the petitioner. The petitioner company has not utilized full extent of the land for which the land was granted and converted i.e. for industrial purpose. The 2 n d respondent is empowered to enquire the issues regarding change of object of conversion from one object to another. Even if the petitioner has paid value, it is open for the respondents to take necessary action when there is violation of conditions either in grant or in conversion order. Unless there is a permission from the competent authority for conversion of lands, the same cannot be used for purpose for which it is fixed. The ultimate intention of the petitioner company to make unlawful monetary gain, there are no valid grounds for granting the reliefs claimed. 13
8. Heard the learned counsel for the parties to the lis.
9. The first and the foremost contention of the learned Additional Advocate General is regarding the maintainability of the writ petition. It is submitted that Annexure-Q which is the letter dated 03.08.2017 issued by the Under Secretary to the Department of Revenue (Land Grant-3) is the internal communication as such the same cannot be challenged. Admittedly in pursuance of the Annexure-Q, the 2nd respondent has initiated the proceedings by issuing notice as per Annexure-L. The application under Section 95(2) as per Annexure-C is still pending. Under these circumstances when the matter is not yet decided, the writ petition is not maintainable. The 2 n d respondent-Deputy Commissioner is not 14 a party in the earlier Writ Petition No.105734/2016 as such the order passed in the writ petition or Writ Appeal No.100124/2018 are not binding on the respondents.
10. As against the said contention, the learned counsel for the petitioner submitted that the communication at Annexure-Q directs the 2nd respondent to take action against the petitioner and unilaterally holds that the Condition No.1 of the grant has been violated. Therefore, the respondents have already arrived at a conclusion that there is a violation of clause-1 of the grant. Hence, in view of the opinion formed by the 1st respondent in Annexure-Q, the proceedings before the respondents is an empty formality. Relying on the relevant portions of show cause notice, the learned counsel for the petitioner urged that 15 even at the stage of show cause notice, the Deputy Commissioner has made up his mind and has reached definite conclusion, this has rendered the subsequent proceedings an empty ritual and an idle formality. In support of the said contention, the learned counsel for the petitioner has relied on three decisions.
11. In a decision reported in (2006) 12 SCC 33 in the case of Siemens Limited V/s State of Maharashtra and others (Para 9), it is observed as under:
"9.......but the question herein has to be considered from a different angle viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the court directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose. (See K.I.Shephard v. Union of India [(1987) 16 4 SCC 431 : 1987 SCC (L&S) 438 : AIR 1988 SC 686]). It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter-affidavit as also in its purported show-cause notice."
b) (2010) 13 SCC 427; Oryx Fisheries Pvt.Ltd V/s. Union of India and others (Para 31 to 35) "31......If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi- judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.17
32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show-cause notice.
33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi-judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it.
34. A somewhat similar observation was made by this Court in Kumaon Mandal Vikas Nigam Limited v. Girja Shankar Pant and others, (2001) 1 SCC 182. In that case, this court was dealing with a show-cause notice cum charge-sheet issued to an employee. While dealing with the 18 same, this Court in paragraph 25 (page 198 of the Report) by referring to the language in the show-cause notice observed as follows:
"25. Upon consideration of the language in the show-cause notice-cum-charge-sheet, it has been very strongly contended that it is clear that the officer concerned has a mindset even at the stage of framing of charges and we also do find some justification in such a submission since the chain is otherwise complete."
After para 25, this Court discussed in detail the emerging law of bias in different jurisdictions and ultimately held in para 35 (page 201 of the Report), the true test of bias is:
"35. The test, therefore, is as to whether a mere apprehension of bias or there being a real 19 danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom-in the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained:"
12. It is ofcourse true that the show cause notice cannot be read hyper technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show cause notice, the person who is subjected must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on reasonable reading of show cause notice, a person of ordinary prudence gets the feeling i.e. reply to the show cause notice will be an empty 20 ceremony and he will merely knock his head against impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure.
13. In a decision reported in (2006) 12 SCC 33; Siemens Limited V/s State of Maharashtra and others and (2010) 13 SCC 427; Oryx Fisheries Pvt.Ltd V/s. Union of India and others.
14. A bare perusal of the contents of the show cause notice at Annexure-L and communication at Annexure-Q clearly indicate that respondent No.1-Under Secretary who has issued the communication and the 2nd respondent-Deputy Commissioner, who has issued Annexure-L notices, have already formed an opinion that there is a violation of grant conditions. The petitioner has rightly 21 apprehended that the proceeding before 2nd respondent is an empty formality and the notice issued by the 2 n d respondent is not with an open mind and on the contrary, it is a premeditated action. In such circumstances the only remedy available to the petitioner is to approach this Hon'ble Court. Under these circumstances, the writ petition is maintainable.
