A Mohan vs State Of Karnataka on 5 December, 2013

[Cites 21, Cited by 0]

Karnataka High Court

A Mohan vs State Of Karnataka on 5 December, 2013

Bench: Anand Byrareddy

                                   1



IN THE HIGH COURT OF KARNATAKA AT BANGALORE

      DATED THIS THE 05Th DAY OF DECEMBER 2013

                            BEFORE:

     THE HON'BLE MR. JUSTICE ANAND BYRAREDDY

       WRIT PETITION No.16410 OF 2013 (LA-KIADB)

BETWEEN:

A. Mohan,
Son of A. Basappa,
Aged about 60 years,
Agriculturist,
Residing at No.20,
AKM Road, 2nd Main Road,
P.J.Extension,
Davanagere.
                                       ...PETITIONER

(By Shri. R.L. Patil, Advocate )

AND:

1.     State of Karnataka,
       Represented by its Secretary,
       Department of Commerce
       and Industry,
       Vikas Soudha,
       Bangalore - 560 001.

2.     The Special Land Acquisition
       Officer, Karnataka Industrial
                                  2



      Area Development Board,
      Nrupathunga Road,
      Bangalore - 560 001.
                                       ...RESPONDENTS

(By Shri. K.B. Monesh Kumar, Advocate for Respondent No.2
Shri. H.T. Narendra Prasad, Additional Government Advocate for
Respondent No.1)

                              *****
      This     Writ Petition filed under Article 226 of the
Constitution of India, praying to quash the order dated 31.12.2012
passed by the second respondent vide Annexure-K and direct the
respondent to pay the compensation at the rate of Rs.155/- per
square feet with all consequential statutory benefits and etc;

      This petition, having been heard and reserved on
25.11.2013 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-


                             ORDER

The facts of the case are as follows:-

2. The petitioner is said to be the owner of land bearing Survey No.8/2, measuring 6 acres and 16 guntas, of Karur village, Davangere taluk and district. The land is said to be on the Pune -

Bangalore Highway. It is claimed that the area around the petitioner's land has developed into a commercial area and that 3 the surroundings have lost their agricultural character. It is for this reason that the petitioner is said to have approached the competent authority seeking change in land use under Section 14 of the Karnataka Town and Country Planning Act, 1961 (Hereinafter referred to as the 'KTCP Act', for brevity) as on 21.11.1997. It was said to have been granted on 28.11.1997.

It is stated that the Comprehensive Development Plan (CDP) prepared by the Town Planning Authority of Davangere Development Authority has incorporated the change of land use from "Semi- Public use " to "Residential use " in the CDP.

The petitioner is said to have formed a residential layout consisting of 149 house sites. The layout plan is said to have been approved by the Davangere Development Authority and the Town Planning Authority - on 1.12.1998.

The petitioner had not disposed of the house sites by the time the second respondent had issued a notification under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966 4 (Hereinafter referred to as the 'KIAD Act', for brevity) dated 5.3.2001, proposing to acquire the land of the petitioner, apart from other lands. The petitioner is said to have filed his objections. Inspite of which, a final notification is said to have been issued under Section 28(4) of the KIAD Act, on 1.3.2002.

Possession was also said to have been taken. An award termed as a 'consent award' is said to have been passed, though the petitioner claims never to have consented to the same.

It transpires that several land owners, who had obtained permission for conversion of land use, being aggrieved by the compensation amount, payable in respect of the lands acquired, at Rs.4 lakh per acre, had raised a serious protest, at which an Advisory Committee was said to have been formed by the authorities, which in turn, recommended the rate of compensation of Rs.155/- per square foot, in respect of converted lands.

It transpires that the said rate of compensation was not paid to the several land owners, which had compelled them to approach this court by way of writ petitions in WP 13398-13407/2009, and 5 it was only on an order being passed, that the respondents are said to have paid the same. As the petitioner was also denied compensation at the rate fixed for converted land, he is said to have made representations to the respondents seeking the same.

As it was not considered, the petitioner is said to have approached this court by way of a writ petition in WP 15484/2011 and this court by its order dated 2.6.2011, directed the respondents to consider the representation of the petitioner. It transpires that the second respondent has rejected the representation of the petitioner on the ground that the petitioner had not produced the conversion order under Section 95 of the Karnataka Land Revenue Act, 1964.

