Karnataka High Court

Sri K S Jinnah Sab S/O. Late Syed Mohammed ... vs The Deputy Commissioner on 27 January, 2025

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

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                                                     WP No. 106284 of 2023




                             IN THE HIGH COURT OF KARNATAKA,
                                      DHARWAD BENCH

                         DATED THIS THE 27TH DAY OF JANUARY, 2025

                                         BEFORE
                        THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

                         WRIT PETITION NO.106284 OF 2023 (KLR-CON)
                 BETWEEN:

                 1.   SRI K. S. JINNAH SAB
                      S/O. LATE SYED MOHAMMED SAB
                      AGE ABOUT 64 YEARS,
                      OCC. AGRICULTURIST,
                      R/O. HAGARIBOMMANAHALLI,
                      TQ. H. B. HALLI,
                      DIST. VIJAYANAGAR-583212.

                 2.   SMT. SATTYAMMA W/O. BASAPPA
                      AGE ABOUT 59 YEARS,
                      OCC. HOUSEHOLD WORK,
                      R/O. H. NO.130, WARD NO.2,
                      GOLLARA ONI,
                      OL HAGARIBOMMANAHALLI,
                      TQ. H. B. HALLI,
ASHPAK
KASHIMSA              DIST. VIJAYANAGAR-583212.
MALAGALADINNI


Location: HIGH                                                   ...PETITIONERS
COURT OF
KARNATAKA        (BY SRI. S. M. JATTI, ADVOCATE)
DHARWAD
BENCH
                 AND:

                 1.   THE DEPUTY COMMISSIONER
                      OFFICE OF THE DEPUTY COMMISSIONER,
                      BALLARI, DIST. BALLARI-583101.

                 2.   THE DEPUTY DIRECTOR OF LAND RECORDS,
                      TOWN AND COUNTRY PLANNING,
                      BALLARI, DIST. BALLARI-583101.

                 3.   THE ASSISTANT COMMISSIONER,
                      CITY MUNICIPAL CORPORATION
                      HAGARIBOMMANAHALLI,
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                                     WP No. 106284 of 2023




     TQ. H. B. HALLI,
     DIST. BALLARI-583212.

4.   THE TAHASILDAR,
     HAGARIBOMMANAHALLI,
     TQ. H. B. HALLI,
     DIST. BALLARI-583212.

5.   THE CHIEF OFFICER,
     TOWN MUNICIPAL OFFICE,
     HAGARIBOMMANAHALLI,
     TQ. H. B. HALLI,
     DIST. BALLARI-583212.

6.   SRI. SYED YUSUF
     S/O. LATE IBRAHIM SAB,
     AGE ABOUT 53 YEARS,
     OCC. AGRICULTURIST,
     R/O. HAGARIBOMMANAHALLI,
     TQ. H. B. HALLI,
     DIST. VIJAYANAGAR-583212.

7.   SRI. SYED MOHABOOB SAB
     S/O. LATE IBRAHIM SAB
     AGE ABOUT 49 YEARS,
     OCC. AGRICULTURIST,
     R/O. HAGARIBOMMANAHALLI,
     TQ. H. B. HALLI,
     DIST. VIJAYANAGAR-583212.

                                              ...RESPONDENTS

(BY SRI. V.S.KALASURMATH, AGA FOR R1 TO R4;
SRI M.M.PATIL, ADVOCATE FOR R6 TO 7;
SRI LAXMAN T.MANTAGANI, ADVOCATE FOR R5)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF CONSTITUTION OF INDIA PRAYING TO QUASH IMPUGNED ORDER
DATED. 30.06.2023 BEARING NO. SAM/KAM.BHOOPA/06/2022-23
PASSED BY THE RESPONDENT NO.1 VIDE ANNEXURE-K AND TO
DIRECT THE RESPONDENT NOS.1 TO 5 TO CONSIDER THE
REPRESENTATION DATED. 24.01.2020 GIVEN BY THE PETITIONER
NO.1 PRODUCED VIDE ANNEXURE-F AND LEGAL NOTICE DATED.
10.10.2022 PRODUCED VIDE ANNEXURE-H, RESPECTIVELY.
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                                           WP No. 106284 of 2023




