SPECIAL DEPUTY COMMISSIONER BANGALORE Vs. BHARGAVI MADHAVAN

JUDGEMENT

(1.) Common order dated 26-6-1986 made by a learned single Judge of this Court dismissing Writ Petitions Nos. 7214 and 7215 of 1986 at the stage of their preliminary hearing is appealed against in these appeals of the Special Deputy Commissioner, Bangalore, and the State of Karaataka the writ petitioners.

(2.) Whether the common order, dated 16th September 1985, made in Appeal Nos.241 and 242 of 1985 (Revenue) by the Karnataka Appellate Tribunal ("the Appellate Tribunal") impugned in the writ petitions, calls to be quashed in exercise of this Court's writ jurisdiction under Articles 226 and 227 of the Constitution, is the short question requiring our consideration and decision in these appeals.

(3.) However, as the said question needs ourconsideration in the back-drop of the events which led the Appellate Tribunal to make the order impugned in the writ petitions and the events which have taken place subsequently, we shall refer to them. 14 acres 15 guntas and 15 acres 34 guntas are two extents of an agricultural land comprised in Survey No. 19 of Guni Agrahara village, Hesaraghatta Hobli, Bangalore North Taluk, Bangalore District, a village lying in the outskirts of Bangalore City. Smt Bhargavi Madhavan, respondent-1 here, is the occupant of the former land and Sri K.K. Mutbukutty Vaidhyan, respondent-2 here, is the occupant of the latter land. Both of them wanted their respective lands to be diverted from their agricultural use to non-agricultural use, to wit, formation of residential building sites. Separate applications were made by them oh 15-9-1983 to the Special Deputy Commissioner, Bangalore District (appellant 1), for granting such diversion under Section 95 of the Karnataka land Revenue Act, 1964 ("the Revenue Act"). By his Official Reminder, dated 12-12-1983 (Annexure-A), appellant-1 rejected the application of respondent-1. So also, by his Official Reminder, dated 12-12-1983 (Annexure-B), appellant-1 rejected the application of respondent-2. the reason given in the said Official reminders for rejection of the applications of respondents 1 and 2 being common, read thus: "land in question is situated far away from gramathana and is devoid of Municipal facilities. In the circumstances grant of conversion causes public disturbance". Both the Reminders being appealed against respectively in Appeal (Rev.) No. 48/84 and Appeal (Rev.) No. 47/84 before the Appellate Tribunal under Section 48(c) of the Revenue Act, grounds 4 to 7 urged in both of the memoranda of appeal (pages 39 to 50 of the Paper Book) by the respondents were: "4. the respondent had not afforded an opportunity to the appellant to present his case nor was he made aware of the materials collected behind his back before rejecting the application. As such the impugned order is opposed to the principles of natural justice. 5. The respondent has erred in not appreciating the powers vested in him under Section 95(2) of the Karnataka land Revenue Act and in particular the power to put the applicant on terms before granting permission. As the applicant had not been afforded any opportunity either to accept or reject any such conditions for safeguarding public interest the rejection is based on an erroneous exercise of powers. 6. The respondent has erred in rejecting the appellants application under Section 95(2) as the ground of diversion namely residence cannot conceivably a public nuisance, nor opposed to public interest in general, nor the occupant is unable to comply with the conditions that might be imposed under Section (4). As such the impugned order is not based upon any ground subserving the ground of nuisance contemplated under the law. 7. The respondent has erred in rejecting the application under Section 95(4) of the Karnataka land Revenue Act as he has not proposed the imposition of any conditions to the appellant for acceptance. On the contrary the appellant had communicated his willingness to accept such conditions to be imposed under sub-section (4) of Karnataka land Revenue Act, or the requirements of any law such as town planning, rural development, public health and civic amenities etc." The Appellate Tribunal, by its separate Judgments, dated 28th September, 1984 (pages 51 to 60 of the Paper Book) made in those appeals, allowed the appeals, set aside the Official reminders and remitted the applications of the respondents to appellant-1 for fresh disposal in the light of the common observation made in those Judgments, which read: "No doubt as per Section 95(3) of the said Act, permission to divert may be refused on the ground that the diversion is likely to cause public nuisance and in the instant