Karnataka High Court
Karnataka Industrial Areas ... vs M/S Distillers Company (P) Ltd on 22 February, 2022
Bench: S.Sujatha, Ravi V Hosmani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MRS. JUSTICE S. SUJATHA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
W.A.No.3150/2018 (GM-KIADB)
BETWEEN:
1. KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD
NO.14/3, 2ND FLOOR
R.P. BUILDING
NRUPATUNGA ROAD
BANGALORE-560 001.
PRESENTLY AT NO.49,
5TH FLOOR
EASTERN WING
KHANIJA BHAVANA
RACE COURSE ROAD
BENGALURU-560 001.
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER AND
EXECUTIVE MEMBER.
NOW AUTHORIZATION GIVEN TO
C.V.SRINIVAS, SECRETARY.
2. THE CHIEF EXECUTIVE OFFICER AND
EXECUTIVE MEMBER (BOARD)
KARNATAKA INDUSTRIAL AREAS
DEVELOPMENT BOARD, NO.14/3
2ND FLOOR, R.P. BUILDING
NRUPATUNGA ROAD, BANGALORE-560 001.
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PRESENTLY AT
NO.49, 5TH FLOOR
EASTERN WING
KHANIJA BHAVANA
RACE COURSE ROAD
BENGALURU-560 001.
NOW AUTHORIZATION GIVEN TO
C.V.SRINIVAS, SECRETARY
...APPELLANTS
[BY SRI. D.L.JAGADEESH, SR. ADVOCATE A/W
SRI. P.V.CHANDRASHEKAR, ADVOCATE (PH)]
AND:
M/s. DISTILLERS COMPANY (P) LTD.,
BREWERYS HOUSE, 7TH MILE
KANAKAPURA ROAD
BANGALORE-62.
REPRESENTED BY ITS DIRECTOR
SRI. K.L.SRIHARI.
...RESPONDENT
[BY SRI. ABHINAV R., ADVOCATE (PH)]
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER DATED 9.10.2018 PASSED IN W.P. No.35948/2010 (GM-
KIADB) BY THE LEARNED SINGLE JUDGE OF THIS HON'BLE
COURT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, RAVI
V. HOSMANI J., DELIVERED THE FOLLOWING:
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JUDGMENT
Challenging order dated 09.10.2018 passed by learned Single Judge in W.P.35948/2010, this appeal is filed.
2. Appellants herein were respondents, while respondent herein was petitioner in writ petition. For sake of convenience, parties shall herein be referred to as per their ranks in writ petition.
3. Petitioner filed writ petition challenging legality of order dated 03.11.2010 passed by respondent no.2 respondent (Annexure-Q) and demand notice dated 14.09.2000 issued by respondent no.1 (Annexure-J) etc. It was pleaded in writ petition that with intention to develop industrially backward areas, the Karnataka Industrial Area Development Board (hereinafter referred to as the 'Board' for short) announced to entrepreneurs that it would allot industrial land on down payment of 20% of land cost with balance to be collected over a period of 10 years, for establishing industry in Shimoga - Bhadravati Industrial Area. Petitioner - Company was a manufacturer of potable -4- liquor and alcohol based chemicals. It applied for allotment of 140 acres of land for establishing distillery for manufacture of potable liquor and alcohol based chemicals. The Board by its letter dated 27.11.1982, informed petitioner that it intended to allot 140 acres in plot no.1 to 17 at cost of Rs.14,157 per acre and called upon petitioner to make initial deposit of Rs.2,831 per acre and pay annual rent of Rs.1,133 per acre for ten years. A letter of allotment dated 08.02.1983 was issued to petitioner. Pursuant thereto it deposited Rs.3,96,340/- with Board. Thereafter petitioner was issued with letter of allotment dated 18.02.1983. However initially, possession of only 85 acres of land was handed over. On 29.11.1983, lease-cum-sale agreement was executed. Thereafter, petitioner paid entire balance amount of Rs.15,85,640/-. Thereafter on 21.11.1985 petitioner was handed over possession of balance 55 acres.
