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THE VIJAYAPUR (BIJAPUR) DC NEEDS TO ENHANCE AWARD AMOUNT AS PER CDP LAND USE

 
 
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THE VIJAYAPUR (BIJAPUR) DC NEEDS TO ENHANCE AWARD AMOUNT AS PER CDP LAND USE
by System Administrator - Tuesday, 1 September 2015, 12:28 AM
 

By: M.S.Yatnatti: Editor and Video Journalist Bengaluru : The Vijayapur DC need to enhance the award amount according to land use as per CDP even if it was not converted under land revenue Act under section 95 of KLR Actaccording to latest Karnataka high court citations while giving compensation for land acquisition for Road Projects as per Land Acquisition Act.. "The compensation awarded by The Assistant Commissioner, Cum Competent Authority for Land Acquisition NH - 13 as agricultural land in respect of 299/2A and 299/2Bis illegal and incorrect as 299/2A and 299/2BareIndustrial land as per BUDA CDPand they are Statutory converted land and need to give the same value of converted adjacent land as The Assistant Commissioner, Cum Competent Authority has given in case of Sl No 47S.No 299/1B DC Converted which will be Rs 3229/- per square meter(opposite land)instead of Rs 38.95 per square meter” .The Vijayapur Bijapur DC need to consider the application of Smt Uma Mahesh Koreand Sri Shivanand Parappa Nashi and others and set aside the order of AC and release the enhanced award amount immediatelyso corrected as 299/2A and 299/2BareIndustrial land as per BUDA CDPand Statutory converted land value as that ofDC Converted ”.

According to citations in A Mohan vs State Of Karnataka on 5 December, 2013 dated DATED THIS THE 05Th DAY OF DECEMBER 2013 the high court held that "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.” 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 and according to citations inIn Smt. Parvathibai vs The Deputy Commissioner And Ors. on 3 April, 2003Equivalent citations: 2004 (3) KarLJ 6 the court held that "Towards this end, he demonstrated to us from the sketches that are on record as also from the CDP produced by the authority itself, that the whole of that area is not only urban area but that the whole of that area has also been developed to the extent that these plots are possibly among the only ones that have not so far been built upon. The argument is that in such a situation the potentiality is what the Court is required to assess and not the categorisation as far as the revenue records are concerned. We have evaluated the rival contentions and what we need to observe is that in a situation such as the present one where agricultural lands are located in the midst of a relatively developed area, that the question as to whether non-agricultural permission had been obtained or not is of secondary consequence because those lands as has emerged from the evidence on record were not being used for any agricultural operations, that they had been leveled out and they were on par with any other lands on which building or developmental activity would take place. Some marginal allowance would certainly have to be made for the fact that no non-agricultural permission had been obtained, but this factor would not materially change the value of the lands because in our considered view, it is really the developmental potentiality that is of paramount significance.” And It is true that as far as the present lands are concerned, the handicap is that the record does categorise them as agricultural lands. Appellants' learned Counsel submitted that this makes absolutely no difference insofar as it only meant that the procedure for conversion has to be completed on the payment of a small fee and that the character of the lands was such that they are straightaway buildable and secondly, that all the infrastructural facilities have reached the immediate vicinity and that consequently, his submission is that even if the developmental expenditure is to be deducted that it should be at the barest minimum."IF THE LAND IN QUESTION IS COVERED BY CDP THEN, PERMISSION FOR CHANGE IN LAND USE SHOULD BE GRANTED BY THE PLANNING AUTHORITY AND DEPUTY COMMISSIONER IS HENCE DIVESTED OF SUCH POWER”.