      THIS PETITION IS COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

1. The petitioners are before this Court seeking the

following relief:

a) Issue a Writ/s or Order/s in the nature of Certiorari to Quash impugned order dated. 30.06.2023 bearing No. Sam/kam.bhoopa/06/2022-23 passed by the respondent No.1 vide Annexure-K.

b) Issue a Writ/s or Order/s in the nature of Mandamus to direct the respondent Nos.1 to 5 to consider the representation dated 24.01.2020 given by the petitioner No.1 produced vide Annexure-F and legal notice dated. 10.10.2022 produced vide Annexure-H, respectively.

c) Issue any other Writ/s, Order/s or Directions as this Hon'ble Court may deem fit under the circumstances of the case, in the interest of justice and equity.

2. The petitioners claim to be the owners of the land

bearing Sy.No.220D/1 measuring to an extent of 1

acre 10 gunta situated at H.B.Halli. To the southern

side of the said land, respondents No.6 and 7 claim to

be the owners of Sy.No.220/D2A measuring to an

extent of 00-60 acres, Sy.No.220/D2B measuring to

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an extent of 00-63 acres and Sy.No.224B/1

measuring to an extent of 00-87 acres.

3. The petitioners and respondents No.6 and 7 by way of

separate applications to the Deputy Commissioner

sought for conversion of the aforesaid lands from

agriculture to non-agriculture purposes, which was

allowed vide orders dated 23.11.2015, 03.11.2014,

03.03.2016 and 30.10.2019 at Annexure-B series. In

terms of the conversion granted, the petitioners and

respondents No.6 and 7 applied for and obtained plan

sanctions for formation of layouts. The manner in

which the plan sanction had obtained were in fact by

treating the entire lands of the petitioners and

respondents No.6 and 7 to be one single composite

unit with roads leading from one property to other

property, which have been described in the petition as

link roads leading up to the Tambarahalli to

Hagaribommanahalli road thereby, providing access to

the petitioners.

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4. The petitioners claim that they have implemented the

plan sanction, formed sites and sold it to 3rd parties,

who have purchased the same and put up

constructions thereon.

5. While things stood thus, the impleading applicants in

I.A.No.1/2024 had filed a suit in O.S.No.28/2020

seeking for partition and separate possession against

respondents No.6 and 7, which came to be decreed on

30.01.2023. Plaintiffs No.4 and 5 therein i.e.,

proposed respondents No.11 and 12 were declared to

be entitled to 1/10th share in item Nos.1 and 2 of the

suit schedule 'B' properties therein. Plaintiffs No.2, 3,

defendants No.1 and 2 each were declared to be

entitled to 2/10th share over item Nos.1 and 2 of the

suit schedule properties.

6. Item No.1 of the suit schedule 'B' property therein is

Sy.No.220D2A measuring 0.60 acres and item No.2 is

Sy.No.220D2B measuring 0.63 acres, which was

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subject matter of the application for conversion filed

by respondents No.6 and 7 as detailed above.

7. On the said suit being decreed, the decree having

attained finality since respondents No.6 and 7 did not

challenge the said decree, the proposed respondents

submitted an application to respondents No.1 seeking

for cancellation of the conversion granted on the

ground that they had not consented to or acceded to

the conversion and as such, the conversion order

cannot bind them. Respondents No.1 accepting the

said statement vide his order dated 30.06.2023 at

Annexure-K, allowed the same and set-aside the

conversion in respect of the properties bearing

Sy.Nos.220/D2A and 220/D2B. It is challenging the

same, the petitioners are before this Court seeking for

the aforesaid reliefs.

