D PAVNESH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE petitioner is a practicing advocate in Bangalore. He also claims to be a public spirited person having faith in the rule of law and rendering great social and legal service by espousing causes of public nature. He has filed this writ petition under Articles 226 and 227 of the Constitution by way of public interest litigation with the prayer for issue of a writ of certiorari quashing the impugned notification dated 23-4-2005 bearing No. RD 174 munomu 2005 issued by the 4th respondent vide Annexure-A and the consequent circular dated 23-8-2005 bearing No. RD 174 MUNOMU 2005 issued by the 5th respondent as per Annexure B. The Government of Karnataka has issued a Notification classifying the registration of certain documents as opposed to public policy dated 23-4 2005 which is as per Annexure-A. The government of Karnataka has also issued a circular dated 23-8-2005 in pursuance of the earlier notification dated 23-4-2005 which is at Annexure-B. The petitioner has presented this writ petition challenging the said notification and circular issued by the government of Karnataka in banning registration of certain documents It is stated that the registration of various deeds of conveyance being carried out in the various parts of the State of Karnataka as per the provisions of the Registration Act and the Rules made thereunder The Government of karnataka has issued a notification dated 23-4-2005 classifying registration of certain documents as opposed to public policy and it has also issued another Circular dated 23-8-2005 in pursuance of the earlier notification dated 23 4-2005, issuing certain clarifications It is the case of the petitioner that such action on the part of the State government is opposed to public policy and the interest of the public The Government of karnataka has issued a notification dated 23-4-2005 in exercise of its powers under section 22-A of the Registration Act, 1908, as amended by the Karnataka Act 55 of 1976 which is at Annexure A to the writ petition as per the said notification, the registration of the following documents is prohibited as being opposed to "public policy" -- Those properties which are to be used for agricultural purpose and those not converted for non agricultural purpose under section 95 of the Karnataka Land Revenue act, 1964- Those properties which are declared under Form No 19 under the rules framed under the Karnataka Municipalities Act, 1964 but not actually converted as such site.- Those properties/sites formed on revenue land cannot be registered without obtaming approved layout plan and a release certificate from the competent local planning authority.- Those properties/sites formed on revenue land without requisite permission un der Section 79/a and B read with Section 109 of Karnataka Land Reforms Act the proviso to the said Notification exempts the application of this Notification to properties under Ashraya Scheme, Peoples housing Scheme, HUDCO, those transferred by Zilla Panchayath, Taluk Panchayath, City municipal Council, Urban Development Authority, KIADB, KHB, etc it is stated that the 4th respondent has absolutely no authonty to pass such an Executive order in the name of the Governor of Karnataka The said Notification is based on the sole assumption that all the properties which are not converted for non-agricultural purpose as required under the karnataka Land Revenue Act and Karnataka land Grant Rules, cannot be registered as non-agricultural land which is totally con trary to the rule of law prevailing in our country, opposed to various statutory enactments, the constitutional rights guaranteed to the citizens of our country and the various precedents It is further stated that pursuant to issue of such notification, another circular dated 23 8-2005 came to be issued by the 5th respondent which is at annexure-B, which Circular is intended to be passed in pursuance of the earlier notification dated 23 4-2005 in the guise of "some frequently asked questions" Even this has been passed by the 5th respondent without any authonty of law According to the petitioner, the impugned Notification and Circular are baseless, illegal and are issued under arbitrary State action It is also the case of the petitioner that they have been issued for certain extraneous considerations the effect of the said Notification and circular is that the registration of all the properties coming under the jurisdiction of the City Corporation established under the karnataka Municipal Corporations Act, those falling under jurisdiction of the Municipalities under the Karnataka Municipalities Act and those situated within the jurisdiction of Gram Panchayath and Taluk panchayath areas, are prohibited from being registered as opposed to "public policy", in all the districts of the State of Karnataka which has an effect of classifying the statutory powers under those statutes as "op posed to public policy' is highly impermissible and can be declared only by a Court of law The impugned notification also