M/S Advay Logistics Park Vs State Level Single Window Clearance Committee

M/s ADVAY LOGISTICS PARK NO 139, FIRST FLOOR, 10^TH MAIN SADASHIVANAGAR BENGALURU - 560 080 REPRESENTED BY ITS MANAGING PARTNER MR ASHIK H.S., AGED ABOUT 45 YEARS REGISTERED PARTNERSHIP FIRM UNDER INDIAN PARTNERSHIP ACT, 1932

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Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA

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…PETITIONER

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(BY SRI. AJAY J N AND AJAY J NANDALIKE, ADVOCATE)

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AND:

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STATE LEVEL SINGLE WINDOW CLEARANCE COMMITTEE 3^RD FLOOR, KHANIJA BHAVAN (EAST WING) NO 49, RACE COURSE ROAD BENGALURU - 560 001. REP. BY ITS COMMISSIONER AND MEMBER SECRETARY (COMMISSIONER FOR INDUSTRIAL

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NC: 2026:KHC:643 WP No. 12365 of 2023 C/W WP No. 25499 of 2022

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HC-KAR

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DEVELOPMENT AND DIRECTOR OF INDUSTRIES AND COMMERCE, DEPARTMENT AND MEMBER SECRETARY).

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KARNATAKA UDYOG MITHRA 3^RD FLOOR, KHANIJA BHAVAN (EAST WING) NO.49, RACE COUSRE ROAD BENGALURU - 560 001 REP. BY ITS MANAGING DIRECTOR.

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…RESPONDENTS

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(BY SMT. B.P. RADHA, AGA FOR R1; SMT. PRATISHTA C.B., FOR SMT. SUKRUTA R., ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 29.07.2022 PASSED BY THE R1 VIDE ANENXURE-A IN SO FAR AS THE PETITIONER IS CONCERNED.

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IN WP NO. 25499/2022

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BETWEEN:

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M/s ADVAY LOGISTICS PARK A REGISTERED PARTNERSHIP FIRM NO.139, FIRST FLOOR, 10^TH MAIN, SADASHIVNAGAR BANGALORE - 560 080 REP. BY ITS MANAGING PARTNER MR. ASHIK H.S.,

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...PETITIONER

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(BY SRI. AJAY J N AND AJAY JNANDALIKE, ADVOCATE)

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AND:

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KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD 4^TH AND 5^TH EAST WING,

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5^TH FLOOR , KHANIJA BHAVAN, RACE COURSE ROAD, BENGALURU 560 001. REP. BY CHIEF EXECUTIVE OFFICER AND EXECUTIVE MEMBER.

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...RESPONDENT

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(BY SRI. B.B. PATIL, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT TO ISSUE A DEMAND LETTER TO THE BALANCE 6 ACRES 35 GUNTAS OF LAND IN ACCORDANCE WITH ANNEXURE-C, GOVERNMENT ORDER BEARING NO.I& C/1D/SLSWCC-111/E5/2018-19 24.08.2018 AND ETC.

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THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL ORDER

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W.P.25499/2022 - is filed seeking following reliefs:

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"i) Issue a writ of Mandamus directing the Respondent, to issue a demand letter to the balance 6 acres 35 guntas of land in accordance with Annexure-C, government order bearing No.I &C/1D/SLSWCC-111/E5/2018-19 24.08.2018.

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ii) Issue a writ of Mandamus directing the respondent to issue a combined confirmation letter for the extent of 14 acres of land situated in Sy.No.1, 1/P1, 1/13, 1/17 and 104 of Arebennamangala Village, Jaala Hobli, Yalahanka Taluk, Bangalore Urban District to the petitioner.

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iii) Issue a writ of Mandamus directing the respondent, to do all such actions as may be

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necessary for the purpose of ensuring handing over the possession of entire 14 acres of land to the petitioner within a stipulated time.