4. It further submitted that after petitioner established industrial unit, it received a notice from Karnataka State Pollution Control Board (hereinafter referred -5- to as 'KSPCB', for short) calling upon petitioner to close all operations. It also directed to Karnataka Electricity Board to disconnect electricity, to the Assistant Executive Engineer, Irrigation Department to stop water supply and to the Excise Commissioner to stop allotment of molasses to petitioner.
5. Though petitioner complied with requirements informed by Pollution Control Board, direction to stop operations was not revoked. Further as petitioner had paid entire cost of land, it was entitled for execution of absolute sale deed in its favour from 28.11.1994 onwards. Such being the case, petitioner received letter dated 14.09.2000 informing petitioner that allotment price of Rs.3.5 per sq. mtr. is increased to Rs.23.10 per sq. mtr. and called upon petitioner to pay total sum of Rs.1,28,23,888/-. Said demand notice impugned in writ petition was produced as Annexure- J. As escalation of allotment price was exorbitant and unjustified, petitioner did not comply with demand.
6. Thereafter, second respondent got issued a show cause notice dated 12.05.2005 calling upon petitioner to -6- show-cause why lease cum sale agreement should not be cancelled as per clause 4. Petitioner replied vide letter dated 10.06.2005. Thereafter petitioner was called for personal hearing on 13.11.2007. Petitioner submitted written explanation by letter dated 12.11.2007. It also appeared before second respondent and opposed taking action against it, producing details of production, sales turnover, sales tax and other revenues paid to Government etc. Without considering above material or heeding to its request, second respondent passed impugned order calling upon petitioner to be present at spot on 19.11.2010 for taking over of possession. Said order was produced as Annexure-Q. Aggrieved by same, writ petition was filed.
7. Respondent filed statement of objections opposing writ petition and stating that Karnataka Industrial Areas Development Board ('Board' for short) was constituted under Section 5 of Karnataka Industrial Areas Development Board Act, 1966 ('KIADB Act' for short). Object of same was to promote rapid and orderly development of industries and -7- providing industrial infrastructure facilities and amenities and to generally promote and assist industrial development.
8. It was stated that Shimoga - Bhadravati industrial area established at Manchenahalli was not in an industrially backward area. It was submitted that in pursuance of petitioner's application dated 05.01.1980, petitioner was allotted an extent of 140 acres of land in industrial area under allotment letter dated 27.09.1982. This was followed by execution of lease cum sale agreement dated 29.11.1983. It was stated that lease cum sale agreement was for a period of 11 years computed from 18.02.1983 on yearly rent of Rs.96,457/-. The allotment was on tentative price of Rs.14,157/- per acre and final price was to be fixed by Board, later. It was also stipulated that at end of lease period, absolute sale deed would be executed in favour of petitioner.
9. Lease cum sale agreement also contained stipulation that within six months, petitioner was required to obtain approval of blue prints and within 24 months, -8- complete erection of factory building and commence production. It was further mentioned therein that Board reserved its right to cancel allotment for violation of all or any of conditions and right to resume entire or portion of unutilized plot when implementation of project on land was considered not satisfactory or within time schedule prescribed.
10. Respondents further stated that at the time of allotment, Board had not finally determined price of land and therefore allotment was on tentative price. As petitioner had made initial payment of Rs.3,96,340/- only and tentative allotment price was at Rs.14,157/- per acre, it was called upon to make balance payment of Rs.15,85,640/-. Therefore, payment of this amount by petitioner was towards tentative price.
11. It was also stated that conditions of allotment enjoined petitioner to implement project after obtaining all necessary permissions and clearances. However, petitioner appears to have violated provisions of Water (Prevention And -9- Control Of Pollution) Act, 1974 ('Pollution Act' for short) for which proceedings were initiated against it by order dated 05.10.1993 passed under Section 33A of Pollution Act, directed for closure of industry. Thereafter despite lapse of 18 years no serious efforts for reviving industry appear to have been made and petitioner appears to be interested in speculative activities based on sharp increase of land price.
12. It was also stated that permitting petitioner to hold large extent of land unutilized for purpose of allotment, would defeat objects of allotment and policy of the Act. It was submitted that upon completion of development of industrial area, Board arrived at final cost of allotment of land at Rs.23.10/- per sq. mtr., which worked out to Rs.1,30,80,768/- in respect of petitioner. After deduction of tentative price paid, balance due was Rs.1,28,23,888/- including balance allotment price, installment overdue charges, interest, penal interest and maintenance charges. Instead of complying with demand, petitioner challenged demand without justification.
