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2019 DIGILAW 1504 (KAR)

Advay Enterprises v. State of Karnataka

2019-07-01

ALOK ARADHE

body2019
JUDGMENT : ALOK ARADHE, J. 1. Mr.Ravi B.Naik, learned Senior counsel for Mr.Vijetha R.Naik, learned counsel for the petitioners. Mr.Uday Holla, learned Senior counsel for Mr.B.B.Patil, learned counsel for respondent Nos.2 and 4. Mr.S.S.Nagananda, Learned Senior Counsel for Mr.Sriranga S., learned counsel for respondent No.5. Mr.E.S.Indiresh, learned Additional Government Advocate for respondent Nos.1 and 3. 2. The writ petitions are admitted for hearing. With consent of the learned counsel for the parties, the same are heard finally. 3. In W.P.No.6625/2019 preferred under Article 226 of the Constitution of India, the petitioner inter alia has prayed for the following reliefs: (a) Issue a writ of certiorari or any other writ, order or direction quashing the letter of recommendation dated 23.12.2017 bearing No.KIADB/KeKa/C.No.25010/ 1300/2018-19 issued by the 2nd respondent produced at Annexure-J in the interest of justice and equity. (b) Issue a writ of certiorari or any other writ, order or direction quashing the proceedings of the 113th Meeting of SLSWCC held on 07.01.2019 insofar as it relates to clearing the project of the respondent No.5 at Sl.No.3.8 in Page No.12 and 13 of the said proceedings produced at Annexure-L for allotment of land measuring 2 acres in Sy.No.34/1 of Udayagiri Village, Kasaba Hobli, Devanahalli Taluk which was alaareay approved for allotment in favour of the petitioner in the interest of justice and equity. (c) Issue a writ of mandamus or any other writ, order or direction directing the respondent Nos.1 to 4 to allot the land measuring 2 acres in Sy.No.34/1k of Udayagiri Village, Kasaba Hobli, Devanahalli Taluk in favour of the petitioner for establishment of Air cargo services as approved by the 3rd respondent on 27.02.2018, Annexure-C in the interest of justice and equity. Similar reliefs have been prayed in remaining two petitions viz., W.P.Nos.6625 of 2019 and 6944 of 2019 and 6626 of 2019. 4. Since, common questions of law and fact arise for consideration in these writ petitions, the petitions were heard analogously and are being decided by this common order. For the facility of reference, facts from W.P.No.6627/2019 are being referred to. On 20.05.2006, a Notification was issued for acquisition of land measuring 8 acres and 27 guntas forming part of Sy.Nos.34/1, 34/2, 46/1 46/2 and 46/3 of Udayagiri Kasaba Hobli, Devanahalli Taluk Bangalore Rural District, Bengaluru for M/s Air India Limited to establish air cargo and logistic service. For the facility of reference, facts from W.P.No.6627/2019 are being referred to. On 20.05.2006, a Notification was issued for acquisition of land measuring 8 acres and 27 guntas forming part of Sy.Nos.34/1, 34/2, 46/1 46/2 and 46/3 of Udayagiri Kasaba Hobli, Devanahalli Taluk Bangalore Rural District, Bengaluru for M/s Air India Limited to establish air cargo and logistic service. It is averred in the writ petition as portion of land was taken away for widening of National Highway-7, this Court quashed the acquisition proceedings. Thereafter, only land measuring 4 acres 27 guntas was available for allotment. M/s Air India wanted the land to the extent of 8 acres 27 guntas and therefore, backed out of this proposal as the land got reduced to 4 acres 27 guntas only and sought return of money. 5. The petitioners on 24.02.2018 submitted an application to respondent No.3 viz., Joint Director/Chairman, District Level Single Window Clearance Committee seeking approval for allotment of 2 acres of Sy.No.34/1. Thereupon respondent No.3, by a communication dated 27.02.2018, sought a clarification about availability of land from respondent No.2. The respondent No.2 vide communication dated 16.05.2018, informed that only 4 acres and 28 guntas of land in Sy.Nos.34/1, 34/2, 46/1, 46/2 and 46/3 of Udayagiri is available for allotment. The respondent No.3 in the meanwhile, approved the application of the petitioners for allotment of 2 acres of land of Sy.no.34/1 on 17.09.2018 and sent a communication to the petitioners on 16.10.2018. The respondent No.5 applied for allotment of the land, which was already approved in favour of the petitioners before the Land Audit Committee headed by respondent Nos.1, 2 and 4. The allotment in favour of respondent No.5 was made on 23.10.2018. On 05.11.2018, respondent Nos.1, 2 and 4 recommended for allotment of land measuring 2.5 acres in favour of respondent No.5. Despite being aware that respondent No.3 has already approved the petitioners application. Thereafter on 06.12.2018, the respondent Nos.1 and 2 conducted a meeting, in which they decided to request the Land Audit Committee and District Level Single Window Clearance Committee to cancel the approval for allotment of land of Sy.No.34/1. Thereafter, respondent No.2 sent communications to respondent Nos.3 and 4 on 27.12.2018 to cancel the approval for allotment of the land made in favour of the petitioners as well as respondent No.5. Thereafter, respondent No.2 sent communications to respondent Nos.3 and 4 on 27.12.2018 to cancel the approval for allotment of the land made in favour of the petitioners as well as respondent No.5. The State Level Single Window Clearance Committee comprising respondent Nos.1 2 and 4 and Commissioner for Industrial Development in the meeting held on 07.01.2009 approved the project proposal of respondent No.5 Company for allotment of 2.5 acres of land of Sy.No.34/1, 34/2, 46/2 and 46/3 of Udayagiri Village, which was already approved by respondent No.3 for allotment in favour of the petitioners. In the aforesaid factual background, the petitioners have approached this Court. 