IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF AUGUST, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT APPEAL NO.3298 OF 2016 (GM-RES) BETWEEN 1. THE GOVERNMENT OF INDIA MINISTRY OF COMMERCE AND INDUSTRIES, UDYOG BHAVAN, NEW DELHI-110 011.
REP. BY ITS DIRECTOR.
2. THE DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION, GOVERNMENT OF INDIA, MINISTRY OF COMMERCE AND INDUSTRIES, UDYOG BHAVAN, NEW DELHI-110 011.
REP. BY ITS JOINT SECRETARY.
3. THE EMPOWERED COMMITTEE OF THE INDUSTRIAL PARKS SCHEME, 2002, REPRESENTED BY ITS SECRETARY, GOVERNMENT OF INDIA, UDYOG BHAVAN, NEW DELHI-110 011.
(BY SMT ANITHA H R, ADVOCATE) ... APPELLANTS AND ABHILASH SOFTWARE DEVELOPMENT CENTRE, A PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER, SRI. S. PRASAD, HAVING ITS OFFICE AT # 10, 3RD FLOOR, 80 FEET ROAD, RAJMAHAL VILAS EXTENSION, 2ND STAGE, BANGALORE-560 094.
... RESPONDENT (BY SRI D L N RAO, SENIOR COUNSEL FOR SMT. S R ANURADHA, ADVOCATE) THIS WRIT APPEAL FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 13172/2013 DATED 18/11/2015 AND ETC.
THIS WRIT APPEAL COMING ON FOR FINAL HEARING THIS DAY, NARAYANA SWAMY J, DELIVERED THE FOLLOWING:
JUDGMENT Petitioner No.2 – Department of Industrial Policy and Promotion, Government of India has introduced a scheme known as the Industrial Park Scheme, 2002. Under the said scheme there are two different schemes such as “Automatic Route” and “Non-automatic Route. In the “Automatic Route” there is a condition under 6(f). The condition is that the allottee shall use 50% of allocable land for the purpose of industry. The petitioner being the absolute owner of the immoveable property bearing No.96 and 104, P-2, EPIP Industrial Area, Whitefied, Bangalore, made an application under the “Automatic Route”. The scheme was approved and permission was granted. Thereafter, he made an application to choose the “Non-automatic Route”. In order to consider his case for allotment for “Non- Automatic Route”, he surrendered the approved lands “Automatic Route”, it was accepted by the respondent No.2 and the applications made for “Non-Automatic Route” was considered and same was allotted as per the order dated 13.04.2006 as per Annexure-H with a condition that “the percentage of allocable area earmarked for industrial use is 90%; the percentage of allocable area earmarked for commercial use was 10% and proposed number of industrial units was 3 units”. The petitioner has complied the allotment of “Non- Automatic Route”, as per the order dated 13.04.2006. Thereafter the respondent No.2 issued a show cause notice as to why the “Non-Automatic Route” shall not be cancelled, since he violated the provision under Section 6(f) of the “Automatic Route” alleging that 90% of the allocable area was used, which is contrary to the said provisions. The petitioner/respondent has submitted his reply as per the “Non-Automatic Route” which itself permit to use 90% from the allocable area. Not considering the reply made to the show cause notice, a withdrawal letter dated 3rd March, 2013, Annexure-H has been issued, which was received on 14.03.2013 in No.15/61/2001 IR & ID-II and in which paragraph No.4 stated that the petitioner has violated 6(f) of the IPS, 2002 i.e., no single unit of Industrial Park shall occupy more than fifty percent of the allocable industrial area granted to the company.
2. Considering the fact that the allotment made in favour of the petitioner is “Non-automatic Route”, which entitles to utilise 90% of the allocable area, the petitioner notwithstanding in compliance of the same, the respondent has withdrawn the permission granted on 14.03.2012, which is impugned in the writ petition before the learned Single Judge. The learned Single Judge by the order dated 18.11.2015 allowed the petition and set aside the withdrawal order. Against which, this appeal is filed.
3. The ground taken by the appellants/Government is that the “Automatic Route” in IPS scheme 2002 condition was that the petitioner shall not utilize more than 50% for a single industrial unit. On inspection, it is found that he has utilized more than 90% which is in violation of the scheme and the learned counsel justified withdrawal order. It is submitted that this fact was placed before the learned Single Judge and the same has not been considered. Accordingly, the order has been set aside.
4. On the other hand, it is submitted, compliance has been made as per the approval of scheme in which the percentage of allocable area itself 90% and commercial purpose 10% into 3 units, when such is the allotment and the respondent have utilized the same in compliance of the same. There is justifiable reasons placed by the petitioner. Under these circumstances, the learned Senior Counsel sought to dismiss the appeal 5. We have heard the learned counsel appearing for the parties and perused the impugned order.
6. It is undisputed fact that the respondents have surrendered the “Automatic Route” and made an application on 14.04.2005 for allotment under “Non- Automatic Route”. It is true that there is a condition under Section 6(f) of IPS 2002 that from the allocable area the allottee shall not use more than 50% for one single unit. However, such allotment which is surrendered and same has been acknowledged by the respondent No.2 and application made for “Non- automatic Route” has been considered. In these two allotment “Automatic Route” and “Non-automatic Route”, the condition looked into by the petitioner under “Automatic Route” under Section 6(f) of IPS 2002, where an allottee shall not use more than 50% form the allocable area whereas in “Non-Automatic Route” 90% is reserved for industrial purpose. When the allotment for “Automatic Route” has been withdrawn and accepted. Without looking into the provisions for allotment of “Non-automatic Route” and with non application of mind, this appeal has been filed.
7. We examined the case of the appellant and we have gone through the sanction made under the “Automatic Route” and “Non-Automatic Route” of IPS 2002. It is found form the “Non-Automatic Route” which allowed 90% for industrial purpose and 10% for commercial use. When such is the condition and the compliance by the respondent, we do not find any infirmity in the order passed by the learned Single Judge. The petitioner has not placed any justifiable ground for withdrawal of the scheme allotted under “Non-Automatic Route”.
8. It is submitted, the respondent/petitioner is entitled to tax benefit under the “Non-Automatic Route”, then liberty is reserved to the respondent to make necessary application for the tax benefit. In such an event, the same shall be considered by the appellant. This Court vide order dated 16.03.2017, has recorded that the respondent shall be entitled to tax exemption, the same shall be extended to the respondent, in accordance with law.
9. Under these circumstances, the appeal is to be dismissed. Accordingly, the appeal is dismissed. The order passed by the learned single judge is confirmed.
SD/- JUDGE SD/- JUDGE KLY/