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13. Insofar as non-utilisation of allotted land, it was stated that Board had issued notice dated 12.05.2005 calling upon petitioner to remedy breach within 90 days failing which, steps for termination of lease agreement would be initiated. Petitioner was called upon to submit reply within 30 days. In his reply dated 10.06.2005 petitioner falsely claimed to have paid entire allotment price. When granted opportunity of hearing, petitioner reiterated his earlier stand. Thereafter, Board passed impugned order terminating lease agreement for violating its terms. It was stated that sales figures cited by petitioner were disputed and industry could not be held to have commenced production without obtaining clearances from authorities like Pollution Control Board which by itself was also valid ground for resumption. Allegations of failure to provide all infrastructural facilities at earliest point of time, leading to escalation of cost of implementation were denied. On above grounds, writ petition was opposed.
14. Considering challenge to escalation of allotment price, as being contrary to decision of Hon'ble Supreme Court
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of India, in the case of Karnataka Industrial Areas Development Board and another vs. Prakash Dal Mills and others reported in (2011) 6 SCC 714, learned Single Judge held that clause 7(b) of lease cum sale agreement provided for fixation of final allotment price, but, same cannot be done by Board arbitrarily or irrationally. Justification offered for increase of allotment price was found to be contrary to observations in Prakash Dal Mills case (supra) as expenditure incurred by Board for development of other sites, subsequent to allotment of site to petitioner could not be passed on to petitioner.
15. Even insofar as demand towards arrears of annual rent, referring to clauses 4 and 5 of letter of allotment in the light of interpretation of clauses 7(a) and (b) of lease agreement in Prakash Dal Mills case, learned Single Judge held that upon payment of 20% of land cost at time of allotment, balance would be payable in ten equal annual installments with interest of 3% p.a. was to be treated as rent. As petitioner had paid installments at the beginning,
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demand towards arrears of annual rent, towards interest and penal interest was unjustified.
16. Only demand of maintenance charges was upheld. Learned Single Judge held that Board had failed to lay down guidelines for fixation of final allotment price despite observation of Hon'ble Supreme Court in Prakash Dal Mills (supra) that Clause 7(b) does not contain any parameters for its determination.
17. As regarding non-utilization of allotted land, it was held that no provision, rule or regulation was pointed out about extent of usage of allotted land. Applying ratio of decision in Raghuram Rao and others vs. Eric P. Mathais and others reported in (2002) 2 SCC 624, resumption of un-utilised land was held to be arbitrary. On such findings, learned Single Judge allowed writ petition, quashed demand notice dated 14.09.2000 (Annexure-J) and termination of lease dated 03.11.2010 (Annexure-Q). Assailing said order, this appeal is filed.
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18. Sri P.V. Chandrashekar, learned counsel for appellant - Board submitted that petitioner filed application for allotment of land in Shimoga - Bhadravathi Industrial Area for establishing distillery on 05.01.1980. A letter of allotment was issued on 27.11.1982, allotting 140 acres of land in plot nos.1 to 17 with certain conditions. Clause 5 stipulated that allotment was on tentative price of Rs.14,157/- per acre subject to fixation of final allotment price by the Board. Clause 7 provided duration within which allottee was required to commence commercial production. Under clause 13, Board reserved right to cancel allotment for violations of conditions. While clause 14 provided for resumption in case land remains un-utilised. Clause 17 empowered Board to fix final allotment price.
19. It was submitted that initially petitioner deposited sum of Rs.3,96,340/-. Board issued confirmation letter of allotment on 18.02.1983. On 18.03.1983 possession of 85 acres was given. Thereafter, lease cum sale agreement was executed on 29.11.1983.
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20. It was submitted that Clause 2(p)(4) provided for issuance of notice for breach of conditions while clause 2(p)(2) reserved right to resume land after giving notice about breach of conditions, to lessee and financial institutions with whom lessee may have mortgaged his right.
