Karnataka High Court
Sri. Mallesh Reddy vs State Of Karnataka on 4 March, 2024
Author: R Devdas
Bench: R Devdas
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NC: 2024:KHC:8981
WP No. 8455 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO.8455 OF 2023 (KLR-RES)
BETWEEN:
SRI. MALLESH REDDY
S/O SRI. C. RAMACHANDRAREDDY,
AGED 52 YEARS,
R/O SHETTYHALLI VILLAGE,
MADIVALA DHAKALE,
MARASURU POST,
ANEKAL TALUK - 562106
...PETITIONER
(BY SRI. MITHUN G A., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY,
Digitally signed URBAN DEVELOPMENT DEPARTMENT,
by KRISHNAPPA M.S.BUILDING,
LAXMI YASHODA
Location: HIGH BANGALORE - 560001.
COURT OF
KARNATAKA
2. THE DISTRICT COMMISSIONER,
BANGALORE URBAN DISTRICT,
BENGALURU - 560009.
3. THE MEMBER SECERTARY AND
JOINT DIRECTOR OF URBAN
AND RURAL PLANNING STRR
PLANNING AUTHORITY,
BENGALURU METROPOLITAN
AREA DEVELOPMENT AUTHORITY,
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WP No. 8455 of 2023
NO.1, ALI ASKAR ROAD,
BANGALORE - 560052.
...RESPONDENTS
(BY SRI.V.G. BHANUPRAKASH, AAG FOR
SRI. MOHAMMED JAFFAR SHAH, AGA FOR R1 & R2
SRI. YOGESH D NAIK., ADVOCATE FOR R3)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE
IMPUGNED ENDORSEMENT ISSUED BY THE 2ND RESPONDENT
BEARING NO. ALN (A) S R 69/10-11 DATED 14.02.23 VIDE
ANNEXURE-A AND BY CONSEQUENTLY SETTING ASIDE THE
COMMUNICATION BEARING NO.STRRPA/TP/BHU.PA/46/2016-
17 DATED 29.12.22 ISSUED BY THE 3RD RESPONDENT VIDE
ANNEXURE-B AND ETC.,
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
The petitioner who first filed an application on
30.12.2010 seeking conversion of lands from agricultural
to non-agricultural purposes is before this Court for the
fourth time aggrieved of the inaction on the part of the
respondent - Deputy Commissioner.
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2. The petitioner acquired the land in question
measuring about 1 acre situated at Mayasandra Village,
Attibele Hobli, Anekal Taluk, under a gift deed dated
05.08.2010. The petitioner applied for a dealership of
retail outlet at the hands of the Indian Oil Corporation
Limited (for short 'IOCL'). Since the petitioner had the
availability of lands in terms of the requirement of the
IOCL, he filed an application and participated in the
interview and consequently the IOCL issued a Letter of
Intent on 13.12.2010 offering the dealership to the
petitioner. As per the requirement the petitioner filed
an application on 30.12.2010 under Section 95(2) of
the Karnataka Land Revenue Act, 1964 before the
Deputy Commissioner seeking conversion of land. An
endorsement was issued to the petitioner rejecting the
application on 20.04.2011.
3. In the meanwhile, the petitioner also had to
raise a challenge to the action sought to be taken by
the IOCL and therefore filed W.P.No.847/2011. In the
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meanwhile, the petitioner also approached the
Karnataka Appellate Tribunal in Appeal No.620/2012
challenging the endorsement issued by the Deputy
Commissioner. The Tribunal by order dated 31.10.2015
set aside the endorsement issued by the Deputy
Commissioner and directed the Deputy Commissioner
to collect the requisite fee for conversion and convert
the land from agricultural to commercial purpose.
Consequently, the petitioner approached the 3rd
respondent - The Member Secretary and Joint Director
of Urban and Rural Planning, STRR Planning Authority,
since the petitioner was informed of the fact that a part
of the land was earmarked for the purposes of
establishment of STRR (Satellite Town Ring Road), in
the Master Plan - 2031 by the Anekal Planning
Authority. On the orders being passed by the Tribunal,
the Deputy Commissioner also sought for the opinion of
the 3rd respondent. The 3rd respondent issued a
communication dated 20.09.2017 stating that the land
in question may be required for formation of STRR and
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therefore the lands cannot be converted. Nevertheless,
the petitioner once again gave a representation to the
Deputy Commissioner on 07.12.2017 seeking
compliance of the orders passed by the Tribunal.
However, the Deputy Commissioner once again issued
an endorsement dated 28.02.2018 citing the same
reasons and declined to pass an order of conversion.
