IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.49954-49955/2013(GM-KIADB) BETWEEN:
M/S. VINUMAC INDUSTRIES, REPRESENTED BY ITS PROPRIETOR SRI G. SIDDAPPA AGED ABOUT 52 YEARS NO.205A, III PHASE PEENYA INDUSTRIAL ESTATE BANGALORE 560058.
... PETITIONER (BY SRI B. K. SAMPATH KUMAR, ADVOCATE) AND:
1. M/S. KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD, NO.14/3, II FLOOR, R.P. BUILDING NRUPATUNGA ROAD, BANGALORE 560001.
REPRESENTED BY ITS SECRETARY 2. M/S. V.C. INDUSTRIES NO.327, 2ND MAIN ROAD HEALTH LAYOUT, SRIGANDHAKAVALU NAGARABAVI 2ND STAGE BANGALORE 560091. REPRESENTED BY ITS MANAGING DIRECTOR.
3. M/S. JMJ EDUCATION SOCIETY (REGD.) ACHARYA INSTITUTE OF MANAGEMENT & SCIENCE NO.89/190, SOLADEVANAHALLY HESARAGHATTA, CHIKKABANAVARA POST, BANGALORE 560090. REPRESENTED BY ITS SECRETARY 4. M/S. G.G. TRONICS INDIA PVT. LTD. P.B.168, 3RD CROSS PEENYA FIRST STAGE PEENYA INDUSTRIAL ESTATE BANGALORE 560058.
5. M/S. S.V. INDUSTRIES, NO.2, KALEKNAGAR ANDRAHALLY MAIN ROAD VISHWANEEDAM POST BANGALORE 560091.
REPRESENTED BY ITS MANAGING DIRECTOR / OFFICER - IN - CHARGE 6. M/S. PEENYA PACKAGING INDUSTRIES PLOT NO.139/140, 9TH CROSS CORNER IIIRD PHASE, PEENYA INDUSTRIAL AREA BANGALORE 560058.
REPT. BY ITS MANAGING DIRECTOR / OFFICER - IN - CHARGE 7. M/S. CHAMUNDI CNC, NO.1024, 10TH MAIN PRAKASHNAGAR, BANGALORE 560021. REPT BY ITS PROPRIETOR SRI SENDIL KUMAR, AGED ABOUT 60 YEARS, 8. M/S. POWER TECH NO.24, 5TH MAIN BEHIND ARAVIND MOTORS OPP. UCO BANK PEENYA 3RD PHASE INDUSTRIAL AREA BANGALORE 560058.
REPRESENTED BY ITS MANAGING DIRECTOR, 9. M/S. UNICARB SP-3, NGEF INDUSTRIAL ESTATE MAHADEVAPURA POST, WHITEFIELD ROAD BANGALORE 560048.
REPT. BY ITS MANAGING DIRECTOR / OFFICER - IN - CHARGE 10. M/S. SWAMY OFFSET PRINTERS SOGADU KANNADA DAILY CHICKPET, TUMKUR 572101. REPT. BY PROPRIETRIX SMT. S. NAGARATHNA AGED ABOUT 55 YEARS.
... RESPONDENTS (BY SRI P. V. CHANDRASHEKAR, ADVOCATE FOR R1; SRI RAJESWARA P.N., ADVOCATE FOR R3;
SRI JAYAPRAKASH. B., ADVOCATE FOR R5 AND R6; SRI K.S. DEVARAJ, ADVOCATE FOR R7 AND R9;
R2,R4,R8 AND R10 ARE SERVED BUT UNRESPRESENTED) … THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT/LETTER DT.2.7.2012 ISSUED BY THE RESPONDENT-1 VIDE ANNEXURE-A IN NOT ALLOTTING THE LAND TO THE PETITIONER IN 1ST PHASE, PEENYA, BANGALORE.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Sri B.K. Sampath Kumar, learned Counsel for the petitioner rightly and fairly submits that prayer-C for cancellation of allotment made in favour of respondent Nos.2 to 10 be dismissed as not pressed.
