Karnataka High Court
Hubli-Dharwad Urban Development ... vs The State Of Karnataka on 22 October, 2018
Bench: B.Veerappa, H.T.Narendra Prasad
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF OCTOBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE B.VEERAPPA
AND
THE HON'BLE MR.JUSTICE H.T. NARENDRA PRASAD
WRIT APPEAL No.100124/2018 [GM-RES]
BETWEEN:
HUBLI-DHARWAD URBAN DEVELOPMENT
AUTHORITY, NAVANAGAR,
HUBLI-580025
REP. BY ITS COMMISSIONER.
... APPELLANT
(BY SRI. G.I. GACHCHINAMATH, ADV.)
AND:
1. THE STATE OF KARNATAKA
URBAN DEVELOPMENT DEPARTMENT,
VIKASA SOUDHA, BENGALURU,
PIN-560001, REP. BY ITS SECRETARY,
2. KIRLOSKAR ELECTRICAL CO. PVT. LTD.,
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956
PB 112, GOKUL ROAD,
HUBLI, KARNATAKA,
PIN-580030
REP. BY ITS ASSOCIATE VICE
PRESIDENT, LEGAL AND COMPANY
SECRETARY SRI. CHINMOY PATNAIK.
... RESPONDENTS
(BY SRI. RAVI V HOSAMANI, AGA FOR R1)
SRI. D.L. N. RAO, SR. COUNSEL FOR SRI. HEMANTH R
CHANDANGOUDAR, ADV. FOR R2)
:2:
THIS APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961 PRAYING THIS
HON'BLE COURT TO SET-ASIDE THE IMPUGNED ORDER
DATED 21.02.2018 MADE IN WP NO.105734/2016 (GM-
RES) PASSED BY THE LEARNED SINGLE JUDGE AND
FURTHER DISMISS THE WRIT PETITION, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR PRELIMINARY
HEARING, THIS DAY, B.VEERAPPA J., DELIVERED
THE FOLLOWING:
JUDGMENT
This intra-court appeal is filed by the Hubli- Dharwad Urban Development Authority (for short, 'HUDA') against the order passed by the learned Single Judge of this Court dated 21.02.2018 made in WP No.105734/2016 allowing the writ petition thereby quashing the communication dated 17.06.2016 issued by the present appellant with a direction to the appellant-2nd respondent to consider the petitioner's application as per Annexure-H dated 15.06.2016 for approval of the layout plan within two months from the date of receipt of the copy of the said order. :3:
2. Respondent No.2 herein who is the petitioner before the learned Single Judge filed WP No.105734/2016 for a writ of certiorari to quash the Endorsement dated 17.06.2016 bearing Y.V/Vinyasa/Rayanala/2016-17-1174 issued by the appellant-2nd respondent to the petitioner as per Annexure-J and to issue a writ of mandamus directing to 2nd respondent to consider the petitioner's application dated 15.06.2016 at Annexure-J for sanction of the layout plat in Sy.No.88 of Raynala Village, Hubli situated within the jurisdiction of the 2nd respondent to an extent of 20 acres.
3. It is the case of the respondent No.2- petitioner before the learned Single Judge that it has established a factory for manufacturing Electrical Motors and Generators over an extent of 88.63 acres in Sy.No.88 and 89 of Rayanala Village, Hubli Taluk situated within the jurisdiction of the 2nd respondent. The Deputy Commissioner, Dharwad through the :4: Assistant Commissioner, Dharwad granted 80.27 acres in Sy.No.88 and 8.26 acres in Sy.No.89 and Phoot Kharab land of 0.10 guntas in Sy.No.89 of Rayanala village to the petitioner on the directions of the 1st respondent vide its letter No. RD 173 GOF 63. It is further case of the 2nd respondent that the Deputy Commissioner, Dharwad and Divisional Commissioner made various correspondences concerning the allotment of the land in favour of the petitioner and consequently, an Agreement was entered into between Tahsildar, Hubli and the petitioner vide Form-F (Rule 87A to 87C) of the Karnataka Land Revenue Rules on 5.3.1965 with certain conditions including the one direction to the petitioner not to alienate the land for a period of 15 years. Thereafter, the Deputy Commissioner by an order dated 2.7.1965 granted conversion of the above lands from agriculture to industrial purpose on payment of Rs.500/- per acre as Conversion Fee. :5:
4. It is further case of the petitioner that the petitioner has utilized around 70% of the land for industrial activities and kept the remaining land for future development. Since the entire Occupancy Price at market value of Rs.2000/- per acre was paid by the petitioner in its entirety, the above referred condition of non-alienation at Clause No.8 of the Agreement dated 5.3.1965 was removed at the time of handing over the possession of the land to the petitioner as per the direction of the Divisional Commissioner vide letter No. RD 312 GCB 64. Subsequently, the Deputy Commissioner, Dharwad vide letter No. LB. VSR 1289 dated 13.06.1966 passed an order directing deletion of Clause 8 of the Agreement which restricted the petitioner not to alienate the land for 15 years.