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iv) Issue a writ of Mandamus directing the respondent to hand over the possession of the land measuring 7 acres 05 Guntas in Sy.Nos.1, 1/P1, 1/13, 1/17 and 104 of Arebennamangala Village, Jaala Hobli, Yalahanka Taluk, Bangalore Urban District to the petitioner".

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W.P.12365/2025 -is filed seeking following relief:

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"Quash the impugned order dated 29.07.2022 passed by the respondent No.1 vide Annexure-A insofar as the petitioner is concerned."

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Since subject matter involved in both the petitions

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and parties are same, they are taken up together for analogous hearing and disposal.

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Petitioners being desirous of establishing

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Warehousing, Logistics and Industrial Infrastructure, on an extent of 14 acres of land, had requested respondent-KIADB to allot the same under "Single user consent basis". It had identified the lands in Sy.No.1, 1/P1, 1/13, 1/17 and 104 of Arebennamangala Village, Jaala Hobli, Yalahanka Taluk, Bangalore Urban District. Petitioners had obtained consent from the landowners for the said purpose. An approval for allotment of land to the petitioner was accorded by the Land

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Audit Committee in its 53^rd meeting held on 21.07.2018. In furtherance to which State Level Single Window Clearance Committee(SLSWCC) in its 111^th meeting held on 01.08.2018 approved the project proposal of the petitioner. Thereafter SLSWCC had issued a letter dated 29.06.2018 to respondent No.2(W.P.No.12365/2023) requesting it to provide opinion as to whether the aforesaid land was included in the acquisition process for formation of industrial area or for any other purpose.

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(a) That the petitioners had issued series of letters dated 07.09.2018, 15.12.2018, 22.12.2018 and 18.09.2019 to the Special Deputy Commissioner-KIADB requesting to issue demand note and to complete the acquisition for the entire extent of 14 acres of land. In furtherance thereof a demand note dated 09.07.2020 was issued by Special Deputy Commissioner calling upon the petitioners to pay a sum of Rs.4,94,76,000/- for an extent of 7 acres 5 guntas for which acquisition was completed.

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(b) That balance 6 acres and 35 guntas of land was left out as the acquisition process in that regard was not completed by KIADB. That the petitioner had made payment of Rs.4,94,76,000/- for the said extent of 7 acres 5 guntas of land and paid further sum of Rs.1,55,00,000/-

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under protest. Petitioner followed up the matter by requesting respondent-KIADB to acquire the remaining extent of land and complete the acquisition process and issue demand note for the balance 6 acres 35 guntas of land.

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(c) That the Final Notification dated 23.05.2019 was issued. Respondent-KIADB in its 375^th meeting held on 30.10.2021 approved final price with respect to lands in Sy.No.1, 1/P1, 113, 1/17, 104 and other lands notified along with the same.

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(d) Respondent No.1 has not issued any replies to the letters sent by the petitioner requesting for completing the acquisition and issuance of demand note. In addition petitioner had also made personal representations to Deputy Commissioner, KIADB seeking explanation for the delay in the process of acquisition. It is further contended even as on the date of filing of writ petition petitioner was not issued with the demand note for remaining 6 acres 35 guntas of land. Petitioner by the time of filing petition had paid Rs.4,94,76,000/- and Rs.1,55,00,000/- and was ready and willing to deposit the balance amount.

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(e) Petitioner claimed to have also entered into agreement with the landowners in respect of 6 acres 35 guntas of land whose name were shown in the final notification. Thus, petitioner had made all efforts in

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furtherance to its intent to set up the project as approved. That though the project was approved to the extent of 14 acres of land, demand note was raised only for 7 acres 5 guntas and remaining 6 acres 35 guntas was subject matter of litigation. Since the petitioner had obtained consent from the landowners to an extent of 6 acres 35 guntas and agreed to compensate, as such, petitioner was entitled for the said land as well. That inaction on the part of respondent-KIADB in completing the process of acquisition allotting 14 acres resulted in petitioner filing writ petition in W.P.No.25499/2022 seeking reliefs as noted above.