15. Another ground urged by the learned Additional Advocate General is that the 1st respondent-Under Secretary and the 2nd respondent-Deputy Commissioner, Dharwad are not the parties to the Writ Petition No.105734/2016 and Writ Appeal No.100124/2018 as such the orders passed in the said writ petition and writ appeal are not binding on these respondents. It is pertinent to note that in the earlier W.P.No.105734/2016, 22 the learned Advocate General has represented the State and has argued on behalf of the State contending that the Deputy Commissioner is a competent authority to grant permission for conversion of the land as required under Section
97. Under these circumstances, the contention of the learned Advocate General that the orders passed in the writ petition and writ appeal are not binding on respondents does not hold good.
16. Having regard to the submission made by the learned counsel for the petitioner and the learned Additional Advocate General, the following questions arise for consideration.
i. Whether the 2nd respondent-
Deputy Commissioner is a
competent authority to initiate
the proceedings to terminate the grant and to resume the land?
23ii. Whether provisions of Section 95 and 97 of the Karnataka Land Revenue Act are applicable?
iii. Whether the provisions of ULC Act are applicable?
iv. Whether Town and Country Planning Act has got overriding effect on KLR Act?
v. Whether there is unreasonable delay in taking action?
vi. Whether there was deemed
sanction?
17. The learned counsel for the petitioner submitted that the 2nd respondent is not a competent authority to initiate the proceedings for cancellation or termination of grant and to resume the land. In view of Section 43(7) of Land Revenue Rules, respondent No.2 has no authority to terminate the grant and resume the land to the Government. The Land Revenue Act 24 ceases to operate once as the land comes within corporation limits, the provisions of Urban Land Ceiling Act are not applicable. In support of the said contention, he has relied on the following decisions.
1. ILR 1974 KAR 1313; Abdul Basheer Sab v/s State of Mysore and others.
2. ILR 2002 KAR 4264; the Deputy Commissioner and another V/s V.B.T.Mallikarjun and others.
3. ILR 1988 KAR 1398; Special Deputy Commissioner V/s Narayanappa.
4. ILR 2005 KAR 60; J.M.Narayana and others V/s Corporation of the City of Bangalore and others.
5. (2006) 12 SCC 33; Siemens Ltd.
V/s State of Maharashtra and
others.
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6. (2010) 13 SCC 427; Oryx Fisheries Private Limited V/s Union of India and others.
7. (2015) 3 SCC 695; Joint Collector and another V/s D.Narsing Rao and others.
8. (2018) 6 KLJ 792, Nekkanti Ram a Lakshmi V/s State of Karnataka and others.
9. (2018) 12 SCC 527; Chhedi Lal Yadav and others v/s Hari Kishore Yadav (D) through LRs and others.
18. Per contra, the learned Additional Advocate General has submitted that when the petitioner had taken the permission for conversion of the lands under Section 95(2) of KLR Act, he is required to take sanction for change of land use as provided under Section 97 of KLR Act. The 2 n d respondent has initiated the proceedings in pursuance of Annexure-Q, which 26 is the communication issued by the State Government. The petitioner is intending to use 20 acres of land for residential purpose by making layout thereby he has violated the grant conditions. Under these circumstances, the Deputy Commissioner is competent to initiate the proceedings. In support of the said contention, she has relied on a decision reported in (1995) 1 SCC 295 in the case of State of Karnataka and others V/s Shankar Textiles Mills Ltd.
19. It is undisputed fact that the land bearing RS No.88 and 89 of Raynal village of Hubballi taluk in all measuring 89 acres 23 guntas were granted for industrial purpose to the petitioner company by the State Government. Accordingly, the Agreement came to be executed between the petitioner and 27 Government on 05.03.1965. It is also undisputed fact that on the application made by the petitioner before the Deputy Commissioner for conversion, the Deputy Commissioner by the order dated 02.07.1965 granted permission to the petitioner for converting the use of said land from agriculture to industrial purpose. On payment of full market value of the said properties, Clause (8) of the Agreement as per Annexure-A regarding non-alienation clause was deleted by the Deputy Commissioner, vide order dated Annexure-C dated 13.06.1966. As per Annexure-D, the Revised Comprehensive Development Plan, the lands bearing Sy.No.88 and 89 are included in Hubballi Dharwad Corporation Limits. On the application made by the petitioner, the present appellant vide order dated 28.10.2015 as per Annexure-F permitted change of land use of 20 acres out of 81.12 28 acres in Sy.No.88/P-1 from industrial purpose to residential purpose.
20. It is also not in dispute that the HUDA submitted the communication dated 22.02.2016 to the Deputy Commissioner, Dharwad stating that the petitioner may be permitted to change the land use of the said 20 acres from industrial purpose to residential purpose subject to the condition mentioned in Annexure-F.