21. It was also submitted that in terms of clause 7(b), Board issued demand notice dated 18.07.1985 calling upon petitioner to pay balance amount of Rs.15,85,640/-, petitioner had paid entire amount. The demand notice stated that Board had incurred substantial expenditure not only towards higher land acquisition cost but also for providing infrastructural facilities. Therefore, cost of land was substantially higher than allotment price.
22. It was also submitted that a show cause notice dated 12.05.2005 was issued by KIADB under clause 4 of lease-cum-sale agreement to show cause against utilization of only 9.70% of allotted land even after lapse of 19 years after allotment.
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23. The respondent submitted his reply on 10.06.2005. The Board called upon respondent to attend personal hearing on 13.11.2007. Respondent filed further reply. After considering reply, Board passed impugned order of termination of lease-cum-sale agreement on the ground that there was failure to utilize allotted land as utilization was only 9.70% and to remit balance allotment cost as per demand. It was also stated that unit was not in running condition and had remained sick since several years.
24. Learned counsel submitted that respondent had violated terms and conditions of lease cum sale agreement and failed to implement project for which land was allotted. As an extent of 75 acres of land was lying vacant and unutilized since 1994, Board had right to cancel allotment exercising powers under clause 13 and 14 of letter of allotment read with clause 2(p)(2)(ii) & (iii) of lease cum sale agreement. It was also submitted that clause 17 of letter of allotment empowered Board to increase tentative allotment price after completion of developmental works and
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finalization of award in land acquisition. It was submitted that clause 7 (b) of lease cum sale agreement also empowered Board to fix final allotment price and as respondent had subscribed to said condition, it was bound by terms of contract. It was submitted that demand notice dated 14.09.2000 (Annexure-J) enumerated reasons for escalation namely substantial expenditure incurred towards infrastructural facilities and payment of higher land compensation. It was also submitted that demand notice was challenged after delay of ten years.
25. It was submitted that scope of judicial review in contractual matters was extremely limited even where one of contracting parties is the State or any of its instrumentalities and aggrieved party was required to approach Civil Court. In support of above submissions, learned counsel relied upon following decisions:
1. Indu Kakker Vs. Haryana State Industrial Development Corporation Ltd., reported in AIR 1999 SC 297.
2. Sri. Ram Builders Vs. State of Madhya Pradesh and Others reported in (2014) 14 SCC 102.
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3. KIADB Vs. MA Barafwala in W.A.No.817/1992 disposed of on 14.02.1996
4. KIADB Vs. Sri. Sohanlal Sisodia in W.A. No.2416/1990 and connected matter disposed of on 21.03.1991 and
5. Nagappa Vs. State of Karnataka reported in ILR 1993 KAR 3323.
26. Sri. Abhinav R., learned counsel for respondent sought to support impugned judgment and opposed writ appeal. It was submitted that impugned demand notice dated 14.09.2000 (Annexure-J) was contrary to ratio of decision in Prakash Dal Mills (supra) and Raghuram Rao (supra). It was submitted that absolutely no basis was mentioned in impugned demand notice at Annexure-J supporting escalation of allotment price from Rs.3.50 per sq.mtr. to Rs.23.10 per sq.mtr. It was not only exorbitant but also arbitrary especially after respondent had already deposited entire allotment price as demanded by Board. It was submitted that clause 7(b) of lease cum sale agreement was under consideration in Prakash Dal Mills' case (supra) wherein it was held that expenditure by Board for providing
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infrastructural facilities to different portions of industrial area subsequent to allotment in favour of respondent could not be fastened on to respondent and except in case of enhancement of compensation for acquisition of land, there was no other justification for escalation of allotment price.
27. Insofar as allegation regarding non-utilisation of land for purpose of allotment, it was submitted that respondent had established industry and had commenced production. As KSPCB ordered closure of industrial unit, respondent could not utilise land as per plan. It was submitted that respondent retained part of allotted land for future expansion, which could also be not carried out due to order passed by KSPCB.
