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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 05Th

DAY OF DECEMBER 2013

BEFORE:

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

WRIT PETITION No.16410 OF 2013 (LA-KIADB)

BETWEEN:

A. Mohan,

Son of A. Basappa,

Aged about 60 years,

Agriculturist,

Residing at No.20,

AKM Road, 2nd

Main Road,

P.J.Extension,

Davanagere.

…PETITIONER

(By Shri. R.L. Patil, Advocate )

AND:

1. State of Karnataka,

Represented by its Secretary,

Department of Commerce

and Industry,

Vikas Soudha,

Bangalore – 560 001.

2. The Special Land Acquisition

Officer, Karnataka Industrial

2

Area Development Board,

Nrupathunga Road,

Bangalore – 560 001.

…RESPONDENTS

(By Shri. K.B. Monesh Kumar, Advocate for Respondent No.2

Shri. H.T. Narendra Prasad, Additional Government Advocate for

Respondent No.1)

*****

This Writ Petition filed under Article 226 of the

Constitution of India, praying to quash the order dated 31.12.2012

passed by the second respondent vide Annexure-K and direct the

respondent to pay the compensation at the rate of Rs.155/- per

square feet with all consequential statutory benefits and etc;

This petition, having been heard and reserved on

25.11.2013 and coming on for Pronouncement of Orders this day,

the Court delivered the following:-

ORDER

The facts of the case are as follows:-

2. The petitioner is said to be the owner of land bearing

Survey No.8/2, measuring 6 acres and 16 guntas, of Karur village,

Davangere taluk and district. The land is said to be on the Pune –

Bangalore Highway. It is claimed that the area around the

petitioner’s land has developed into a commercial area and that

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the surroundings have lost their agricultural character. It is for

this reason that the petitioner is said to have approached the

competent authority seeking change in land use under Section 14

of the Karnataka Town and Country Planning Act, 1961

(Hereinafter referred to as the ‘KTCP Act’, for brevity) as on

21.11.1997. It was said to have been granted on 28.11.1997.

It is stated that the Comprehensive Development Plan

(CDP) prepared by the Town Planning Authority of Davangere

Development Authority has incorporated the change of land use

from “Semi- Public use “ to “Residential use “ in the CDP.

The petitioner is said to have formed a residential layout

consisting of 149 house sites. The layout plan is said to have been

approved by the Davangere Development Authority and the Town

Planning Authority - on 1.12.1998.

The petitioner had not disposed of the house sites by the

time the second respondent had issued a notification under Section

28(1) of the Karnataka Industrial Areas Development Act, 1966

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(Hereinafter referred to as the ‘KIAD Act’, for brevity) dated

5.3.2001, proposing to acquire the land of the petitioner, apart

from other lands. The petitioner is said to have filed his

objections. Inspite of which, a final notification is said to have

been issued under Section 28(4) of the KIAD Act, on 1.3.2002.

Possession was also said to have been taken. An award termed as

a ‘consent award‘ is said to have been passed, though the

petitioner claims never to have consented to the same.

It transpires that several land owners, who had obtained

permission for conversion of land use, being aggrieved by the

compensation amount, payable in respect of the lands acquired,

at Rs.4 lakh per acre, had raised a serious protest, at which an

Advisory Committee was said to have been formed by the

authorities, which in turn, recommended the rate of compensation

of Rs.155/- per square foot, in respect of converted lands.

It transpires that the said rate of compensation was not paid

to the several land owners, which had compelled them to approach

this court by way of writ petitions in WP 13398-13407/2009, and

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it was only on an order being passed, that the respondents are said

to have paid the same. As the petitioner was also denied

compensation at the rate fixed for converted land, he is said to

have made representations to the respondents seeking the same.

As it was not considered, the petitioner is said to have approached

this court by way of a writ petition in WP 15484/2011 and this

court by its order dated 2.6.2011, directed the respondents to

consider the representation of the petitioner. It transpires that the

second respondent has rejected the representation of the petitioner

on the ground that the petitioner had not produced the conversion

order under Section 95 of the Karnataka Land Revenue Act, 1964.