21. When things stood thus, on the application made by the petitioner as per Annexure-H dated 15.06.2016, the impugned endorsement came to be issued on 17.06.2016 to get the conversion order from the Deputy Commissioner, Dharwad. The learned Single Judge considering the entire material on record and various contentions raised including the provisions of Sections 95 and 97 of the Act has 29 recorded a categorical finding that since the land is not an agricultural and is put to industrial use, it is not required to be converted from industrial purpose to non-agricultural purpose. Therefore, Section 95(2) of the Act is not applicable. When Section 95(2) of the Act is not applicable, consequently, Section 97 is also not applicable.
22. According to the counsel for the petitioner, this is a second round of litigation. The facts in earlier Writ Petition No.105734/2016 and Writ Appeal No.100124/2018 are identical with facts of this writ petition. The earlier Writ Petition No.105734/2016 was filed by the petitioner in respect of same property, wherein the learned senior counsel had raised the following issues: 30
(i) The petitioner is not required to seek order from the Deputy Commissioner, for change of land use.
(ii) The land in question is already a non agricultural land.
Therefore question of seeking change of land use does not arise.
(iii) The lands are situated within Hubballi Dharwad Municipal Corporation Area. Hence, there is no need to seek change of the land use as the Karnataka Land Revenue Act does not apply.
(iv) The land is assessed to the tax by Hubballi Dharwad Municipal Corporation and not to the land revenue by the revenue authority.
Therefore the question of seeking conversion does not arise.
(v) Section 97 of the Karnataka Land Revenue Act is applicable, only if section 95 of the Karnataka Land Revenue Act is applicable. Since 31 section 95(2) itself is not applicable, the 2 n d respondent cannot insist for change of the land use.
(vi) The petitioner has applied to the Deputy Commissioner, vide Annexure-R.1 on 31.10.2015 under section 95(2) of the Karnataka Land Revenue Act seeking change of land use for residential purpose. The Deputy Commissioner has not passed any order on the said application since more than two years. Therefore by operation of section 95(5) of the Karnataka Land Revenue Act there is a deemed grant of permission.
23. The learned Additional Advocate General in the said writ petition had sought to justify the impugned order on following grounds. i. The petitioner having filed application before the Deputy Commissioner cannot pursue this writ petition simultaneously.
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ii. Section 97 of the Karnataka Land
Revenue Act requires the
approval of Deputy Commissioner for change of land use from one purpose to another purpose.
Therefore the 2 n d respondent is justified in requiring the petitioner to get an order of conversion of land use.
24. In earlier writ petition, it is held that Section 97 of the Act can be invoked only if section 95(2) is applicable. To apply section 95(2) of the Act, the property should be an agricultural land assessed to the land revenue. In this case admittedly the land was converted to industrial purpose. Therefore it was not assessed to the land revenue. The petitioner's counsel has also produced the copies of the tax paid receipts which show that the Municipal Corporation has assessed the property to the tax.
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25. There is no dispute that the property in question is included in the Revised Comprehensive Development Plan/Master Plan 2021 and it is situated within the Hubballi Dharwad Municipal Corporation Area. Therefore section 4(4) of the Karnataka Municipal Corporations Act is applicable and the property tax is recovered from the Municipal Corporation.
26. Since the land is not an agricultural and is put to industrial use, it is not required to be converted from industrial purpose to non agricultural purpose. Therefore section 95(2) of the Karnataka Land Revenue Act is not applicable. When section 95(2) of the Act is not applicable, consequently section 97 is also not applicable.
27. In Writ Appeal, the Division Bench has categorically held that it is also not in dispute 34 that the conversion granted by the Deputy Commissioner as long back as 2.7.1965 from agriculture to industrial purpose on payment of Rs.500/- is not challenged by the appellant. The said order passed by the Deputy Commissioner has reached finality. It is also not in dispute that the HUDA (Hubballi-Dharwad Urban Development Authority) has permitted the petitioner for the change of land use of 20 acres out of 81.12 acres in Sy.No.88/P-1 from industrial to residential purpose under the provisions of Karnataka Town and Country Planning Act, 1961. It is also not in dispute that the property in question is within the limits of Corporation, if that is so, in view of the dictum of the co-ordinate bench of this Court stated supra, there is no need to obtain permission from the Deputy Commissioner, which was already granted as long back as 02.05.1965. The 35 endorsement issued by the present appellant is without any basis and the learned Single Judge has rightly quashed the same.
28. The HUDA had filed SLP (C) No.1951/2019 challenging the order passed in writ appeal and the same was also dismissed vide order dated 01.03.2019. Thus, the order passed by the learned single Judge in writ petition and the order passed in the writ appeal that the Deputy Commissioner has no jurisdiction to initiate proceedings against the petitioner for termination of grant or to resume the land has reached finality.
