Karnataka High Court

Gnhan Sadhana Education Society vs The State Of Karnataka on 7 August, 2023

Bench: M.Nagaprasannapresided Bymnpj

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                                                        NC: 2023:KHC-D:8476
                                                         WP No. 105232 of 2022




                                IN THE HIGH COURT OF KARNATAKA,
                                        DHARWAD BENCH

                             DATED THIS THE 7TH DAY OF AUGUST, 2023

                                               BEFORE

                            THE HON'BLE MR JUSTICE M.NAGAPRASANNA

                           WRIT PETITION NO. 105232 OF 2022 (KLR-CON)

                      BETWEEN:
                      GNHAN SADHANA EDUCATION SOCIETY,
                      CHIKODI, TQ. CHIKODI, DIST. BELAGAVI-591201,
                      R/BY ITS SECRETRY,
                      SHRI. PRVEEN S/O. ANNASAHEB GHOSARWADE,
                      AGE.51 YEARS, OCC. SECRETARY,
                      R/O. CHIKODI, TQ. CHIKODI,
                      DIST. BELAGAVI-591201.
                                                                 ... PETITIONER
                      (BY SRI. SHIVRAJ S BALLOLI, ADVOCATE)

                      AND:
VISHAL                1.    THE STATE OF KARNATAKA,
NINGAPPA                    DEPARTMENT OF REVENUE,
                            R/BY ITS SECRETARY,
PATTIHAL                    VIDHAN SOUDHA, BENGALURU-560 001.
Digitally signed by   2.    THE DEPUTY COMMISSIONER,
VISHAL NINGAPPA
PATTIHAL                    BELAGAVI-590001.
Date: 2023.08.09
11:25:20 +0530        3.    THE TAHASHILDAR,
                            CHIKODI-591201.
                                                              ... RESPONDENTS
                      (BY SRI. PRASHANT V MOGALI, HCGP FOR R1-R3)

                           THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
                      227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
                      WRIT   OF   CERTIORARI    QUASHING    THE   IMPUGNED
                      ENDORSEMENT DATED 30/07/2022 PASSED BY THE 2ND
                      RESPONDENT VIDE ANNEXURE-A & ETC.
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                                                   NC: 2023:KHC-D:8476
                                                    WP No. 105232 of 2022




       THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

1. The petitioner is before this Court seeking for

the following prayers:

(i) Issue a writ of certiorari quashing the impugned endorsement dated 30.07.2022 nd passed by the 2 respondent vide Annexure-A.

(ii) Issue a writ of mandamus directing the 2nd respondent to allow the application dated 28.03.2022 made by the petitioner vide Annexure-D and convert the user of the land in R.S. No.248A/3 from agriculture to non- agricultural land for commercial (educational) purpose.

(iii) Issue any other writ or direction as deemed fit by this Hon'ble Court to meet the ends of justice and equity.

2. Learned counsel for the petitioner submits that

the issue in the lis stands covered by the Judgment

rendered by the Co-ordinate Bench of this Court in the

case of Smt. Rekha W/o. N.K. Prakasha Vs. the State

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of Karnataka & others in W.P. No.464/2020, disposed

off on 14th February 2020, which interprets an identical

problem, which was prior to the amendment to Section 95

of the Karnataka Land Revenue Act, 1964. The Co-

ordinate Bench has held as follows:

                    "V     Determination

           "11. I       have    given      my        thoughtful

consideration to the arguments advanced by the learned Counsel for the parties and perused the material on record carefully.

12. It is an undisputed fact that the petitioner is the owner of the schedule land morefully described in the schedule to the writ petition and the petitioner filed an application for conversion of schedule land from agricultural to residential purpose under the provisions of Section 95 of the Act. In view of the provisions of Section 95 of the Act, the Deputy Commissioner has to consider the application and pass appropriate orders within the stipulated time. The provisions of Section 95(5) of the Act prescribes that, 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

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application, the permission applied for shall be deemed to have been granted. Admittedly in the present case, the application came to be filed in the month of June-2019. According to the petitioner, the impugned Endorsement order came to be issued in December-2019 after lapse of four months. Therefore, according to the petitioner, the permission applied for shall be deemed to have been granted.

