Karnataka High Court
Shaikh Fathru Sab S/O Shaikh Hydersab vs The State Of Karnataka Rep By Secretary on 10 January, 2020
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.206651/2015 &
WRIT PETITION NO.206741/2015 (KLR-CON)
Between:
Shaikh Fathru Sab S/o Shaikh Hydersab,
Age 40 years, Occ. Agriculture,
R/o Village Kitta, Tq. Basavakalyan,
Dist. Bidar - 585 327.
... Petitioner
(By Sri Sachin M.Mahajan, Advocate)
AND:
1. The State of Karnataka
by its Secretary,
Department of Revenue,
Vidhana Soudha,
Bangalore - 560 001.
2. The Deputy Commissioner,
Bidar - 585 401.
3. The Assistant Commissioner,
Basavakalyan Sub-Division,
Basavakalyan, Dist. Bidar - 585 327.
... Respondents
(By Sri K.M.Ghate, AGA)
2
These writ petitions are filed under Articles 226 and
227 of the Constitution of India, praying to issue a writ or
order or direction in the nature of certiorari and quash the
endorsement bearing No.PÀAB¹MJ£ï.¹Dgï-13/2015-16/20515 dated
28.09.2015 is produced at Annexure-D and issue a writ or
order or direction in the nature of mandamus directing the
respondent no.2 herein to consider the application filed at
Annexure 'C', expeditiously, within a reasonable time frame.
These petitions coming on for preliminary hearing in
'B' Group this day, the Court made the following:-
ORDER
The petitioner is questioning the impugned order passed by the third respondent as per Annexure 'D' dated 28.09.2015 passed in No.PÀAB¹MJ£ï.¹Dgï-13/2015- 16/20515, wherein the third respondent has rejected the application filed by the petitioner seeking conversion of the petition land.
2. The facts leading to this case are as under :-
The petitioner is the owner and possessor of the agricultural lands bearing Sy.Nos.66/1 and 66/2 together measuring 08 acre 10 guntas situated at Sastapur Village, Basavakalyan Taluk. The petitioner 3 has purchased the said lands as per the registered sale deeds dated 05.07.2014 and 08.05.2014. Pursuant to the acquisition of right and title, petitioner's name was dully mutated in the revenue records.
3. The petitioner moved an application before the third respondent - Assistant Commissioner, as per Annexure 'C' seeking for conversion of the petition lands for residential purpose. The third respondent - Assistant Commissioner by impugned order vide Annexure 'D' virtually usurping the powers of Deputy Commissioner has proceeded to reject the application seeking for conversion of petition lands.
4. On perusal of the impugned order vide Annexure 'D', it is evident that this order is apparently without jurisdiction. The third respondent - Assistant Commissioner on receipt of application has virtually proceeded to hold enquiry unilaterally without having recourse to the guidelines/circular issued by the State 4 Government dated 08.06.1999. For brevity, the circular is culled out as under ;-
"CIRCULAR Subject. - Conversion of Agricultural Land for Non-Agricultural purposes under Section 95 of Karnataka Land Revenue Act, 1964 - Procedure to be followed.
The following guidelines are issued to simplify and maintain uniformity in granting permission to use agricultural land for non-agricultural purposes. These guidelines will have to be scrupulously followed by revenue authorities while disposing applications under Section 95 of the Karnataka Land Revenue Act.
1. The process of Granting/Rejecting conversion shall be completed within 45 days of the receipt of the application. If the concerned sanctioning authorities do not adhere to the time schedule, they will be liable to disciplinary action.
2. The application seeking conversion of land shall be received in duplicate by the Tahsildar's office in the form prescribed at Anneuxre-1 to the circular. The Tahsildar shall forward a copy of the application to the sanctioning authority immediately. A weekly statement of number of applications received by the Tahsildar shall be sent to the sanctioning authority.
3. If any additional information is required the applicant shall be intimated within one week of receipt of the application.
4. The sanctioning authorities shall maintain a single register for all applications of conversion of land as prescribed in Annexure-2.5
5. It is clarified that the revenue authorities are only dealing with conversion of agricultural land for non- agricultural purpose. But mere conversion does not entitle the occupant to utilise the land for the non- agricultural purpose without obtaining sanction/permission from concerned Competent Authority like urban development authority, local bodies like (CMC, TMC, Gram Panchayat, and also Pollution Control Board. These bodies will, subsequent to the conversion order, give necessary sanctions after following due process of Law with necessary safeguards. Therefore obtaining clearances prior to sanction of conversion order is not required.
