At, High Court of Karnataka
By, THE HONOURABLE CHIEF JUSTICE MR. RITU RAJ AWASTHI & THE HONOURABLE MR. JUSTICE SACHIN SHANKAR MAGADUM
For the Petitioner: L.M. Chidanandayya, Advocate. For the Respondents: R1 to R4, S.S. Mahendra, AGA.
(Prayer: This Petition is filed under Articles 226 & 227 of the Constitution of India praying to call for records which ultimately results in passing the order Annexure-A dated 19/21.06.2019 passed by the R-3 and etc.)
Sachin Shankar Magadum, J.
1. The captioned petition is filed questioning the order dated 19/21.06.2019 passed by the respondent No.3 as per Annexure-A. The petitioner has also sought a declaration to declare that the petitioner has deemed conversion of land by virtue of Section 95(9) of the Karnataka Land Revenue Act, 1964 (for short 'the Act').
2. The facts leading to the case are as under: The subject matter of the petition is agricultural land bearing Sy.No.148/2 measuring 1.32 acres situated atHonaganahalli Village, Pandavapura Taluk, Mandya District. The petitioner claims that the petition land was allotted to his share under registered partition deed dated 20.12.2004. The petition land consists of building stones in an area of 1.20 acres and therefore, the petitioner with a view to obtain quarry licence, submitted an application on 14.05.2015. On receipt of the application, the authority sought opinion from various departments. The jurisdictional Tahsildar after verification has endorsed that the petition land is a private patta land and has consequently granted 'No objection'. The Assistant Commissioner has also issued a certificate to that effect. The forest department has also issued 'No objection' for quarry licence in favour of the petitioner.
3. The petitioner thereafter submitted an application to the respondent No.4/Deputy Commissioner in terms of deemed conversion under sub-section (9) of Section 95 of the Act. Meanwhile, the respondent No.3 having received the report under Rule 8(5) of the Karnataka Minor MineralConcession Rules, 1994 (for short 'the KMMC Rules'), issued a notification on 25.11.2017 notifying the grant of quarry licence in favour of the petitioner. However, the respondent No.4/Deputy Commissioner failed to pass appropriate orders on the application submitted by the petitioner. This compelled the petitioner to approach this Court and on receipt of notice, the Government Advocate produced endorsement dated 29.06.2019 inter alia stating that the application submitted for conversion of land is rejected.
4. The respondent No.3 pursuant to rejection of the application seeking conversion withdrew the notification by order dated 19/21.06.2019. Assailing the order dated 19/21.06.2019 passed by the respondent No.3 and also being aggrieved by the rejection of the application by the respondent No.4, the present writ petition is filed.
5. Learned counsel appearing for the petitioner reiterating the grounds urged in the writ petition would vehemently argue and contend before this Court that therespondent No.3 having issued the notification after securing report from all the competent authorities was not justified in withdrawing the said notification as per the impugned order dated 19/21.06.2019 as per Annexure-A on the ground that the conversion application is rejected by the respondent No.4/Deputy Commissioner. He would further contend that the respondent No.4/Deputy Commissioner was not justified in examining the materials which do not fall within the ambit of sub-section (9) of Section 95 of the Act and therefore, he would submit to this Court that the impugned order passed by the respondent No.3 as per Annexure-A is not sustainable and therefore, seeks indulgence of this Court.
6. Per contra, learned Additional Government Advocate for the respondents repelling the contentions would submit to this Court that the prayers (a) and (b) sought in the present writ petition cannot be entertained in the writ jurisdiction since the petitioner has efficacious remedy under Rule 53 of the KMMC Rules. However, he would fairly submitthat the prayer made at (c) in regard to deemed conversion under sub-section (9) of Section 95 of the Act may be allowed.
7. Heard the learned counsel for the petitioner and the learned Additional Government Advocate for the respondents. Perused the records.
8. The respondent No.3 having issued the notification under Rule 8(5) of the KMMC Rules, has proceeded to withdraw the same on the ground that the application filed by the petitioner seeking conversion is rejected. However, on perusal of the order under challenge, we would find some force in the submission made by the learned Additional Government Advocate. The impugned order passed by the respondent No.3 as per Annexure-A is revisable under Rule 53 of the KMMC Rules and therefore, we are not inclined to entertain the prayers sought by the petitioner at prayers (a) and (b).
9. The petitioner has made a representation to the respondent No.4/Deputy Commissioner requesting to grant deemed conversion and receive the conversion fees by issuing necessary challan for payment of conversion fee. Therefore, a mandamus is sought by the petitioner to issue appropriate direction to the respondent No.4/Deputy Commissioner to receive conversion fee and declare that the petition land has been deemed to be converted for the purpose of quarrying. The material on record indicates that the respondent No.4 has declined to accept the conversion fees. This action of the respondent No.4/Deputy Commissioner is contrary to the deeming conversion under sub-section (9) of Section 95 of the Act.
10. Once an application is made under sub-section (9) of Section 95 of the Act, the Deputy Commissioner to whom the application is made is under an obligation to communicate the fine payable to such applicant in accordance with Rule 107 of the Karnataka Land Revenue Rules, 1966 and once suchfine is paid, the deeming fiction under sub-section (9) of Section 95 of the Act immediately comes into operation.
11. Hence, the petition must succeed and we pass the following:
(i) The writ petition is allowed in part;
(ii) The respondent No.4/Deputy Commissioner shall consider the application/representation dated 04.04.2019 submitted by the petitioner and shall communicate the amount of fine payable for conversion in accordance with Rule 107 of the Karnataka Land Revenue Rules, 1966 to the petitioner within a period of three weeks from today;
(iii) On payment of fine as demanded by the Deputy Commissioner, a deemed conversion in respect of the schedule land as prayed for in the application/representation dated 04.04.2019 shall be deemed to have been granted to the petitioner under sub-section (9) of Section 95 of the Act;
(iv) We make it clear
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that the issue whether the petitioner is entitled for grant of licence under the provisions of the Karnataka Regulation of Stone Crushers Act, 2011 is kept open and the same shall be dealt by the respondent No.3/Senior Geologist in accordance with law in the event the petitioner files a revision before the competent authority within a period of four weeks from the date of receipt of the order; (iv) We make it clear that even if a deemed conversion is granted, the petitioner is entitled to utilize the said land for non-agricultural purpose of stone crushing only after a licence under the Karnataka Regulation of Stone Crushers Act, 2011 is granted; (v) The pending interlocutory applications, if any, stand disposed of.