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(f) Things stood thus, petitioner learnt that an order dated 29.07.2022 was passed by the SLSWCC cancelling the allotment made in favour of the petitioner constraining the petitioner to file subsequent writ petition in W.P.12365/2023 seeking relief as noted above.

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Learned counsel appearing for the petitioner reiterating the averments and grounds urged in the writ petitions and also referring to rejoinder and the list and dates of events, submits that:

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(a) the entire process of acquisition by the respondentKIADB in allotting 14 acres of land to the petitioner is tainted with malafides, arbitrary and misuse of power.

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(b) That when in the first instance acquisition of 14 acres of land was not completed as required to have been done in terms of the approval granted by SLSWCC it was not open for the respondent-KIADB to contend that petitioner had defaulted and delayed in making payments. That tentative demand note issued calling upon the petitioner to pay Rs.4,94,76,000/- was for an extent of 7 acres 5 guntas of land and not for the entire extent of 14 acres of land. That cancellation of the allotment made by the subsequent order of SLSWCC was deliberate only to deny the legitimate rights of the petitioner to accommodate third parties namely M/s.Dakshin Infrastructures Private Limited and BVM Energy and Residency Private Limited. He points out even as on the date when the request was made by the said entities the lands were not available and only to accommodate their request, respondent-KIADB identified the land reserved for the petitioner as shown in the Hi-Tech Park Phase 1 as land to be allotted to the said entity which was reserved for petitioner.

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(c) That the very cancellation of the allotment made that too without any notice or opportunity of being heard, is malafide and tainted with arbitrariness. Therefore, he submits that the order at Annexure-A to the writ petition in W.P.No.12365/2023 cannot be sustained and requires to be quashed and any consequential and incidental steps taken by KIADB thereon would also be held untenable and unsustainable.

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In response, learned counsel appearing for respondent-KIADB at the outset submits that there was no allotment of land to the petitioner and it was only recommendation made by SLSWCC in its approval pursuant to the representation made by the petitioner. It is his contention that petitioner had deliberately mislead the earlier SLSWCC and had obtained such approval.

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(a) that it was subsequently discovered that the petitioner had prevailed upon the earlier Committee in obtaining such approval, details of which is emanating from the impugned order. He reads the reasoning assigned in the order of cancellation produced at Annexure-R3 to the statement of objections to contend the conduct of petitioner is not less than playing fraud on the authorities and fraud vitiates everything even depriving of requirement of providing any opportunity of being heard. That order of cancellation proceeds taking into consideration misrepresentation made by the petitioner, in that, petitioner who claimed to have obtained consent from the landowners, who were already paid compensation. As such, claim of petitioner of he facilitating in identifying the land is baseless.

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(b) That since the entire process was on account of misrepresentation by the petitioner, the respondent

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authority thought it appropriate to cancel the same. That having cancelled the recommendations so made by the earlier SLSWCC respondent authorities have now allotted lands in favour of Dakshin Infrastructures and BVM Energy and petitioner without even making them as parties cannot question the allotment so made.

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(c) As regards payment of cost of land is concerned, he submits that the demand note was issued as far as back on 09.07.2020 and petitioner who claims to have paid the entire Rs.4,94,76,000/is misleading. In that Rs.1,55,00,000/- was paid on 30.01.2021 which is beyond the reasonable period from the date of demand. Even the said payment has been made only after third party rights having been created which cannot be undone. He submits demand, non-compliance of demand made and consequent cancellation are all traceable to Regulation 10 of KIADB Regulations 1969. Therefore he submits allegations of arbitrariness cannot be attributed to KIADB. Hence, seeks for dismissal of the petitions.

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Learned counsel appearing for respondent No.2Karnataka Udyog Mitra drawing attention of this Court to the order of SLSWCC dated 24.08.2018 submits that the said approval was only for a period of two years and it has worked itself out by efflux of time since the petitioner had made no

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efforts seeking extension of said period of approval, petitioner cannot claim any benefit through and under the said order. Relying upon the order of the Co-ordinate Bench of this Court dated 09.11.2022 passed in W.P.No.1883/2020 specifically referring to paragraphs 10 to 12 thereof, she emphatically submits that if approval is time bound, same stands lapsed and the petitioner cannot claim to have any subsisting right.