13. On careful perusal of the impugned Endorsement order issued by the Deputy Commissioner as per Annexure- C, it clearly depicts that except mentioning the survey number of the petitioner's land and stating that the petitioner's application for conversion to residential purpose has been rejected by the UD Department for contrary to master plan, the Deputy Commissioner has not assigned any independent reason for rejection of the application in the impugned Endorsement. The Deputy Commissioner is the only authority to consider the application for conversion from agricultural to residential purpose under the provisions of Section 95(2) of the Act. Under the provisions of Section 95 of the Act, the UD Department has no role to consider the application for conversion and the Deputy Commissioner alone has to consider the application basedon the provisions of Section 95

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of the Act and the Government Orders and Circulars issued from time to time. The petitioner has produced the 'Land Use Certificate' issued by MUDA as per Annexure-D dated 23.12.2019, wherein it is stated that the subject matter of the present writ petition falls within the residential zone. The petitioner has also produced the true copy of portion of the Master plan as per Annexure-E showing that the schedule land is in the residential zone. In the circumstances, the Deputy Commissioner ought not to have rejected the application for conversion by the impugned Endorsement.

14. The provisions of sub-section (3) of Section 95 of the Act enables the Deputy Commissioner to refuse permission on the ground that diversion is likely to defeat the provisions of any law for the time being in force or it is likely to cause public nuisance and not being in the interest of general public or on the ground that occupant is unable or unwilling to comply with the conditions that may be imposed under the provisions of sub-section (4) of Section 95 of the Act.

15. The provisions of sub-section (4) of Section 95 of the Act enables the Deputy Commissioner to impose such conditions as he

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deems fit in order to secure the health, safety and convenience and in case of land which is to be used as building sites, additional conditions can also be imposed which would not contravene the provisions of any law relating to town and country planning or erection of the buildings. As per the mandate of sub-section (5) of Section 95 of the Act, if the Deputy Commissioner fails to inform the applicant of his decision on the application made under sub-section (2) of Section 95 within a period of four months from the date of receipt of such application, then permission applied for would be deemed to have beengranted.

16. In other words, by a deeming fiction, the permission is ought to be accorded. There cannot be any dispute with regard to the proposition of law that a deeming provision has to be given its full effect. In other words, where there is a deeming provision and same applies, the jurisdiction of the authority of the Deputy Commissioner to further consider the application ceases to exist or it gets exhausted and thereby, no power would be available to the Deputy Commissioner to further exercise the power after the period of four (4) months, if the application is filed within time and in accordance with law.

VII The dictums of the Apex Court and this Court

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17. The Hon'ble Supreme Court while considering the deemed provisions under Section 95(5) of the Act in the case of Consolidated Coffee Limited and another vs. Coffee Board, Bangalore etc., reported in AIR 1980 SC 1468 held that when the law provides that an assumption is deemed to have been happened then in the eyes of law, it will be taken as happened though it might not have occurred in fact.

18. The Coordinate Bench of this Court in the case of Rudraswamy vs. Deputy Commissioner reported in ILR 1994 Kar. 2958 while considering the effect of deemedprovision under Section 95(5) of the Act held at paragraph- 8 as under:

'8. Under sub-section (5) of Section 95, it has been provided that if the Deputy Commissioner fails to inform the applicant of his decision on the application made under sub-section (2) within a period of 4 months from the date of receipt of the application, the permission shall be deemed to have been granted. The deeming clause, it is well known, leads to an assumption in law of a fact as if the fact has taken

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place in reality though it might not have taken place. When law provided that thing is deemed to have happened, then in the eye of law, it will be taken as happened though it might not have occurred in fact. It is well settled principle of law and rule of interpretation that a deeming provision has to be given its full effect. Reference in this regard may be made to the following Decisions of the Supreme Court.