refers to the judgment rendered by the Apex Court in the case of State of Karnataka v Shankara textiles Limited, reported in (1995) 1 SCC 295 (AIR 1995 SC 234), wherein the Apex court has held that in absence of permission for conversion of agricultural land for non-agricultural use, the mere non user of the land for agricultural purpose or purposes subservient thereto or use for non agricultural purpose would not have the effect of converting the land into non agricultural land This proposition of law laid down by the Apex Court is well founded on legal principles and is indisputable But unfortu nately, the Government misinterpreted the ratio laid down by the Apex Court and has not examined the applicability of the decision to the conclusions sought to be achieved by the impugned notifications. The said decision of the Apex Court is totally inapplicable to the impugned action taken by the respondents. It is stated that the law in relation to conversion of the properties for non-agricultural purposes is well settled since two decades insofar as the State of karnataka is concerned. The Division Bench of this Court in the case of Special Deputy commissioner v. Narayanappa reported in ilr 1988 Kar 1398 has declared that the jurisdiction of the Deputy Commissioner to convert lands for non-agricultural purposes under Section 95 of the Karnataka Land revenue Act will get ousted in respect of lands falling within the area of the Outline development Plan or the Comprehensive development Plan i. e. , lands which fall under the planning authority. It is further stated that the planning authority in the various districts of the State of Karnataka has been formed since 1965 and the table showing the formation of various planning authorities in the various parts of the State of karnataka is at Annexure-E, which authority has been functioning in most of the districts in the State of Karnataka, as can be ascertained from the table at Annexure-E. Therefore, the Government cannot insist upon the re-conversion of such lands which are situated within the jurisdiction of the local planning authority. It is also stated that the Division Bench of this Court in the case of Bangalore Development Authority v. Vishwa Bharathi House Buildings co-operative Society Limited, reported in ILR 1991 kar 4401 has held that the lands which are situated within the jurisdiction of the corporation are deemed to be converted for that particular use. Therefore the question of classifying these lands as non-agricultural lands in the impugned notification is totally arbitrary and illegal and moreover as these notifications have retrospective effect, the public interest and the property rights guaranteed to citizens have been given a go-bye. Further in the case of J. M. Narayana v. Corporation of the City of Bangalore reported in ILR 2005 Kant 60, a Division Bench of this court has clearly declared that the Land revenue Act would cease to be applicable to such of those lands no sooner the land is brought within the Corporation limits. Hence the impugned Notification and Circular are totally contrary to the consistent law in the state of Karnataka since over two decades various layouts in the State of Karnataka such as Cantonment area, Basavangudi, malleswaram, Cottonpet, Gandhinagar, Old mysore etc. , are formed over hundred years ago and some layouts are formed during the reign of Diwan of Mysore and since their formation, these areas are being used for non-agncultural/residential purposes Therefore, the question of converting these lands for non-agricultural purposes under Section 95 of the Karnataka Land Revenue Act does not arise at all. The impugned Notification and circular are totally one without application of mind and is passed only for extraneous considerations well known to the respondents. The impugned Notification and Circular are contrary to the Division Bench decision of this Court in the case of Special deputy Commissioner v. Narayanappa reported in ILR 1988 Kar 1398 wherein it is declared that the jurisdiction of the Deputy commissioner to convert lands for non-agricultural purposes under Section 95 of the karnataka Land Revenue Act, will get ousted in respect of lands falling within the area of outline Development Plan or the Comprehensive Development Plan i. e , lands which fall under the planning authority It is stated that the right to hold and possesses a property is a constitutional right guaranteed under Article 300-A of the Constitution The settled and vested rights of citizens are sought to be taken away by the impugned state action. Moreover, the action of applying the principle of conversion under the karnataka Land Revenue Act retrospectively is contrary to law and is liable to be set aside. Section 202 of the Karnataka Land Revenue act clearly saves any right privilege, obligation or liability acquired, accrued or incurred earlier to the coming into force of the said act and sub-section (4) of Section 202 is also very clear that any custom, usage or order prevailing in any area of the State, at the time