29. In view of the specific contention of the learned Additional Advocate General regarding jurisdiction of respondent No.2- Deputy Commissioner, and his powers under Section 95(2) and 9 of KLR Act, it is necessary to 36 consider whether the Deputy Commissioner of the District is competent to resume the land for contravening the terms of grant.
30. During the course of arguments, the learned Additional Advocate General submitted that in earlier Writ Petition No.105734/2016, the decision of Hon'ble Supreme Court in the case of Shankar Textiles was not placed as such the Court had no opportunity to consider the ratio laid down in the said decision regarding jurisdiction of respondent No.2-Deputy Commissioner and his powers. In view of this decision, the 2 n d respondent is vested with the powers under Section 95(2) and 97 of the KLR Act.
31. The question involved in the case of State of Karnataka and others V/s Shankar Textiles Mills Ltd was regarding conversion of 37 agricultural land into non-agricultural land - mandatory requirement of prior permission under Section 95(2) of Karnataka Land Revenue Act. The Hon'ble Supreme Court held that in the absence of the permission mere non-user of the land for agricultural purposes or purposes subservient thereto or user for non-agricultural purpose would not have the effect of converting the land into non-agricultural land.
32. In aforesaid decision two questions had arisen, namely (i) whether the land can be deemed to have been permitted to be converted for non-agricultural uses merely because it was used for non-agricultural purposes although, admittedly, no permission under Section 95(2) of Revenue Act was taken to do so. (ii) Whether under Section 79 of the Act the land vests in the State Government prospectively from the date of 38 notification or retrospectively from the date of coming into operation of the Act.
33. As far as the 1 s t question regarding applicability of Section 95(2) of Karnataka Land Revenue Act is concerned, it was held that the view taken by the High Court on the basis of earlier decision in 'Mysore Feeds Limited case' is not correct.
34. The issue regarding applicability of Section 95(2) and the conversion of the land and the jurisdiction and powers of the Deputy Commissioner in granting permission for conversion of the land has already been dealt with and decided in the earlier Writ Petition No.105734/2016 filed by the petitioner, which reads as under:
20. Section 97 traces its origin to section 95 and 96. Section 95(2) of 39 the Karnataka Land Revenue Act, reads as follows:
"95.(2) If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall notwithstanding anything contained in any law for the time being in force apply for permission to the Deputy Commissioner who may, subject to the provisions of this section and the rules made under this Act, refuse permission or grant it on such conditions as he may think fit:
Provided that the Deputy Commissioner shall not refuse
permission for diversion of such land included in the Master Plan published under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963), if such diversion is in accordance with the 40 purpose of land use specified in respect of the land in such plan:"
35. It is clear that section 97 of the Act can be invoked only if section 95(2) is applicable. To apply section 95(2) of the Act, the property should be an agricultural land assessed to the land revenue. In this case admittedly the land was converted to industrial purpose. Therefore it was not assessed to the land revenue. The petitioner's counsel has also produced the copies of the tax paid receipts which show that the Municipal Corporation has assessed the property to the tax.
36. The Division Bench in Writ Appeal No.100124/2018 by adverting to several other decisions has upheld the decision of the learned single Judge that the Deputy Commissioner has no jurisdiction to initiate the proceedings for 41 cancellation of grant and resume the land. The HUDA filed SLP (C) No.1951/2019 before the Hon'ble Supreme Court against the order passed in writ appeal, but the said SLP came to be rejected. Thus, the finding given by learned single Judge reached finality.
37. In the present case, Annexure-C disclose that the 2nd respondent-Deputy Commissioner had passed an order dated 02.07.1965 granting permission to the petitioner to use the land for industrial purpose subject to certain terms and conditions. This permission was granted on the recommendation of the Tahsildar and opinion/no objection of the Commissioner, Municipal Corporation as the said land was within the corporation limits. Thereafter the 2nd respondent-Deputy Commissioner passed another order dated 42 13.05.1966 as per Annexure-D that Condition No.8 of the agreement executed by the company on 09.03.1965 regarding non-alienation of the land for the period of 15 years from the date of order i.e. 28.01.1965 is deleted as the petitioner company has paid full market value of the land granted to them. Thus, it is evident that it was an absolute grant. There is no specific clause restraining the petitioner from using the land for some other purpose without prior permission of respondent No.2-Deputy Commissioner. Under these circumstances, this Court is of the view that the decision rendered in Shankar Textiles case is not aptly applicable to the facts of this case.