(a)STATE        OF          BOMBAY         vs
       PANDURANG VINAYAK AND
       OTHERS (AIR 1953 SC 244)

(b)    CONSOLIDATED                 COFFEE
       LTD vs COFFEE BOARD (AIR
       1980 SC 1468)

       Then    it   means        that     the
permission is to       be        deemed    to

have been granted on the expiry of the period of 4 months i.e., on the expiry of four moths period as aforesaid. It shall be deemed that the Deputy Commissioner has granted permission and once this

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deeming clause applies, the jurisdiction of the authority of the Deputy Commissioner to reject the application ceases and gets exhausted.'

19. The Hon'ble Supreme Court while considering the effect of deemed provision in the case of MANISH TRIVEDI vs. STATE OF RAJASTHAN reported in (2014) 14 SCC 420, has held at paragraph-14 as under:

       "14.      Section                  87          of
       the          Rajasthan Municipalities
       Act, 1959 xxxxx               Section      21 of

the Penal Code. It is well settled that the legislature is competent to create a legal fiction. A deeming provision is enacted for the purpose of assuming the existence of a fact which does not really exist. When the legislature creates a legal fiction, the court has to ascertain for what purpose the fiction is created and after ascertaining this, to assume all those facts and consequences which are incidental or inevitable corollaries

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for giving effect to the fiction. In our opinion, the legislature, while enacting Section 87 has, thus, created a legal fiction for the purpose of assuming that the Members, otherwise, may not be public servants within the meaning of Section 21 of the Penal Code but shall be assumed to be so in view of the legal fiction so created. In view of the aforesaid, there is no escape from the conclusion that the appellant is a public servant within the meaning of Section 21 of the Penal Code."

20. The Deputy Commissioner while examining the application for conversion would not be competent to decide as to whether the said land would fall within the Urban Zone or otherwise to accord such permission. It would be outside the scope of his jurisdiction or in other words, it can be said that the Deputy Commissioner would be at liberty to impose the condition of directing the applicant to obtain appropriate permission/clearance from the other statutory authorities. In the absence thereof, the deeming provision would surface and come to the

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aid of such applicant.

VIII Conclusion

21. In view of the provisions of Section 95 of the Act and the dictum of this Court and the Hon'ble Supreme Court stated supra, the impugned Endorsement order issued by the Deputy Commissioner is contrary to the 'Land Use Certificate' issued by the MUDA as per Annexure- D and the sketch as per Annexure-E and the same cannot be sustained and the Deputy Commissioner has to reconsider the application of the petitioner for conversion afresh under the provisions of Section 95 of the Act and in the light of the law declared by the Hon'ble Supreme Court statedsupra .

22. It is also made clear that while considering the provisions of Section 95 of the Act, the Deputy Commissioner shall not be influenced by the observations made by the Urban Development Authority, who is not the authority under the provisions of Section 95 of the Act, and it is for the Deputy Commissioner to apply his mind independently to the provisions of the Act and pass appropriate orders in accordance with law.

23. For the reasons stated supra, the point

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raised for determination is answered in the nd negative holding that the 2 respondent - Deputy Commissioner is not justified in issuing the impugned Endorsement order dated nil as per Annexure-C, rejecting the application for conversion under the provisions of Section - 95 of the Act and the same is liable to be quashed."

3. Learned HCGP though would seek to refute the

submissions of the petitioner is not in a position to dispute

the position of law as is considered by the Co-ordinate

Bench of this Court, since the issue is similar and the

reason for rejection is also similar. Therefore, I deem it

appropriate to follow the judgment of the Co-ordinate

Bench of this Court and to grant the same relief that is

granted to the petitioner therein. For the aforesaid

reasons, the following:

ORDER

For the reasons stated above, the writ petition is

allowed. The impugned Endorsement dated 30.07.2022 as