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2022 Supreme(Online)(Kar) 40098
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WA No. 100312 of 2022
C/W CCC NO.100173 OF 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
WRIT APPEAL NO. 100312 OF 2022 (KLR-CON)
C/W
CIVIL CONTEMPT PETITION NO. 100173 OF 2022
IN WA NO.100312/2022
BETWEEN:
1.
THE STATE OF KARNATAKA REPRESENTED BY THE
SECRETARY TO THE REVENUE DEPARTMENT
BENGALURU-560001
2.
DEPUTY COMMISSIONER & DISTRICT MAGISTRATE
BELGAVI
&APPELLANTS
(BY SMT.K. VIDYAVATHI, ADDL. ADVOCATE GENERAL)
AND:
1.
SHARAVATI NAIK
OCC BUSINESS
R O AT POST HINDALGA BELGAVI
2.
THE CHIEF MANAGER HINDUSTAN PETROLIUM CORPN.
R/O SAMBHAJI ROAD RANI CHANNAMMA NAGAR BELGAVI
3.
THE NIPPANI TOWN PLANNING AUTHORITY BELGAVI
&RESPONDENTS
(BY SRI.JAGADISH PATIL, ADVOCATE)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO SET-ASIDE THE ORDER PASSED IN
J
MAMATHA
Digitally signed
by J MAMATHA
Location: High
Court of
Karnataka,
Dharwad
Bench
Dharwad.
Date:
2022.10.03
10:01:07
+0530
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WA No. 100312 of 2022
C/W CCC NO.100173 OF 2022
WRIT PETITION NO. 101179/2022 (S-RES) ON 12/04/2022 BY THE
LEARNED SINGLE JUDGE AND THE PROCEEDINGS OF THE DEPUTY
DIRECTOR OF WOMEN AND CHILDREN DEVELOPMENT DEPARTMENT
BAGALKOT AND ISSUED AN ORDER TO THE RESPONDENT NO. 9
WITH SANKYA.UNIBA/MAMAAE/AUMSA/GOUSEGU/2022-23/298 ON
19/04/2022 AS PER ANNEXURE-M AND FURTHER DECLARE THAT THE
PETITIONER IS ENTITLED RELIEFS WHICH SHE HAS PRAYED IN W.P.
NO. 101179/2022 (S-RES).
IN CCC NO.100173/2022
BETWEEN:
SMT. SHARAVATHI NAIK
AGE. 45 YEARS, OCC. BUSINESS,
R/O. AT POST HINDALAGA,
BELAGAVI-590001, DIST. BELAGAVI
&COMPLAINANT
(BY SRI. JAGDISH PATIL, ADVOCATE)
AND:
1.
THE STATE OF KARNATAKA
REP BY ITS SECRETARY TO REVENUE DEPARTMENT ,
M.S. BUILDING, DR. AMBEDKAR ROAD,
BENGALURU-560001
2.
SHRI M.G. HIREMATH
THE DEPUTY COMMISSIONER
BELAGAVI-590001
&ACCUSED
(BY SMT. K. VIDVYAVATHI, ADDL. ADVOCATE GENERAL)
THIS CCC IS FILED UNDER SECTION 11 AND 12 OF THE
CONTEMPT OF COURTS ACT, 1971, R/W. ARTICLE 215 OF
CONSTITUTION
OF
INDIA,1950,
PRAYING
TO
PUNISH
THE
CONTEMNORS/ACCUSED FOR WILFULLY NOT COMPLYING WITH THE
ORDER PASSED BY THIS HON BLE COURT IN W.P.NO.103217/2021
(KLR-CON) DATED 20/12/2021 VIDE ANNEXURE-A.
THIS WRIT APPEAL AND CONTEMPT PETITION COMING ON
FOR
PRELIMINARY
HEARING,
THIS
DAY,
S.G.
PANDIT
J.,
DELIVERED THE FOLLOWING:
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WA No. 100312 of 2022
C/W CCC NO.100173 OF 2022
This intra-court appeal is filed by the State under
Section 4 of the Karnataka High Court Act, 1961 against the
order dated 20.12.2021 in WP No.103217/2021, whereby
writ
petition
is
allowed,
quashing
the
impugned
Communication dated 17.6.2021 (Annexure-J); respondent
No.2 is directed to issue No Objection Certificate for setting
up of filling station in the land bearing Sy.No.115A situated
within Nippani Town, Belagavi District.
2.
Appellant
No.1/State
was
respondent
No.1,
appellant No.2-Deputy Commissioner was respondent No.2
and respondent No.1 herein was petitioner and respondent
No.2-HPCL was respondent No.3 before the writ Court. The
parties would be referred to as they stand before the Writ
Court.
3.
Brief facts of the case are that, on an application
filed by the petitioner, she was allotted with dealership of
Petrol
bunk
by
respondent
No.2/Hindustan
Petroleum
Corporation Limited (HPCL). Letter of intent of respondent
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No.2 required the petitioner to get the land converted from
agriculture to non-agriculture and to obtain NOC from the
Deputy Commissioner. The petitioner got converted the land
from agriculture to non-agriculture residential-petrol bunk
under OM dated 21.12.2019 (Annexure-C). It is stated that
on 24.12.2019, the petitioner made an application to
respondent No.2/Deputy Commissioner seeking NOC for
establishing Petrol bunk. Respondent No.4/Town Planning
Authority issued a clarification to the petitioner stating that it
is permissible to open the petrol bunk in the said land as per
Town Planning Regulations by letter dated 17.02.2020
(Annexure-E). Respondent No.2/Deputy Commissioner under
Annexure-J, Communication dated 17.6.2021 informed that
since it is a <business to consumer=, it requires conversion of
land from residential to commercial under Section 97 of the
Karnataka Land Revenue Act, 1964 (for short, 8Act, 19649).
Challenging the said communication, the petitioner was
before the Writ Court in WP No.103217/2021. This Court
under impugned order quashed the said Communication
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dated 17.6.2021 and directed respondent No.2/Deputy
Commissioner to issue NOC for setting up of filling station.
4.
Aggrieved by the said direction, respondents 1
and 2-State Authorities are before this Court in this appeal.
5.
Heard Smt. K. Vidyavathi, learned Addl. Advocate
General for the appellants and Sri. Jagadish Patil, learned
counsel for 1st respondent/petitioner and perused the writ
appeal papers.
6.
Smt. K. Vidyavathi, learned AAG would submit
that setting up of fuel filling station is a commercial activity,
as such, permission cannot be accorded to establish in
residential zone. She further submits that if the petitioner
gets the land converted from residential to commercial,
respondent/State
would
consider
the
request
of
the
petitioner for setting up of filling station in the land in
question. It is the submission of learned AAG that the
learned Single Judge has lost sight of the fact that the
petitioner has not taken conversion of her land from
residential to commercial for setting up of filling station.
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Further, it is submitted that under Master Plan for Nippani
Town, land in question belonging to the petitioner is
earmarked for residential use and in residential area,
commercial usage i.e. establishment of petrol bunk is
prohibited. According to the learned AAG, fuel filling station
would come under commercial activity, which cannot be
permitted in residential zone. It is submitted that, if the
petitioner gets the land converted from residential to
commercial under Section 97 of the Act, 1964, request of the
petitioner would be considered for establishing fuel filling
station. Learned AAG would further submit that the learned
Single Judge has failed to consider the guidelines issued by
Central Pollution Control Board, which states that permission
for establishing fuel filling station shall not be accorded
within the radial distance of 50 mtrs from schools, hospitals,
residential area et
