1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE30H DAY OF SEPTEMBER, 2021 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.7942 OF2021(LB-RES) BETWEEN SRI NARAYANASWAMY S/O LATE H. BASAVANAPPA, AGED ABOUT72YEARS, RESIDING AT No.147/A, FLAT No.B202, ESTEEM CLASSIC APARTMENT, RAJAJINAGAR INDUSTRIAL AREA, 1ST PHASE, BENGALURU – 560 022. ... PETITIONER (BY SRI M.S.BHAGWAT, ADVOCATE (PHYSICAL HEARING)) AND1 THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT, REPRESENTED BY ITS PRINCIPAL SECRETARY, VIKASA SOUDHA, BENGALURU – 560 001.
2. MYSORE URBAN DEVELOPMENT AUTHORITY REPRESENTED BY ITS COMMISSIONER, JLB ROAD, CHAMARAJAPURAM, MYSURU – 570 005. 2
3. THE DEPUTY COMMISSIONER MYSURU DISTRICT, MYSURU – 570 001. ... RESPONDENTS (BY SRI NITHYANANDA K.R., HCGP FOR R1 (PHYSICAL HEARING); SRI T.P.VIVEKANANDA, ADVOCATE FOR R2 (PHYSICAL HEARING)) THIS WRIT PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM THE RESPONDENTS; DECLARE THAT THE DESIGNATION OF PETITION SCHEDULE PROPERTY IS DEEMED TO HAVE BEEN LAPSED, BY OPERATION OF LAW U/S692) OF THE KARNATAKA TOWN AND COUNTRY PLANNING ACT, 1961 UNDER THE MYSORE- NANJANGUD LOCAL PLANNING AREA-2031 (MASTER PLAN-2031 (ANNEXURE-A AND A1 RESPECTIVELY) AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner in this writ petition seeks the following relief: “(a) Call for records from the respondents; (b) Declare that the designation of Petition Schedule Property is deemed to have been lapsed, by operation of law under Section 69(2) of the Karnataka Town and Country Planning Act, 1961 under the Mysore-Nanjangud Local Planning Area- 2031 (Master Plan-2031) (Annexure-A and A1 respectively), in the interest of justice and equity; 3 (c) Direct the respondent No.3 to consider the application filed by the petitioner for permission to divert the Petition Schedule Property for non- agricultural use/purpose under Section 95 of the Karnataka Land Revenue Act, 1964 and pass order in accordance with law, within a period of one month, in the interest of justice and equity; (d) Pass any other order including the costs of this writ petition, in the interest of justice and equity. (e) Declare that the 2nd respondent deemed to have conveyed the assignment of new land use to the petitioner on account of failure to perform his legal duty under Section 69(3) and (4) of the Karnataka Town and Country Planning Act, 1961 or direct the respondent No.2 to consider the new land use and convey the assignment of the new land use forthwith, as per the application dated 17-04-2021 (Annexure-G) in the interest of justice and equity.
2. Heard Sri M.S.Bhagwat, learned counsel for the petitioner, Sri Nithyananda K.R, learned High Court Government Pleader for respondents 1 and 3 and Sri T.P.Vivekananda, learned counsel for respondent No.2.
3. The prayer of the petitioner as afore-extracted is twofold – one, the petitioner seeks that designation of Petition Schedule Property is deemed to have been lapsed by operation of law 4 under Section 69(2) of the Town and Country Planning Act, 1961 (‘the Act’ for short) and the second prayer that is sought is permission to divert the Petition Schedule Property for non- agricultural purposes under Section 95 of the Karnataka Land Revenue Act, 1964 (for short ‘the Land Revenue Act’) and further seeks that the Planning Authority, MUDA deemed to have conveyed the assignment of new land use to the petitioner on account of failure to perform its legal duty under Section 69(3) and (4) of the Act.