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In response to the aforesaid submission, learned counsel for the petitioner replies that the statements found at the end of order dated 24.08.2018 providing for period of two years cannot be read in isolation. He submits that perusal of the entire order would indicate that the approval was accorded for 14 acres of land whereas admittedly only 7 acres 5 guntas was available remaining 6 acres 35 guntas was yet to be acquired by respondent-KIADB and petitioner had issued as many as seven letters requesting the Special Deputy Commissioner -KIADB to complete acquisition of 14 acres of land and also produce a demand note. Therefore, no laxity can be attributed to the petitioner. He also refers to the order dated 31.08.2023 passed by the Division Bench of this Court in

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the case of KVN Property Holdings Vs State of Karnataka and others in W.A.No.71/2023 which was filed against the order dated 09.11.2022 passed in W.P.No.1883/2020 relied upon by learned counsel for respondent No.2/Karnataka Udyog Mitra and submits that the rigour of the order of learned Single Judge has been diluted by Division Bench of this Court by providing an opportunity to petitioner therein to seek extension and revalidation.

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Heard and perused the records.

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There is no dispute of the fact that by order dated 24.08.2018 the respondent-SLSWCC had accorded approval for allotment of land to an extent of 14 acres situated in Sy.Nos.1, 1/P1, 1/13, 1/17 and 104 of Arebennamangala Village, Jaala Hobli, Yalahanka Taluk, Bangalore Urban District, enabling the petitioner herein to set up Warehousing, Logistics and Industrial Infrastructure project. In furtherance thereof by a communication dated 09.07.2020 produced at Annexure-J respondent-KIADB had called upon the petitioner to pay a tentative price of Rs.4,94,76,000/- to an extent of 7 acres 5 guntas excluding 6 acres 35 guntas of land to be acquired by

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KIADB. The said letter specifically mentions that demand in

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respect of remaining land would be raised later. Interesting to note that the said communication does not fix any time, date, period for payment of said amount nor does it speak regarding the time required for acquisition of remaining extent of 6 acres 35 guntas of land. There is no dispute of the fact that petitioner in furtherance to demand had paid Rs.1,55,00,000/as on 30.01.2021.

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Learned counsel for respondent-KIADB relied upon Regulation 10 of KIAD Regulations 1969 which read as under:

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"10. Allotment: (a) The Board, on being satisfied that the person, firm or company who has made an application is likely to start production within a reasonable period, and is not one which is declared obnoxious under Regulation 14 may make an allotment in his/their favour;

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(b) The Board may constitute sub-committees for considering allotment of plots and also delegate its power to the Executive Member, if necessary:

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(c) The Executive Member shall notify such applicant to whom an allotment is made to execute the agreement in Form 3 or 4 or 5 as the case may be with such modification as may be necessary in each case on such date, time and place as may be fixed by the Executive Member and to pay the consideration for the occupancy of the land as fixed by the Board within the time fixed by the Board'

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(d) Failure to execute the agreement or to pay the sums demanded by the Executive Member as per the notice given under Regulation 10 (c) will render the allottee to have deemed to have declined the allotment;

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(e) The Board or with the authority of the Board, the Executive Member will have the discretion to grant extension of time for complying with the terms of the said notice for the extended period".

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Referring to the aforesaid Regulation 10, he vehemently submits petitioner was required to pay the amount as demanded which is admittedly not paid by the petitioner which resulted in reconsideration of the approval accorded by the earlier SLSWCC by impugned order at Annexure-A subject matter of W.P.No.12365/2023.