(Hereinafter referred to as the 'KLR Act', for brevity) as per order dated 31.12.2012. It is this which is under challenge in this petition.

3. Shri R.L.Patil, the learned counsel appearing for the petitioner would contend that first of all, the purported award made in favour of the petitioner being termed as a 'consent 6 award', is itself misleading. The petitioner had never consented to any such award.

It is contended that the petitioner having approached the competent authority under the provisions of the KTCP Act and having obtained an order as to the change in the user of the land, the insistence on the part of the second respondent in demanding the production of a conversion order under Section 95 of the KLR Act, was wholly redundant.

Reliance is placed on a decision of this court in the case of Special Deputy Commissioner v. Narayanappa, ILR 1988 Kar.1398.

4. The KIADB has contested the petition and it is urged that the claim of the petitioner as to the denial of compensation at Rs.155/- per square foot, was raised earlier, but without furnishing the details on the basis of which such a claim was made and hence it had been constrained to deposit the compensation payable as if the land was not converted land, before the reference 7 court in compliance of Section 30 and 31 of the Land Acquisition Act, 1894. (Hereinafter referred to as the 'LA Act', for brevity).

It was open to the petitioner to challenge the award as prescribed under Section 18 of the LA Act. As the petitioner had failed to pursue his remedy therein - the reference is apparently closed and it was left to the petitioner to pursue his claim subject to proof of title. It had been so observed by this court in the writ petition in WP 15484/2011, which had been filed by the petitioner. It is pursuant to the said order that it was held by the competent authority that the petitioner had not produced material to demonstrate that the petitioner had obtained an order under Section 95 of the KLR Act.

The above order having been challenged further in yet another writ petition in WP 26858/2012, it was contended on behalf of the State Government that the Orders obtained by the petitioner under the provisions of the KCTP Act are in the nature of an approval to approach the Deputy Commissioner to seek 8 conversion of the land for non-agricultural purposes and hence was held disentitled to the rate of compensation claimed @ Rs.155/- per square foot. The said petition was disposed of on the ground of non-observance of principles of natural justice and it was directed that the matter be considered afresh. The same has been rejected yet again by the concerned authority, on the same ground. Reliance is placed on the decision of the apex court in Goa Housing Board v. Rameshchandra Pawaskar, (2011) 10 SCC 371, to justify the impugned order.

5. The point for consideration in the present case on hand would be :

"Whether the petitioner is entitled to claim compensation in respect of his land @ Rs.155/- per square foot, as has been fixed for land converted for non-agricultural or residential use ?"

In order to address the above issue it is relevant to refer to the following provisions of the KTCP Act and the KLR Act and the same are hence reproduced for ready reference:-

Sections 14 and 14-A of the KTCP Act "14. ¹[Enforcement of the Master Plan and the Regulations] - ²[(1) On and from the date on which a declaration of intention to prepare a Master Plan 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 subject to Section 14-A shall conform to the provisions of this Act, the Master Plan and the Report, as finally approved by the State Government under sub-section (3) of Section 13.]

1. Substituted for the words "Enforcement of the Outline Development Plan and the Regulations" by Act No.1 of 2005 w.e.f.14.2.2005.

2. Sub-section (1) substituted by Act No.1 of 2005, w.e.f. 14.2.2005.

10 3

(2) [xxxxx] No such change in land use or development as is referred to in sub-section (1) shall be made except with the written permission of the Planning Authority which shall be contained in a commencement certificate granted by the Planning Authority in the form prescribed:

[Provided that where the use or change of land use under this section needs the diversion of agricultural land to non-agricultural purposes, such use or change of use shall not be permitted, unless permission is obtained in accordance with the provisions of the Karnataka Land Revenue Act, 1964 for such diversion.] 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;

(b) the following 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 for maintenance, improvement or other alteration of any building, being works which affect only the interior of the building or which do not materially affect the external appearance of the building;

3. The words "Subject to the rules or bye-laws made under the law constituting the local authority concerned" omitted by Act No.14 of 1964.

4. Proviso to sub-section (2) inserted by Act No.2 of 1991, w.e.f.20.3.1991.

11 1

[(ii) xxxxxx

(iii) xxxxxx]

(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 for any other purpose on the day on which the declaration of intention to prepare the ²[Master Plan] is published under sub-section (1) of section 10 is resumed;

(vi) when land was normally used for one purpose and also on occasions for any other purpose, the use of the land for that other purpose on similar occasions.