(Hereinafter referred to as the ‘KLR Act’, for brevity) as per order

dated 31.12.2012. It is this which is under challenge in this

petition.

3. Shri R.L.Patil, the learned counsel appearing for the

petitioner would contend that first of all, the purported award

made in favour of the petitioner being termed as a ‘consent

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award’, is itself misleading. The petitioner had never consented to

any such award.

It is contended that the petitioner having approached the

competent authority under the provisions of the KTCP Act and

having obtained an order as to the change in the user of the land,

the insistence on the part of the second respondent in demanding

the production of a conversion order under Section 95 of the KLR

Act, was wholly redundant.

Reliance is placed on a decision of this court in the case of

Special Deputy Commissioner v. Narayanappa, ILR 1988

Kar.1398.

4. The KIADB has contested the petition and it is urged

that the claim of the petitioner as to the denial of compensation at

Rs.155/- per square foot, was raised earlier, but without

furnishing the details on the basis of which such a claim was made

and hence it had been constrained to deposit the compensation

payable as if the land was not converted land, before the reference

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court in compliance of Section 30 and 31 of the Land Acquisition

Act, 1894. (Hereinafter referred to as the ‘LA Act’, for brevity).

It was open to the petitioner to challenge the award as prescribed

under Section 18 of the LA Act. As the petitioner had failed to

pursue his remedy therein – the reference is apparently closed and

it was left to the petitioner to pursue his claim subject to proof of

title. It had been so observed by this court in the writ petition in

WP 15484/2011, which had been filed by the petitioner. It is

pursuant to the said order that it was held by the competent

authority that the petitioner had not produced material to

demonstrate that the petitioner had obtained an order under

Section 95 of the KLR Act.

The above order having been challenged further in yet

another writ petition in WP 26858/2012, it was contended on

behalf of the State Government that the Orders obtained by the

petitioner under the provisions of the KCTP Act are in the nature

of an approval to approach the Deputy Commissioner to seek

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conversion of the land for non-agricultural purposes and hence

was held disentitled to the rate of compensation claimed @

Rs.155/- per square foot. The said petition was disposed of on the

ground of non-observance of principles of natural justice and it

was directed that the matter be considered afresh. The same has

been rejected yet again by the concerned authority, on the same

ground. Reliance is placed on the decision of the apex court in

Goa Housing Board v. Rameshchandra Pawaskar, (2011) 10 SCC

371, to justify the impugned order.

5. The point for consideration in the present case on hand

would be :

“Whether the petitioner is entitled to claim compensation in

respect of his land @ Rs.155/- per square foot, as has been fixed

for land converted for non-agricultural or residential use ?”

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In order to address the above issue it is relevant to refer to

the following provisions of the KTCP Act and the KLR Act and

the same are hence reproduced for ready reference:-

Sections 14 and 14-A of the KTCP Act

“14. ¹[Enforcement of the Master Plan and the

Regulations] - ²[(1) On and from the date on which a

declaration of intention to prepare a Master Plan is

published under sub-section (1) of section 10, every

land use, every change in land use and every

development in the area covered by the plan subject to

Section 14-A shall conform to the provisions of this

Act, the Master Plan and the Report, as finally

approved by the State Government under sub-section

(3) of Section 13.]

1. Substituted for the words “Enforcement of the Outline Development

Plan and the Regulations” by Act No.1 of 2005 w.e.f.14.2.2005.

2. Sub-section (1) substituted by Act No.1 of 2005, w.e.f. 14.2.2005.

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(2)3

[xxxxx] No such change in land use or

development as is referred to in sub-section (1) shall

be made except with the written permission of the

Planning Authority which shall be contained in a

commencement certificate granted by the Planning

Authority in the form prescribed: 4

[Provided that where the use or change of land use

under this section needs the diversion of agricultural

land to non-agricultural purposes, such use or change

of use shall not be permitted, unless permission is

obtained in accordance with the provisions of the

Karnataka Land Revenue Act, 1964 for such

diversion.]

