IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NO.22903/2014 (GM-RES) BETWEEN:
SMT. VIJAYALAKSHMI P. NARAYANAREDDY W/O P. NARAYANAREDDY AGED ABOUT 52 YEARS R/O #3402, 13TH CROSS R.P. ROAD, NANJANGUD TOWN – 571 301 MYSORE DISTRICT.
(BY SRI. P. MAHESHA, ADVOCATE) AND:
1 . THE DIRECTOR OF TOURISM DEPARTMENT OF TOURISM KANIJA BHAVANA, RACE COURCE ROAD, BANGALORE – 1.
2 . K.S. BASAVARAJAPPA MEMBER ZILLAPANCHAYATH KALMALLI VILLAGE, BILIGERE HOBLI, NANJANGUD TALUK MYSORE DISTRICT – 571 149.
...PETITIONER 3 . THE DEPUTY COMMISSIONER MYSURU DISTRICT, MYSURU – 570 005.
4 . THE TAHSILDAR NANJANGUD TALUK NANJANGUD– 571 301 MYSURU DISTRICT.
(BY SRI. VENKAT SATYANARAYAN, HCGP …RESPONDENTS FOR R-1, R-3 & R-4;
K.V. NARASIMHAN, ADVOCATE FOR C/R2-ABSENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED BY THE R-1 DATED:04.03.2014 VIDE ANN-P.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner as the owner of the property bearing Nos.37/1 and 43/1 had applied for permission to construct Hotel consisting of 16 double rooms and 16 single rooms, 2 dormitories restaurant, kitchen and a shop facility under the name of ‘Yatri Bhavan’, Mysuru- Ooty Road, Nanjangud. Said project came to be approved by first respondent on 01.02.2002. Thereafter, petitioner sought for grant of subsidy claiming that it would promote tourism at Nanjangudu. Said application came to be forwarded to State Level Subsidy Committee, which examined the claim of petitioner and resolved to grant 25% subsidy out of total project cost of Rs.90,57,704/-. In other words, committee resolved to grant subsidy of Rs.23,79,726/-
to petitioner. Pursuant to same an agreement of bond came to be executed by petitioner on 26.08.2010- Annexure-D.
2. Second respondent herein filed a complaint before third respondent alleging that petitioner had misrepresented before first respondent for obtaining subsidy by violating the order of competent authorities and had obtained subsidy by perpetrating fraud on the State. On account of said representation dated 10.06.2013 having not been considered, second respondent had approached this Court in W.P.No.52884/2013, which petition came to be disposed of by an order dated 27.11.2013 by this court directing third respondent therein namely, first respondent herein to consider the representation of second respondent in accordance with law within an outer limit of two (2) months from the date of receipt of copy of the order. Pursuant to same enquiry came to be held and first respondent by impugned order dated 04.03.2014-Annexure-P has directed the petitioner to refund the subsidy amount of Rs.23,79,726/- with interest failing which recovery proceedings would be initiated. Further directions have also been issued to the jurisdictional Deputy Commissioner to take action against such of those officers, who have permitted construction of commercial building in violation of conversion order, which was for residential purposes and not for commercial purposes, amongst other directions issued thereunder. Same is under challenge in this writ petition.
3. I have heard Sri.P.Mahesha, learned counsel appearing for petitioner and Sri.Venkat Satyanarayan, learned HCGP appearing for respondent Nos.1, 3 and 4. Respondent No.2 has appeared through learned counsel and has filed statement of objections, who has remained absent.
4. It is the contention of Sri.P.Mahesha, learned counsel appearing for petitioner that first respondent erred in entertaining the complaint of second respondent particularly when there were several disputes pending between petitioner and second respondent and as such complaint was an offshoot of enimical attitude exhibited by second respondent towards petitioner and thereby first respondent had no jurisdiction to decide the breach of agreement at the instance of a stranger namely, second respondent. He would also contend that only ground on which subsidy granted to petitioner, which has been withdrawn under the impugned order, is on the premise that public have been permitted to perform the marriage ceremony in the building in question, for which there was no bar under the agreement executed by the petitioner in favour of Government. As such impugned order is liable to be quashed.
5. Per contra, Sri. Venkat Satyanarayan, learned HCGP appearing for respondent Nos.1, 3 and 4 would support the impugned order and prays for dismissal of the writ petition.
6. Having heard the learned Advocates appearing for parties and on perusal of records it would clearly indicate that petitioner had applied for constructing ‘Yatri Bhavan’ to cater the needs of pilgrims visiting Nanjangud town. In order to put up construction of Yatri Bhavan, petitioner had applied for conversion of land where proposed construction of Yatri Bhavan was to take place. Said conversion order came to be issued permitting use of agricultural land to non agricultural residential purposes and not for any other purpose.