(3) Every application for 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 information as may be required in this behalf by the Planning Authority.

1. Items (ii) and (iii) omitted by Act No.23 of 2004, w.e.f.3.6.2004.

2. Substituted for the words "Outline Development Plan" by Act No.1 of 2005 w.e.f.14.2.2005 12 1 [14-A. Change of land use from the ²[Master Plan].--(1) At any time after the date on which the ³[Master Plan] for an area comes into operation, the Planning Authority may, with the previous approval of the State Government, allow such changes in the land use or development from the 4[Master Plan] as may be necessitated by topographical or cartographical or other errors and omissions, or due to failure to fully indicate the details in the plan or changes arising out of the implementation of the proposals in 5 [Master Plan] or the circumstances prevailing at any particular time, by the enforcement of the plan:

Provided that,--

(a) all changes are in public interest;

(b) the changes proposed do not contravene any of the provisions of this Act or any other law governing planning, development or use of land within the local planning area; and

(c) the proposal for all such changes are published in one or more daily newspapers, having circulation in the area, inviting objections from the public within a period of not less than fifteen days from the date of publication as may be specified by the Planning Authority.

1. Section 14-A inserted by Act No.17 of 1991, w.e.f.19.4.1991

2. Substituted for the words "Outline Development Plan" by Act No.1 of 2005 w.ef. 14.2.2005.

3. Substituted for the words "Outline Development Plan" by Act No.1 of 2005 w.ef. 14.2.2005.

4. Substituted for the words "Outline Development Plan" by Act No.1 of 2005 w.ef. 14.2.2005.

5. Substituted for the words "Outline Development Plan" by Act No.1 of 2005 w.ef. 14.2.2005.

(2) The provisions of sub-section (2) and (3) of section 14 shall apply mutatis mutandis to the change in land use or development from the 1[Master Plan].] 2 [(3) Notwithstanding anything contrary contained in the Act, if the change in land use or development is from commercial or industrial to residential or from industrial to commercial and the stipulated fee is paid and the Local Planning Authority is informed prior to effecting the change, the permission for such change of land use or development shall be deemed to have been given.]

1. Substituted for the words "Outline Development Plan" by Act No.1 of 2005 w.ef. 14.2.2005.

2. Sub-section (3) inserted by Act No.1 of 2005 w.e.f.14.2.2005 14 Sections 95 to 98 of the KLR Act "95. Uses of agricultural land and the procedure for use of agricultural land for other purpose.--(1) Subject to any law for the time being in force regarding erection of buildings or construction of wells or tanks, an occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm buildings, construct wells or tanks, or make any other improvements thereon for the better cultivation of the land or its more convenient use for the purpose aforesaid.

(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 1 [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 3[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 purpose of land use specified in respect of the land in such plan:]

1. Inserted by Act No.2 of 1991, w.e.f. 20.3.1991 by Notification No.RD 43 LPG 91, dated 19.3.1991

2. Proviso Inserted by Act No.2 of 1991, w.e.f. 20.3.1991 by Notification No.RD 43 LPG 91, dated 19.3.1991

3.Substituted for the words "Outline Development Plan" by Act No.1 of 2005 w.ef. 14.2.2005.

4 5 [ [Provided further that] in Dakshina Kannada District, subject to any law for the time being in force regarding erection of buildings or the construction of wells or tanks, an occupant of 6[dry (punja) land, wet land or garden land] who is not,--

(a) a person registered or liable to be registered as an occupant of such land under section 48A of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962); or

(b) a grantee of such land under section 77 of the said Act, may, without obtaining the permission required under this sub-section and notwithstanding anything contained therein, divert such land or part thereof to any other purpose after sending a prior notice in that behalf, in the prescribed form to the Tahsildar and paying in the prescribed manner, the fine prescribed under sub-section (7).] 7 [(2-A) Where any occupant of land assessed or held for the purpose of agriculture has diverted such land or part thereof to residential purpose without obtaining the permission of Deputy Commissioner under sub-section (2), prior to 31st day of December, 2008 and desirous to get such diversion be regularized, shall,

4. Proviso Inserted by Act No.20 of 1983 and shall be deemed to have come into force w.e.f. 8.6.1983

5. Substituted for the words "Provided that" by Act No.2 of 1991 w.e.f.20.3.1991 by Notification No.RD 43 LPG 91, dated 19.3.1991

6. Substituted for the words and brackets "dry (punja) land" by Act No.2 of 1991, w.e.f. 20.3.1991 by Notification No.RD 43 LPG 91, dated 19.3.1991.