4. The facts culled out from the pleadings are as follows:- The petitioner purchased an agricultural land measuring 1 acres 20 guntas in Sy.No.39/1 of Chikkahalli Village, Varuna Hobli, Mysore Taluk (hereinafter referred to as ‘the Petition Schedule Property’) by a registered sale deed dated 21-08-1992 from the hands of one Sri Jawarappa and Smt. Mahadevamma. It is the claim of the petitioner that all the revenue records are in his name and are appended to the petition as well. 5
5. The 2nd respondent/Mysore Urban Development Authority (‘MUDA’) the planning authority of Mysore District, in terms of powers obtaining under Section 4-C of the Act, prepares Master Plan under Section 9 thereof. The revision of Master Plan, as prepared by the Planning Authority, is undertaken every 10 years in terms of Section 13-D of the Act. Accordingly, the Master Plan for Mysore-Nanjangud Planning Area 1961 (Revision-II) was proposed and approved by the 1st respondent/ Government under Section 13 of the Act. The approval comes about on 12-01-2016.
6. The Petition Schedule Property was designated for public and semi public use particularly for Devaraj Urs Truck Terminal with effect from 12-01-2016. The designation of any land under the Master plan if not required within a period of 5 years would lapse by the operation of provisions contained in Section 69 of the Act. The designated land shall be in the mode of acquisition for a period of five years from the date of approval of the Master Plan. The Petition Schedule Property was 6 designated for public and semi public use on 12-01-2016. It is the claim of the petitioner that on 11-01-2021 the period of five years was over and the 2nd respondent/MUDA has not taken any action to acquire the land and pay compensation to the petitioner. On account of such lapse, the petitioner claims to have been deprived of the property that he owns.
7. On such contention, the petitioner filed an application on 03-04-2021 seeking conversion of the land before the Deputy Commissioner from agriculture to non-agricultural purposes and all the requisite documents necessary for such conversion were also claimed to have been submitted. The petitioner also makes an application before MUDA on 30.03.2021 seeking issue of no objection for utilizing the said land for non-agricultural purpose in view of lapse of designation of the said land after five years. Both these applications being pending and not considered by the respective respondents, has driven the petitioner to this Court seeking direction/prayer as sought supra. 7
8. After filing of the writ petition, the petitioner has also made another representation which is placed before the Court by way of additional documents.
9. The learned counsel Sri M.S. Bhagwat appearing for the petitioner would contend that under Section 95 of the Land Revenue Act, if the Deputy Commissioner does not pass an order within 120 days of submission of the application, the land is deemed to have been converted and once there is a deeming conversion, the Planning Authority has to pass an order under Section 69 of the Act with regard to lapsing of designation and grant change of land use under Section 14-A of the Act.
10. Sri T.P. Vivekananda, learned counsel appearing for 2nd respondent- MUDA would contend that it is the Planning Authority who should consider the application of the petitioner under Section 69 of the Act and pass appropriate orders under Section 14-A of the Act and the Deputy Commissioner, thereafter, would consider the application submitted by the 8 petitioner for conversion of land, in the light of the amendment to the Land Revenue Act on 17-06-2018.
11. The learned High Court Government Pleader would also submit that it is the Planning Authority’s approval which would precede decision to be taken by the Deputy Commissioner.
12. I have given my anxious consideration to the submissions made by the learned counsel appearing for the parties and perused the materials on record.
13. The question that needs to be answered is interpretation of Section 69 of the Act, Section 95 of the Land Revenue Act and Section 14-A of the Act. Section 69 of the Act reads as follows:- “69. Acquisition of land designated for certain purposes in a Master Plan.- (1) The Planning Authority may acquire any land designated in the Master Plan for "public purposes" by agreement or under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement 9 Act, 2013 (Central Act 30 of 2013) as in force in the State. Explanation.- For the purpose of this section land "designated for public purpose" means designated for the purpose of providing parks, open spaces, public or semi public utilities and infrastructure relating to transport. (2) If the land designated for public purpose, as under sub-section (1), except land designated for purpose of clause (b) of sub- section (1) of section 12 is not acquired either by agreement within five years from the date of publication of the Master Plan under sub- section (4) of section 13 nor the proceedings under the Right to Fair Compensation and Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) are commenced within period of five years, the designation shall be deemed to have lapsed. (3) When the designated land use lapses under sub-section (2), the Authority may consider the new land use sought by the land owner of such land, based on the surrounding developments, in the meeting of the Authority, after previous publication in one or more daily newspapers of which at least one shall be in local language having wide circulation in the area and call for objections and suggestions in this regard. (4) The Planning Authority shall after considering the proposals to assign land uses and objects and suggestions received in that 10 behalf in the meeting of the Authority, the Authority may convey the assignment of new land use to the owner or reject the proposal for the reasons recorded there in.” Section 69 of the Act deals with acquisition of land designated for certain purposes in a Master Plan. Section 69(1) empowers the Planning Authority to acquire any land designated in the Master Plan for public purposes by agreement made under the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (‘Acquisition Act’ for short). The designated land would mean designation of such land for public or semi public utility relating to transport. Section 69(2) mandates that if the designated land as obtaining under sub-section (1) is not acquired either by agreement within 5 years from the date of publication of the Master Plan or under the Acquisition Act within the said period of five years, the designation shall be deemed to have lapsed. Sub-section 3 thereof directs action to be taken once sub-section (2) comes into effect and mandates that when the designated land use lapses under sub-section (2), the Authority would 11 consider the new land use sought by the owner of such land, based on surrounding developments after previous publication in one or more newspapers having wide circulation for the purpose of calling objections and suggestions. Sub-section (4) mandates that the Planning Authority would after considering the proposal to assign land use and objects and suggestions may convey the assignment of new land use to the owner or reject the proposal for the reasons recorded therein.