of commencement of the Act is saved and only those custom, usage or order which are repugnant or inconsistent with the provisions of the Act would cease to be in operation. Further Section 148 (3) of the karnataka Land Revenue Act is also very clear to the effect that those lands already set apart for building sites within the limits of any village, town or city in accordance with any law for the time being in force prior to the commencement of this Act, shall be deemed to have been so set apart There fore the Government cannot now insist for conversion of lands in terms of Section 95 of the Karnataka Land Revenue Act though such lands were already being used for non agricultural/residential purposes since de cades before the Act came into force Broadly on these and other averments made in the writ petition, the petitioner has sought for quashing of the impugned notification at annexure-A and the consequent Circular at annexure-B issued by the State Government

(2.) THE respondents have filed their statement of objections wherein they have con tended inter aha that the impugned notification dated 23 4-2005 as per Annexure A has been passed in exercise of the powers conferred under Section 22-A of the Regis tration Act The State Government is em powered under the Karnataka Act No 55/ 1976 called the Registration (Karnataka amendment) Act, 1976, inserting Section 22-A to the principal Act empowering under clause (1) thereunder to declare the registration of any document or class of documents as opposed to public policy by notification in the official Gazette This is precisely what has been done under the impugned notification at Annexure-A The petitioner is not entitled to question the public policy of the State which is founded on data, statistics, factual position and further ance of public interest as inputs The judicial intervention sought for by way of a declaration is hopelessly misconceived and is opposed to facts, statutory law and the judicial precedents Registration of the first item of the documents under Annexure A declared as opposed to public policy relates to site with or without building in an agricultural land, which is not converted for non agricultural purposes under Section 95 of the Karnataka Land Revenue Act Like wise second item declares the registration of site described as a gramathana site or other site declared under Form-19 under the rules framed under the Karnataka Municipalities act, but not actually converted as such site as opposed to public policy Item no 3 of the notification relates to registra tion of site on revenue land described as gramathana site or other site or site with a structure, without the approval of the layout plan and a release certificate issued by the competent local planning authority, as opposed to public policy Under Item No 4, the registration of site on revenue land de scribed as a gramathana site or other site/ flats/industrial site/commercial site, with out requisite permission under Sections 79 a and B read with Section 109 of the karnataka Land Reforms Act as opposed to public policy The registration of all these sites of the nature described are opposed to the provisions of the special statutes as clearly spelled out thereunder under the respective items Sellers and purchasers are required to follow the various special stat utes while conveying title even without the impugned annexures This is the stated position in law and clearly governed by the respective statutes Despite the said mandatory provisions, the land grabbers, middle men land sharks, money spinners and touts have been unjustly enriching them selves by alienating the lands in contiavention of the aforesaid statutes, victimizing the economically poor and illiterate members of the public aspiring to own sites, to have shelter over their head This has resulted in large scale violation of the special statutes resulting in a chaotic situation and disorderly growth of cities and towns, thereby defeating the intent and will of the Legislature The Karnataka Town and Country planning Act, the Bangalore Development act, the Karnataka Municipalities Act and the Karnataka Land Reforms Act, though on the statute book, the provisions are being flouted by the aforesaid persons making the special piece of legislation a mockery this has resulted in over burdening the law courts quasi judicial authorities flooding with unabated flow of litigation, on action being taken by the statutory authorities these violations are affecting the public in terest inasmuch as the poor and hapless aspirants of sites becoming gullible, falling easy prey to the aforesaid ingenious network of the vested interests, whose sole aim is to make money, with no concern for the rule of law or due process of law The special en actments/statutes which have been passed in the wisdom of the Legislature in the larger public interest, with laudable intent, object and purpose are being defeated unabatedly by circumventing them and victimizing the poor and innocent buyers Viewed in the above context, the petition is