7. Sub-sections (2-A), (2-AA) and (2-AAA) inserted by Act No.26 of 2009, w.e.f. 29.9.2009.

apply 1[within the period of one year from the date of commencement of the Karnataka Land Revenue (Amendment) Act, 2011] in such form, alongwith such fee and penalty, as may be prescribed, to the Deputy Commissioner. On receipt of such application, the Deputy Commissioner may, notwithstanding anything contained in this Act, but subject to the provisions of any other law for the time being in force and subject to such conditions and in such manner as may be prescribed, on production of such evidence as he may require it to be necessary and after an enquiry, regularize or refuse to regularize except where such land.-

(i) lies in the line of natural drains or course of valley;

(ii) belongs to the State Government or an authority owned or controlled by the State Government or any local Authority;

(iii) coming in the way of existing or proposed roads, inner or outer ring roads, national high ways, by pass over ring roads including those proposed for widening and railway lines, tram ways, mass rapid transit system projects, communications and other civic facilities or public utilities;

(iv) is a forest land;

(v) belonging to another person over which the applicant has no title;

(vi) is reserved for parks, play grounds, open places or for providing any civil amenities;

1. Substituted for the words, brackets and figures "within the period of one year from the date of commencement of the Karnataka Land Revenue (Second Amendment) Act, 2009" by Act No.29 of 2011 shall be and shall always be deemed to have been substituted.

(vii) or building is abutting to neighbouring property, storm water drains, tank bed areas, river course or beds and canals or below the high tension electric line;

(viii) use is against height restrictions specified in zoning regulations for heritage monuments, aerodromes and defence Regulations;

(ix) not conforms to any clearance form high- tension lines or fire protection measures;

(x) is in the area covered by the Coastal Zone Regulations of the Ministry, Environment and Forest, Government of India;

(xi) regularization of violation in respect of change of land use shall be made as far as may be in accordance with Section 14-A of the Karnataka Town and Country Planning Act, 1961;

(xii) or development in respect of any building having more than two floors shall be regularized unless.-

(a) a certificate from a Structural Engineer is produced regarding the structural stability of such building;

(b) a No Objection Certificate is obtained from the Fire Force Department.

(xiii) or unauthorized development or construction made in agricultural zone of approved Master Plan or green belt area declared under Karnataka Land Revenue Act, 1964; and

(xiv) is covered under any other prohibition as may be prescribed.

(2-AA) Burden of proving that the diversion or change of land use was made for residential purpose prior to 31st day of December, 2008 shall lie on the 18 applicant who seeks regularization of such unauthorized diversion or change of land use.

(2-AAA) All such diversions or change of land use which are not regularized or where applicant does not apply within the time specified in sub-section (2-A) shall be liable to be demolished or brought back to their earlier use and expenses incurred thereon shall be collected from such person as arrears of land revenue.] (3) Permission to divert may be refused by the Deputy Commissioner on the ground 1[that the diversion is likely to defeat the provisions of any law for the time being in force or that it is likely to cause a public nuisance] or that it is not in the interests of the general public or that the occupant is unable or unwilling to comply with the conditions that may be imposed under sub-section (4).

[3-A) x x x x x.

(3-B) x x x x x.] (4) Conditions may be imposed on diversion in order to secure the health, safety and convenience, and in the case of land which is to be used as building sites, in order to secure in addition that the dimensions, arrangement and accessibility of the sites are adequate for the health and convenience of occupiers or are suitable to the locality and do not contravene the provisions of any law relating to town and country planning or the erection of buildings.

1. Substituted for the words "that the diversion is likely to cause a public nuisance"

by Act No.2 of 1991, w.e.f. 20.3.1991 by Notification No.RD 43 LPG 91; dated 19.3.1991.

2. Sub-sections (3-A) and (3-B) as inserted by Act No.23 of 1984, w.e.f.28.4.1984 and omitted by Act No.1 of 2005, w.e.f. 14.2.2005.