4. The Deputy Commissioner along with the
Tahasildar of the Anekal Taluk filed W.P.No.32608/2018
challenging the orders passed by the Karnataka
Appellate Tribunal. The said writ petition was dismissed
by order dated 10.11.2022 directing the Deputy
Commissioner to dispose of the application within an
outer limit of two months taking into account the fact
matrix as on the date when application was made. In
the meanwhile, the petitioner had also filed
W.P.No.34448/2018 calling in question the
endorsement dated 28.02.2018 issued by the Deputy
Commissioner. Nevertheless having taken note of the
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orders passed in WP.No.32608/2018 the said
W.P.No.34448/2018 was also disposed of.
5. Learned counsel for the petitioner submits
that inspite of such orders been passed by this Court,
the Deputy Commissioner once again issued the
impugned endorsement dated 1/14.02.2023 citing the
same reasons that since the land in question is required
for formation of STRR, the land cannot be converted.
6. Learned counsel for the petitioner submits
that under similar circumstances, the Hon'ble Supreme
Court in the case of LAXMIKANTH AND OTHERS
/VS/ STATE OF MAHARASHTRA AND OTHERS -
(2022) 7 SCC 252 held that the land owner cannot be
deprived of the use of the land for years together. Once
an embargo has been put on a land owner not to use
the land in a particular manner, the said restriction
cannot be open ended for an indefinite period. Taking
note of similar provisions as contained in Section 69 of
the Karnataka Town and Country Planning Act, viz,
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Section 126 of the Maharashtra Regional and Town
Planning Act, 1966, the Supreme Court held that the
statute has provided a period of ten years to acquire
the land and an additional one year time is granted to
the land owner to serve a notice for acquisition prior to
the amendment brought to the Act in the year 2015.
Nevertheless, having noticed the fact that the State or
its functionaries cannot be directed to acquire the land
as the acquisition is on its satisfaction that the land is
required for a public purpose, it was held that if the
State was inactive for a long number of years, the
Courts would not issue direction for the acquisition of
land, which is the exercise of the powers of the State
to invoke its rights of eminent domain. Therefore, the
directions issued by the High Court granting one year
time to the State to acquire the land was set aside by
the Hon'ble Supreme Court. The learned counsel for
the petitioner would therefore submit that this Court
should take note of the fact that in the previous master
plan of the year 2015 there was a proposal for
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formation of the STRR and the designation is repeated
in the Master Plan -2031.
7. Learned counsel submits that having regard
to the provisions contained in Section 69 of the Act, the
State should have either acquired the land or should
have entered into an agreement to purchase the land.
Instead of doing so, the State and the Planning
Authority have repeated the reservation in the next
master plan i.e., Master Plan-2031. Learned counsel
submits that this would amount to colourable exercise
of power since the State cannot misuse its power to
deprive a person of the beneficial use of the lands.
8. Learned counsel would further submit that
during the course of these proceedings it has been
brought to the notice of this Court that the Special Land
Acquisition Officer of the State Highway had indicated
in its communication dated 23.08.2023 that only 4
guntas of land belonging to the petitioner may be
required for expansion of the road. Learned counsel
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therefore submitted that the petitioner is ready and
willing to leave aside 4 guntas of land which may be
required for future expansion and the Deputy
Commissioner may be directed to pass necessary
orders to convert the remaining extent of land which
would enable the petitioner to establish the retail outlet
having secured the licence at the hands of the IOCL.
9. Per contra, the learned Additional Advocate
General appearing on behalf of the State and the
Deputy Commissioner submits that the information
given by the Special Land Acquisition Officer of the
State Highway may be on the premise that the land
was required for future expansion of the road.
However, contention of the State and the Planning
authority that there is a proposal for formation of STRR
and the width for such road would be 90 meters and
therefore the opinion of the Special Land Acquisiton
Officer, State Highways may not be relevant. The
learned Additional Advocate General would further
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submit that having regard to the judgment cited by the
learned counsel for the petitioner in the case of
LAXMIKANTH (supra) and the relevant provisions
contained in sub-section (2) of Section 69 of the Act,
the mandatory period of 5 years commences from the
date of publication of the Master plan under sub-
section(4) of Section 13. However, the provisions
clearly excludes from the purview of sub-section (2) of
Section 69 the designation made in clause (b) of sub-
section (1) of Section 12 namely, complete street
pattern, indicating major and minor roads, national
highways and state highways, traffic circulation patron
for meeting immediate and future requirements with
proposals for improvements. Learned Additional
Advocate General would therefore submit that this
court is dealing with an exception clause contained in
sub-section (2) of Section 69 and what fell for
consideration before the Hon'ble Supreme Court was
the other designation not the one excluded from the
purview of the said provisions. At any rate, it is
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submitted that since it is clear from the information
made available to this Court that the land in question
are required for formation of the STRR, it would be
impermissible for the Deputy Commissioner to convert
the land. In this regard, the learned Additional
Advocate General would also place reliance on a recent
decision of co-ordinate bench of this court in the case of
K.Gopalagowda and another /vs/ State of
Karnataka and others in W.P.No.50462/2019
dated 02.06.2023. The learned Additional Advocate
General submits that the co-ordinte bench has taken
note of the difference between the lands earmarked for
other purposes such as parks, playgrounds etc., when
compared to the lands earmarked for formation of
roads, expansion of roads, highways etc. Taking note
of such exception carved in the provisions, the co-
ordinate bench held that the petitioner cannot claim
that their lands held up by the planning authority in
terms of Section 12 would lapse or the petitioners
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would have a right to reclaim the land or to seek
realignment of the roads.