8. Shri S.M.Jatti, learned counsel for the petitioners

would submit that in terms of the conversion order of

Sy.Nos.220D/1 belonging to the petitioners and

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Sy.Nos.220/D2A and 220/D2B belonging to

respondents No.6 and 7 as also the impleading

applicants, a layout has been formed after obtaining

necessary permission, sites having formed. If the

conversion in respect of Sy.Nos.220/D2A and

220/D2B is cancelled, the conversion order in respect

of Sy.No.220D/1 belonging to the petitioners, would

be adversely affected. The access to said property as

per the layout plan sanctioned will be negated

depriving the petitioners of such access. Lastly, he

submits that the suit is a collusive one filed by

respondents No.6 and 7 and the impleading applicants

to deprive access to the land of the petitioners and to

extort monies from the petitioners. He further submit

that respondent No.1 having granted conversion

order, does not have revisional powers and he having

been rendered functus officio after passing of the

conversion order, could not review his own

administrative order and cancel the conversion on the

basis of the application filed by the impleading

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applicants in collusion with respondents No.6 and 7.

He therefore submit that the impugned order is

required to be quashed.

9. Shri M.M.Patil, learned counsel for respondents No.6

and 7 supports the order of the Deputy Commissioner

and submits that the Deputy Commissioner having

taken into consideration that the impleading

applicants rights' had not been taken into

consideration when the conversion order was passed

has now taken the same into consideration in terms of

decree passed in O.S.No.28/2020 and has cancelled

the conversion order, which cannot be found fault

with. His submission is that the conversion order of

the petitioners and the conversion order obtained by

respondents No.6 and 7 are distinct independent

orders and the conversion orders in respect of lands

of respondents No.6 and 7 being cancelled, does not

give any right to the petitioners to challenge the

same.

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10. Shri C.V.Angadi, learned counsel appearing for

proposed respondents No.8 to 11, who are the

plaintiffs in O.S.No.28 of 2020 contends that the

conversion order having been obtained without the

consent of the impleading applicants is non est. The

land originally belonging to one Ibrahim Sab, who is

the father of the impleading applicants, who are

plaintiffs in O.S.No.28 of 2020 and respondents No. 6

and 7, who are defendants in the said suit, the trial

Court has come to a conclusion that the impleading

applicants and respondents No.6 and 7 were tenants

in common. Thus, the impleading applicants always

having a right, title and interest for the property

without their consent, no application could have been

filed for conversion and the conversion order obtained

behind the back of impleading applicants, is non est

and cannot be binding on the impleading applicants.

His further submission is that false and fabricated

documents have been created by respondents No.6

and 7 depriving the impleading applicants of their

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right, title and interest in the property. On that

ground, he submits that the conversion order has

been rightly cancelled by respondent No.1/Deputy

Commissioner and the reliefs, which have been

sought for by the petitioners cannot be granted.

11. Heard learned counsel appearing for the petitioners

and respondents. Perused the writ petition papers.

12. The facts as aforesaid are not in dispute. The

ownership of the lands in Sy.No.220D/1 of that of the

petitioners is not in dispute. The ownership of land in

respect of Sy.Nos.220/D2A and 220/D2B being that of

late Ibrahim Sab, is not in dispute. Respondents No.6

and 7 had applied for and obtained conversion of the

aforesaid lands without the consent of the impleading

applicants, which lead to the impleading applicants

filing aforesaid suit in O.S.No.28 of 2020, which came

to be decreed. The suit was filed in the year 2020

whereas the conversion orders were obtained on

23.11.2015, 03.11.2014, 03.03.2016 and

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30.10.2019. In pursuance of which, a layout approval

was also obtained on 31.05.2016, 31.07.2020,

31.05.2016 and 30.07.2016. In furtherance of which,

the petitioners claim that they have developed the

layout in their property so also there is a development

of a layout by respondents No.6 and 7. However, in

order to deprive the petitioners of access to the main

road through the lands of the respondent 6, 7 and the

impleading applicants in terms of the layout plan

sanctioned, a collusive suit has been filed and a

decree obtained. This aspect is what would have to be

considered by this Court on the basis of the

submission and the pleadings, which have been filed.

13. A perusal of the decree in O.S.No.28 of 2020, would

indicate there being no contest by respondents No.6

and 7 in as much as a suit having been filed by the

impleading applicants, the respondents did not lead

any cogent evidence, did not place on record any

evidence as regards the layout approval, the

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conversion order and the like, which are undisputed to

have taken place in the year 2015-16. If at all

respondents No.6 and 7 were not colluding with the

impleading applicants, who are the plaintiffs in the

said suit, it was required of respondents No.6 and 7 to

have placed these details on record. Except for taking

up a bald contention that a layout had been formed,

no documents have been produced by respondents

No.6 and 7, which came to be observed by the trial

Court at Para-10 of the judgment and it is on the

basis of such non production that the trial Court came

to the conclusion that there is no layout plan and sites

were not sold to 3rd parties. It is that fact, which

resulted in the trial Court passing the said judgement.