14. This is the scheme of Section 69 of the Act. The facts obtaining in the case at hand are required to be considered in the light of the aforesaid mandate. The Master Plan was approved on 12-01-2016. The Petition Schedule Property was pending acquisition for public or semi public purpose which was Devaraj Urs Truck Terminal. This was in terms of Section 69(2) of the Act. Similar action had to be taken by the Planning Authority within five years which would mean that the land would vest with the Planning Authority for such acquisition up 12 to 11.01.2021. It is not in dispute that no action is taken by the Planning Authority in terms of Section 69(2) of the Act.
15. Once Section 69(2) comes into operation by deeming lapse, sub-section (3) of Section 69 requires to be complied with by the Planning Authority immediately. Section 69(3) mandates that change of land use sought by the land owner should be considered in the manner depicted therein and an order should be passed under Section 69(4). Therefore, in the case at hand, Section 69(2) having come into play, the Planning Authority cannot but consider the application of the petitioner for such land use under Section 69(3) and pass an order under Section 69(4) of the Act.
16. Once orders are passed in that regard, it is then the application for conversion of land from the hands of the Deputy Commissioner is to be considered and as such, the Deputy Commissioner would consider the application submitted for conversion of land from agriculture to non-agricultural purposes 13 under Section 95 of the Land Revenue Act. Section 95 of the Land Revenue Act reads as follows: “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. Provided that the farm Building or farm House so erected shall not be more than ten percent of his holding subject to maximum of such extent of land as may be prescribed. Explanation.- For the purpose of this sub- section “Farm Buildings” or "Farm house" means a house attached to a farm and constructed in a portion of an agricultural land, used for the residence of the agriculturist or used for the purpose of keeping agricultural equipments and 14 tethering cattle. The house shall be used by farmer for his own use and it shall not be let out for commercial activities to any individual or agency. (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 in case of any agricultural land assessed or held for the purpose of agriculture, falling within the Local Planning Area for which the Master Plan has been duly published under the Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963) and such land and such diversion is in accordance with the purpose of land use specified in such Master plan. The permission therefore shall be deemed to have been granted subject to payment of fine prescribed under sub- section (7). 15 xx xx xx xx (3) Permission to divert may be refused by the Deputy Commissioner on the ground 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). (3A) … … … (3B) … … … (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. (5) Where the Deputy Commissioner fails to inform the applicant of his decision on the application made under sub-section (2) within a 16 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. (6-A) 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. (7) When any land assessed or held for the purpose of agriculture is permitted under sub-section (2) or is diverted under the provisos to the said sub- section or is deemed to have been permitted under sub-section (5) or sub-section (6-A), to be used for 17 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.” (Emphasis supplied) Section 95 of the Land Revenue Act has undergone an amendment by insertion of a proviso to Section 95(2). Section 95(2) comes into play where an application is made by the occupant. The subsisting Act which inserted the proviso came into effect from 17.03.2018. The proviso inserted to Section 95(2) mandates that in case of agricultural land assessed or held for the purpose of agriculture falling within the local planning area for which Master Plan has been duly published under the Act and such diversion is in accordance with the purpose of land use specified in the Master Plan, permission shall not be refused by the Deputy Commissioner. Therefore, the application submitted by an occupant of the land under Section 95(2) is to be considered in the light of the proviso. It is here there is 18 coalesce between Section 69 of the Act and Section 95(2) of the Land Revenue Act. Once an order under Section 69 is passed, the Deputy Commissioner will have to consider the application filed for conversion of a land which comes within the planning area.