case, refusal is on the valid ground of likelihood of causing public nuisance if conversion is permitted. Mere mention of a valid ground is not enough without giving sufficient justification for arriving at that conclusion. Further more, the learned Special Deputy Commissioner has not applied his mind as to whether such permission could be given imposing the conditions laid down under Section 95(4) of the impugned order is not a speaking order in the sense that it does not spell out what civic amenities are required and whether imposition of a condition to that effect would serve the purpose inasmuch as it is not at all examined whether suitable conditions could be imposed as provided under Section 95(4)". The applications so remitted to appellant-1 having been clubbed by him, permission for diversion of the agricultural land to form residential building sites was refused by his common order, dated 24th May, 1985 (pages 61 to 67 of the Paper Bpok). Reasons given by him for such refusal read thus: "As could be seen from the village Map, Sy. No. 19 of Guni Agrahara village is situated far away from the village proper. the total extent of conversion asked for by the applicant is in all 14 acres 15 guntas and 15 acres 34 guntas in Sy. No. 19 of Guni Agrahara village. the conversion of this extent of land is requested with a view to have the residential buildings in the subject property. On careful verification of the location and the opinion furnished by the Town Planning Authority, I am of the view that the intended land use creates a public nuisance since such pockets of residential buildings leads to unplanned growth of Township, devoid of systematic and useful civic amenities. Therefore in the interest of planned growth of Bangalore City and in view of the fact that the subject property is situated in close proximity to the Bangalore City, the diversion of this large extent of agricultural land for residential use leads to unhealthy development and mushroom growth of residential pockets around Bangalore. This is certainly going to create a publicnuisance apart from creating a liability on the local bodies and the government for providing basic civic amenities. Therefore the request for conversion of an extent of 15 acres 34 guntas in Sy. No.19 and 14 acres 15 guntas in the same survey No. of Guni Agrahara village cannot be considered. the argument of the learned counsel for the applicant that it is flat land and fit for residential use etc., holds no water in view of the total picture of the intending land and its consequential effects in augmenting the problems of civic amenities. the learned counsel contended that Section 95 of the Karnataka land Revenue Act 1964 has a regulatory provision rather than restricting the use of the agricultural land. On careful examination of the Section 95, I am of the view that sub-section (3) of Section 95, clearly provides for restriction of the use of agricultural land for other purposes by diverting the same under this section on the grounds that such a diversion is likely to cause public nuisance. Therefore, considering the overall picture of the growth of such residential pockets far away from the development layouts of planning authority, that too, adjacent to Bangalore City which has a well developed water supply and sanitation system, not only create public nuisance but also augment the problems of civic amenities and (not clear) the use of agricultural land in the vicinity. Therefore, the citations referred by the counsel reported in Mysore law Journal 1971 and Karnataka law Journal 1974(1) and Mysore law Journal 1972(1) have no relevance to the facts and circumstances of this case as an isolated residential pockets of this type developed by individuals devoid of overall planning and control of civic amenity problem around Bangalore City, Hence, on considering all aspects of the case, I hereby reject the request for conversion of land bearing Sy. No. 19 of Guni Agrahara village measuring an extent of 14 acres 15 guntas and 15 acres 34 guntas as the conversion of the land is refused, the land shall remain as agricultural land". Appeal Nos. 241 and 242 of 1985 (Rev.) having been filed before the Appellate Tribunal by the respondents challenging the aforesaid order of appellant-1, the operative portion of the common order (Annexure-C) made in them read: "Both the appeals are allowed and the order of the Special Deputy Commissioner, Bangalore District, Bangalore, passed in AlN/SR(N) 51 and 52/83-84, dated 24-5-1985 is set aside. The appellants are entitled to have their land diverted for non-agricultural use and the Special Deputy Commissioner, Bangalore District, Bangalore shall sanction the diversion of these