7. That apart, building constructed by the petitioner over the land in question was alleged to have been not used for the purpose for which it was proposed to be build. On the other hand, marriage hall/choultry came to be constructed. It is in this background, second respondent, who was said to be Ex-President of Zilla Panchayat, submitted a representation to the jurisdictional Deputy Commissioner bringing out illegalities committed by petitioner in collusion with Officials of Government and sought for suitable action being taken against the concerned. Inaction of respondents lead to second respondent filing a writ petition before this Court in W.P.No.52884/2013 and as already observed hereinabove, first respondent herein was directed to consider said representation and pass orders in accordance with law. Thus, proceedings which came to be initiated against petitioner was based on a complaint lodged by second respondent or in other words, proceedings in question came to be ignited at the instance of second respondent. The authorities in order to satisfy themselves about conditions stipulated and agreed upon between petitioner and first respondent had been complied, adhered to and not violated had issued notices to be petitioner on 10.02.2014, 13.02.2014 and 21.02.2014 as per Annexures-R-3 to R-
5 by following the principles of natural justice.
Thereafter spot inspection also came to be held and a report came to be submitted as per Annexure-R-5. These documents which were available with first respondent along with other material, which was secured by first respondent, clearly depicted that petitioner instead of constructing ‘Yatri Bhavan’ had contructed a “choultry”, or “Marriage Hall” and that too for commercial purposes. Subsidy obtained by the petitioner in a sum of Rs.23,79,726/- was based on assurance given that ‘Yatri Bhavan’ would be constructed for catering to the needs of pilgrims, who visit Nanjangud. There has been suppression of facts and as such first respondent has rightly arrived at a conclusion that subsidy amount granted to petitioner has to be recovered with interest. Accordingly, impugned order has been passed by first respondent.
8. Perusal of impugned order would also disclose that petitioner had failed to establish or demonstrate before first respondent that at any point of time building, which petitioner claims to have constructed is Yatri Bhavan, and it was utilized for said purpose. On the other hand, positive material which was available before first respondent disclosed that building in question which was constructed by petitioner was choultry or a marriage hall used for commercial purpose not “Yatri Bhavan” as had been undertaken while seeking for grant of subsidy. In other words, subsidy which was extended to the petitioner by way of incentive was to promote tourism at Nanjangud, which was in the interest of pilgrims visiting said place. However, under the guise of extending facilities to pilgrims, petitioner had indulged in commercial exploitation of property, in question at the cost of exchequer. Hence, It cannot be gainsaid by her that she would not be required to refund the subsidy amount obtained by her with interest. As such this Court is of the considered view that there is absolutely no merit in this writ petition and it is liable to be rejected. Hence, writ petition stands rejected/disposed of.
(A) It is also noticeable that while obtaining subsidy on 18.08.2010 – Annexure-C petitioner had agreed to execute an agreement bond and pursuant to it petitioner has executed indemnity bond on 26.08.2010-Annexure-D in favour of the Government.
Perusal of same would clearly indicate that it has been agreed by the petitioner to the following effect:
“(viii) If the project is not executed or the land is used for any other purpose other than specified in project report at any time all concessions/permissions shall stand withdrawn automatically and penal provisions would be invoked. Incentives so extended shall be liable to be recovered as arrears of land revenue or under any other provisions of law.”
In the light of undertaking given by petitioner and having agreed to refund the amount, finding of fact recorded by the first respondent to the effect that petitioner had not constructed Yatri Bhavan but had constructed a Choultry, petitioner cannot be heard to contend that she would not be liable to pay the interest. However, quantum of interest has not been quantified in the agreement and it has been agreed upon by the petitioner to refund the grant/subsidy of Rs.23,79,726/- “with such interest as the State Government/Financial Institution concern may deem fit.” In other words, parties were at ad-idem with regard to quantum of interest not being quantified. As such it is open for first respondent to notify the petitioner to quantify the quantum of interest and in the event of any representation is made by the petitioner for waiver or reduction of interest, first respondent shall consider the same taking into consideration the circumstances of each case.
(B) Agreement of bond – Annexure-D does not specify the rate of interest or quantum of interest while refunding the subsidy amount. Sri. P. Mahesha, learned counsel appearing for petitioner on instructions from petitioner as made a fair submission that petitioner is ready and willing to refund the subsidy amount within such time as this Court may fix along with interest at 8% p.a. Submission and undertaking of learned counsel appearing for petitioner is placed on record and a direction is issued to first respondent to consider the prayer of the petitioner sympathetically for reduction of interest in the event of interest being enhanced beyond 8% fixed. It is made clear that any opinion expressed in this order is for limited purpose of this case and any proceedings pending before any other authority, opinion expressed in this order shall not sway in the mind of such authorities while deciding the issues involved in those proceedings.
For the reasons stated hereinabove, this Court does not find any good ground to interfere with the impugned order except to the extent observations made hereinabove. Accordingly, writ petition stands disposed of by confirming the impugned order. All pending applications shall stand consigned to records.
SD/- JUDGE DR