(5) Where the Deputy Commissioner fails to inform the applicant of his decision on the application made under sub-section (2) within a period of four months, from the date of receipt of the application, the permission applied for shall be deemed to have been granted.

(6) Unless the Deputy Commissioner shall, in any particular instance otherwise direct, no application under sub-section (2) shall be recognised unless it is made by the occupant.

[(6a) In Dakshina Kannada District, Kodagu District, and Kollegal Taluk of Mysore District where any land assessed or held for purposes of agriculture has been diverted or used for any other purposes, before the date of commencement of the Karnataka Land Revenue (Amendment) Act, 1981, the land so used together with the land appurtenant to any building (other than a farm house) therein, not exceeding three times the built area of such building, shall with effect from such date be deemed to have been permitted to be used for purposes other than agriculture.] 2 [(7) When any land assessed or held for the purpose of agriculture is permitted under sub-section (2) 3[or is

1. Sub-section (6-A) inserted by Act No.42 of 1981 and shall be deemed to have come into force w.e.f. 2.10.1980..

2. Sub-section (7) substituted by Act No.42 of 1981 and shall be deemed to have come into force w.e.f. 2.10.1980.

3. Inserted by Act No.20 of 1983 and shall be deemed to have come into force w.e.f. 8.6.1983.

diverted under the 4[provisos] to the said sub-section] or is deemed to have been permitted under sub-section (5) or sub-section (6a), to be used for any purpose unconnected with agriculture, the Deputy Commissioner may, subject to such rules as may be made by the State Government in this behalf, require the payment of a fine. No assessment shall be leviable on such land thereafter except under sub-section (2) of section 83.

Explanation.--For the purpose of this section, "occupant" includes a mulgeni tenant or a permanent tenant.]

96. Penalty for using agricultural land for other purpose without permission.--(1) If any land assessed or held for the purpose of agriculture be diverted or used for any other purpose without the permission of the Deputy Commissioner, or before the expiry of the period prescribed in sub-section (5) of section 95, the Deputy Commissioner may summarily evict the occupant and the person responsible for the diversion from the land so diverted and any building or other construction erected thereon shall also, if not removed after such written notice as the Deputy Commissioner may deem reasonable, be liable to forfeiture or to summary removal. The occupant and the person responsible for the diversion shall also be liable to pay, such penalty not exceeding one thousand rupees as the Deputy Commissioner may, subject to the rules made by the State Government in this behalf, direct. (2) If any land assessed or held for the purpose of agriculture has been diverted for any other purpose in contravention of an order passed or of a condition

4. Substituted for the word "proviso" by Act No.2 of 1991.

imposed under section 95, the Deputy Commissioner may serve a notice on the person responsible for such contravention directing him, within a reasonable period to be stated in the notice, to use the land for its original purpose or to observe the condition; and such notice may require such person to remove any structure, to fill up any excavation or to take such other steps as may be required in order that the land may be used for its original purpose, or that the condition may be satisfied. Subject to the orders of the State Government, the Deputy Commissioner may also impose on such person a penalty not exceeding one thousand rupees for such contravention and a further penalty not exceeding twenty-five rupees for each day during which such contravention continues.

(3) If any person served with a notice under sub- section (2) fails within the period stated in the notice to take steps ordered by the Deputy Commissioner under that sub-section, the Deputy Commissioner may himself take such steps or cause them to be taken; and any cost incurred in so doing shall be recoverable from such person in the same manner as an arrear of land revenue.

[(4) Notwithstanding anything contained in this section, when any land assessed or held for the purpose of agriculture has been diverted or used for any other purpose without the permission of the Deputy Commissioner or before the expiry of the period prescribed in sub-section (5) of section 95 or in contravention of an order passed or of a condition imposed under section 95, the Deputy Commissioner may, subject to such rules as may be prescribed and

1. Sub-section (4) inserted by Act No.10 of 1985 and shall be deemed to have come into force w.e.f. 8.6.1984.

subject to any law for the time being in force regarding erection of buildings or construction of wells and tanks, and subject to prescribed terms and conditions, compound such diversion or use, on payment of the prescribed amount, which may be different areas or for different contraventions or for different purposes for which diversion or use is made.]