6. Deputy Commissioners and the Assistant Commissioners should only look into the provisions of the Karnataka Land Revenue Act and other allied laws like the Land Reforms Act, PTCL Act, Land Grant Rules, Land Acquisition Act, etc.,
7. As soon as the application is received by the Tahsildar, the same shall be verified by the Tahsildar. He shall verify the following;
(i) Only the occupant of the land had filed the application,
(ii) The conversion will not defeat any of the following laws, in particular:
(a) Sections 48-A, 77 and 77-A of Karnataka Land Reforms Act, 1961;
(b) Rule 9 of Land Grant Rules;
(c) Section 4(1) and 4(2) and prohibition of PTCL Act;
(d) Rule 102-B of Land Revenue Rules relating to Green Belt.6
(iii) The land has not been notified for acquisition under Sections 4 and 6 of Land Acquisition Act.
8. The burden of verification regarding the above laws lies solely on the Tahsildar and the applicant shall not be asked to produce any documents for the same.
9. The Tahsildar shall forward the application along with his report to the Deputy Commissioner/Assistant Commissioner within 15 days of the receipt of the application. The report should contain a revenue sketch of the area to be converted.
10. The Deputy Commissioner/Assistant Commissioner shall inspect the land to satisfy themselves that the diversion is not likely to cause public nuisance and does not violate the existing provisions of law administered by this department. In areas where the C.D.P./O.D.P. has been published under the K.T.C.P. Act the Deputy Commissioner shall not refuse permission of conversion of such land if it is for the same purpose as specified in the C.D.P./O.D.P.
11. If conversion is to be granted then the applicant has to be issued a notice to pay the conversion fine within 15 days of the notice as per the proforma at Annexure-3.
12. The applicant has to pay the required amount either through the challan/D.D. and give an undertaking as per the proforma at Annexure-4.
13. After payment the Deputy Commissioner/Assistant Commissioner shall issue the conversion order as per the proforma enclosed at Annexure-5. Note : The conditions enumerated in Annexures 4 and 5 are not exhaustive and the sanctioning authorities may impose additional conditions to 7 ensure compliance with any law; regulation applicable to the particular areas."
5. The perusal of the order under challenge as per Annexure 'D' this Court is unable to gather as to whether a proper enquiry as contemplated under the Act and as per the guidelines, is carried out by the Assistant Commissioner. On perusal of the guidelines, it is evident that even if the application was submitted to the third respondent - Assistant Commissioner, the said authority was required to forward it to Tahasildar and it is for the Tahasildar to verify the records, find out whether the occupant has filed an application and the Tahasildar is further required to enquire as to whether the conversion would not deviate any of the following laws particularly the provisions of Sections 48-A, 77 and 77-A of Karnataka Land Reforms Act, 1961. The Tahasildar is also required to examine as to whether the proposed conversion sought is in violation of Rule 9 of Land Grant Rules. The Tahasildar is further required to 8 find whether the proposed conversion sought by the occupant would attract the provisions under Section 4(1) and 4(2) of the prohibition of PTCL Act and Rule 102-B of the Land Revenue Rules, relating to green belt. After securing a report from the Tahasildar, the third respondent or Deputy Commissioner is required to call upon the occupant, if any further information is required.
6. On perusal of the above said guidelines and also relevant provisions under the Karnataka Land Revenue Act, 1966, it is clearly evident that third respondent - Assistant Commissioner has virtually given a go by to the guidelines, which are mandatory in nature and has virtually by usurping the power of Deputy Commissioner, has proceeded to reject the application seeking for conversion. This order is patently bad in law and suffers from perversity for want of jurisdiction and authority. The Assistant Commissioner after examining the case of the petitioner 9 as per the guidelines was required to forward the papers to the second respondent - Deputy Commissioner, Bidar. However, in the present case on hand, the third respondent has passed the impugned order, which is not sustainable.
7. For the reasons stated in the preceding para, this Court is of the view that the order passed by the Assistant Commissioner as per Annexure 'D' is quashed. The matter is remitted back to the third respondent-Assistant Commissioner. The third respondent in a strict compliance of the guidelines as stated supra shall prepare a report and thereafter forward the papers to the second respondent - Deputy Commissioner for further course of action. The impugned order passed by third respondent- Assistant Commissioner is in gross violation of principles of natural justice. Even on that ground the impugned order as per Annexure 'D' is not maintainable and on 10 this ground also Annexure 'D' deserves to be quashed by this Court.
With these observations, the writ petitions are allowed and impugned order passed by the third respondent - Assistant Commissioner as per Annexure 'D' is quashed and matter is remitted to third respondent-Assistant Commissioner for consideration in accordance with law.
SD/-
JUDGE sn