38. The learned counsel for the petitioner submitted that the land in question was converted to industrial purpose vide order dated 43 02.07.1965 (Annexure-C, Page No.42). Further the land in question comes within the jurisdiction of HUDA. Hence the provisions of Karnataka Land Revenue Act would cease to operate in view of Section 14 and Section 76M of the Karnataka Town and Country Planning Act, 1961. Admittedly, the land in question is not agricultural and it was converted for industrial purpose way back in the year 1965. Hence, on the said ground also the 2 n d respondent has no jurisdiction to initiate instant proceeding. In support of the said contention, three decisions are relied on.
39. In a decision reported in ILR 1974 SCC online Kar 124 : ILR 1974 Kar 1313; Abdul Basheer Sab V/s State of Mysore and others, which pertains to the powers of the Deputy Commissioner as per the Karnataka 44 Land Revenue Act, 1964 (12 of 1964) - Sections 3 and 8 - Karnataka Land Revenue and Amendment Rules, 1960, it is held as under:
6. It may be relevant to refer to Rule 43-1 of the Rules. The said rule confers power to cancel a grant on the authority which granted it, where the grant has been obtained by making false or fraudulent representations.
Under the said rule, the authority which granted the land has no power to cancel it on the ground that the grantee has contravened the terms of the grant.
7. Rule 43-G (7) simply states that the grant is liable to be terminated and the land resumed if any of the conditions of the grant is not fulfilled. It does not specify the authority empowered to cancel the grant. In these circumstances, whether it would be competent for the deputy Commissioner to terminate the grant 45 and resume the land to Government is the only question for decision.
The power of the Deputy Commissioner is located under Section 8 of the Karnataka Land Revenue Act. He could in his district exercise all the powers and discharge all the duties conferred and imposed on him under the Land Revenue Act or under any law for the time being in force.
Obviously, there is no specific provision in the Land Revenue Act conferring power on him, to cancel any grant either made by him or any other authority. There is no other law by which such power is conferred upon him. The Deputy Commissioner may also exercise such powers and discharge such duties as are conferred and imposed on Assistant Commissioner under the Land Revenue Act. But the power to resume land for the contravention of the terms of any grant has not been given by any law to 46 the Assistant Commissioner.
Therefore, there is no question of the Deputy Commissioner exercising the power of the Assistant Commissioner. In all other matters which are not specially provided for by law, Deputy Commissioner shall act according to the instructions of the State Government. But so far as the grant of land and its resumption are concerned, it cannot be said that they are matters not specially provided for by law. They are regulated by the provisions of the Land Grant Rules. Therefore, the Deputy Commissioner on the said matters could not have acted at the instructions of the Government. Apart from that, it is not the case of the respondents that the Deputy Commissioner has terminated the grant and resumed the land at the instruction of the Government. It seems to me, therefore, that the impugned order made by the Deputy 47 Commissioner must be held to be without authority of law.
8. The view taken by the Government that in the absence of an authority specified under Rule 43-G (7), the Deputy Commissioner shall be held to have power to resume the land, cannot be sustained. Under the Rules, the Deputy Commissioner cannot exercise power which is not conferred upon him. He has no inherent power to regulate the land grant. He is not a chief controlling authority in matters relating to Government land. Under Section 3, it is the State Government which shall be the chief controlling authority in all matters connected with land and land revenue administration. Therefore, the Deputy Commissioner cannot be held to have any implied power in matters pertaining to land and land revenue administration. He cannot also be considered as an Agent of the Government while performing 48 his functions under the Act. The same was the view taken by the Bombay High Court in State of Bombay v/s Chhaganlal Gangaram Lavar (FB) wherein it was observed at page 1095 :
"...... Now it is wrong to introduce the principles of agency when considering the various functions to be discharged by officers under the Land Revenue Code. These functions are not discharged by these officers as agent of Government. These functions are discharged by them as officers upon whom certain obligations are imposed by statute and certain discretion is vested by statute. Therefore, in exercising these functions, they are exercising statutory duties and not duties as agents for Government. To talk of agent and principal is, in our opinion, again introducing principles well understood in the law of contract which have no application whatsoever 49 when we are dealing with statutory rights end obligations."
