Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.5209 OF 2019 (GM-KIADB) BETWEEN:
M/S. WHITE OAKS HOSPITAL OF BANGALORE PLOT NO. 50, DREAM MEADOWS (BESIDES RYAN INTERNATIONAL SCHOOL) BENGALURU - 560 037 REP BY ITS MANAGING PARTNER DR VASU C REDDY S/O K CHOWDAPPA REDDY AGE 43 YEARS.
(BY MR. RAVI B. NAIK, SR. COUNSEL FOR MR. VIJETHA R. NAIK, ADV.) AND:
1. THE STATE OF KARNATAKA DEPT. OF INDUSTRIES & COMMERCE VIKASA SOUDHA BENGALURU - 560 001 REP BY ITS PRINCIPAL SECRETARY.
2. THE KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD 4TH AND 5TH FLOOR, EAST WING KHANIJA BHAVAN RACE COURSE ROAD BENGALURU - 560 001 REP BY ITS CHIEF EXECUTIVE OFFICER/ EXECUTIVE MEMBER.
3. THE SECRETARY - I THE KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD 4TH AND 5TH FLOOR, EAST WING … PETITIONER KHANIJA BHAVAN RACE COURSE ROAD BENGALURU - 560 001.
(BY MR. V. SHIVAREDDY, HCGP FOR R1 … RESPONDENTS MR. BASAVARAJ V. SABARAD, ADV., FOR R2 & R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE LETTER DATED 21.01.2019 ISSUED BY R-3 PRODUCED AS ANNEXURE-L. DIRECT THE RESPONDENTS TO ISSUE NO OBJECTION CERTIFICATE TO AVAIL LOAN AND SANCTION PLAN IN RESPECT OF LAND MEASURING 5 1/2 ACRES IN PLOT NO.37 (CORNER) OF BENGALURU IT PARK, DEVANAHALLI IN FAVOUR OF THE PETITIONER FOR WHICH THE RESPONDENTS HAVE ALREADY EXECUTED LEASE DEED AND ISSUED POSSESSION CERTIFICATE & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Ravi B.Naik, learned Senior Counsel for Mr.Vijetha R.Naik, learned counsel for the petitioner.
Mr.V.Shivareddy, learned High Court Government Pleader for respondent No.1.
Mr.Basavaraj V.Sabarad, learned counsel for respondent Nos.2 and 3.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Articles 226 & 227 of the Constitution of India, the petitioner inter alia seeks a writ of certiorari for quashment of the communication dated 21.01.2019 issued by respondent No.3 as well as a writ of mandamus directing the respondents to issue No Objection Certificate to avail loan and sanction plan in respect of land measuring 5 ½ acres of plot No.37 in Bangalore, IT Park, Devanahalli, in favour of the petitioner.
4. Facts giving rise to filing of the petition, briefly stated are that the petitioner submitted an application on 03.09.2008 for establishment of a industry for medical tourism and hospital, which was cleared by State Level Single Window Clearance Committee for allotment of 5 aces of land in its 45th meeting. On 15.02.2010, the petitioner submitted an application and deposited 20% of the land cost i.e., a sum of Rs.275 Crores to respondent No.2 and made a request for allotment of 5 ½ acres of land in Bengaluru, IT Park, Devanahalli to establish an industry. On 01.03.2014, the respondent No.2 allotted only 5 acres of land to the petitioner on lease basis and the period of lease was fixed for a period of 30 years, which was further extendable by another period of 30 years. Thereafter, on 18.07.2014 respondent No.2 allotted another ½ acre of land to the petitioner in the same plot. On 07.08.2014, the respondent passed an order changing the term of the lease-cum-sale and changing to only lease the allotted land for a period of 99 years. But the aforesaid action of the respondent was subject matter of challenge in W.P.No.42443/2015 before this Court. On 28.09.2015, the petitioner filed W.P.No.42443/2015 seeking quashing of the aforesaid proceedings and also for a direction to allot 5 ½ acres of land in its favour. On 01.10.2018, on memo being filed by the petitioner, the writ petition was disposed of with a direction to the respondent No.2 to execute a lease deed in respect of 5.5 acres of land in respect of plot No.37 within a period of two weeks and to consider the representation of the petitioner for allotment of marginal land of 1 acre in plot No.36P within a period of one month from the date of receipt of the copy of the order. Thereafter on 04.10.2018, respondent No.2 executed lease deed in favour of the petitioner in respect of 5 acres of land in plot No.37 at the rate of Rs.1.8 Crores per acre and in respect of 05 acres at the rate of Rs.2.5 Crores per acre. The respondent No.4 by a communication dated 24.01.2019 administered the petitioner to remit a sum of Rs.4,71,64,459/- towards balance tentative cost of the land and interest in respect of 5.5 acres of land in plot No.37 within a period of 10 days from the date of said letter. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned Senior counsel for the petitioner submitted that as per the schedule of payment, the petitioner was required to deposit the tentative amount of the cost of the land as determined by the respondents by 25.05.2013. However, there was a delay of 40 days in depositing the aforesaid amount and the amount as assessed by the respondents was deposited by the petitioner on 05.07.2013 i.e., after a delay of 40 days. It is further submitted that the delay was caused as the owners of the land had filed the suit against the respondents and the petitioner was making representation to the respondents seeking that he be allowed to make payment after decision of the properties. Thus, the delay in payment cannot be attributed to the petitioner. The learned Senior counsel for the petitioner has also invited the attention of this Court to the Government Order dated 05.09.2018 and has submitted that till today, respondents have not determined the final cost of the plot in question and the respondents be directed to determine the final cost of the land allotted to the petitioner. In the light of the Government Order dated 05.09.2018, the petitioner is ready and willing to pay the amount of final cost of the land allotted to the petitioner.
6. On the other hand, learned counsel for the respondent submitted that since there was a delay on the part of the petitioner in making payment of the tentative amount of the cost of the land allotted to the petitioner, therefore, the amount has rightly been demanded by the petitioner and the rights have been refused as per resolution dated 25.05.2013 and the old rate is applicable to the payment, which was made prior to 25.05.2013. However, learned counsel for the respondent has not disputed the fact that the order issued by the State Government binds the respondents. Learned counsel for the respondent further submitted that the pendency of the litigation cannot be a ground for delay in payment of the amount, which is due and payable to the respondents.
7. I have considered the submission made by learned counsel for the parties and have perused the record. Admittedly, as the respondents had determined the tentative cost of the land, which was supposed to be paid by the petitioner on or before 25.05.2013, however, it is not in dispute that on account of the litigation, which was initiated by the land owners against the respondents, the petitioner did not pay the amount and eventually paid the amount due to the respondents towards tentative cost of the land on 05.07.2013. Thus, there was a delay of 40 days in making payment of the amount due and payable to the respondents. The Government Order dated 05.09.2018 provides that the final rights shall be fixed within two years from the date of issue of lease deed by the KIADB and the rate shall be fixed on the maximum of 20% difference of the temporary rate and final rate. In the instant case, there is a difference of 20% in the temporary rate and final rate inasmuch as a sum of Rs.4,71,64,459/- is being demanded from the petitioner, which is more than 20%. Thus, the resolution passed by the respondents is contrary to the Government Order dated 05.09.2018 and the Government Order dated 05.09.2018 is binding on the respondents. The respondents cannot be permitted to act in contravention of the order dated 05.09.2018, which binds them. The payment could not be made on account of the circumstances, which were beyond control of the petitioner as the litigation was pending between the land owners and the respondents. Therefore, the petitioner cannot be penalized for the delay in making the payment of amount in question. In the considered opinion of this court, the pendency of the litigation is a genuine ground for the petitioner not to make payment of the amount as sought by the respondents as no person would like to buy a litigation and in seeking clarification from the respondents with regard to payment of tentative amount of the land, which was assessed by the respondents.
8. In view of the preceding analysis, the letter of demand contained in Annexure-L demanding a sum of Rs.4,71,64,459/- from the petitioner is hereby quashed and set aside. The respondents are directed to determine the final rate of the land allotted to the petitioner in the light of the order dated 05.09.2018 passed by the State Government within a period of four months from the date of receipt of certified copy of the order passed today. On determination of the aforesaid amount, the same shall be communicated to the petitioner and the petitioner shall pay the amount of final rate which may be determined by the respondents within a period of two months thereafter. After payment of the amount by the petitioner any further steps in accordance with law for execution of the lease deed shall be taken. In addition, the respondents shall consider the prayer of the petitioner for allotment of 1 acre of additional land as well as the prayer of petitioner for issuance of NOC for sanction plan.
Accordingly, the writ petition is disposed of.
Sd/- JUDGE ss W.P.No.5209/2019 (GM-KIADB) Next >