- 1 - WP No.13439 of 2021 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF MARCH, 2023 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION No.13439 OF2021(LB-RES) BETWEEN:
1. SRI K SIDDAPPA S/O KUTTIYAPPA AGED55YEARS2 SRI ASHOK S/O M JAYARAMA AGED56YEARS3 SRI GURURAJ S/O MANJUNATHA AGED60YEARS4 SRI NAGESH S/O DASAPPA AGED51YEARS5 SMT. SHANTHAMMA W/O LATE GANAPATHI AGED55YEARS6 SRI SATHYARAJU S/O CHANDRAPPA AGED52YEARS7 SMT. JAYAMMA W/O BOMMANNA AGED50YEARS8 SRI GANESH C P S/O PARASAPPA AGED45YEARS9 SMT. HIRIYAMMA W/O S M KUMAR AGED65YEARS - 2 - WP No.13439 of 2021 10. SRI GANAPATHI NAGESH KAMATH S/O NAGESH KAMATH AGED55YEARS11 SRI MANJUNATH S S/O SRINIVAS SHEIT AGED54YEARS12 SRI RAGHU S/O BHAVIKUNI MANJAPPA AGED45YEARS13 SRI SEEGEHALLI ANANTHAPPA S/O DURGAPPA AGED70YEARS14 SRI JAGADEESH AGED53YEARS S/O LATE KEMBAVI CHANNABASAPPA15 SRI RUDRAPPA S/O HANUMANTHAPPA AGED67YEARS16 SMT. HULEKAL MALATH BAI W/O LATE ANANTHARAO HULIGAL AGED55YEARS17 SRI RAVI S/O BARADAVALLI GANAPATIYAPPA AGED50YEARS18 SRI KANNAPPA S/O ILI MOTANNA AGED50YEARS ALL ARE R/AT CHANDRAMAVINAKOPPALU SAGAR TALUK, SHIMOGGA DISTRICT-577401 19. SRI H C PRABHAKAR S/O CHANDRAPPA AGED50YEARS R/AT NO.63, K P A BLOCK CHANDRA LAYOUT, BANGALORE - 560 040 (GPA HOLDER) - 3 - WP No.13439 of 2021 20. SRI.S. MANJUNATH S/O SRINIVASA SHEIT AGED ABOUT40YEARS R/AT GUDDADA HOSAHALLI MAVALI, SHIKARIPURA TALUK, SHIMOGGA DISTRICT--577429 (GPA HOLDER) …PETITIONERS (BY SRI. D.R. RAVISHANKAR. SR ADVOCATE FOR SRI. MURTHY D L.,ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY THE CHIEF SECRETARY VIDHANA SOUDHA BANGALORE - 560 001 2. THE PRINCIPAL SECRETARY DEPARTMENT OF REVENUE STATE OF KARNATAKA VIDHANA SOUDHA BANGALORE - 560 001 3. THE DEPUTY COMMISSIONER SHIMOGA DISTRICT SHIMOGA - 577 201 4. THE COMMISSIONER AND MEMBER SECRETARY TOWN PLANNING AUTHORITY CMC SAGAR SAGARA - 577 401 SHIMOGA DISTRICT5 THE ASST. COMMISSIONER SHIMOGA DISTRICT SHIMOGA – 577201 6. THE TAHASILDAR SAGARA SHIMOGA DISTRICT-577401. …RESPONDENTS (BY SRI.NITHYANANDA K.R. AGA FOR R1 TO R3, 5 AND6 SRI. VISHWANATH R. HEGDE .,ADVOCATE FOR R4) - 4 - WP No.13439 of 2021 THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE ENTIRE RECORDS OF THE PETITIONERS LAND IN CHANDRA MAVINA KOPPALU FORM THE OFFICE OF THE RESPONDENT NOS. 3 TO5 SAGARA KASABA SHIMOGA DISTRICT AND ETC. THIS WRIT PETITION, COMING ON FOR ORDER
S, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
1 The petitioners are before this Court seeking for the following reliefs: i. Call for the entire records of the petitioners land in Chandra Mavina Koppalu form the office of the Respondent Nos. 3 to 5, Sagara Kasaba Shimoga District; ii. To issue Writ of Mandamus directing the Respondent No.4, the City Municipal Council Sagar, the Commissioner, Town Planning Authority, to consider the representation dated 04/10/2019 at Annexure-F and to pass appropriate order expeditiously and to issue ‘No Objection Certificate in favour of Petitioners. iii. To issue Writ/appropriate direction to Respondent No.3 on receipt of No Objection Certificate from the Office of the Respondent No.4 to issue necessary orders to the Petitioners expeditiously for development of their dwelling houses. iv. Pass such other order/s as this Hon’ble Court deems fit and proper in the circumstances of the case.
