M/S ADITHYA TEXTILES vs KARNATAKA INDUSTRIAL AREA

The petitioner is before this Court assailing the communication dated 28.08.2012 impugned at Annexure-Z to the petition. Through the said

communication, the respondents have imposed the penalty amounting to Rs.11,87,288/- for granting extension of time for implementation of the

Project.

The petitioner was allotted the plot No.SW-31 P(1) of Apparel Park, Industrial Area II Phase, Doddaballapura, Bengaluru Rural District. The

allotment was made through the letter dated 07.02.2007 and a lease cum sale agreement was thereafter entered into between the parties on

20.12.2007. The allotment letter as also the lease cum sale agreement indicated the terms and conditions based on which the allotment is made. As

per Clause 10, the time frame was fixed for completion of the Project and in the event of there being delay in implementing Project, a provision

was made to impose the penalty as indicated in Clause 11(iii) of the terms of allotment. In the instant case, since the project had not been

completed within the time frame, the respondents had issued the notice and thereafter through the communication dated 17.06.2010 had indicated

the amount to be paid as penalty for extension of time. The petitioner had replied to the same and on repeated exchange of correspondence, the

explanation as sought to be put forth by the petitioner explaining the delay and seeking waiver of penalty was not accepted and after lapse of

sufficient time, through the impugned communication dated 28.02.2012 the respondents imposed the penalty of Rs.11,87,288/-. The petitioner is

therefore before this Court assailing the same.

The respondents have filed their objection statement seeking to justify their action. Essentially, the terms and conditions of allotment as also the

Rules are relied on to contend that the same provides for completion of the project within the time frame keeping in view the object of the layout

being formed for allotment of site to Industrialists and to indicate that the plot has been allotted for carrying on the industrial activity, the

entrepreneur concerned is required to implement the project within time. It is contended that any extension of time is based on the terms agreed

between the parties during the time of allotment and therefore, in the instant case the extension has been granted subject to payment of penalty. The

respondents have also sought to rely on the order dated 22.06.2011 passed in W.P.No.25254/2010 wherein this Court had upheld the imposition

of penalty in a similar manner in respect of another plot allotted in the same layout. In that view, the action is sought to be justified.

Having taken note of the rival contentions, I have heard the learned counsel for the parties and perused the petition papers.

The fact that the Project has not been completed within the time frame as initially indicated is not in dispute. The petitioner however seeks to

contend that the petitioner could not implement the project due to the reasons which were beyond his control and in that regard, the petitioner

seeks to rely on the order dated 06.01.2010 passed in W.P.No.13494/2008 to contend that the land owner was assailing the acquisition

proceedings made by the respondents and in that light, the construction could not be taken up by the petitioner. The petitioner also contends that

due to the nature of the land that had been allotted, the infrastructure not being available and a lot of work being required to be undertaken by the

petitioner before the construction could be put up, the same could not be completed within the time. It is the contention of the learned counsel for

the petitioner that the respondents have not taken into consideration these aspects of the matter and as such, the amount as imposed as penalty is

not justified.

It is also pointed out that the respondents at the first instance through the communication dated 17.06.2010 had imposed the penalty of

Rs.8,90,466/- while through the impugned communication, a higher amount has been imposed. In that view, it is contended that the action of the

respondents is not justified.

Though such contention is put forth, as rightly pointed out by the learned counsel for the respondents, a contention to the effect that the challenge

to the acquisition proceedings by the land owner was pending and also with regard to the nature of the land, the same cannot be urged by the

petitioner at this point in time inasmuch as the similarly placed persons have also been imposed the penalty was before this Court and this Court

has already upheld the same in W.P.No.25254/2010 dated 22.06.2011 and the said order has not been interfered though a challenge was made in

WA No.5596/2011 dated 18.07.2012. If that be the position, when in respect of the same layout, the delay in implementing the project and

penalty imposed thereto having already arisen for consideration, this Court at this juncture cannot make a distinction in that regard by accepting the

contention as put forth by the petitioner.

Insofar as the amount as imposed in the communication dated 17.06.2010 and the impugned communication dated 28.08.2012, keeping in view

the time lapse in the interregnum in any event, such imposition would be justified.

Therefore, in the facts and circumstances of this case, when admittedly there is delay in implementing the project and the reason for the delay

does not come to the rescue of the petitioner to indicate that no penalty is required to be imposed, in a fact where the terms agreed between the

parties itself provides for imposition of penalty when extension of the period is sought and as such penalty has been imposed and already upheld in

similar set of circumstance, I see no reason to interfere with the impugned communication. Considering that a Division Bench of this Court in the

earlier circumstance at that point had granted some breathing time to the appellant to pay the amount, in the present circumstance, since the writ

petition is presently being disposed of, the petitioner is granted six weeks time to pay the amount.

In that view, the instant petition being devoid of merit stands disposed of.