2. Placing the said submission on record, prayer- C only in so far as it relates to cancellation of allotment made in favour of respondent Nos. 2 to 10 is dismissed as not pressed.
3. The petitioner has filed the present writ petitions for a writ of certiorari to quash the endorsement/letter bearing No.KIADB/HO/4412/ 2012-13 dated 2.7.2012 issued by the 1st respondent as per Annexure-A declining to allot the land to him in 1st Phase, Peenya, Bangalore and a writ of mandamus directing the 1st respondent to allot an industrial land to him as per its application Annexure-B.
4. It is the case of the petitioner that it is a Small Scale Industry (M.S.M.E.) involved in the manufacture and Supply of Hydraulic Piping Assemblies, Fabrication Assemblies, Earth Moving Equipments, Mechanical Components for General Engineering and Automobile Sectors. It is the further case of the petitioner that in order to expand and upgrade his Industry, he made an application on 14.7.2008 to the 1st respondent seeking allotment of industrial land in Peenya 1st Stage, which was suitable and convenient for the said purpose. It is its further case that he has given employment to several persons aspiring to expand his business and being eligible for allotment of the said industrial land in Peenya 1st Phase, Bangalore.
5. It is the further case of the petitioner that respondent Nos. 2 to 10 were allotted the lands vide allotment letter dated 23.5.2009 and also got the allotment letters. The same was obtained by the petitioner under RTI received on 10.9.2012 which clearly indicates that respondent Nos.2, 4 to 9 filed their applications subsequent to the petitioner and respondent Nos.3 & 10, who had filed their application for allotment prior to the petitioner, had been considered and sites were allotted in their favour.
Noticing the discrimination made by the 1st respondent, the petitioner issued a legal notice to the 1st respondent as per Annexure-G dated 31.1.2013 and brought notice to the KIADB about the allotment made in favour of respondent Nos. 2 to 10 and non consideration of his application. Therefore, he requested the respondents to allot suitable land as per his application filed on 14.7.2008 and inspite of the legal notice issued, the respondents have issued the impugned endorsement stating that no land is available for allotment at Peenya Industrial Area and therefore, the cheque bearing No.036948 dated 3.8.3008 drawn on Vijaya Bank, Vani Vilas Road Branch, Bangalore-560004 is returned to him. Therefore, the petitioner is before this Court for the relief sought for.
6. The 1st respondent filed objections to the present writ petitions and contended that the very writ petitions filed are not maintainable. It is further stated that the petitioner has neither sought for any relief for quashing of allotments made in favour of respondent Nos.2 to 10 nor has paid Court fee in that regard. It is also stated that the application for allotment is defective for the simple reason that the Earnest Money Deposit is not paid by way of Demand Draft or Banker’s Cheque drawn in favour of Chief Executive Officer and Executive Member as is evident from Annexure-B, the application form. It is further contended that the cheque is not drawn in the name of CEO & EM, but it is in the name of EO & EM and thus the application is not an application in the eye of law. It is also stated that the applicant has no vested right to demand allotment of a particular plot and under Regulation 11 of the KIADB Regulations, the Board has right to reject the application without assigning any reasons, but where there are more than one application, the Board has right to allot the plot to any one of the applicants. Therefore, it sought to dismiss the writ petitions.
7. When the matter has come up before this Court on 5.8.2016, this Court directed the learned Counsel for the respondents to ascertain whether any alternative plot could be identified to be handed over to the petitioner. In response to the said direction, Sri P.V. Chandrashekar, learned Counsel for respondent No.1 – KIADB filed a memo along with the letter dated 1.10.2016 and stated that an extent of 0.25 acre of land at Sompura 1st Stage and 2nd Stage or Avverahalli (Dobaspet 4th Phase) Industrial Area could be allotted to the petitioner in lieu of Peenya Industrial Area which is vacant as on today.