2. The petitioners claim to be the owners of the land in Sy.No.7/13 at Chandra Mavina Koppalu in Sagara - 5 - WP No.13439 of 2021 Town, the land of the petitioner was earlier designated for the purpose of parks and open spaces.
3. In the year 2008, the same not having been acquired in terms of Sub-Section (1) of Section 69 of the Town and Country Planning Act,1961 (KTCP Act) the reservation having lapsed, an application was submitted by the petitioners for re-classification of the land as residential which was so re-classified on 9.8.2018. Thereafter, the petitioners submitted an application under Section 95 of the Land Revenue Act seeking for conversion of the land from the earlier agricultural to non-agricultural residential purposes, as regards which the required no objection was not issued by respondent No.4 and it is in that background, that the petitioners are before this court seeking for the aforesaid reliefs for.
4. Sri. D.R.Ravishankar., learned counsel for the petitioner would submit that once the land which had been designated for a particular purpose in the - 6 - WP No.13439 of 2021 master plan in terms of Section 12 of the KTCP Act is not acquired within a period of five years in terms of Sub-Section (1) of Section 69 of the KTCP Act the same would lapse, thereby conferring a right on the land owner to seek for both conversion and change of land use. The respondents cannot hold back a no objections certificate in this regard and in that background a mandamus is required to be granted.
5. Sri. Vishwanath R. Hegde., learned counsel appearing for respondent No.4 would submit that on the basis of letter issued by the Deputy Commissioner on 1.7.2019, wherein the Deputy Commissioner observed that the lands in Sy.No.7, 8, 9 and 13 being low lying area there is possibility of the water stagnation as such the same could not be permitted to be used for residential purposes. That apart, he submits that the respondent No.4-CMC, Sagara has now initiated a proceeding for acquisition of the land for establishment of a Sports Complex, Park and other amenities and since the said - 7 - WP No.13439 of 2021 acquisition process is commenced the change of land use cannot be done. He submits that it is in that background that no objection certificate has not been issued.
6. Heard Sri.D.R.Ravishankar., learned counsel for the petitioner, Sri.K.R.Nithyananda., Additional Government Advocate appearing for respondents No.1 to 3 and Sri. Vishwanath R.Hegde., learned counsel appearing for respondent No.4. Perused papers.
7. In terms of Section 12 of the KTCP Act in the master plan which is prepared by the concerned planning authority there are various uses, zones and areas which are required to be earmarked. Section 12 of the KTCP Act is reproduced here under for easy reference:
12. Contents of Master Plan.- (1) The Master Plan shall consist of a series of maps and documents indicating the manner in which the development and improvement of the entire planning area within the jurisdiction of the Planning Authority are to be carried out and regulated, such plan shall include proposals for the following, namely:- - 8 - WP No.13439 of 2021 (a) zoning of land use for residential, commercial, industrial, agricultural, recreational, educational and other purposes together with Zoning Regulations; (b) a complete street pattern, indicating major and minor roads, national highways, and state highways, and traffic circulation pattern, for meeting immediate and future requirements with proposals for improvements; (c) areas reserved for parks, playgrounds, and other recreational uses, public open spaces, public buildings and institutions and area reserved for such other purposes as may be expedient for new civic developments; (d) areas earmarked for future development and expansion; (e) reservation of land for the purposes of Central Government, the State Government, Planning Authority or public utility undertaking or any other authority established by Law, and the designation of lands being subject to acquisition for public purposes or as specified in Master Plan or securing the use of the landing in the manner provided by or under this Act; (f) declaring certain areas, as areas of special control and development in such areas being subject to such regulations as may be made in regard to building line, height of the building, floor area ratio, architectural features and such other particulars as may be prescribed; (g) stages by which the plan is to be carried out.