97. Diversion of non-agricultural land held for a specific purpose.--The provisions of sections 95 and 96 shall mutatis mutandis be applicable in respect of the diversion or use of any land held free of assessment on condition of being used for a specific non-agricultural purpose to any other non-agricultural purpose.

98. Permission may be granted on terms.--Nothing in sections 95 and 96 shall prevent the granting of the permission aforesaid in special cases on such terms and conditions as may be agreed to between the Deputy Commissioner and the occupant, in accordance with and subject to the terms and conditions specified in the rules made in this behalf by the State Government. "

6. From a reading of the above provisions, it is evident that every land use, every change in land use and every development in the area covered by the Master Plan, approved by the State Government under the KTCP Act, shall conform to the same.

Any such change in land use shall only be with the permission of the Planning Authority. Further, where the use or change of land 23 use under Section 14 of the KTCP Act needs the diversion of agricultural land to non-agricultural purposes, such use or change of use can only be with the permission obtained in accordance with the provisions of the KLR Act for such diversion.

7. In the instant case, it is not in dispute that the petitioner had obtained the written permission of the Planning Authority under the KTCP Act for the change in land use. The same was granted as on 28-11-1997. However, the petitioner had not thought it fit to seek permission of the competent authority under the provisions of the KLR Act. The petitioner was apparently drawing inspiration from a decision of this Court, which is sought to be relied upon, namely, Special Deputy Commissioner v.

Narayanappa , ILR 1988 Kar 1398, wherein a Division Bench of this court has held, while answering the question, whether the Special Deputy Commissioner had any power at all to accord permission under Section 95 of the KLR Act - it was opined that a change of land use falling with in the area of the Outline 24 Development Plan or the Comprehensive Development Plan (CDP) could be effected or undertaken only with the written permission of the Planning Authority under the KTCP Act. And that the jurisdiction of the competent authority under the KLR Act gets ousted. The said decision was rendered as on 16.3.1987.

However, the following proviso has been inserted by Act.No.2 of 1991, with effect from 20.3.1991.

" .....[Provided that where the use or change of land use under this section needs the diversion of agricultural land to non-agricultural purposes, such use or change of use shall not be permitted, unless permission is obtained in accordance with the provisions of the Karnataka Land Revenue Act, 1964 for such diversion.] Hence, the insistence that the petitioner was also required to obtain the permission of the authority under the KLR Act, apart from the permission obtained from the Planning Authority under the KTCP Act, would appear to be in consonance with the above.

But it is also to be noticed that the following Proviso is inserted, by Act No.2 of 1991, with effect from 20.3.1991, following Sub-

section (2) of Section 95 of the KLR Act , thus :

"....... [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 purpose of land use specified in respect of the land in such plan:] "

It would hence follow that if the petitioner had in the normal course made an application before the Deputy Commissioner concerned, seeking such permission for diversion pursuant to the permission granted by the Planning Authority under the KTCP Act, it may have been granted without any question. It is however, a fact that no such application was filed.

The filing of any such application after the acquisition proceedings were initiated under the KIAD Act, and especially on the land having vested with the State on those proceedings having progressed further, having become redundant, the question is 26 whether this peculiar circumstance should disentitle the petitioner from claiming compensation in respect of the land in question as being converted land .

It is also evident that the petitioner would have been entitled to an order under Section 95 of the KLR Act only if such use or change of use was permitted under the KTCP Act and not otherwise. The petitioner did have the permission for such change of use under the KTCP Act. The further permission under the KLR Act was thus a necessary formality to put the land to such use. But with the acquisition of the land by the State, such user was no longer possible on the part of the petitioner and is not relevant. There can however be no doubt that the land is certainly capable of being considered to be in the nature of converted land, for purposes of payment of compensation.

8. In so far as the decision in the case of Goa Housing Board, sought to be relied upon by the respondent, is concerned -

the same may not apply to the present case on hand. The land in question in that case was capable of being put to use only as 27 agricultural land as it was land that had vested in the tenant under the provisions of the Goa Land Use (Regulation) Act, 1991. It was hence held that valuation of such land could not be with reference to its potential for use for non-agricultural building purposes.

Accordingly, the petitioner being denied compensation at the rate of Rs.155/- per square foot and other statutory benefits for reasons stated as at Annexure - K to the writ petition, cannot be sustained. The same is quashed. The respondents are directed to pay compensation to the petitioner as prayed for.

Sd/-

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