40. In identical circumstances, the Co- ordinate Bench of this Court while considering the provisions of Sections 14 and 24(1) of the Karnataka Town and Country Planning Act, 1961, in the case of Special Deputy Commissioner Vs. Narayanappa, reported in ILR 1988 KAR 1398 at paras 9, 12 and 13 held as under:
"9. Theref ore, the question which arises for consideration is whether the Special Deputy Commissioner had any power at all to accord permission under Section 95 of the Karnataka Land Revenue Act. The Chapter III (Sections 9 to 13) of the Planning Act provides f or the prepar ation of an Outline Development Plan for every local planning area declared as such under the provisions of the Act. Af ter the Bangalore Metropolitan area was declared as local planning area under the provisions of the Act, steps were taken to prepare an Outline Development Plan and af ter f ollowing the procedure prescribed under Sections 9, 10, 11, 12 and Sub-50
sections (1) to (3) of Section 13, the Outline Development Plan was f inally published as required under Sub-section (4) of Section 13 of the Act on 22-5-1972 as f ound in the case of M.D. Naray an, 1982(2) K.L.J. Sh. Notes 35. Section 14 of the Act as in force which is a crucial matter f or this case reads :
"14. Enf orcement of the Outline Development Plan and the Regulations: (1) On and f rom the date of which a declaration of intention to prepare an Outline is published under Sub-section (1) of Section 10, every land-use, every change in land-use and every development in the area covered by the plan shall conform to the provisions of this Act, the Outline Development Plan and the Regulations, as f inally approved by the State Government under Sub- section (3) of Section 13.
(2) No such change in land use or development as is ref erred to in Sub-
section (1) shall be made except with the written permission of the Planning Authority which shall be contained in a commencement certif icate granted by the Planning Authority in the f orm prescribed. Explanation :- For the purpose of this Section, -
(a) the expression "development" means the carrying out of building or other operation in or over or under any land or the making of any material change in the use of any building or other land; 51
(b) the f ollowing operations or uses of land shall not be deemed to involve a development of any building or land, namely :-
(i) the carrying out of works f or maintenance, improvement or other alteration of any building being works which aff ect only the interior of the building or which do not materially affect the external appear ance of the building;
(ii) the carrying out of works in compliance with any order, or direction made by any authority under any law f or the time being in f orce;
(iii) the carrying out of works by any authority in exercise of its powers under any law f or the time being in f orce;
(iv) the use of any building or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such ;
(v) when the normal use of land which was being temporarily used f or any other purpose on the day on which the declaration of intention to prepare the Outline Development Plan is published under Sub-section (1) of Section 10 is resumed;
(3) Every application f or permission under Sub-section (2) shall be accompanied by a plan, drawn to scale showing the actual dimension of the plot of land in respect of which permission is asked, the size of the building to be erected and the position of the building upon the plot and such other 52 inf ormation as may be required in this behalf by the Planning Authority."
The language of Section 14 of the Act is peremptory. According to that provision no change in the land use in respect of land f alling within the area of Outline Development Plan can be made without the written permission of the Planning Authority secured under Section 14 of the Act.
Subsequently, Comprehensive Development Plan ('CDP' f or short) has also been prepared and approved by the Government on 12-10-1984 and as required by Section 23 of the Act published in the off icial gazette dated 18th October 1984. Sub-section (1) of Section 24 of the Act reads:
"(1) The provision of Section 14, 15 and Section 16 shall apply mutatis mutandis to the enf orcement of the Comprehensive Development Plan."
In view of the above provision a written permission f or change of land use in respect of land f alling within the Bangalore City Planning Area and covered by the CDP is mandatory. This subsequent notif ication also ousts the authority of the Deputy Commissioner under Section 95 of the Land Revenue Act in respect of lands f alling within the Planning Area.
12. In view of the over-riding effect given by the above provision, a change in the 53 use of land f alling within the area of ODP or CDP could be eff ected or undertaken only with the written permission of the Planning Authority. Further in view of the Section the jurisdiction of the Deputy Commissioner under Section 95 of the Land Revenue Act gets ousted and such permission could be obtained or secured only f rom the Planning Authority under the Act.
13. The appellant has also relied on the Judgment of a learned single Judge in Writ Petition Nos. 17132 to 17140 of 1984, State of Karnataka Vs. Jayashree:
ILR 1986 KAR 820. In that case also the parties concerned had made application to Special Deputy Commissioner, Bangalore, praying f or permission f or conversion of certain agricultural land for non- agricultural purposes. The application had been rejected by the Special Deputy Commissioner; but his order was set aside by the Appellate Tribunal which gave a specif ic direction to the Special Deputy Commissioner to accord sanction for conversion by imposing such conditions as are permissible in view of Subsection (4) of Section 95 of the Act. Aggrieved by the order of the Tribunal the Special Deputy Commissioner pref erred the Writ Petitions. The learned Judge Doddakale Gowda, J. in the course of the order made a detailed ref erence to the provisions of the Town Planning Act and pointed out that if the land comes within the area of ODP or CDP, sanction of the Planning Authority was essential f or 54 change of use of the land. The learned Judge also pointed out that exercise of such powers under Section 95 of the Land Revenue Act would be an exercise in futility. We are in respectf ul agreement with the view expressed by the learned Judge. But, we however add, if a land f ell within ODP or CDP prepared f or Bangalore Metropolitan Planning Area the Special Deputy Commissioner, Bangalore, ceases to have any power under Section 95 of the Act, in view of the over-riding effect given to the provisions of the Planning Act by Section 76M thereof over all other laws which includes The Land Revenue Act. Section 76M was not brought to the notice of the learned Judge. Whatever that may be, the f act remains that the view taken by the learned Judge that any permission to be accorded must be in conf ormity with the provisions of the Town Planning Act and the ODP and CDP prepared thereunder, is correct and we entirely agree with the view taken by the learned Judge."