5. It is further case of the 2nd respondent- petitioner that the petitioner intended to develop a residential layout in the remaining area of 20 acres in Sy.No.88. The decision to develop the layout is also on :6: account of the entire area surrounding the petitioner's land, except the petitioner's land was earmarked for residential development in the Master plan prepared by the 2nd respondent. Therefore, the petitioner made representation to the present appellant seeking permission for change of land use, the same was considered by the appellant by the order dated 28.10.2015 granted permission for change of land use to an extent of 20 acres from industrial to residential purposes by exercising the power under Section 14A(3) of the Karnataka Town and Country Planning Act. Subsequently, the present appellant addressed a letter to the Deputy Commissioner, Dharwad dated 22.02.2016. Thereafter, the petitioner/respondent No.2 made a request vide its letter dated 15.06.2016 as per Annexure-H to the present appellant for approval of layout plan in Sy.No.88 of Raynala village to an extent of 20 acres. The present appellant by the endorsement dated 17.06.2016 rejected the request of the sanction of the layout plan on the ground of non-submission of :7: conversion order of the said lands by the Deputy Commissioner, Dharwad to residential purposes, which was the subject matter of the writ petition before the learned Single Judge in WP No.105734/2016. The learned Single Judge after hearing both the parties, by the impugned order dated 21.02.2018 allowed the writ petition and quashed the endorsement issued by the present appellant dated 17.06.2016 with a direction to the present appellant to consider the application of the petitioner dated 15.06.2016 within two months. Hence, the present appeal is filed by the Hubli-Dharwad Urban Development Authority.
6. We have heard the learned counsel for the parties to the lis.
7. Sri. G.I. Gachchinamath, the learned counsel for the appellant vehemently contended that the impugned order passed by the learned Single Judge allowing the writ petition, directing the present appellant to consider the representation of the petitioner :8: for approval of the layout plan within two months is erroneous and contrary to the material on record. He would further contend that in view of the provisions of Section 97 of the Karnataka Land Revenue Act (for short, 'the Act'), the lands which are held by the petitioner though it is a converted land for a specific purpose and the beneficiary intends to utilize the land for another non-agricultural purpose then the provisions of Sections 95 and 96 of the Act would apply mutatis mutandis. Therefore, the learned Single Judge was erred in holding that the provisions of Karnataka Land Revenue Act would have no application to the lands of the petitioner is erroneous. He further contended that under Section 95(2) of the Act emphasizes that if the lands are covered under the Master plan then the Deputy Commissioner is bound to grant the conversion order thereby the impugned endorsement issued by the appellant as per Annexure-J is justified. Therefore, the impugned order passed by :9: the learned Single Judge is not tenable in the eye of law. Therefore, he sought to allow the appeal.
8. Per contra, Sri. D.L.N. Rao, the learned Senior Counsel for respondent No.2 sought to justify the impugned order and contended that the Deputy Commissioner as long back as 2.7.1965 granted permission to the petitioner for converting the use of said land from agriculture to industrial purpose on payment of Rs.500/- per acre to the entire land i.e. total extent of 89.23 acres. The said order has reached finality, subsequently, the very appellant-HUDA by an order dated 28.10.2015 permitted the petitioner for change of land use to extent of 20 acres from industrial to residential purpose by exercising the power under Section 14A (3) of the Karnataka Town and Country Planning Act. Therefore, the endorsement issued by the HUDA vide Annexure-J was contrary to the law. Once the lands are converted, the lands ceased to become exceptional. Therefore, the question of again : 10 : obtaining permission from the Deputy Commissioner under Section 95(2) of the Act would not be applicable. Therefore, the learned Single Judge was rightly quashed the impugned endorsement issued by the appellant- HUDA by allowing the writ petition, directing the Authority to consider the representation of the petitioner for approval of the layout plan. He would further contend that it is undisputed fact that the property is within the limits of Corporation. Once the lands are within the corporation limits, the question of again obtaining permission from the Deputy Commissioner would not arise.
9. In support of his contentions, Sri. D.L. N. Rao, the learned senior counsel relying upon two judgments of this Court
1) M. Muninarayana Swamy and Another Vs. State of Karnataka, rep. by its Secretary, Housing and Urban Development and Others, reported in ILR 2012 KAR 3428 and
2) J. M. Narayana and Others Vs. Corporation of the City of Bangalore, by its Commissioner : 11 : Office, Bangalore and Others, ILR 2005 KAR 60, sought to dismiss the appeal.
10. Sri. Ravi V Hosamani, the learned AGA for respondent No.1 sought to support the arguments advanced by the learned counsel for the appellant- HUDA.
11. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including the order passed by the learned Single Judge carefully.