28. It was further submitted that there were no guidelines about extent of utilization of land allotted and infact finding was recorded that Board was unable to point out to any such guideline or rule. To seek resumption even in absence of guideline would be uncharitable. In response to contention of Board that policy decision was taken at 142nd
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Board meeting held on 18.05.1989 for accepting minimum utilization of 20% of allotted land, it was submitted that in instant case, Board had merely taken into account of ratio of 'area of construction' against total area of allotment. Respondent had utilised land for incidental purposes such as roads, soak pits etc. which was required to be considered as per policy referred to, whereupon utilisation would be more than minimum stipulation. It was further submitted that a large area of allotted land fell under High Tension Transmission Lines, under which no construction could be made. Therefore, said area required exclusion from non- utilisation, else it would be arbitrary. It was further submitted that ignoring above factors, impugned notice (Annexure-L) merely stated utilization of 9.70% and balance vast area was remaining un-utilised even after lapse of 19 years. As policy parameters adopted in Board resolution dated 18.05.1989 were not taken into account while issuing impugned notice at Annexure-L, interference by learned Single Judge would be justified and sought for dismissal of appeal.
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29. Since contentions of respective parties, hinge on contents of impugned notices and responses thereto, a brief reference to same would be necessary. Impugned order of termination of lease (Annexure-Q) dated 03.11.2010 is issued alleging violation of terms and conditions of allotment on two counts namely underutilization of allotted land and failure to pay final allotment price. The order of termination of lease however is passed only in respect of 75 acres out of total of 140 acres allotted to petitioner.
30. Insofar as escalation of allotment price, in demand notice dated 14.09.2000 (Annexure-J) only reason stated is that board is a non-profit making body and had to pass on portion of additional financial burden incurred on account of higher land compensation and exorbitant expenditure for providing infrastructural facilities and maintenance of industrial area onto allottees. Details of such 'additional expenditure' or 'additional infrastructural facilities' are not placed on record.
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31. Insofar as power of Board to increase allotment price under clause 7(b), Hon'ble Supreme Court in Prakash Dal Mills case (supra) has held as follows:
"24. A bare perusal of Clause 7(b) would show that it does not lay down any fixed components of final price. Clause 7(b) also does not speak about the power of the Board to revise or alter the tentative price fixed at the time of allotment. The High Court has correctly observed that Clause 7(b) does not contain any guidelines which would ensure that the Board does not act arbitrarily in fixing the final price of demised premises. Since the validity of the aforesaid clause was not challenged, the High Court has rightly refrained from expressing any opinion thereon.
25. Even though the clause gives the Board an undefined power to fix the final price, it would have to be exercised in accordance with the principle of rationality and reasonableness. The Board can and is entitled to take into account the final cost of the demised premises in the event of it incurring extra expenditure after the allotment of the site. But in the garb of exercising the power to fix the final price, it cannot be permitted to saddle the earlier allottees with the liability of sharing the burden of expenditure by the Board in developing some other sites subsequent to the allotment of the site to the respondents.
26. The respondents have placed on record sufficient material to show that acquisition and development of land in the industrial area have been in phases. Some areas and segments are fully developed and others are in different stages of development. Sites and plots have been allotted at different times and locations. Thus, it cannot be said that all the allottees form one class. Earlier allottees having sites in fully developed segments cannot be intermingled with the subsequent allottees in areas which may be wholly undeveloped. Such action is clearly a violation of Article 14.
27. We are also of the opinion that the Board cannot be permitted to exercise its powers of fixing the final price under Clause 7(b) at any indefinite time in the future after the allotment is
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made. This would render the words "as soon as" in Clause 7(b) wholly redundant. As noticed earlier, in the present case, the Board has sought to fix the final price after a gap of 13 years. Such a course is not permissible in view of the expression "as soon as" contained in Clause 7(b). In our opinion, the High Court correctly concluded that the fixation of final price by the Board is without authority of law. It violates Article 14 of the Constitution of India being arbitrary and unreasonable exercise of discretionary powers."
Board has admittedly failed to offer detailed explanation to justify escalation of allotment price. On this count, impugned demand notice would be unsustainable.
32. Further, Appellant - Board notified petitioner about violation of terms of lease (non-utilisation) by issuing notice dated 12.05.2005 as per Annexure-L invoking clause 4 of lease cum sale agreement. The notice merely states that petitioner had utilized only an extent of about 9.70% towards construction of building and vast area remained unutilized 19 years after handing over possession. The notice also mentions about failure to remit Rs.2,18,62,081/- demanded by Board.
