Sale of KIADB granted land by Joys Ice Cream to Prestige Developers. Division Bench upholds Single Judge order.

 

State of Karnataka and others Vs Prestige Estates Projects Limited and others.

W.A. 6845 of 2017 decided on 29 July 2022.

Acting Chief Justice Alok Aradhe and Justice J.M. Khazi.

Single Judge. Shri. B.S. Patil (Rtd) 

2. Facts leading to filing of these appeals in nutshell are that M/s Joy Ice creams (Bangalore) Pvt. Ltd., (hereinafter referred to as 'the Joy Ice Creams' for short) is the owner of land bearing Sy.No.160 and Sy.No.157(P) of Pattandooru, Agrahara Village, where it had established a factory for manufacture of ice creams. In the middle of the aforesaid land held by the Joy Ice Creams, land measuring 3 acres and 23 guntas in Sy.No.42 of Pattandooru, Agrahara Village (hereinafter referred to as 'the schedule land’ for short) is situate. GOK issued a notification dated 16.09.1981 under Section 3 of Karnataka Industrial Areas Development Act, 1966 (hereinafter referred to as 'the 1966 Act' for short) declaring the schedule land as an industrial  area  for  the  purposes  of  the  1966  Act. Thereafter, GOK leased out the schedule land on 20.10.1989 to Joy Ice Creams and executed a lease deed in its favour.

22. Thus it is evident that in the sale deed, reference only has been made to the memorandum dated 31.03.2006 and the same has not been incorporated in the sale deed. Therefore, the sale is an absolute sale. Even otherwise, no sanctity can be attached to the condition incorporated in the memo dated 31.03.2006 issued by Deputy Commissioner as the same is contrary to Rule 28(2) of the Rules.

24. Thus it has been held that transfer of Schedule land in favour of Prestige Estates has not been made in violation of any condition of grant. The aforesaid order has been passed by a quasi judicial authority viz., Deputy Commissioner in exercise of statutory powers under Section 136 of the Act. The aforesaid order has attained finality and therefore, binds the parties. The aforesaid order cannot be set at naught by a party to the lis viz., GOK by an order dated 06.08.2015.

26. Thus a grant of land made under the Rules is liable to be cancelled, when the same has been obtained by making false and fraudulent representations and has been made in contravention of the Rules. The land in question was allotted to KIADB and its not the case of either the GOK or the Association that the grant of land in favour of KIADB was made by playing fraud or was made in contravention of the Rules. Therefore, there is no justifiable reason in law to cancel the grant of land in question.

27. In view of the findings recorded in order dated 15.06.2012 passed by the Deputy Commissioner, in exercise of powers under Section 136(3) of the Act, the contention of Additional Government Advocate that the schedule land could not have been granted in favor of Joy Ice creams does not deserve acceptance.

28. In the instant case, the land has been allotted to KIADB with the prior approval of the GOK. The contention of the learned Additional Government Advocate that the grant has been made in contravention of Rule 20(1)(c) of the Rules does not deserve acceptance. Similarly, the contention that KIADB had not authority to execute the sale deed in favour of Joy Ice Creams is misconceived as the same is contrary to Rules. Similarly the contention that the order of grant was made in favour of Joy Ice creams for an unauthorized purpose is misconceived. There is no material on record to hold that the land has been either allotted or conveyed in contravention of the Rules and therefore, the contention that Joy Ice creams and Prestige Estates have played fraud with the GOK does not deserve acceptance.

29. So far as the submission that the construction of residential apartments has been made unauthorizedly, suffice it to say, that the construction has been raised after approval of the building plan by the Bangalore Development Authority and after the work order was issued on 19.01.2010 and 20.10.2010 respectively. The aforesaid building plan and the work order issued by the Bangalore Development Authority, which is the planning authority has not been questioned by anyone. Therefore, the contention that the residential apartments have been constructed unauthorizedly does not deserve acceptance. The same is therefore repelled.

In view of preceding analysis, we do not find any merit in these appeals, the same fail and are hereby dismissed.