12. It is undisputed fact that the land bearing RS No.88 and 89 of Raynala village of Hubballi taluk in all measuring 89 acres 23 guntas were granted for industrial purpose to the petitioner company by the Government. Accordingly, the Agreement came to be executed between the petitioner and Government on 5.3.1965. It is also undisputed fact that on the application made by the petitioner before the Deputy : 12 : Commissioner for conversion, the Deputy Commissioner by the order dated 2.7.1965 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 2021, 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 acres in Sy.No.88/P-1 from industrial purpose to residential purpose.
13. It is also not in dispute that the present appellant submitted the communication dated 22.02.2016 to the Deputy Commissioner, Dharwad : 13 : 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.
14. 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 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. Accordingly, the learned Single Judge has : 14 : rightly allowed the writ petition quashing the endorsement issued by the present appellant with a direction to the present appellant to consider the application/representation of the petitioner dated 15.06.2016 for approval of the layout plan within two months from the date of receipt of the copy of the said order.
15. It is also not in dispute that the lands in question are within the limits of the Corporation. The question of obtaining permission from the Deputy Commissioner would not arise in view of the dictum of the Co-ordinate Bench of this Court in the case of M. Muninarayana Swamy and Another (supra), wherein para-3 reads as under:
"3. It is not in dispute that the lands are situated in Ward No.9 of Chikkaballapur Town and when the property situated within the Town Municipal Council area when Town Municipal Council has collected development charges from the appellants and granted plan for construction of the compound and in the : 15 : planning area if it has lost the character of agriculture, the Deputy Commissioner will not get any right to cancel the Khata on the ground that the appellants have not obtained an order of conversion. Therefore, we are of the opinion that there is no necessity for the appellants to obtain conversion from agriculture to non-agriculture, if the are comes within the Town Municipal Council limits and in the background of Town Municipal Council collecting the developmental charges and treated as Municipal property."
16. 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 (supra) 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 notification issued much earlier to the filing of the suit. As a result of such inclusion, the taxes applicable within the Corporation limits would by operation of law : 16 : 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 before 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 from payment of property tax under the said Act. As rightly pointed out by Mrs. Patil, Section 110 of the Karnataka 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 for 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."
17. It is also not in dispute that in an identical circumstances, the Co-ordinate Bench of this Court : 17 : 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. Therefore, 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 for the preparation of an Outline Development Plan for every local planning area declared as such under the provisions of the Act. After 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 after following the procedure prescribed under Sections 9, 10, 11, 12 and Sub- sections (1) to (3) of Section 13, the Outline Development Plan was finally published as required under Sub-section (4) of Section 13 of the Act on 22- 5-1972 as found in the case of M.D. Narayan, 1982(2) K.L.J. Sh. Notes 35. Section 14 of the Act as in force which is a crucial matter for this case reads :
"14. Enforcement of the Outline Development Plan and the Regulations:
(1) On and from 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 finally approved by the : 18 : State Government under Sub-section (3) of Section
13. (2) 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.
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;
(ii) the carrying out of works in compliance with any order, or direction made by any authority under any law for the time being in force;
(iii) the carrying out of works by any authority in exercise of its powers under any law for the time being in force;
(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 Outline Development Plan is published under Sub-
section (1) of Section 10 is resumed;
: 19 :(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."
The language of Section 14 of the Act is peremptory. According to that provision no change in the land use in respect of land falling 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' for 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 official 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 enforcement of the Comprehensive Development Plan."
In view of the above provision a written permission for change of land use in respect of land falling within the Bangalore City Planning Area and covered by the CDP is mandatory. This subsequent notification also ousts the authority of the Deputy Commissioner under Section 95 of the Land Revenue Act in respect of lands falling within the Planning Area.
12. In view of the over-riding effect given by the above provision, a change in the use of land falling within the area of ODP or CDP could be effected 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 : 20 : such permission could be obtained or secured only from 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 for permission for 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 specific 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 preferred the Writ Petitions. The learned Judge Doddakale Gowda, J. in the course of the order made a detailed reference 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 for 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 respectful agreement with the view expressed by the learned Judge. But, we however add, if a land fell within ODP or CDP prepared for 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 fact remains that the view taken by the learned Judge that any permission to be accorded must be in conformity with the provisions of the Town Planning Act and the ODP and CDP prepared thereunder, is correct and : 21 : we entirely agree with the view taken by the learned Judge."
18. It is also not in dispute 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 very appellant 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. The said order has reached finality. It is also not in dispute that the properties 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 2.5.1965. The endorsement issued by the present appellant is without any basis, as the learned : 22 : Single Judge has rightly quashed the same. The appellant has not made out any case for interference in the impugned order passed by the learned Single Judge.
19. In view of the aforesaid reasons, we find no ground to interfere with the impugned order passed by the learned Single Judge in exercise of the powers under Section 4 of the Karnataka High Court Act, 1961. Accordingly, the appeal is dismissed.
20. Since the main appeal is dismissed, IA Nos.1 and 2 of 2018 filed for dispensation and stay do not survive for consideration, accordingly, they are also disposed of.
Sd/-
JUDGE Sd/-
JUDGE JTR