hopelessly misconceived It is further stated that on a mere perusal of the impugned annexures, it emerges that the respondent/state has grappled the factual situation in the matter of violation of law under various special statutes, arising out of indiscriminate registration of documents flouting law and burdening the innocent, poor, uneducated and hapless aspirants of sites In order to protect their interests, among others, the respondent/state has thought fit in its wisdom to exercise its powers under Section 22-A of the Registration Act to declare the registration of such documents as opposed to public policy. To effectuate the declaration, guidelines are issued in the nature of a circular for a better understanding and implementation of the avowed public policy. The public policy which has been evolved culminating in the impugned annexures cannot be dubbed, termed or styled as illegal. On the contrary, the impugned annexures are well thought of, well intended and well conceived by the respondent/state to thwart the attempts of vested interests to unjustly enrich themselves at the cost of gullible public. Having regard to the certain bona fide doubts and confusion which have arisen in the minds of the concerned, the State of karnataka has issued notification dated 29-10-2005 as per Annexure-R1 clarifying the position. The said clarification puts at rest the needless apprehensions raised by the petitioner in this regard. By no stretch of imagination the action of the State can be said to be against public interest and public good It is stated that the various decisions which have been referred to in the pleadings have no relevance or nexus to the impugned Annexure or action of the State government. The declaration of law relied upon is in a lis between the State and a private litigant. But in the instant case, the action of the State is with regard to the prevention of abuse of law in public interest and public good and to safeguard the interests of people, aspiring for a site and preventing unjust enrichment of the few against the law at the cost of community at large. The petitioner is oblivious to the changes in law, particularly proviso to clause (2) of section 14 of the Karnataka Town and Country planning Act of 1961 (amended w. e. f. 20-3-1991) which mandates that notwithstanding the change in land use under the Act, the conversion of agricultural land to non-agricultural purposes under the relevant provisions of the Karnataka Land Revenue act are to be mandatorily followed. It is stated that the legal pleas that the officer who has issued the gazette notification is not competent, is hopelessly untenable particularly in the light of Rule 19 (1) of the karnataka Government (Transaction of business) Rules, 1977 as per Annexure-R2 and also the law laid down by the Division bench of this Court in W. A. No. 2624 of 2005 and connected matters known as 'arkavathy case' disposed of on 25-11-2005. The impugned annexures are in the nature of preventive action by the State as public policy to debar the registration of documents which are violative of law on the statute book and they are solely intended to prevent public mischief and promote the interest of the community at large and rule of law. The impugned action of the State in issuing the assailed annexures would bring down the needless litigations with regard to the documents which are per se against law which would unburden the dockets of law Courts and quasi-judicial authorities. Article 19 (f)which confers right on a citizen to acquire, hold and dispose of the property as a fundamental right is no more in the Constitution and the said right has been omitted by the Constitution (44th Amendment Act, 1978 which came into being from 20-6-1979 ). The impugned action protects the rights of the citizens in the property possessed by them for better enjoyment, in accordance with law. Regulatory measures of the State in the matter of enjoyment of properties by individuals as against the interest of the community is too well settled in law and has been constitutionally recognized in the light of the aforesaid amendment. The authorities of the State have taken cognizance of this unruly growth of cities and townships within the State on account of illegal conduct of vested rights flouting the law to make commercial gams at the cost of innocent and gullible public and after serious application of judicious mind and objectively assessing the germane materials like data, statistics, field experience, opinion of the experts. The State has thought fit in its wisdom to evolve public policy solely in the interest of the community at large which cannot be faulted. On these and other averments made in the statement of objections filed by the respondents, they have prayed for dismissing the writ petition with exemplary costs.

(3.) WE have heard the arguments of the learned counsel for the parties at a considerable length and carefully perused the relevant case papers including the impugned notification at Annexure-A and the consequent Circular at Annexure-B.