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Shivanand v/s The State of Karnataka, Rep. by its Secretary Dept. of Revenue, Bengaluru & Others


Company & Directors' Information:- REP CORPORATION PRIVATE LIMITED [Strike Off] CIN = U26921TN2005PTC055138

    Writ Petition No. 4180 of 2020 (GM-MM-S)

    Decided On, 21 September 2020

    At, High Court of Karnataka

    By, THE HONOURABLE CHIEF JUSTICE MR. ABHAY S. OKA & THE HONOURABLE MR. JUSTICE ASHOK S. KINAGI

    For the Petitioner: S.Y. Shivalli, Advocate. For the Respondents: I. Tharanath Poojary, AGA.



Judgment Text

(Prayer: This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India, praying to issue a writ of mandamus or any other writ or direction directing the Respondent No.4 to consider the application dated 06.01.2020 filed by the petitioner for seeking deemed conversion order in respect of the land bearing Sy.No.137/1 measuring 10 Acres out of 84 Acres 26 Guntas situated at Goravanakolla Village, Savadatti Taluk, Belagavi District Under Section 95(9) of Klr Act (Annexure-C) from agricultural to Non-Agricultural purpose I.E., for carrying on mining operation in respect of quartzite Minor Mineral, since the petitioner has already deposited conversion charges of Rs.2,37,860/- on 02.01.2020 through K2 Challan and further direct the revenue authorities to collect the difference amount if any towards Conversion Fine / Charges as per Rule 107 of Karnataka Land Revenue Rules in the ends of justice and equity (Annexure-L And M) and etc.)Through Video Conferencing:1. Heard the learned counsel appearing for the petitioner and the learned Additional Government Advocate for the respondents. Considering the narrow controversy involved in the petition, the same is taken up for final disposal.2. Initially, an application was made by the petitioner on 18th December 2017 to the fourth respondent for grant of deemed conversion under sub-section (9) of Section 95 of the Karnataka Land Revenue Act, 1964 (for short "the Land Revenue Act"). Sub-section (9) of Section 95 of the Land Revenue Act has been interpreted by this Court by the judgment and order dated 21st November 2019 passed in Writ Petition No.35133/2019. Paragraphs 6 to 8 of the said judgment and order read thus:"6. We have considered the submissions. Sub Section 9 of Section 95 of the said Act reads thus:"(9) Whenever any occupant of land assessed or held for purpose of agriculture wishes to divert such land or any part thereof for the purpose of quarrying of minor minerals, whether specified or non specified in accordance with the rules governing quarrying of minor minerals or stone crushing activity under the Karnataka Regulation of Stone Crushers Act, 2011 (Karnataka Act No.8 of 2012), shall make an application along with the fine applicable to the Deputy Commissioner for diversion of such land. On such application, the permission for diversion of such land shall be deemed to have been granted subject to obtaining lease or licence or working permission under the said enactments"(underline supplied)Section 95 deals with the change of use of an agricultural land and the procedure for use of agricultural land for other purposes. Sub Section 9 is applicable if an occupant of the land held for the purpose of agriculture wishes to divert such land for the purpose of quarrying of minor minerals, whether specified or non specified, or stone crushing activity under the said Act of 2011.Such occupant is required to make an application along with the fine applicable to the Deputy Commissioner for diversion of such land. Sub Section 9 provides that when such application is made along with the deposit of payment of fine, a permission for diversion of the said land shall be deemed to have been granted subject to obtaining lease or licence or working permission, as the case may be, for quarrying minor minerals or for stone crushing activity. Thus, the grant of permission for diversion is automatic under Sub Section 9 of Section 95 on an application being made for diversion along with the fine applicable to the Deputy Commissioner. If an application for conversion is made after making the payment prescribed fine, the conversion under Sub Section 9 is automatic, which cannot be stopped by any order passed by the Deputy Commissioner or any other Authority.(underline supplied)7. However, such conversion is subject to obtaining a lease or a licence or a working permission as the case may be, for the purpose of quarrying or for carrying on stone crushing activity. As such a deemed permission is subject to grant of a lease or a licence, the occupant can act upon such a deemed permission under Sub Section 9, only when a quarrying lease is granted if he wants to use the agricultural land for quarrying of minor minerals or only when a licence is granted to him under the said Act of 2011, when he intends to use the land for stone crushing activity. The occupant can commence the use of the agricultural land for quarrying or for stone crushing only when a lease or a licence as aforesaid is granted.8. If an application is made by the petitioner after obtaining deemed permission under Sub Section 9 of Section 95 either for grant of a quarrying lease or for grant of a licence for stone crushing under the said Act of 2011 and the application for grant quarrying lease or the application for licence, as the case may be, is rejected, the occupant cannot use the agricultural land for non agricultural purposes and it will continue to be a land for agricultural use. Thus, in short, if after a deemed conversion under Sub Section 9 of Section 95 is granted, the said permission becomes effective only after quarrying lease or a stone crushing licence, as the case may be, is granted. Merely because deemed conversion is obtained, the occupant does not ipso facto becomes entitled to use the said land for non agricultural purposes."