Explanation.— For the purpose of this section,—

(a) the expression “development” means the carrying

out of building or other operation in or over or under

any land or the making of any material change in the

use of any building or other land;

(b) the following operations or uses of land shall not

be deemed to involve a development of any building or

land, namely:—

(i) the carrying out of works for maintenance,

improvement or other alteration of any building, being

works which affect only the interior of the building or

which do not materially affect the external appearance

of the building;

3. The words “Subject to the rules or bye-laws made under the law

constituting the local authority concerned” omitted by Act No.14 of 1964.

4. Proviso to sub-section (2) inserted by Act No.2 of 1991, w.e.f.20.3.1991.

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1

[(ii) xxxxxx

(iii) xxxxxx]

(iv) the use of any building or other land within the

curtilage of a dwelling house for any purpose

incidental to the enjoyment of the dwelling house as

such;

(v) when the normal use of land which was being

temporarily used for any other purpose on the day on

which the declaration of intention to prepare the

²[Master Plan] is published under sub-section (1) of

section 10 is resumed;

(vi) when land was normally used for one purpose

and also on occasions for any other purpose, the use

of the land for that other purpose on similar

occasions.

(3) Every application for permission under sub-

section (2) shall be accompanied by a plan, drawn to

scale showing the actual dimension of the plot of land

in respect of which permission is asked, the size of the

building to be erected and the position of the building

upon the plot and such other information as may be

required in this behalf by the Planning Authority.

1. Items (ii) and (iii) omitted by Act No.23 of 2004, w.e.f.3.6.2004.

2. Substituted for the words “Outline Development Plan” by Act No.1 of

2005 w.e.f.14.2.2005

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1

[14-A. Change of land use from the ²[Master

Plan].—(1) At any time after the date on which the

³[Master Plan] for an area comes into operation, the

Planning Authority may, with the previous approval

of the State Government, allow such changes in the

land use or development from the 4[Master Plan] as

may be necessitated by topographical or

cartographical or other errors and omissions, or due to

failure to fully indicate the details in the plan or

changes arising out of the implementation of the

proposals in 5 [Master Plan] or the circumstances

prevailing at any particular time, by the enforcement

of the plan:

Provided that,—

(a) all changes are in public interest;

(b) the changes proposed do not contravene any of the

provisions of this Act or any other law governing

planning, development or use of land within the local

planning area; and

(c) the proposal for all such changes are published in

one or more daily newspapers, having circulation in

the area, inviting objections from the public within a

period of not less than fifteen days from the date of

publication as may be specified by the Planning

Authority.

1. Section 14-A inserted by Act No.17 of 1991, w.e.f.19.4.1991

2. Substituted for the words “Outline Development Plan” by Act No.1 of

2005 w.ef. 14.2.2005.

3. Substituted for the words “Outline Development Plan” by Act No.1 of

2005 w.ef. 14.2.2005.

4. Substituted for the words “Outline Development Plan” by Act No.1 of

2005 w.ef. 14.2.2005.

5. Substituted for the words “Outline Development Plan” by Act No.1 of

2005 w.ef. 14.2.2005.

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(2) The provisions of sub-section (2) and (3) of

section 14 shall apply mutatis mutandis to the change

in land use or development from the 1[Master Plan].]

2[(3) Notwithstanding anything contrary contained

in the Act, if the change in land use or development is

from commercial or industrial to residential or from

industrial to commercial and the stipulated fee is paid

and the Local Planning Authority is informed prior to

effecting the change, the permission for such change

of land use or development shall be deemed to have

been given.]

1. Substituted for the words “Outline Development Plan” by Act No.1 of

2005 w.ef. 14.2.2005.

2. Sub-section (3) inserted by Act No.1 of 2005 w.e.f.14.2.2005

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Sections 95 to 98 of the KLR Act

“95. Uses of agricultural land and the procedure for use of agricultural land for other purpose.—(1)

Subject to any law for the time being in force

regarding erection of buildings or construction of wells

or tanks, an occupant of land assessed or held for the

purpose of agriculture is entitled by himself, his

servants, tenants, agents, or other legal representatives,

to erect farm buildings, construct wells or tanks, or

make any other improvements thereon for the better

cultivation of the land or its more convenient use for

the purpose aforesaid.