If at all, it has been brought to notice of the trial

Court that in pursuance of the conversion, a layout

had been formed and that the said layout plan was in

conjunction with layout plan of Sy.No.220D/1

belonging to the petitioners, in my considered opinion

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it would be unlikely for the trial Court to pass the said

judgment as regards item No.1 and 2.

14. The trial Court, would have considered the layout plan

and the third party rights which had been created and

would not have granted the reliefs sought for in

respect to the sites, which have been formed more so

when the owner of the said sites as also the

petitioners were not parties to the said suit. The

roads, which have been formed in the lands in

Sy.Nos.220/D2A and 220/D2B have already been

surrendered and relinquished in favour of respondents

No.5 including civic amenity, roads etc are now

belonging to respondents No.5 and thus, to a general

public.

15. Once a land is converted from agriculture to non-

agriculture purpose by the Deputy Commissioner, the

Deputy Commissioner is rendered functus officio as

held by this Court way back on 14.11.20213 in case

of Smt. Rathna W/o Late Sadarama Vs Deputy

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Commissioner                 and              Another          in

W.P.No.45634/2013. When this Court has declared

the Deputy Commissioner to be functus officio after

the exercise of powers under Section 95 of the Act

converting the land from agriculture to non-

agriculture purposes and has further held that there

can be no review of administrative action unless

specifically provided in the statute. The statute not

providing for the same, the Deputy Commissioner

could not have on the basis of an application

submitted by the impleading applicants, review the

order of conversion and cancel the same. The

judgment in the case of Smt. Rathna (supra), has

been subsequently applied in several cases and has

been approved by the Division Bench of this Court

vide order dated 23.11.2023 WA No.387 of

2023. That being the case the respondent

No.1/Deputy Commissioner ought to have been aware

of the said order and rejected the contention of the

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impleading applicants seeking for cancellation of the

conversion order.

16. Be that as it may, the conversion of the land from

agriculture to non-agriculture purposes, would enure

to the benefit of all the family members. In this case,

even if there is no collusion between the impleading

applicants and respondents No.6 and 7, the

conversion order granted by Deputy Commissioner

only enhances the value of the land and as such, the

rights of the parties. It is only in the remaining land

that they can claim their interest as declared by the

trial Court which would have to be considered in the

final decree proceedings.

17. As however observed above, in the present matter, I

have come to a categorical conclusion that there is a

collusion between the impleading applicants and

respondents No.6 and 7 and it is respondents No.6

and 7, who did not contest the said suit and who are

now supporting the order of the Deputy

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Commissioner, passed on the basis of application filed

by the impleadings applicants, which as aforesaid

being collusive, the impleading applicants cannot take

advantage of such a collusive judgement passed in

O.S.No.28 of 2020 to the detriment not only of the

petitioners but as also respondents No.5 and the

general public, who are now vested with the right to

make use of the roads, which have been

surrendered/relinquished to respondent

No.5/authority.

18. In that view of the matter, I pass the following;



                            ORDER


  i)      Writ petition is allowed.


  ii)     The     impleading         application       filed    in

          I.A.No.1/2024 stands rejected.


  iii)    A certiorari is issued, the impugned order

          dated             30.06.2023                   bearing

          No.Sa/Kom.Bhoopa/06/2022-23                           by
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respondents No.1 at Annexure-K is hereby

quashed.

iv) The conversion orders dated 08.09.2014,

17.11.2015 and 06.02.2004 at Annexure-B

series and the layout approvals dated

31.05.2016, 31.07.2020, 31.05.2016 and

30.07.2016 at Annexure-C series are declared

to be valid and subsisting.

v) Rights of the impleading applicants, are to be

adjudicated in the final decree proceedings as

and when filed in pursuance of the preliminary

decree passed in O.S.No.28 of 2020.