IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NOS.51148/2016 & 31414-31418/2017 BETWEEN:
M/S. PASH SPACE INTERNATIONAL PRIVATE LIMITED.
REGD. OFFICE #674, 10TH CROSS, 1ST STAGE, 9TH ‘A’ MAIN, INDIRANAGAR, BENGALURU – 560 038 REP. BY ITS MANAGING DIRECTOR MR.A.ALAM PASHA, AGED ABOUT 53 YEARS, S/O. LATE MR. P. AMEER SAB ... PETITIONER (BY SRI. VISHWAJITH SHEETY S, ADVOCATE) AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF COMMERCE AND INDUSTRIES, I FLOOR, KHANIJA BHAVAN, BENGALURU – 560 001 REP. BY ITS PRINCIPAL SECRETARY 2. KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD, 4TH & 5TH FLOOR, KHANIJA BHAVAN, ‘E’ WING, 49TH RACE COURSE ROAD, BENGALURU – 560 001 REP. BY ITS CHIEF EXECUTIVE OFFICER AND EXECUTIVE MEMBER ... RESPONDENTS (BY SRI.VENKATESH DODDERI, ADVOCATE FOR R-1; SRI.P.V. CHANDRASHEKAR, ADVOCATE FOR R-2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT R-1 TO FORTHWITH TO PASS NECESSARY ORDERS UNDER SECTION 28(4) OF THE ACT AND TAKE NECESSARY STEPS FOR THE PURPOSE OF PUBLICATION OF THE SAID NOTIFICATION IN ACCORDANCE WITH LAW PURSUANT TO THE ORDERS PASSED BY THE SPECIAL DEPUTY COMMISSIONER OF K.I.A.D.B UNDER SECTION 28(3) OF THE K.I.A.D.B. ACT 1966 ON 05.07.2013 AND RECOMMENDATIONS MADE ON 16.07.2015 AND 02.12.2015 BY R-2 VIDE ANNEX-T AND T1.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is a private limited company and in order to establish infrastructure for IT, Software Development, Hospitality, Services and the like, had submitted an investment proposal with its own land to Government of Karnataka through Karnataka Udyog Mitra on 15.11.2003-Annexuer-A. State Level Single Window Agency Clearance, Government of Karnataka, resolved to permit the project proposed by the petitioner-company in the land bearing Sy.No.41/1 of Chikkathoguru Village and Sy.Nos.133/1, 133/2, 133/3, 133/5 and 133/6 of Doddathoguru Village to an extent of 12 acres 10 guntas land under Single Unit Complex and requested Karnataka Industrial Area Development Board Act, 1966 (for short ‘KIADB Act’) – second respondent herein to acquire the petitioner- company’s promoters’ land and to handover the same to petitioner – company for the purposes of implementation of the project as per the proceedings Annexures-C to C2.
2. It is thereafter appropriate Government directed second respondent to acquire 12 acres 10 guntas of land belonging to promoters of petitioner- company. On 18.05.2004, preliminary notification came to be issued and on 28.10.2004 final notification came to be issued and subsequently, on 05.11.2004 the extent of land so acquired was handed over to petitioner-company and an award came to be passed on 09.11.2004 vide Annexure-D2. Petitioner-company has also paid a consideration amount of ` 1,68,46,690/- and pursuant to same Lease cum Sale Agreement dated 03.12.2004 came to be executed by the second respondent in favour of petitioner for a period of ten (10) years.
3. Petitioner submitted a modified proposal in accordance with new CDP to the Government of Karnataka and after decision of the Single Window Agency Clearance second respondent issued a revised possession certificate in favour of petitioner and also executed a deed of modification dated 23.12.2006- Annexure-G.
4. In the meanwhile, erstwhile owners of the lands challenged the acquisition proceedings in W.P.No.22194/2005, which came to be dismissed on 18.12.2008 and appeal which has been filed challenging the order of dismissal of writ petition is pending consideration in W.A.No.749/2009. No stay has been granted in said writ appeal.
5. Petitioner-company has started implementing the project on obtaining approval of balance from KIADB and on permission being granted by second respondent, petitioner has mortgaged lands in question to the banks and an investment of ` 1.14 Crores is said to have been made by the petitioner.