(2) If any occupant of land assessed or held for the

purpose of agriculture wishes to divert such land or

any part thereof to any other purpose, he shall 1[notwithstanding anything contained in any law for

the time being in force] apply for permission to the

Deputy Commissioner who may, subject to the

provisions of this section and the rules made under this

Act, refuse permission or grant it on such conditions as

he may think fit: 2[Provided that the Deputy Commissioner shall not

refuse permission for diversion of such land included in

the 3[Master Plan]

published under the Karnataka Town

and Country Planning Act, 1961 (Karnataka Act 11 of

1963), if such diversion is in accordance with the

purpose of land use specified in respect of the land in

such plan:]

1. Inserted by Act No.2 of 1991, w.e.f. 20.3.1991 by Notification No.RD 43 LPG 91, dated 19.3.1991

2. Proviso Inserted by Act No.2 of 1991, w.e.f. 20.3.1991 by Notification No.RD 43 LPG 91, dated 19.3.1991

3.Substituted for the words “Outline Development Plan” by Act No.1 of 2005

w.ef. 14.2.2005.

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4[

5[Provided further that] in Dakshina Kannada

District, subject to any law for the time being in force

regarding erection of buildings or the construction of

wells or tanks, an occupant of 6[dry (punja) land, wet

land or garden land] who is not,—

(a) a person registered or liable to be registered as

an occupant of such land under section 48A of the

Karnataka Land Reforms Act, 1961 (Karnataka Act 10

of 1962); or

(b) a grantee of such land under section 77 of the

said Act, may, without obtaining the permission required

under this sub-section and notwithstanding anything

contained therein, divert such land or part thereof to any

other purpose after sending a prior notice in that behalf,

in the prescribed form to the Tahsildar and paying in the

prescribed manner, the fine prescribed under sub-section

(7).]

7 [(2-A) Where any occupant of land assessed or

held for the purpose of agriculture has diverted such

land or part thereof to residential purpose without

obtaining the permission of Deputy Commissioner under

sub-section (2), prior to 31st day of December, 2008 and

desirous to get such diversion be regularized, shall,

4. Proviso Inserted by Act No.20 of 1983 and shall be deemed to have come into force w.e.f. 8.6.1983

5. Substituted for the words “Provided that” by Act No.2 of 1991

w.e.f.20.3.1991 by Notification No.RD 43 LPG 91, dated 19.3.1991

6. Substituted for the words and brackets “dry (punja) land” by Act No.2 of 1991, w.e.f. 20.3.1991 by Notification

No.RD 43 LPG 91, dated 19.3.1991.

7. Sub-sections (2-A), (2-AA) and (2-AAA) inserted by Act No.26 of 2009, w.e.f. 29.9.2009.

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apply 1[within the period of one year from the date of

commencement of the Karnataka Land Revenue

(Amendment) Act, 2011] in such form, alongwith such

fee and penalty, as may be prescribed, to the Deputy

Commissioner. On receipt of such application, the

Deputy Commissioner may, notwithstanding anything

contained in this Act, but subject to the provisions of

any other law for the time being in force and subject to

such conditions and in such manner as may be

prescribed, on production of such evidence as he may

require it to be necessary and after an enquiry, regularize

or refuse to regularize except where such land.-

(i) lies in the line of natural drains or course of

valley;

(ii) belongs to the State Government or an

authority owned or controlled by the State Government

or any local Authority;

(iii) coming in the way of existing or proposed

roads, inner or outer ring roads, national high ways, by

pass over ring roads including those proposed for

widening and railway lines, tram ways, mass rapid

transit system projects, communications and other civic

facilities or public utilities;

(iv) is a forest land;

(v) belonging to another person over which the

applicant has no title;

(vi) is reserved for parks, play grounds, open

places or for providing any civil amenities;

1. Substituted for the words, brackets and figures “within the period of one

year from the date of commencement of the Karnataka Land Revenue

(Second Amendment) Act, 2009” by Act No.29 of 2011 shall be and shall

always be deemed to have been substituted.

