Karnataka High Court
Belgaum Urban Development vs Amita Nitin Shirgurkar, on 19 September, 2013
Bench: K.L.Manjunath, A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF SEPTEMBER, 2013
PRESENT
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
AND
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
WRIT APPEAL No.30894/2012 (GM-RES)
C/W
WRIT APPEAL No.31336/2012 (GM-RES)
IN W.A. NO.30894/2012
BETWEEN:
BELGAUM URBAN DEVELOPMENT
AUTHORITY, BELGAUM, REPTD.,
BY ITS COMMISSIONER,
ASHOK NAGAR, BELGAUM-590016.
... APPELLANT
(BY SRI. M A HULYAL, ADV.)
AND
1. AMITA NITIN SHIRGURKAR,
W/O NITIN SHIRGURKAR,
AGE: 47 YEARS, OCC: BUSINESS,
R/O: 1ST CROSS, RANADE COLONY,
HINDWADI, BELGAUM-590001.
REPTD., BY HER GPA HOLDER,
SHRI. NITIN A SHIRGURKAR.
2. THE DEPUTY COMMISSIONER,
BELGAUM DISTRICT,
BELGAUM-590001.
... RESPONDENTS
(BY SRI. SHARAD V.MAGDUM, ADV. FOR R1,
SRI. A.A.PATHAN, AGA FOR R2.)
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THIS APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING
TO SET ASIDE THE ORDER PASSED BY THE
LEARNED SINGLE JUDGE, IN W.P.NO.68630/2011
(GM-RES) DTD: 19.06.2012 BY ALLOWING THIS
APPEAL.
IN W.A.No.31336/2012 (GM-RES)
BETWEEN:
1. THE COMMISSIONER
BELGAUM DEVELOPMENT AUTHORITY,
BELGAUM DISTRICT.
2. THE DEPUTY COMMISSIONER,
BELGAUM DISTRICT,
BELGAUM.
... APPELLANTS
(BY SRI. A.A.PATHAN, AGA.)
AND
AMITA NITIN SHIRGURKAR
W/O NITIN SHIRGURKAR,
AGED ABOUT 47 YEARS, OCC: BUSINESS,
R/O.1ST CROSS RANADE COLONY,
HINDWADI BELGAUM
BY G.P.A HOLDER NITIN A SHIRGURKAR.
... RESPONDENT
(BY SRI. SHARAD V.MAGDUM, ADV.)
THIS APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING
TO SET ASIDE THE ORDER DTD. 19.06.2012
PASSED IN WRI T PETI TION NO.68630/2011 BY
LEARNED SINGLE JUDGE AND ALSO THE ORDER
DTD: 19.10.2010 PASSSED BY THE KARNATAKA
APPELLATE TRIBUNAL, BANGALORE IN APPEAL
NO.134/2009 BY ALLOWING THIS APPEAL.
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THESE APPEALS COMING ON FOR ORDERS
THIS DAY, A.N.VENUGOPAL GOWDA, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
These appeals have been filed assailing a common order passed by the learned Single Judge. The detailed facts are stated in the impugned order, since reported in IL R 2012 Karnataka 499. Hence, it is unnecessary to state the same here again, except where necessary for deciding these appeals.
2. Respondent No.1 is the owner of the land in dispute which was reserved under comprehensive development plan approved by the Government of Karnataka on 18.11.1993 and published in the Karnataka State Gazette on 13.11.1994, for the purpose of 'open space'. The land was not acquired within the specified period from the date of publication of CDP. The owner made an application before the planning authority for according permission to utilize the :4: land for residential use. Acting under sub- section (2) of Section 69 of the Karnataka Town and Country Planning Act, 1961, (for short 'the Act'), the planning authority permitted the owner of the land to utilize the land for residential purpose. The land owner, thereafter, made an application to the Deputy Commissioner for conversion of the land for residential purpose. The application having rejected on 23.12.2008, the land owner filed Appeal No.134/2009 before the Karnataka Appellate Tribunal. Appeal was allowed on 19.10.2010 and the Deputy Commissioner was directed to accept the conversion fee and grant order of conversion. The said order was questioned by the Deputy Commissioner, Belguam District in W.P.No.6696/2011. The land owner once again having approached the Deputy Commissioner to grant order of conversion and the application having been :5: rejected on 05.11.2011, on the ground that the permission of the State Government is necessary for conversion of the land, as per a Circular dated 06.03.2010, the land owner filed W.P.No.68630/2011. Since both writ petitions pertained to the same land and the parties being common, the learned Single Judge heard and decided both the writ petitions together.