The compensation awarded by The Assistant Commissioner, Cum Competent Authority for Land Acquisition NH - 13 (from KM 102 to 164, 400 Four Lane) Bijapur is not correctin respect of 299/2A and 299/2Bas the market value of agricultural Land is considered instead of Industrial or commercial land which is incorrect. Whereforeapplication are filed under Sec 3G (5) of the National Highway Act 1956(As amended up to 1997) asthe amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator / Deputy Commissioner, Bijapur,(Authority prescribed under National High Way Act1956 (As Amended up to , 1997) appointed by the Central Government as per the Act. The Market value is determined as per the land use like NA residential and NA commercial (industrial) and agricultural and it is pertinent to note that Land use NA residential and NAcommercial (industrial ) and agricultural is determined as per prevailing CDP as per Karnataka Town & country Planning Act 1961by virtue of a statutory provision amounted to statutory conversion the moment an entry is made either in the Master Plan or the Zonal Plan as its provisions overrides the provisions of Karnataka Land Revenue Act 1964under section 76 -M ofKarnataka Town & country Planning Act 1961 inrespect oflands coming under local planning authority like BUDA. Wherefore Increase and correction in compensation awarded is requested in respect of S.No.299/2A measuring 4950 sq.mtrs of statutory convertedindustrial land and NA land of Kasaba Bijapur as per CDP approved by Government of Karnataka under Town and country planning Act 1961.The award passed by No.NH-13/CALAQ/BJP/CR-01/2009-10 Dated: 25-02-2011 (Award Sl.No.47 ) in respect of S.No 299/2A extent acquired 4950 sq meterand compensation is awarded is of Rs 1,94,649/- as Agricultural land which is incorrect and illegal .As the land is statutory convertedindustrial land , NA and industrial (commercial) as per CDP and the Market value considered in Sl No 46 in respect of S.N.299/1Bis of Rs 3229/- sq m and the same need to be considered in respect of statutory convertedindustrial landas per CDPSl No 47 which will be Rs 4950 x 3229/- = Rs 15983550/- shall be the total compensation payable as per prevailing market rate . In the similar way S.N.299/1Bwhich is also statutory convertedindustrial land(commercial) as per CDP offor which market value of Rs 3229/- sq m is and the same market value need to be considered in respect of statutory convertedindustrial landas per CDPin respect of Sl No 48 which will be Rs 5389 x 3229/- = Rs 17401081/- shall be the total compensation payable as per prevailing market rate .

Statutory conversion:The High Court of Delhi while dealing with the provisions similar to this Act has held that, conversion under the Delhi Development Act by virtue of a statutory provision amounted to statutory conversion the moment an entry is made either in the Master Plan or the Zonal Plan.Kamala Bakshi Vs.Union of India, AIR 1987 Del 180.Authority to accord permission:If the land in question is covered by CDP then, permission for change in land use should be granted by the Planning Authority and Deputy Commissioner is hence divested of such power.In view of the provisions 14, 24, and 76-M of the Act nobody could apply for change of use of any land lying within the area of the CDP only to the planning authority, that is the Bangalore Development Authority and not to the Deputy Commissioner.Even so, after more than one and half years after the DP came into force the Government had issued directions to al the Deputy Commissioners including the Deputy Commissioner, Bangalore, not to reject the permission for conversion of agricultural lands for no-agricultural use assuming the existence of greenbelt.The Deputy Commissioner, Bangalore had no power or authority to deal with any application for change of use of land lying within the area of the CDP and that power vested with the Planning Authority.Special Deputy Commissioner Vs.Bhargavi Madhavan, ILR 1987 KAR 1260.Permission for change in land use:The CDP imposes restriction regarding the use of property and section 14 of the Planning Act read with section 24 provides that for every change of use of land within the planning area, written permission of the Planning Authority is necessary and even if permission had been obtained under any other law, to act according to such permission would not be lawful.Therefore, on and after the date on which the CDP came into force, theDeputy Commissioner stood divested ofhis power under section 95 of the Land Revenue Act to deal with the application of respondents, though presented earlier.Special Deputy Commissioner Vs.Bhargavi Madhavan, ILR 1987 KAR 1260.