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(vii) or building is abutting to neighbouring

property, storm water drains, tank bed areas, river course

or beds and canals or below the high tension electric

line;

(viii) use is against height restrictions specified in

zoning regulations for heritage monuments, aerodromes

and defence Regulations;

(ix) not conforms to any clearance form high-

tension lines or fire protection measures;

(x) is in the area covered by the Coastal Zone

Regulations of the Ministry, Environment and Forest,

Government of India;

(xi) regularization of violation in respect of change

of land use shall be made as far as may be in accordance

with Section 14-A of the Karnataka Town and Country

Planning Act, 1961;

(xii) or development in respect of any building

having more than two floors shall be regularized unless.-

(a) a certificate from a Structural

Engineer is produced regarding the

structural stability of such building;

(b) a No Objection Certificate is

obtained from the Fire Force Department.

(xiii) or unauthorized development or construction

made in agricultural zone of approved Master Plan or

green belt area declared under Karnataka Land Revenue

Act, 1964; and

(xiv) is covered under any other prohibition as may

be prescribed.

(2-AA) Burden of proving that the diversion or

change of land use was made for residential purpose

prior to 31st day of December, 2008 shall lie on the

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applicant who seeks regularization of such unauthorized

diversion or change of land use.

(2-AAA) All such diversions or change of land use

which are not regularized or where applicant does not

apply within the time specified in sub-section (2-A) shall

be liable to be demolished or brought back to their

earlier use and expenses incurred thereon shall be

collected from such person as arrears of land revenue.]

(3) Permission to divert may be refused by the Deputy

Commissioner on the ground 1[that the diversion is

likely to defeat the provisions of any law for the time

being in force or that it is likely to cause a public

nuisance] or that it is not in the interests of the general

public or that the occupant is unable or unwilling to

comply with the conditions that may be imposed under

sub-section (4). 2[3-A) x x x x x.

(3-B) x x x x x.]

(4) Conditions may be imposed on diversion in order

to secure the health, safety and convenience, and in the

case of land which is to be used as building sites, in

order to secure in addition that the dimensions,

arrangement 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.

1. Substituted for the words “that the diversion is likely to cause a public nuisance”

by Act No.2 of 1991, w.e.f. 20.3.1991 by Notification No.RD 43 LPG 91; dated

19.3.1991.

2. Sub-sections (3-A) and (3-B) as inserted by Act No.23 of 1984, w.e.f.28.4.1984

and omitted by Act No.1 of 2005, w.e.f. 14.2.2005.

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(5) Where the Deputy Commissioner fails to inform

the applicant of his decision on the application made

under sub-section (2) within a period of four months,

from the date of receipt of the application, the

permission applied for shall be deemed to have been

granted.

(6) Unless the Deputy Commissioner shall, in any

particular instance otherwise direct, no application under

sub-section (2) shall be recognised unless it is made by

the occupant. 1[(6a) In Dakshina Kannada District, Kodagu District,

and Kollegal Taluk of Mysore District where any land

assessed or held for purposes of agriculture has been

diverted or used for any other purposes, before the date

of commencement of the Karnataka Land Revenue

(Amendment) Act, 1981, the land so used together with

the land appurtenant to any building (other than a farm

house) therein, not exceeding three times the built area

of such building, shall with effect from such date be

deemed to have been permitted to be used for purposes

other than agriculture.]

2[(7) When any land assessed or held for the purpose

of agriculture is permitted under sub-section (2) 3[or is

1. Sub-section (6-A) inserted by Act No.42 of 1981 and shall be deemed to have

come into force w.e.f. 2.10.1980..

2. Sub-section (7) substituted by Act No.42 of 1981 and shall be deemed to have

come into force w.e.f. 2.10.1980.