8. Subsequently during the pendency of these writ petitions in pursuance of the oral observation made by this Court, the petitioner made a representation to the Secretary of the 1st respondent on 1.7.2019 requesting for allotment of 2 acres of vacant land in Sompura –1st Stage and 2nd Stage (Dabbaspete) at the Government guidance value prevailing as on the date of his original application i.e., 14.7.2008.
9. I have heard the learned Counsel for the parties to the lis.
10. Sri B.K. Sampath Kumar, learned Counsel for the petitioner reiterating the grounds urged in the writ petitions contended that the impugned endorsement issued by the 1st respondent is erroneous and contrary to the material on record. The 1st respondent has not assigned any reasons for declining the application except stating that no land is available for allotment of land at Peenya Industrial Area and returning the cheque to the petitioner is erroneous. He would further contend that as can be seen from Annexure-C series, except two applicants, all other applicants i.e., respondent Nos. 2 to 10 have been allotted the lands subsequent to the application filed by the petitioner on 14.7.2008. Having considered the applications filed by respondent Nos.2 to 10 and have been allotted the lands in their favour, issuing an endorsement to the petitioner that no land is available is in utter violation of Articles 14, 19(g) and 21 of the Constitution of India. He would further contend that respondent No.10 infact has filed two applications and the KIADB has considered the said two applications by allotting two industrial lands in the 1st and 2nd Phase, Peenya Industrial Area which was published in the Daily Newspaper on 4.12.2012 and the same was also telecasted on TV-9 Channel on 3.12.2012.
11. He would further contend that some of the allottees have let out the constructed buildings on rent for high amounts and are receiving huge advances contrary to the KIADB Act, Rules and Regulations. He would further contend that the petitioner has filed the application for allotment of industrial land in Peenya 1st Phase only for the purpose of expansion and upgradation of its Small Scale Industry and the authorities ought to have allotted the land to the petitioner. But the same has not been done as per the provisions of the KIADB Act, Rules and Regulations which is arbitrary and illegal and therefore, sought to allow the writ petitions.
12. Per contra, Sri P.V. Chandrashekar, learned Counsel for respondent No.1-KIADB sought to justify the impugned order and contended that the petitioner had earlier filed the application prior to the allotment of industrial plot and the present application is filed on 14.7.2008 for extension & upgradation, since it had not filed the application properly within time and accordingly, the impugned endorsement has been issued on 2.7.2012 along with return of cheque to the petitioner. He would further contend that the petitioner having received the cheque back, it is not open to urge for allotment of plot at Peenya Industrial Area in terms of Annexure-B. Therefore, sought to dismiss the writ petitions.
13. Learned Counsel for respondent No.3 submits that the allotment made in favour of the 3rd respondent has not been challenged and therefore, sought to dismiss the writ petitions.
14. Having heard the learned Counsel for the parties, it is an undisputed fact that the petitioner, is a Small Scale Industry filed an application for expansion and upgradation of its industry as long back as on 14.7.2008. It is also not in dispute that respondent Nos.2 to 10 except respondent Nos.3 and 10 filed their application prior to the petitioner’s application and rest of the respondents have filed their application subsequent to the application filed by the petitioner. It is also not in dispute that the KIADB allotted the land to the said persons, even though they had filed their application at a latter stage after filing of the application by the petitioner. The only objection raised by the 1st respondent in its statement of objections is that the petitioner has not properly filed the application and also return of the cheque drawn in favour of CEO & EM is not challenged. Therefore, the petitioner has committed an error in drawing the cheque in favour of EO & EM and thus the application filed was not the application in the eye of law.