33. It would be relevant to point out here itself that said notice required response on both issues namely non-
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utilization and demand of escalated allotment price. Even in impugned order Annexure-Q passed on 03.11.2010, both these reasons are stated. Therefore, contention of learned counsel for Board that challenge to demand of escalated allotment price was belated would not stand to reason.
34. On the other hand, petitioner's response to demand notice (Annexure-J) vide Annexure-M dated 10.06.2005 does not state that cost of providing infrastructural facilities subsequent to allotment of land to petitioner was sought to be passed on to petitioner. The facts on record do not indicate details of expenditure incurred for providing additional infrastructural facilities. There are no allegations that Board had developed industrial area in different stages or phases and cost of development of subsequent stage/phase was sought to be distributed amongst earlier allottees. These factors would determine whether the demand of escalated allotment price would be justified in terms of ratio in Prakash Dal Mill's case (supra).
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35. Petitioner's reply to impugned notice at Annexure-L merely referred to handing over of possession of allotted land in two installments. It also stated that due to directions issued by KSPCB and labour unrest, petitioner was required to suspend functioning of unit, but which was in final stage of resolution and there was possibility for immediate resumption of production. No specific reply was given about extent and manner of utilization or duration of utilization.
36. Though these lacunae were sought to be supplied by parties during these proceedings by way of filing additional affidavit along with annexures by Board, it is settled law that authorities cannot subsequently seek to inject additional reasons into their impugned actions, either in statement of objections, affidavits or other documents.
37. In any case, this Court would be called upon to decide disputed questions of fact as regards extent, manner and duration of utilization, which would be better left for consideration by Board as a matter of policy.
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38. For the foregoing reasons, in our considered opinion, it would be just and proper to direct appellant Board to issue a fresh show cause notice to petitioner giving particulars of all violations with reference to prescribed standards and after providing opportunity to show cause, pass considered order in accordance with law. For said purposes, we deem it proper to provide an opportunity of hearing being afforded to petitioner.
39. Though a submission was made by learned counsel for petitioner during arguments that Board was discriminating against petitioner as no steps for resumption of excess/unutilized land initiated against another allottee namely M/s. Samson Distilleries, which was allotted 240 acres, we do not wish to spell upon the same as it is wont on part of allottees to allege discrimination against statutory authorities in desperation. Especially, as no such allegation was made in reply or in writ petition calling for a response from Board.
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40. But considering fact that large extent of 75 acres, out of total allotment of 140 acres is alleged to be kept vacant without being put to industrial use even after lapse of several decades and as there are allegations of similar unutilized excess land lying with other allottees, we deem it fit to direct the Board firstly to evolve a uniform policy fixing standards for utilization of land by allottees by providing time line for such utilization. And secondly, to cause periodic audit of industrial areas to identify unutilized excess land preferably once every five years and giving sufficient opportunity to respective industrial units to comply with minimum requirements of utilization and on failure to comply, to take steps for resumption and for re-allotment to needy entrepreneurs. This would allay any fears of discrimination and would prevent allottees from indulging in speculation.
With above observations and for foregoing reasons, we pass following:
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ORDER The order of learned Single Judge in quashing Demand Notice and letter of termination issued by Board vide Annexures- J and Q respectively remains undisturbed.
However, in view of liberty reserved to Board to reconsider fixation of final price as directed by learned Single Judge, we deem it appropriate to remand entire matter to Board for reconsideration after issuing fresh notice to petitioner.
Board shall provide an opportunity of hearing to petitioner and take appropriate decision in accordance with law in an expedite manner.
It is clarified that though Board would be entitled to refix final allotment price in respect of entire 140 acres allotted to petitioner, direction issued for reconsideration of entitlement of petitioner would be limited to 75 acres only as per impugned order at Annexure-Q. All rights and contentions of parties are left open.
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It is needless to observe that after fixation of final price by Board and payment of same by respondent, Board would be under obligation to execute absolute sale deed in favour of respondent to extent of entitlement to be decided by Board as aforesaid.
Writ Appeal stands disposed of in the aforesaid terms.
Sd/-
JUDGE Sd/-
JUDGE BVK