3. Inserted by Act No.20 of 1983 and shall be deemed to have come into force w.e.f.

8.6.1983.

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diverted under the 4[provisos] to the said sub-section] or

is deemed to have been permitted under sub-section (5)

or sub-section (6a), to be used for any purpose

unconnected with agriculture, the Deputy Commissioner

may, subject to such rules as may be made by the State

Government in this behalf, require the payment of a fine.

No assessment shall be leviable on such land thereafter

except under sub-section (2) of section 83.

Explanation.—For the purpose of this section,

“occupant” includes a mulgeni tenant or a permanent

tenant.]

96. Penalty for using agricultural land for other purpose without permission.—(1) If any land assessed

or held for the purpose of agriculture be diverted or used

for any other purpose without the permission of the

Deputy Commissioner, or before the expiry of the period

prescribed in sub-section (5) of section 95, the Deputy

Commissioner may summarily evict the occupant and

the person responsible for the diversion from the land so

diverted and any building or other construction erected

thereon shall also, if not removed after such written

notice as the Deputy Commissioner may deem

reasonable, be liable to forfeiture or to summary

removal. The occupant and the person responsible for

the diversion shall also be liable to pay, such penalty not

exceeding one thousand rupees as the Deputy

Commissioner may, subject to the rules made by the

State Government in this behalf, direct.

(2) If any land assessed or held for the purpose of

agriculture has been diverted for any other purpose in

contravention of an order passed or of a condition

4. Substituted for the word “proviso” by Act No.2 of 1991.

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imposed under section 95, the Deputy Commissioner

may serve a notice on the person responsible for such

contravention directing him, within a reasonable period

to be stated in the notice, to use the land for its original

purpose or to observe the condition; and such notice

may require such person to remove any structure, to fill

up any excavation or to take such other steps as may be

required in order that the land may be used for its

original purpose, or that the condition may be satisfied.

Subject to the orders of the State Government, the

Deputy Commissioner may also impose on such person

a penalty not exceeding one thousand rupees for such

contravention and a further penalty not exceeding

twenty-five rupees for each day during which such

contravention continues.

(3) If any person served with a notice under sub-

section (2) fails within the period stated in the notice to

take steps ordered by the Deputy Commissioner under

that sub-section, the Deputy Commissioner may himself

take such steps or cause them to be taken; and any cost

incurred in so doing shall be recoverable from such

person in the same manner as an arrear of land revenue. 1[(4) Notwithstanding anything contained in this

section, when any land assessed or held for the purpose

of agriculture has been diverted or used for any other

purpose without the permission of the Deputy

Commissioner or before the expiry of the period

prescribed in sub-section (5) of section 95 or in

contravention of an order passed or of a condition

imposed under section 95, the Deputy Commissioner

may, subject to such rules as may be prescribed and

1. Sub-section (4) inserted by Act No.10 of 1985 and shall be deemed to have come

into force w.e.f. 8.6.1984.

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subject to any law for the time being in force regarding

erection of buildings or construction of wells and tanks,

and subject to prescribed terms and conditions,

compound such diversion or use, on payment of the

prescribed amount, which may be different areas or for

different contraventions or for different purposes for

which diversion or use is made.]

97. Diversion of non-agricultural land held for a

specific purpose.—The provisions of sections 95 and 96

shall mutatis mutandis be applicable in respect of the

diversion or use of any land held free of assessment on

condition of being used for a specific non-agricultural

purpose to any other non-agricultural purpose.

98. Permission may be granted on terms.—Nothing

in sections 95 and 96 shall prevent the granting of the

permission aforesaid in special cases on such terms and

conditions as may be agreed to between the Deputy

Commissioner and the occupant, in accordance with and

subject to the terms and conditions specified in the rules

made in this behalf by the State Government. “

6. From a reading of the above provisions, it is evident that

every land use, every change in land use and every development

in the area covered by the Master Plan, approved by the State

Government under the KTCP Act, shall conform to the same.