15. If that is so, the 1st respondent ought not to have waited to return the cheque till filing of the writ petitions by the petitioner. It could have asked the petitioner to rectify the mistake within the time stipulated and the averments made in the objection filed by the KIADB is not reflected in its letter issued to the petitioner as per Annexure-A. What is stated in Annexure-A is only that no land is available for allotment of land at Peenya Industrial Area with reference to the application dated 14.7.2008 filed by the petitioner. Admittedly as on the date of the application filed by the petitioner, the lands were available and were allotted to respondent Nos.2, 4 to 9, who had filed their application subsequent to the application filed by the petitioner. What is not stated in the impugned endorsement cannot be supplied by way of statement of objections as the objections raised in the statement of objections is supplement to Annexure-A which is impermissible.
16. It is also not in dispute that this Court by the order dated 5.8.2016 directed the learned Counsel for the respondents to ascertain whether any alternative plot could be identified to be allotted/handed over to the petitioner, in response to which the KIADB promptly has filed a memo dated 11.3.2016/25.2.2019 along with the letter dated 1.10.2016 stating that an extent of 0.25 acres of land at Sompura 1st Stage and 2nd Stage or Avverahalli (Dobaspet 4th Phase) Industrial Areas could be allotted to the petitioner in lieu of Peenya Industrial Area.
17. It is also not in dispute that, when the matter had come before this Court earlier, the petitioner was directed to file proper representation to the respondent and accordingly, the petitioner filed a representation on 1.7.2019 requesting the 1st respondent to allot an industrial site measuring 2 acres in Sompura 1st Stage and 2nd Stage (Dobbaspete) in its favour considering the Government Guidance Value prevailing on the date of his original application dated 14.7.2008.
18. Sri B.K. Sampath Kumar, learned Counsel appearing for the petitioner submits that in view of the discrimination meted out to the petitioner, it is the duty of the KIADB to consider the representation of the petitioner dated 1.7.2019 and allot the land at Sompura 1st Stage and 2nd Stage, Dabaspete as per the Government Guidance Value prevailing as on the date of the original application dated 14.7.2008.
19. Sri Chandrashekar, learned Counsel for the KIADB opposed the said submission contending that now the representation for allotment of alternative industrial site is made on 1.7.2019 and the KIADB cannot be directed to allot the industrial site at the prevailing rate as on the date of the original application, since the 1st respondent has to consider the prevailing Government guidance Value or the allotment price as on the date of the application filed i.e., on 1.7.2019.
20. In view of the admitted facts stated supra, that the KIADB has allotted the lands at Peenya Industrial Area to respondent Nos.2, 4 to 9 even though, they have filed their applications subsequent to the application filed by the petitioner i.e., on 12.12.2008, 5.12.2009, 5.11.2008, 13.2.2009, 13.2.2009, 3.3.2009, 20.11.2008 and 26.6.2008, whereas the petitioner has filed application on 14.7.2008, but very strangely the KIADB has issued an endorsement/letter disclosing that no land is available for allotment of land at Peenya Industrial Area though the statement of objections filed by the KIADB depicts that the petitioner has not filed application properly and has not issued demand draft to the concerned authority, the endorsement and statement of objections of the 1st respondent-KIADB are not consistent. Therefore, it is a fit case to direct the 1st respondent – KIADB to consider the latest application dated 1.7.2019 filed by the petitioner for allotment of industrial site.
21. In view of the peculiar facts and circumstances of the present case, the writ petitions are allowed. The 1st respondent-KIADB is directed to consider the representation of the petitioner dated 1.7.2019 for allotment of 2 acres of land at Sompura 1st Stage and 2nd Stage, Dobaspete at the prevailing allotment price which existed as on 2.7.2012 and pass appropriate orders in accordance with law taking into consideration the discrimination made by the 1st respondent to the petitioner, while allotting the lands at Peenya Industrial Area to the applicants, who had filed the applications subsequent to that of the petitioner’s in order to do justice between the parties.
22. However, in view of the aforesaid reasons, it is made is clear, that this order shall not be treated as precedent in any future cases.
Sd/- Judge Nsu/-