(underline supplied)4. In the present case, the petitioner had filed earlier writ petition being W.P.No.23345/2018 which was decided by the order dated 8th January 2019. A direction was issued under the said order that permission for conversion is deemed to have been granted to the petitioner provided he deposits the conversion fine within a period of four weeks from the said date. Admittedly, the petitioner did not deposit the conversion fine within the stipulated period of four weeks. The conversion fine in the sum of Rs.2,37,860/- was deposited by the petitioner on 2nd January 2020 (Annexure-L). On 6th January 2020, an application was made by the petitioner at Annexure-M referring to the payment of conversion fine and making a request to grant deemed conversion under sub-section (9) of Section 95 of the Land Revenue Act. On 17th January 2020, the impugned communication was issued which is at Annexure - N stating that the petitioner will have to file an online application seeking conversion. Reliance was placed on the Government order dated 2nd February 2018 which directs that the applications for conversion of land under Section 95 of the Land Revenue Act must be processed through online and an order/decision must be issued through digital signature card.5. The learned counsel appearing for the petitioner submitted that sub-section (9) of Section 95 of the Land Revenue Act does not incorporate requirement of applying online or applying in a prescribed format. Admittedly, the State Government has not exercised the rule making power under Section 197 of the Land Revenue Act by framing the rules prescribing any format and by incorporating the requirement of making an application under sub-section (9) of Section 96 of the Land Revenue Act.6. We have perused the provisions of the Karnataka Land Revenue Rules, 1966 (for short "the said Rules of 1966"). We find that there is no format prescribed by the said Rules of 1966 for making an application for deemed conversion under sub-section (9) of Section 95 of the Land Revenue Act. The said Rules of 1966 do not provide for making an online application.7. The learned Additional Government Advocate relies upon the directions contained in the order dated 2nd February 2020 passed by this Court in Writ Petition No.52096/2019. The said order directs the State Government to supply a proper format to the petitioner. Clause (ii) of the operative part of the said order refers to the prescribed format. Even the impugned communication dated 17th January 2020 does not refer to any prescribed format. The format will have to be prescribed by exercising the rule making power under the Land Revenue Act. The word "prescribed" under sub-section (22) of Section 2 of the Land Revenue Act means prescribed by the rules made under the Land Revenue Act.8. As the petitioner has paid the conversion fine, in view of the application made by the petitioner on 6th January 2020 at Annexure-M permission for deemed conversion shall be deemed to have been granted to the petitioner, unless there is any shortfall in the amount of conversion fine.9. Accordingly, we pass the following order.(i) If according to the case of the respondents there is any shortfall in the conversion fine amount of Rs.2,37,860/- deposited by the petitioner, the same shall be communicated to the petitioner within a period of two weeks from the date of which this order is web hosted on the website of this Court;(ii) In the event the petitioner is furnished with the figure of the additional conversion fine payable by him within the stipulated period of two weeks and if the petitioner pays the said amount within a period of four weeks from the date on which the amount is co

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mmunicated to him, the conversion shall be deemed to have granted to the petitioner in accordance with sub-section (9) of Section 95 of the Land Revenue Act on the basis of the application made by the petitioner at Annexure-M;(iii) On failure of the State Government to communicate the additional amount of conversion fine within the aforesaid stipulated period of two weeks, the permission for deemed conversion shall be deemed to have been granted in accordance with law under sub-section (9) of Section 95 of the Land Revenue Act;(iv) We make it clear that even if deemed conversion as above is granted, the petitioner is not entitled to use the said land for non-agricultural purposes of stone crushing unless a licence under Section 3 of the Karnataka Regulation of Stone Crushers Act, 2011 is granted to the petitioner or for quarrying unless a lease or licence is granted to the petitioner in accordance with law;(v) The petition is allowed on the above terms;(vi) There will be no order as to costs.
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