41. The Co-ordinate Bench of this Court while considering the provisions of Section 110 of the Karnataka Municipal Corporation Act, 1976, in the case of J.M.Narayana and others V/s Corporation of the City of Bangalore, by its Commissioner Office, Bangalore and 55 others, ILR 2005 Karnataka 60 at para- 5 held as under:
"5. We have given our anxious consideration to the submissions made at the Bar. It is not disputed that the suit property stands included within the Corporation limits in terms of a notif ication issued much earlier to the f iling of the suit. As a result of such inclusion, the taxes applicable within the Corporation limits would by operation of law and in particular Section 4 sub-section 4 of the Municipal Corporation Act become applicable to the extended area also. Even assuming that the land in question was agricultural land bef ore its inclusion in the Corporation limits, the same would not necessarily mean that it either continued to pay land revenue nor would such land be exempted f rom payment of property tax under the said Act. As rightly pointed out by Mrs. Patil, Section 110 of the Karnatak a 56 Municipal Corporation Act, 1976, exempts the payment of property tax qua only such lands as are registered to be agricultural lands in revenue records of Government and as are actually used for cultivation of crops. Stated conversely just because certain land included in the Corporation limits is registered or used f or cultivation purposes would not imply that the said land continues to pay land revenue under the Land Revenue Act. On the contrary, Land Revenue Act would cease to be applicable no sooner the land is brought within the Corporation limits."
42. In the present case admittedly, the land in question is within the corporation limits. Under these circumstances in view of the overriding effect of Town and Country Planning Act, the provisions of Land Revenue Act and Land Revenue Rules ceases to operate. The 57 Deputy Commissioner has no power under Section 95 of the Karnataka Land Revenue Act to grant or refuse permission. In view of Section 76(m), the change in land use of land within the corporation area or within the area ODP or CDP would be effected or undertaken only with the permission of the planning authority. Further in view of the section, the jurisdiction of the Deputy Commissioner under Section 95 of the Land Revenue Act gets ousted.
43. Another important point raised by the learned counsel for the petitioner is regarding inordinate delay in initiating proceedings for cancellation or terminating the grant and to resume the land. In this regard, the learned counsel has placed reliance on two decisions. In the case of Nekkanti Rama Lakshmi V/s State 58 of Karnataka and others, (2018) 6 KLJ 792, it is held as under:
7. However, the question that arises is with regard to terms of Section 5 of the Act which enables any interested person to make an application for having the transfer annulled as void under Section 4 of the Act. This Section does not prescribe any period within which such an application can be made.
Neither does it prescribe the period within which suo motu action may be taken. This Court in the case of Chhedi Lal Yadav and others V/s Hari Kishore Yadav (D) thr.LRs. and others , 2017(6) SCALE 459 and also in the case of Ningappa V/s Dy.Commissioner and others (C.A.No.3131 of 2007, decided on 14.07.2011) reiterated a settled position in law that whether Statute provided for a period of limitation, provisions of the Statute must be 59 invoked within a reasonable time. It is held that action whether on an application of the parties, or suo motu, must be taken within a reasonable time. That action arose under the provisions of a similar Act which provided for restoration of certain lands to farmers which were sold for arrears of rent or from which they were ejected for arrears of land from 1 s t January, 1939 to 31 s t December, 1950. This relief was granted to the farmers due to flood in the Kosi River which make agricultural operations impossible. An application for restoration was made after 24 years and was allowed. It is in that background that this Court upheld that it was unreasonable to do so. We have no hesitation in upholding that the present application for restoration of land made by respondent-Rajappa was made after an unreasonably long period and was liable to be dismissed on that ground. Accordingly, the 60 judgments of the Karnataka High Court, namely, R.Rudrappa V/s Deputy Commissioner, 2000 (1) Karnataka Law Journal, 523, Maddurappa V/s State of Karnataka 2006 (4) Karnataka Law Journal, 303 and G. Maregouda vs. The Deputy Commissioner, Chitradurga District, Chitradurga and Ors, 2000(2) Kr. L.J.Sh. N.4B holding that there is no limitation provided by Section 5 of the Act and, therefore, an application can be made at any time, are overruled. Order accordingly. The appeal is allowed accordingly.
