IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.8995/2016(GM-RES) BETWEEN:
M/S ALVARES & THOMAS CO., ALVARES CENTRE, MANGALORE-575 005.
REPRESENTED BY ITS MANAGING PARTNER MRS. HELEN ALAVARES REIN.
... PETITIONER (BY SRI ARUN GOVINDARAJ, ADVOCATE FOR SRI GOVINDARAJ L., ADVOCATE) AND:
1. THE STATE OF KARNATAKA, DIRECTOR, PORT AND INLAND WATER TRANSPORT DEPARTMENT, BAITHKOL, NH-17, KARWAR-581 302, UTTARAKANNADA DISTRICT.
2. PORT OFFICE, DEPUTY CONSERVATOR OF FOREST, EDAPALLY-PANVEL HIGHWAY, KARWAR, KARNATAKA-581 302.
3. DEPUTY CONSERVATOR OF FOREST SOCIAL FORESTRY DIVISION, KODIBAG, KARWAR-581 303.
... RESPONDENTS (BY MS. NILOUFER AKBAR, AGA) **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE LETTERS VIDE ANNEXURE-E DATED 1.12.2015 AND ANNEXURE-E1 DATED 11.1.2016 ISSUED BY THE RESPONDENT-2.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner filed the present writ petition for a writ of certiorari to quash the letters/notices dated 1.12.2015 and 11.1.2016 issued by the 2nd respondent and a writ of mandamus directing the 2nd respondent to extend the lease by the same period that the 3rd respondent has occupied the petitioner’s godown/warehouse without demanding any rent for such period of occupation and a writ of mandamus directing the 3rd respondent to pay the petitioner rent at the rate of Rs.4,00,000/- from the month of May-2010 until it delivers vacant possession.
2. It is the case of the petitioner that it is a partnership firm registered under the provisions of the Indian Partnership Act and it sought allotment of land at Karwar Port in order to establish a godown/warehouse. The State Government by an order dated 10.8.2005 allotted 4,500 square meters of land at Karwar Port in favour of the petitioner, for a period of ten years excluding three years time for construction of a godown/warehouse. The petitioner established a godown/warehouse upon the land allotted to it. In the year 2010, the 3rd respondent – Deputy Conservator of Forest seized iron ore from Karwar Port. Without the consent of the petitioner, the seized iron ore was moved into the petitioner’s godown/warehouse in May-2010. Despite repeated requests, the 3rd respondent did not remove the seized iron ore from petitioner’s godown/warehouse.
3. When things stood thus, the 2nd respondent by letters dated 1.12.2015 and 11.1.2016 sought rent for the godown/warehouse w.e.f. 1.10.2010 until 31.10.2015 amounting to Rs.10,73,209/- together with service tax of Rs.1,50,249/-. The petitioner gave reply to the same as per Annexure-F dated 12.1.2016. The Respondent Nos.1 and 2 have neither acted upon the petitioner’s representation nor have communicated with the petitioner thereafter. Aggrieved by the arbitrary action on the part of Respondent Nos.1 and 2 and the 3rd respondent’s failure to remove the iron ore illegally stored in the petitioner’s godown/warehouse and non-payment of rent, the petitioner is before this Court for the reliefs sought for.
4. The respondents have not filed objections to the main writ petition.
5. I have heard the learned counsel for the parties to the lis.
6. Sri Arun Govindraj, learned counsel for the petitioner contended that the impugned notices issued by the Respondent No.2 as per Annexures-E and E1 directing the petitioner to pay the rent amounting to Rs.10,73,209/- for the godown/warehouse w.e.f. 1.10.2010 until 31.10.2015 together with service tax of Rs.1,50,249/-, are erroneous and contrary to the material on record. He would further contend that the 3rd respondent without the consent of the petitioner has moved the seized iron ore into the petitioner’s godown/warehouse in May-2010, thereby depriving the petitioner for use of godown and therefore question of petitioner paying rent to the warehouse would not arise. He further contended that subsequently, the 1st respondent – State Government also issued show cause notice to the 3rd respondent on 9.1.2019 to show cause as to why rent should not be collected from the Forest Department. Therefore he sought to allow the writ petition.