8. The earmarking of a particular area relating to a private person imposes a restriction on the land owner in making use of the land for purposes otherwise than for which it is earmarked in the master plan. It is for that reason that a - 9 - WP No.13439 of 2021 corresponding obligation has been imposed on the Planning Authority and/or the State to acquire the land designated in the master plan for public purposes in terms of Section 69 of the Act which is reproduced here under for easy reference.
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 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 landowner 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.-. 10 - WP No.13439 of 2021 (4) The Planning Authority shall after considering the proposals to assign land uses and objects and suggestions received in that 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 therein.].
9. Section 69 imposes an obligation on the Planning Authority to acquire any land designated in the master plan for public purposes by agreement or exercising rights under the Right to Fair Compensation Transparency in Land Acquisition Rehabilitation and Resettlement Act 2013. This acquisition to be made within a period of 5 years from the date of such designation in the master plan.
10. In terms of Sub-Section (2) of Section 69, the land designated for public purpose under Sub-Section (1) of Section 12 except Clause B thereof, would lapse if the land is not acquired within a period of 5 years. Clause-B of Sub-Section (1) of Section 12 deals with complete street pattern indicating Major and Minor Roads, National Highways, State Highways and Traffic Circulation and etc., i.e. apart from a designation in terms of Clause B of Sub-Section (1) - 11 - WP No.13439 of 2021 of Section 12 any other reservation made under Section 12 for the public purposes more particularly under Clause (C) of Sub-Section (1) of Section 12 would lapse, if the same is not acquired by the planning authority within a period of 5 years.
11. In the present case, admittedly the land of the petitioner was designated for public and open spaces which is a reservation under Clause (C) of Sub- Section (1) of Section 12, land admittedly not having been acquired the period of five years having lapsed the designation has also lapsed.
12. On such lapse the land owner had a right in terms of Sub-Section (3) of Section 69 to seek for the designation of the said land to another purpose by making necessary application thereunder. In terms of Sub-Section (3) of Section 69 on an application being made a public notice was admittedly taken out by respondent No.4 on 6.3.2017, no objection having been received thereto, the application of the petitioner submitted on 25.1.2016 was considered by - 12 - WP No.13439 of 2021 respondent No.4 in its meeting on 9.5.2018 and the said land designated for residential purposes by collecting necessary amounts.
13. The designated purpose having lapsed the said land designated for different purpose namely residential purpose, it is this different purpose which is what is to be held to be designated purpose under the master plan or development plan as on the date on which an application for conversation has been made by the petitioner.
14. The said land has been reserved for residential purposes in terms of Clause (A) of Sub-Section (1) of Section 12. In terms of Section 95 of the Karnataka Land Revenue Act, 1964 any land which is designated for agricultural purposes can be delineated for non- agricultural purposes. In terms of proviso to Sub-Section (2) of Section 95 if an agricultural land comes under a local planning authority and the master plan designates the use of the land for a particular purpose, the permission for - 13 - WP No.13439 of 2021 conversion is deemed to have been granted subject to payment of fine prescribed by the Sub-Section (7) Section 95. Sub-Section (2) and the proviso thereof of Section 95 is hereunder reproduced for easy reference. (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 4 [notwithstanding anything contained in any law for the time being in force].4 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. 2[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).]. 3[5[Provided further that].5 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 5[dry (punja) land, wet land or garden land].5 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 - 14 - WP No.13439 of 2021 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).
15. In view of the above, the land of the petitioner now being designated for residential purposes an application for conversion having been made by the petitioner, the said conversion application would have to be considered in terms of present designation of the land as residential and the procedure prescribed under proviso to Sub-Section (2) of Section 95 is required to be followed by the revenue authority.
16. In so far as the objection raised by the Deputy Commissioner as regards the land being in a low lying area which cannot be used for residential purposes the same would only arise for consideration once an application for plan sanction or layout plan sanction is made by the petitioner which could be considered by the Planning Authority. In view of the above, I pass the following; - 15 - WP No.13439 of 2021 ORDER
i. Writ petition is allowed. ii. A mandamus is issued directing the respondent No.4 to issue necessary no objection to the petitioner for the purpose of conversion in terms of the designation of the land as residential as observed herein above, within a period of eight weeks from the date of the receipt of the copy of this order. Sd/- JUDGE SR List No.:
1. Sl No.:
2.