44. In another decision reported in (2018) 12 SCC 527, Chhedi Lal Yadav and others V/s Hari Kishore Yadav (D) through L.Rs. and others, wherein it is held as under:
10. In Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edn.
'reasonable time' is explained as follows:
61
"That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer.
Thus time must be reckoned reasonably, not only in order to
preserve rights and advantages a party possesses, but equally to protect each party from the losses he ought not to suffer. Thus whether an action has been taken within a reasonable time, must also be viewed from the point of view of the party who might suffer losses.
13. In our view, where no period of limitation is prescribed, the action must be taken, whether suo motu or on the application of the parties, within a reasonable time. Undoubtedly, what is reasonable time would depend on the circumstances of each case and the purpose of the Statute. In the case before us, we are clear that the action is grossly delayed and taken beyond 62 reasonable time, particularly, in view of the fact that the land was transferred several times during this period, obviously, in the faith that it is not encumbered by any rights.
14. We are of the view that merely because the legislation is beneficial and no limitation is prescribed, the rights acquired by persons cannot be ignored lightly and proceedings cannot be initiated after unreasonable delay as observed by this Court in the case of Situ Sahu and Ors. v. State of Jharkhand reported in (2004) 8 SCC
340.
45. In view of the ratio laid down in the aforesaid decisions, it is settled law where the statute does not provide for limitation, the provisions of the statute must be invoked within a reasonable time. In the instant case admittedly the lands were granted to the petitioner in the year 1965. After lapse of more 63 than 54 years, the State Government is intending to initiate action on the reason of violation of grant conditions. The petitioner has placed relevant records to show that the grant conditions are not violated. According to the version of respondents, if there was any violation of grant conditions, the legal action could have been initiated within a reasonable time, but no such efforts have been done.
46. Respondent No.2 in the show cause notice at Annexure-L has alleged the violation of order dated 09.12.1983 and 02.03.1988. Surprisingly, the respondent No.2 has alleged violation of the order dated 09.12.1983 and 02.03.1988 passed under Section 20 of the Urban Land Ceiling Act, 1976. The Urban Land Ceiling Act was repealed on 22.03.1999 by the Urban Land (Ceiling and Regulation) Repeal Act, 64 1999. Section 4 of the repealing Act provides that all proceedings relating to any order made or purported to be made under the principal Act pending before any court, tribunal or other authority shall abate. In the instant case the proceeding is sought to be initiated after lapse of 30 years from the date of the order. Further on the repeal of the Act the order passed under the said Act cannot be enforced. Even otherwise, there is inordinate delay in initiation of proceedings.
47. Without prejudice to the aforesaid contentions, as per Section 20(2) of the ULC Act the State Government can withdraw the exemption granted after giving an opportunity of hearing to the person concerned. In the instant case, impugned notice is issued by 2nd respondent and not by the State Government. 65 Further Section 20(2) of the ULC Act is not in existence by virtue of the Repealing Act. Hence, Section 20(2) cannot be invoked. A reading of the Repealing Act leaves no room for doubt that the order under the ULC Act would cease to operate on passing of the Repealing Act.
*ORDER
48. In view of the aforesaid reasons, the petition is allowed. The communication dated 03.08.2017 issued by the 1 s t respondent to the 2 n d respondent as per Annexure-Q and notices dated 30.11.2018, 25.01.2019 and 13.02.2019 as per Annexures-L, N and N1 issued by the 2 n d respondent-Deputy Commissioner, Dharwad and proceedings before respondent No.2 are hereby quashed.
49. The petitioner has filed I.A.No.1/2020 dated 20.02.2020 seeking permission to sell 20 acres of land in Sy.Nos.88 and 89 situated at * Inserted vide Court order dated 08.09.2020 66 Raynal which is the subject matter of this writ petition. It is pertinent to note that in earlier Writ Petition No.105734/2016, this Court has already directed HUDA-respondent No.2 to consider the petitioner's application Annexure-H dated 15.06.2016 for approval of the layout plan within two months.
50. During the course of arguments, learned counsel for the petitioner and learned Additional Advocate General have not made any submission in respect of relief claimed in I.A. According to the petitioner, the case is still at the stage of approval of layout plan. It is not the case of the petitioner company that it had applied for permission to sell the land and the HUDA or concerned authority had refused to grant permission to sell the land. The petitioner has not made out any grounds that there is no 67 need to take permission from the concerned authority to sell the land. Under these circumstances, the petitioner is required to seek necessary permission from the concerned authority in accordance with law. Under these circumstances, there are no valid grounds. Hence, the following:
* The I.A. stands rejected. However, it is made clear that the petitioner is at liberty to approach the competent authority for seeking necessary permission to sell the property, *if there is requirement under the law.
SD/-
JUDGE CL K *Deleted and inserted vide Court order dated 08.09.2020