7. Per contra, learned Additional Government Advocate submits that in the present writ petition, the petitioner has challenged notices/letters issued by the 2nd respondent directing the petitioner to pay rent for the warehouse/godown from 1.10.2010 to 31.10.2015 amounting to Rs.10,73,209/- together with service tax of Rs.1,50.249/- as the petitioner has not paid rent for the said period. She would further contend that objections filed by the petitioner to the said notices on 12.1.2016 stating that the 3rd respondent using the alleged godown of the petitioner from May-2010 and therefore question of petitioner paying rent would not arise. She further submits, that is not the issue raised in the notices. Notices issued to the petitioner to pay rent due. Once the petitioner was allotted the Port land for rent, it is the duty of the petitioner to pay the rent and since petitioner has not paid the rent, notices are issued. Therefore, she sought to dismiss the Writ Petition.
8. Having heard the learned counsel for the parties, it is an undisputed fact that the State Government by an order dated 10.8.2005 allotted 4,500 square meters of land at Karwar Port in favour of the petitioner, for a period of ten years excluding three years time for construction of a godown/warehouse. It is the case of Respondent Nos.1 and 2 that the petitioner has not paid the rent from 1.10.2010 until 31.10.2015 amounting to Rs.10,73,209/- and service tax of Rs.1,50,249/- and therefore notices as per Annexures-E and E1 are issued directing the petitioner to pay the rent for the said period. According to the petitioner, the 3rd respondent – Deputy Conservator of Forest without consent of the petitioner has moved seized iron ore in to the petitioner’s godown/warehouse in May- 2010 and occupied the warehouse. Therefore, in response to the notices issued by Respondent No.2 as per Annexures-E and E1 dated 1.12.2015 and 11.1.2016 respectively, the petitioner filed objections as per Annexure-F dated 12.1.2016 before the 2nd respondent specifically stating that the petitioner’s godown is a private godown, but the Forest Department, Government of Karnataka stored the iron ore at their godown which was seized and they were strictly instructed by the Forest Department as well as Port Officer, Karwar, not to touch the seized iron ore and hence they could not use the godown for any purpose from May-2010 and therefore question of paying rent would not arise.
9. Admittedly, objections filed by the petitioner to the impugned notices – Annexures E and E1 as long back as on 12.1.2016. Till today, the respondents have not initiated any action nor passed any orders. It is also clear from Annexures-D and D1 to D6 that the petitioner requested the 3rd respondent to remove the seized iron ore from the petitioner’s godown. The same has not been considered. It is brought to the notice of the Court that subsequently the 1st respondent issued show cause notice dated 9.1.2019 to the Range Forest Officer, Karwar as to why rent should not be collected from the Forest Department. All these aspects have to be considered by the 2nd respondent.
10. In view of the above, without adverting to the merits and demerits of the case, it is suffice to direct the 2nd respondent to consider the objections filed by the petitioner dated 12.1.2016 as per Annexure-F and pass appropriate orders in accordance with law.
11. For the reasons stated above, the impugned notices issued by the 2nd respondent as per Annexures-E and E1 dated 1.12.2015 and 11.1.2016 are kept in abeyance till the decision is taken by the 2nd respondent on the objections filed by the petitioner dated 12.1.2016 as per Annexure-F. The 2nd respondent is directed to consider the objections filed by the petitioner within four weeks from the date of receipt of copy of the order and pass appropriate orders in accordance with law, keeping in view of all aspects including the show cause notice dated 9.1.2019 issued by the 1st respondent to the Range Forest Officer, Karwar.
Accordingly, the writ petition is disposed off with the above observations.
Sd/-
JUDGE Gss/-