3. Sri. M.A. Haliyal, learned advocate appearing for the Belguam Urban Development Authority contended that after lapse of the designation as per the provision of S.69(2) of the Act, the change of land is not automatic, in view of the procedure contemplated under S.14-A of the Act and that the land owner should seek change of land use from agricultural to residential use and as such, learned Single Judge has committed error in holding that there is no need for seeking permission of the planning authority once again.
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4. Learned Additional Government Advocate appearing for the Deputy Commissioner, Belguam District, contended that the finding recorded by the learned Single Judge that the provisions of S.14-A, if read along with provision of S.12(c) and S.69(2) of the Act harmoniously, leads to the conclusion that the designation attached to the land is lapsed, is contrary to the object of the Act. He contended that, since the land was designated as 'open space' unless and until permission of the State Government is granted, the land will not loose its original character of 'open space'.
5. Learned advocate for the land owner, on the other hand, made submissions in support of the order passed by the learned Single Judge and sought dismissal of the writ appeals.
6. We perused the record. The point for consideration is 'Whether the order passed by :7: the learned Single Judge calls for any interference?'
7. Section 69 of the Act states as hereunder:-
"69. Acquisition of land designated for certain purposes in a Master Plan.-
(1) The Planning Authority may acquire any land designated in a Master Plan for a specified purpose in clause (b), (c) or (d) of sub-section (1) of section 12, or for any public purpose out of those specified land in clause (a) of sub-section (1) of section 12 by agreement or under the Land Acquisition Act, 1894 (Central Act I of 1894) as in force in the State. If the land is acquired under the Land Acquisition Act, 1894, the provisions of said Act as amended by section 72 of this Act shall apply to the determination of compensation for the acquisition of such land.
(2) If the designated land, except land specified for the purpose in clause (b) of sub- section (1) of section 12, is not acquired by agreement within five years from the date, :8: the Master Plan is published in the gazette under sub-section (4) of section 13 or if the proceedings under Land Acquisition Act are not commenced within such period the designation shall be deemed to have been lapsed."
8. Undeniably, the disputed land was not acquired within five years period. No proceedings for acquisition was commenced within the specified period nor has been commenced even till date. After expiry of the stipulated period, the land owner made an application to the planning authority and acting under sub-section (2) of S.69 of the Act, permission was granted for utilization of the disputed land for residential purpose, on account of lapse of the designation and that the betterment fee was deposited. Appeal filed as against the rejection of the request for conversion was allowed by the Appellate Tribunal.
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9. The land in dispute is surrounded by a residential layout. The land owner has sought to use the land for residential purpose. In such circumstances, the construction placed by the learned Single Judge on S.14-A of the Act is not erroneous and is in accordance with the ratio of the decision, in the case of Girnar Traders vs. State of Maharashtra, (2007) 7 SCC 555.
10. The land in dispute having been shown in the development plant as 'open space' and the same having not been sought to be acquired by initiation of acquisition proceedings or otherwise within the specified period of five years and the designation having elapsed, the land has became available for development by the owner. There being no dispute that the land in dispute is surrounded by residential layout, the land owner having sought to utilize the property for residential use only, after obtaining conversion and payment of development charges, the stand : 10 : taken by the appellants before the learned Single Judge being contrary to the record of the case and settled principles of the law, the learned Single Judge is justified in allowing the writ petition filed by the owner and consequently, dismissing the writ petition filed by the Deputy Commissioner, Belguam District. We do not find any justification to interfere with the order passed by the learned Single Judge.
In the result, writ appeals being devoid of merit are dismissed with no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE Ct:byg/-
Rsh