17. The learned counsel for the petitioner seeks to lay emphasis on Section 95(5) of the Land Revenue Act to contend that the land is deemed to have been converted within 120 days as obtaining in Section 95(5) of the Act. Section 95(5) of the Land Revenue Act mandates where the Deputy Commissioner fails to inform the applicant of his decision on the application made under sub-section (2) of Section 95 within 4 months, the permission sought shall be deemed to have been granted. In every circumstance, the application made under Section 95(2) shall be deemed to have been granted if the Deputy Commissioner fails to inform the applicant. The purport of this provision is that the deeming clause comes into effect and the Deputy Commissioner would be bound to pass an order 19 accepting such conversion and will lose the right to reject it except in cases where the property of the occupant is a part of the Master Plan notified by the Planning Authority under the Act.
18. It is this proviso that to some extent dilutes the deeming right of an applicant under Section 95(2) of the Land Revenue Act, only where the property comes under the Master Plan, in other cases, the conversion is deemed to have been made, as on a conjoint reading of Section 95(2), its proviso and Section 95(5), in my considered view, this is the inescapable conclusion that can be drawn, as Section 95(5) also mandates consideration of an application submitted under Section 95(2). Proviso to Section 95(2) directs consideration of any other land except the land coming under the Planning Authority as notified in the Master Plan.
19. Therefore, the case of the petitioner for change of land use under Section 14-A of the Act will have to only then meet its 20 consideration. Section 14(2) of the Act also mandates what is narrated hereinabove, which reads as follows: “14 (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: [Provided 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.].” In terms of proviso to sub-section (2) of Section 14 where the use or change of land use under this section needs the diversion of agricultural land to non-agricultural purposes, shall be only after permission is obtained in terms of the Land Revenue Act for such diversion. Therefore, the Planning Authority to pass an 21 order under Section 14-A of the Act permitting change of land use after the order of conversion that is passed by the Deputy Commissioner under the Land Revenue Act.
20. In my view, the sequence of events would be in the following manner: The land that is designated under Section 69(1) of the Act shall be deemed to have lapsed under Section 69(2) and once the deeming lapse comes into effect, the Planning Authority will have to take steps to consider the application of the owner under Section 69(3) for such land use and pass an order under Section 69(4) of the Act.
21. Once the order of the Planning Authority comes about, the Deputy Commissioner would consider the application submitted by the petitioner for conversion of land under Section 95(2) of the Land Revenue Act and after such conversion, the Planning Authority would pass appropriate orders changing the 22 land use as sought for by the occupant, in the case at hand, the petitioner.
22. The petitioner has submitted two applications before the Planning Authority – one on 30-03-2021 and the other one on 17.04.2021. No orders are passed by the Planning Authority in terms of Section 69 of the Act. Therefore, the Planning Authority will now act forthwith to initiate such proceedings under Section 69(3) of the Act and pass orders under Section 69(4) of the Act. An application is also made to the Deputy Commissioner seeking conversion of the land on 03-04-2021 which also has not met its consideration at the hands of the Deputy Commissioner and the same will have to be considered forthwith.
23. For the aforesaid reasons, I pass the following: ORDER
(a) Writ Petition is allowed. 23 (b) Mandamus is issued to the 2nd respondent/MUDA to initiate such proceedings under Section 69 of the Act and pass appropriate orders under Section 69(4) of the Act within 12 weeks from the date of receipt of a copy of this order; (c) The Deputy Commissioner will then consider the application of the petitioner dated 3-04-2021 within the mandate under Section 95(5) of the Land Revenue Act that is 120 days from the date on which the petitioner informs the Deputy Commissioner with regard to orders being passed by the Planning Authority under Section 69(4) of the Act. (d) The Planning Authority shall thereafter consider the application given by the petitioner under Section 14-A of the Act for change of land use and pass appropriate orders in accordance with law, without brooking any delay. Sd/- JUDGE bkp CT:MJ