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On a repeated query by this Court as to any demand raised by respondent-KIADB specifying the date of payment except communication dated 09.07.2020 at Annexure-J, learned counsel for respondent -KIADB fairly submits that no

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such demand was raised specifying time or payment, except communication dated 09.07.2020. However he hasten to add that not mentioning the date or not raising the demand does

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not mean that the petitioner can sit over for any length of

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period without making the payment.

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This Court is unable to accept the stand taken by respondent-KIADB, primarily for two reasons.

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(i) Firstly, in view of the settled principles of law that if the statute requires any act to be done in a particular manner same has to be done in that manner and no other. In that regard even as provided under Regulation 10 extracted above, it is required that a demand be made by fixing the date and same has not been done by respondent-KIADB.

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(ii) Secondly, in the light of the fact that approval for setting up of the project was accorded to extent of 14 acres of land and the available land was only 7 acres 5 guntas and demand note as found at Annexure-J was a tentative one, only to the said extent of 7 acres 5 guntas, which explicitly states that a separate demand would be raised later for remaining extent of 6 acres 35 guntas of land, as such same cannot be construed as one issued in terms of Regulation 10 as noted above.

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No other material is brought out to the notice of this Court by respondent-KIADB having raised a demand in strict compliance of Regulation 10. Therefore, this Court is of the

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considered view there is no demand made by respondentKIADB as required under Regulation 10 and as such question of any violation would not arise.

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There is yet another reasoning, in that the SLSWCC by its order dated 24.08.2018 produced at Annexure-C had accorded approval for the project to an extent of 14 acres of land. No material is produced by respondent-KIADB to counter the allegation made by the petitioner of dereliction on their part in acquiring entire 14 acres of land. The demand note dated 09.07.2020 at Annexure-J is only in respect of 7 acres 5 guntas of land which further specifically mentions that remaining 6 acres 35 guntas of land would be acquired and a separate demand note thereof would be issued. There is no material placed by KIADB regarding subsequent acquisition of 6 acres 35 guntas of land and raising of further demand, if any.

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The other contention of the petitioner as noted above is subsequent cancellation which in the light of the merits of the case was arbitrary and was only to accommodate the private entity noted above.

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In response, learned counsel for respondent-KIADB had vehemently submitted that subsequent cancellation was not just because of non payment of amount but was also on account of misrepresentation by the petitioner which according to him is mentioned and narrated in detail in the impugned cancellation order dated 29.07.2022 at Annexure-A to the writ petition in W.P.No.12365/2023. He however fairly submits that such order was passed without any notice to the petitioner, though he contends that the petitioner was not entitled to.

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This Court under Article 226 of the Constitution cannot be oblivious of the fact that, an order based on serious allegation of misrepresentation and fraud as narrated in the impugned order of cancellation cannot be sustained in the absence of person against whom such allegations are made being heard. Settled principles of law is no one should be condemned unheard. The order impugned is liable to be quashed solely on this count and no further reasons are required for the same.

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In that view of the matter, following:

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ORDER

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(i) W.P.No.12365/2023 is allowed.

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(ii) Impugned order dated 29.07.2022 passed by respondent No.1 as per Annexure-A is quashed.

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(iii) In the light of the order passed in W.P.No.12365/2023 quashing Annexure-A therein, W.P.No.25499/2022 is disposed of reserving liberty to the petitioner herein to make a fresh representation. Respondent-KIADB shall consider the same strictly in accordance with law from the stage of the order of SLSWCC dated 24.08.2018 keeping in view the payment already made by the petitioner.

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(iv) It is made clear that this Court has not expressed or given any reasons/observations on the merits of the case. The impugned order is quashed solely for lack of compliance under Regulation 10 of KIAD Regulations 1969 and violation of principles of natural justice.

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Sd/(M.G.S. KAMAL) JUDGE

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SBN List No.: 1 Sl No.: 38

M/S Advay Logistics Park v. State Level Single Window Clearance Committee

Case brief

What is this about?

What did the court decide?

M/S Advay Logistics Park v. State Level Single Window Clearance Committee

Case brief

What is this about?

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What the court decided

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