Dollaiah Vs. Deputy Commissioner

Dollaiah vs Deputy Commissioner

Type Court Judgment Court Karnataka Decided Nov 09, 1994

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Citation: sooperkanoon.com/381145
Court: Karnataka High Court
Judge: G.C. Bharuka, J.
Decided On: Nov 09, 1994
Case Number: W.P. No. 15054 of 1991
Subject: Property

Case Summary

AI-generated summary - not the official court judgment text.

KARNATAKA LAND REVENUE ACT, 1964 - Section 95(5) - Application for conversion not disposed of within four months : under Section 95(5) benefit of deemed grant acquired. - [N.D.V. Bhat and ;A.B. Murgod, JJ.] ORDER 39 RULES 1 & 2 & ORDER 43 RULE 1 - Order on merits should give basis thereof : else, not possib...

Key legal issue: Property
Acts & sections: Karnataka Land Revenue Act, 1964 - Sections 95(5)

Parties & Advocates

Appellant / Petitioner

Dollaiah

Advocate Rameakanth V Desai, Adv.

Respondent

Deputy Commissioner

Advocate H.H. Kaladagi, HCGP

Legal References

Acts: Karnataka Land Revenue Act, 1964 - Sections 95(5)
Reported In: ILR1994KAR3456; 1995(1)KarLJ525

Excerpt

.....be competent to reverse or set aside the order of the learned judge who passed the order in the first instance... an order which purports to be one on merits should necessarily give an indication as to on what basis the learned judge passes such an order. otherwise it is not at all possible for an appellate court to reach a conclusion as to whether the view taken by the learned judge is unjust or improper... in the instant case, as can be seen from the impugned order, the learned judge has not given any reason muchless cogent reason. under these circumstances, the order is not at all sustainable...the impugned order is liable to be set at naught on this ground. sum up: whenever a caveat is filed through a lawyer and when the address for service is given as his address, notice of application for interim order should be served on the lawyer. however, the failure to serve the notice on him will not by itself render the order null and void, if the notice in fact served on the party no prejudice is caused to the party on that count in the facts and circumstances of a particular case. however, it is the duty of the court to see that the notice of such an application should be served to the advocate for caveator as long as that caveat petition is alive. .....namely, (1) there was a deemed grant in terms of section 95(5) of the act, and (ii) the grounds assigned in the said order were erroneous, since the land was not reserved for open space by any competent authority.4. the tribunal after examining the facts on the basis of records produced and arguments advanced by the contesting parties came to the conclusion that the land in fact was not reserved for any open space and the grounds given by the collector were unsustainable in law. after having so found, the tribunal remanded the matter to the deputy commissioner for fresh disposal without addressing itself the plea of deemed grant as postulated under section 95(5) of the act.5. the learned high court government pleader has produced the records of the deputy commissioner. after going through the records, he could not dispute that the application filed by the petitioner for conversion was not disposed of within a period of four months from the date of filing of the said application muchless the completion thereof within the said period. in view of these basic facts, it cannot be disputed that the provisions of section 95(5) of the act came into play and the petitioner acquired the benefit of deemed grant. the said sub-section reads as under:'95(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. this court in the case of habeeb khandasari industries v. karnataka appellate tribunal and anr., while considering the scope, ambit and effect of the said sub-section, has held thus:'the clear effect of section 95(5) of the karnataka land revenue act, 1964 is that the conversion shall be deemed to have been granted on the expiry of four months from the date of application. thereafter, there is nothing further to be done by the party concerned. he could proceed.....

Full Judgment

ORDER

Bharuka, J

1. The Petitioner is aggrieved by the order of the Karnataka Appellate Tribunal (Annexure-B) dated 5th April 1991 to the extent the Tribunal has remanded the issue regarding grant of permission for conversion of the agricultural land in question for fresh disposal.

2. The appellant is the owner of Survey No. 105/2C measuring 7 1/2 guntas situated in Bhogadi village. On 4.8.1989, he filed an application before the respondent-Deputy Commissioner for grant of permission to convert the said land as per the provisions of Section 95 of the Karnataka Land Revenue Act, 1964 (in short, the Act). The said application was rejected by an order dated 15.1.1990 by the Deputy Commissioner. The said order was subjected to an appeal to the Tribunal which was disposed of by the impugned order (Annexure-B).

3. Before the Tribunal, the petitioner impugned the order of the Deputy Commissioner on two grounds, namely, (1) there was a deemed grant in terms of Section 95(5) of the Act, and (ii) the grounds assigned in the said order were erroneous, since the land was not reserved for open space by any competent authority.

4. The Tribunal after examining the facts on the basis of records produced and arguments advanced by the contesting parties came to the conclusion that the land in fact was not reserved for any open space and the grounds given by the Collector were unsustainable in law. After having so found, the Tribunal remanded the matter to the Deputy Commissioner for fresh disposal without addressing itself the plea of deemed grant as postulated under Section 95(5) of the Act.

5. The learned High Court Government Pleader has produced the records of the Deputy Commissioner. After going through the records, he could not dispute that the application filed by the petitioner for conversion was not disposed of within a period of four months from the date of filing of the said application muchless the completion thereof within the said period. In view of these basic facts, it cannot be disputed that the provisions of Section 95(5) of the Act came into play and the petitioner acquired the benefit of deemed grant. The said Sub-section reads as under:

'95(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. This Court in the case of HABEEB KHANDASARI INDUSTRIES v. KARNATAKA APPELLATE TRIBUNAL AND ANR., while considering the scope, ambit and effect of the said sub-section, has held thus:

'The clear effect of Section 95(5) of the Karnataka Land Revenue Act, 1964 is that the conversion shall be deemed to have been granted on the expiry of four months from the date of application. Thereafter, there is nothing further to be done by the party concerned. He could proceed to use the land for non-agricultural purpose as if, permission had been granted, as such permission stands granted by the force of the provisions of the Act itself'.

7. In the above view of the matter, it is held that the petitioner would be deemed to have been granted the permission as desired by him for conversion of the land and use the land for non-agricultural purposes. It will be open for the Deputy Commissioner to demand the conversion fee from the petitioner at the rate prevailing on the date of the deemed conversion.

8. In the result, the order of the Tribunal to the extent it has sought to remand the matter to the Deputy Commissioner is quashed and the Writ Petition is allowed.

No costs.

Same Court & Year Karnataka · 1994 Same Parties Dollaiah vs Deputy Commissioner Same Subject Property Same Judge G.C. Bharuka, J. Acts & Sections Karnataka Land Revenue Act, 1964 - Sections 95(5)

Property