lands for non-agricultural use subject of course to imposing, such conditions as are permissible within Clause (4) of Section 95 of the Act so as to secure the health, safety and convenience and in order to secure that the dimensions, arrangement and accessibility of the sites are adequate for health and convenience of the occupiers and that they do not contravene the provisions of any law relating to town and country planning or the erection of building and shall also levy the conversion fine as is prescribed under rules". The aforesaid order of the Appellate Tribunal is preceded by the only reasoning part of its Judgment, which reads: "9. As far as the first point is concerned, a perusal of the detailed sketch filed by the appellants would go to show this Sy. No. 19 of Guni Agrahara village has roads on three sides. The gramthana is also shown on the North Western side of this Sy. No. Existing houses on the free sites allotted to siteless people are found on the Eastern side and Western side of this Sy. No. That being the case it is not possible to accept the reason of the learned Special Deputy Commissioner that the land in question is far away from the gramthana and that these ground is also irrelevant for refusal of permission for diversion of this land to non-agricultural use. 10. Now coming to the second reason that the extent sought to be converted are large in extent has also no relevance. This Tribunal has clearly laid down in Appeal No. 60/84 (Rev. 3) (l.R.), dated 21-3-1984 in the case of Sagar Subba Setty v Special Deputy Commissioner, Chitradurga District, Chitradurga that there is no legal bar on conversion of large extent of land eventhough the entire land may not be required for personal purposes. Therefore this also is no ground to reject the applications for diversion of these lands. The third ground is that the town planning authority has given an adverse opinion. The learned Special Deputy Commissioner has based his reasoning and is largely influenced by the opinion furnished by the town planning authority. The Deputy Commissioner himself is empowered under Section 95(4) of the Act to impose conditions to see that any law relating to town and country planning for erection of building is not contravened. This is made clear in the case of 5mt. J.H. Desai and Others v State of Karnataka, reported in 1973 Kar. l.J. (Tri.) page 52. 11. The other two grounds that diversion if granted would cause nuisance as pockets of residential localities without civic amenities will be created and that it would be a liability to Government and ci vie bodies to provide amenities would also be cured by imposing necessary conditions in that regard. In fact the learned Special Deputy Commissioner has not considered the aspect of imposing necessary conditions so as to secure the health, safety and convenience of the general public. In case the appellants were to use them as building sites, the Deputy Commissioner is well within his powers under Section 95(4) of the Act to order to secure that the dimensions, arrangements and accessibility of the sites are adequate for the health and convenience of occupiers or are suitable to the locality and do not contravene the provisions of any law relating to town and country planning or the erection of buildings. This Tribunal has held in a number of decisions that the valid grounds on which such applications could be rejected are 1 isted out in Clause (3) of Section 95 of the Act and that the extent sought to be diverted is no criteria to refuse permission for diversion and that such applications should not be refused on untenable and irrelevant grounds. In our view, the reason assigned by the learned Special Deputy Commissioner could be complied with by imposing necessary conditions as stipulated under Clause (4) of Section 95 of the Act. Therefore, the impugned order is liable to be set aside and we proceed to pass this common order in respect of both the appeals". This common Judgment of the Appellate Tribunal was impugned by the appellants by filing the aforesaid writ petitions. A learned Single Judge of this Court by his order, dated 26-6-1989, dismissed the writ petitions at the stage of their very preliminary hearing on his view that the findings recorded by the Appellate Tribunal being findings of fact based on appreciation of evidence, did not call for interference in exercise of this Court's jurisdiction under Articles 226 and 227 of the Constitution. the writ petitioners the Special Deputy Commissioner, Bangalore District, Bangalore, and the State of Karnataka, who were aggrieved by the order of the learned Single Judge refusing to quash the order impugned in the writ petitions, presented these appeals.