10. In the considered opinion of this Court, when
a party approaches this Court pointing out to such
colourable exercise of power in as much as the power
to designate private lands for public purpose being over
and over again earmarked for such purposes in
succeeding master plans it should be held that the
authority is abusing its powers. Having regard to the
facts obtained in the present case, it is clear that at the
first instance when the petitioner made an application
in the year 2010, the application was rejected on the
same ground that the then Anekal Planning Authority,
in its master plan had earmarked a part of the land for
formation of STRR. It is thus clear that the earmarking
of the land in question for formation of STRR
commenced even prior to the year 2005 and it was
crystallized by issuance of a notification at the instance
of Bangalore Metro Rail (BMR) and notification of
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interim master plan by order dated 21.09.2005. This
Court should take note of such facts and the
predicament of the persons like the petitioners. If a
land is earmarked and designated for such public
purpose for decades together as in the present case for
nearly 20 years, having regard to the fact that the
designation was first made on 21.09.2005 and
continuous till date, the owners of the land will be
deprived of opportunity to put the land to beneficial
use. This is the reason why this Court is of the
considered opinion that if in the master plan there is a
repetition of the designation and earmarking of private
lands for public purpose, it would amount to colourable
exercise of power. The exception carved out under sub-
section (2) of Section 69 cannot be misused by the
State and the Planning authority in repeating the
designation of land in every successive master plan.
The intention of the legislature in carving out an
exception in cases of formation of roads, when
compared to park and open spaces as provided in sub-
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section (2) of Section 69 is to give a little bit of leeway
to the State and the planning authority to acquire or
purchase the land having regard to the fact and
inevitable circumstances where the alignment of the
roads cannot be altered. Nevertheless, it would be
unacceptable that State and the Planning Authority may
take advantage of such exception carved out in sub-
section (2) of Section 69 and go on earmarking or
designating private lands for public use in successive
master plan and prevent the land owners from the
beneficial use of the properties for decades together.
The rights guaranteed by the constitution under Article
300A of the Constitution of India has also been noticed
by the Hon'ble Supreme Court in various such cases
including the LAXMIKANTH (supra) and therefore it
was held that once an embargo has been put on a
landowner not to use the land in a particular manner,
the said restriction cannot be kept open-ended for
indefinite period.
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11. During the course of the arguments, the
learned Additional Advocate General had submitted on
instructions that the process for acquisition has already
began, taking note of the concrete information given by
the planning authority. It has been informed that the
width of the STRR would be 90 meters and therefore
from the centre of the road 45 meters on either side
will have to be reserved for formation of the STRR. If
that is so, then the learned counsel for the petitioner is
right in his submission that the authorities should be
able to point out from the mid of the road as to what
would be the requirement for formation of the STRR
from out of the land belonging to the petitioners. The
petitioner is more than willing to leave away such
extent of land for formation of the STRR awaiting the
land acquisition process and award of compensation to
the petitioners. However, in respect of the remaining
extent of land if the Deputy Commissioner is directed to
pass orders of conversion, the petitioner will be in a
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position to go ahead and install the retail outlet in
terms of the permission granted by the IOCL.
12. This court has also taken note of the fact
that the Hon'ble Supreme Court has directed in the
case of LAXMIKANTH (supra) that it would be
impermissible for the courts to direct the State to
acquire any piece of land. However that should not
prevent the Deputy Commissioner from getting the
requisite information as to the extent of land that may
be required for formation of STRR and proceed to pass
orders for conversion of the remaining extent of land.
13. Consequently, the writ petition stands
disposed of with a specific direction to the 2nd
respondent - Deputy Commissioner, Bangalore Urban
District that he shall forthwith call for all the relevant
information from the planning authority as to the extent
of land that may be required for formation of the STRR
on the land in question. Thereafter, the Deputy
Commissioner shall proceed to pass necessary orders
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for conversion in respect of the remaining extent of
land. The entire exercise shall be completed as
expeditiously as possible and at any rate within a
period of two months from the date of receipt of copy
of this order.
14. If the Deputy Commissioner fails to pass
such order of conversion, in terms of the directions
issued by this Court and within the stipulated time,
there shall be deemed conversion of the land in
question.
Ordered accordingly
Sd/-
JUDGE
KLY
CT:JL