6. Learned Senior Counsel for the petitioners at the outset submitted that the petitioners withdraw the relief claimed in clause (b). While referring to the provisions of the Karnataka Industries (Facilitation) Act, 2002 (hereinafter referred to as 'the Act' for short) and the rules framed, it is submitted that under Section 11 of the Act, the District Level Single Window Clearance Committee is the final committee to grant approvals for the project placed before it and the approvals granted by the committee at the district level shall be binding on the departments or authorities concerned. It is further submitted that the State level Single Window Clearance Committee could not have acted in contravention of Section 11 of the Act and could not have allotted the land in question to respondent No.5. 7. On the other hand, Learned Senior Counsel for respondent No.4 has referred to the provisions of Section 3(6)(2) Section 9 and Section 18 of the Act. It is submitted that any person aggrieved by the decision of State Level Single Window Clearance Committee has the remedy of filing an appeal under Section 18(1) of the Act. It is further submitted that the District Level Single Window Clearance Committee has granted the approval subject to certain terms and conditions mentioned therein, one such condition being subject to availability of the land on the site. Therefore, the aforesaid approval cannot be construed to be an approval under Section 11 of the Act. In any case, the State Level Single Window Clearance Committee has the authority to consider the proposals relating to industrial and other projects to be set up in the state with an investment of more than Rs.15 Crores and less Rs.500 Crores each. Therefore, the aforesaid approval cannot be construed to be an approval under Section 11 of the Act. In any case, the State Level Single Window Clearance Committee has the authority to consider the proposals relating to industrial and other projects to be set up in the state with an investment of more than Rs.15 Crores and less Rs.500 Crores each. It is further submitted that since the Learned Senior Counsel has withdrawn the challenge to the decision taken by State Level Single Window Clearance Committee, therefore, no relief can be granted to the petitioners. 8. On the other hand, learned Senior counsel for respondent No.5 has submitted that the Chief Executive Officer of Karnataka Industrial Development Board by a communication dated 27.12.2018 had decided to make a request to cancel the allotment made in favour of petitioners as the land is situated adjacent to the National Highway. It is further submitted that the petitioners cannot be permitted to bifurcate the proposal. It is also urged that since the decision of State Level Single Window Clearance Committee is not under challenge, therefore, no relief can be granted to the petitioners. 9. I have considered the submissions made by Learned Senior Counsel for the parties and have perused the record. It is well settled in law that even if an order, which is void remains effective inter parties until and unless it is successfully challenged in higher forum. [See: 'STATE OF KERALA VS. M./K.KUNHIKANNAN NAMBIAR MANJERI MANIKOTH, NADUVIL AND OTHERS, (1996) 1 SCC 435 ']. The relevant extract of the decision taken by the District Level Single Window Clearance Committee reads as under: "The committee noted the request of the company and after detailed discussions, resolved to recommend to SLSWCC for approval of the project of M/s JDV Infraone Private Limited to establish a unit for "Warehousing and Aircargo logistic' facility and KIADB to allot 2.5 acres of land at Sy.Nos.34/1, 34/2, 46/2 and 46/3 of land at Udagiri Village, Devenahalli Taluk, Bangalore Rural District, subject to refund of amount earlier paid by M/s Air India Ltd. towards allotment of the same land." 10. Thus, from perusal of the aforesaid relevant extract, it is evident that the Land Audit Committee has taken a decision to recommend the State Level Single Window Clearance Committee for approval of the project in favour of the petitioners. Thus, from perusal of the aforesaid relevant extract, it is evident that the Land Audit Committee has taken a decision to recommend the State Level Single Window Clearance Committee for approval of the project in favour of the petitioners. In other words, no decision has been taken in favour of the petitioners for allotment of the land in question in favour of the petitioners. Admittedly, the State Level Single Window Clearance Committee in its meeting held on 07.01.2019 has taken a decision to allot the land in favour of respondent No.5. The aforesaid decision has not been challenged by the petitioners. The aforesaid order binds the petitioners. The contention that the approval granted by District Level Single Window Clearance Committee is binding under Section 11 of the Act cannot be accepted as there is no approval in favour of the petitioners. In view of preceding analysis, I do not find any merit in the petitions. However, petitioners are at liberty to take recourse to such remedy as may be available to them under the law. With the aforesaid, liberty the petitions are disposed of.