Any such change in land use shall only be with the permission of

the Planning Authority. Further, where the use or change of land

23

use under Section 14 of the KTCP Act needs the diversion of

agricultural land to non-agricultural purposes, such use or change

of use can only be with the permission obtained in accordance

with the provisions of the KLR Act for such diversion.

7. In the instant case, it is not in dispute that the petitioner

had obtained the written permission of the Planning Authority

under the KTCP Act for the change in land use. The same was

granted as on 28-11-1997. However, the petitioner had not

thought it fit to seek permission of the competent authority under

the provisions of the KLR Act. The petitioner was apparently

drawing inspiration from a decision of this Court, which is sought

to be relied upon, namely, Special Deputy Commissioner v.

Narayanappa , ILR 1988 Kar 1398, wherein a Division Bench of

this court has held, while answering the question, whether the

Special Deputy Commissioner had any power at all to accord

permission under Section 95 of the KLR Act – it was opined that a

change of land use falling with in the area of the Outline

24

Development Plan or the Comprehensive Development Plan

(CDP) could be effected or undertaken only with the written

permission of the Planning Authority under the KTCP Act. And

that the jurisdiction of the competent authority under the KLR Act

gets ousted. The said decision was rendered as on 16.3.1987.

However, the following proviso has been inserted by

Act.No.2 of 1991, with effect from 20.3.1991.

“ …..[Provided that where the use or change of land

use under this section needs the diversion of agricultural

land to non-agricultural purposes, such use or change of

use shall not be permitted, unless permission is obtained

in accordance with the provisions of the Karnataka Land

Revenue Act, 1964 for such diversion.]

Hence, the insistence that the petitioner was also required

to obtain the permission of the authority under the KLR Act, apart

from the permission obtained from the Planning Authority under

the KTCP Act, would appear to be in consonance with the above.

25

But it is also to be noticed that the following Proviso is inserted,

by Act No.2 of 1991, with effect from 20.3.1991, following Sub-

section (2) of Section 95 of the KLR Act , thus :

“……. [Provided that the Deputy Commissioner

shall not refuse permission for diversion of such land

included in the [Master Plan]

published under the

Karnataka Town and Country Planning Act, 1961

(Karnataka Act 11 of 1963), if such diversion is in

accordance with the purpose of land use specified in

respect of the land in such plan:] ”

It would hence follow that if the petitioner had in the

normal course made an application before the Deputy

Commissioner concerned, seeking such permission for diversion

pursuant to the permission granted by the Planning Authority

under the KTCP Act, it may have been granted without any

question. It is however, a fact that no such application was filed.

The filing of any such application after the acquisition

proceedings were initiated under the KIAD Act, and especially on

the land having vested with the State on those proceedings having

progressed further, having become redundant, the question is

26

whether this peculiar circumstance should disentitle the petitioner

from claiming compensation in respect of the land in question as

being converted land .

It is also evident that the petitioner would have been

entitled to an order under Section 95 of the KLR Act only if such

use or change of use was permitted under the KTCP Act and not

otherwise. The petitioner did have the permission for such change

of use under the KTCP Act. The further permission under the

KLR Act was thus a necessary formality to put the land to such

use. But with the acquisition of the land by the State, such user

was no longer possible on the part of the petitioner and is not

relevant. There can however be no doubt that the land is certainly

capable of being considered to be in the nature of converted land,

for purposes of payment of compensation.

8. In so far as the decision in the case of Goa Housing

Board, sought to be relied upon by the respondent, is concerned –

the same may not apply to the present case on hand. The land in

question in that case was capable of being put to use only as

27

agricultural land as it was land that had vested in the tenant under

the provisions of the Goa Land Use (Regulation) Act, 1991. It

was hence held that valuation of such land could not be with

reference to its potential for use for non-agricultural building

purposes.

Accordingly, the petitioner being denied compensation at

the rate of Rs.155/- per square foot and other statutory benefits

for reasons stated as at Annexure – K to the writ petition, cannot

be sustained. The same is quashed. The respondents are directed

to pay compensation to the petitioner as prayed for.

Sd/-

JUDGE

nv