6. As per Clause 10(a) of Lease cum Sale Agreement dated 03.12.2004 and deed of modification dated 15.02.2006, second respondent was required to issue permission letter in favour of petitioner and same was not issued. In the meanwhile, second respondent is said to have taken a decision to allot schedule land to M/s. PRISAC Housing Constructions Private Limited, which came to be rescinded and certain proceedings is also said to have taken place between petitioner and second respondent in that regard.
7. Thereafter, certain persons challenging the acquisition proceedings filed W.P.Nos.10828/2012 and 13471-503/2012 whereunder final notification dated 28.10.2004 issued under Section 28(4) of KIADB Act came to be quashed by allowing the writ petitions by granting liberty to second respondent herein to hold a fresh hearing under Section 28(3) of KIADB Act and to take further steps in accordance with law. Accordingly matter came to be remanded to first respondent for fresh consideration. Special Land Acquisition Officer pursuant to directions issued in the aforesaid writ petitions, passed an order on 05.07.2013 – Annexure-P with a direction to KIADB to issue Gazette Notification under Section 28(4) of KIADB Act. On account of respondent No.2 having not acted upon said order/direction, petitioner has submitted representations as per Annexures-Q and R to R4. Second respondent is also said to have forwarded the draft notification to be issued under Section 28(4) of the KIADB Act to the first respondent by communications dated 16.07.2015 and 02.12.2015 - Annexures-T and T1. However, first respondent is said to have not taken any decision. Hence, petitioner has approached this Court for the following reliefs:
(a) Issue a writ of Mandamus or any other appropriate directing the first respondent to forthwith pass necessary orders under section 28(4) of the Act and take necessary steps for the purpose of publication of the said notification in accordance with law pursuant to the orders passed by the Special Deputy Commissioner of K.I.A.D.B. under section 28(3) of the K.I.A.D.B. Act 1966 on 05.07.2013 and recommendations made on 16.07.2015 KIADB/kemka/ land acquisition Bengaluru no./1546(P) 6287/2015-16 and 02.12.2015 KIADB/kemka/land acquisition Bengaluru no./1546(P) 13859/2015-16 by the respondent No.2 vide Annexure-T and T1.
(b) Issue writ of Mandamus or any other appropriate writ directing the 2nd respondent to permit the petitioner to implement the project within the time frame as provided under Clause 10(a) of the lease-cum-sale agreement executed by the 2nd respondent in favour of the petitioner on 03.12.2004 registered in the office of the Sub- Registrar, Koramangala, Bengaluru South Taluk on 8.12.2004 vide Annexure-F.
8. Today learned AGA has filed a memo enclosing communication dated 17.10.2017, which discloses that competent authority has approved the proposal to issue final notification under Section 28(4) of the KIADB Act. It is also stated thereunder that same would be issued within two (2) weeks.
9. Sri.Venkatesh Dodderi, learned AGA appearing for first respondent submits that competent authority has passed an order approving the proposal to issue notification under Section 28(4) of Karnataka Industrial Area Development Board Act, 1966 (for short ‘KIADB Act’). He would also hasten to add that necessary Gazette Notification would be issued within two (2) weeks. His submission is placed on record.
10. First prayer sought for by the petitioner in the present writ petitions is for issuing a writ of mandamus to first respondent to pass orders under Section 28(4) of the KIADB Act pursuant to orders passed by KIADB. In the light of memo filed and aforesaid submission made by the learned AGA, prayer (a) does not survive for consideration. In other words, prayer (a) has got spent itself.
11. Insofar as, prayer (b) is concerned, second respondent-KIADB will have to take appropriate steps only after such notification being issued by first respondent and as such, petitioner is granted liberty to place all such material before second respondent for grant of prayer (b) after necessary orders are passed by first respondent.
12. Accordingly, writ petitions stands disposed of. It is also made clear that if for any reason appropriate Government fails to issue Gazette Notification as required under Section 28(4) of KIADB Act and as undertaken in the memo filed today, petitioner would be at liberty to revive these writ petitions.
SD/- JUDGE DR