Jammu & Kashmir High Court - Srinagar Bench
M/S Hotel K2 Inn vs Union Of India And Ors on 10 May, 2022
S. No. 2
Advance list
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 364/2021
CM 1173/2021
M/S Hotel K2 Inn ...Petitioner(s)
Through: Mr. Syed Faisal Qadri, Sr. Adv. with,
Mr. Altaf Mehraj, Adv.
Vs.
Union of India and Ors. ...Respondent(s)
Through: Mr. T.M. Shamsi, ASGI.
Mr. Raees Ud Din Ganaie, G.A.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
ORDER
10.05.2022
A short grievance projected by the petitioner in this petition is that
pursuant to the approval accorded by the State Level Committee constituted
by the Government to give effect to the Industrial Policy 2016, promulgated
by the Government of Jammu and Kashmir, the Directorate of Industries and
Commerce, Kashmir, vide order No. 22-Acctts of 2020, dated 18th February,
2020, accorded approval to the disbursement of an amount of Rs.
66,21,551/- as 30% capital investment subsidy, on civil works and plant &
machinery for promotion of Eco Tourism in favour of the petitioner. This
was subject to certain conditions and requirements to be fulfilled by the
petitioner. These requirements inter alia included production of building
permission for the construction of the hotel and authentication of bills issued
in the name of hotel from Commercial Taxes Department, of the
Government of Jammu and Kashmir. It is not in dispute that petitioner has
complied with all the requisite formalities. He has also submitted the bills
fully verified by Commercial Taxes Department, but bills for sum of Rs.
25,41,091/, as pointed out by the respondents, are in the name of Mr. Shafqat
Hussain Lone, the proprietor of the hotel and not in the name of hotel K2
Inn, for which the subsidy has been sanctioned. So far as submission of
building permission certificate is concerned, the objection taken by the
respondents 3 and 4 is that there is no formal order of regularization of
deviations made in the structure of hotel, issued by Commissioner, Srinagar
Municipal Corporation, submitted by the petitioner, nor has the petitioner
produced the completion certificate of the building. To counter this objection
of the respondents 3 and 4, learned counsel for the petitioner has drawn
attention of this Court to the communication of Commissioner Srinagar
Municipal Corporation, issued vide his No. SMC/PS/COM/89 dated 22nd
January, 2021, whereby it has been indicated to the Director Industries and
Commerce Srinagar, that deviations in the construction of the petitioner
hotel have been regularized by the competent authority, subject to payment
of penal fee of Rs. 5,13,880/. Learned counsel for the petitioner submits that
though the deviations pointed out by the Commissioner Srinagar Municipal
Corporation, have, on his request been regularized and penalty amount
charged, yet, the Commissioner, Srinagar Municipal Corporation, has not
issued a formal order in this regard, despite the petitioner having approached
them from time to time.
Having heard learned counsel for the parties and perused the material
on record, I am of the view that the objections taken by the respondents 3
and 4, with regard to the non submission of formal order of regularization
and completion certificate of the hotel building is hyper technical and
deserves to be ignored in the light of communication of the Commissioner
Srinagar Municipal Corporation, dated 22nd January, 2021 supra. Ideally,
after the deviations pointed out by the Municipal Authorities were
regularized by the competent authority and a penal fee of Rs. 5, 13,880/, was
charged, the Municipal Corporation should have issued a formal order of
regularization and the completion certificate. The failure on the part of the
Municipal Corporation to perform its statutory duty, which failure is not
attributable to the petitioner, cannot be permitted to work to the prejudice of
the petitioner. From the communication of the Commissioner Srinagar,
Municipal Corporation dated 22nd January, 2021, it is abundantly clear that
the hotel building for which the petitioner is claiming subsidy under the
industrial policy has been raised in accordance with the permission granted
by the Municipal Corporation and, therefore, is validly raised. If that be the
position, the object of meeting the aforesaid requirement is well served.
So far as, second objection raised by respondents 3 and 4, is
concerned, I am in an agreement with the learned counsel for the
respondents that the subsidy by the Government can be granted only on the
capital investment made in relation to Eco Tourism activity i.e., raising the
infrastructure of the hotel. I do not find any irrationality in the contention of
respondents that bills for an amount of Rs. 25, 41,091/-, have been issued in
the name of Mr. Shafqat Hussain Lone, and not in the name of hotel for such
capital subsidy is allowed. This aspect, I am of the view, needs to be
relooked into and re-verified by the respondents. If upon verification the
respondents find that the goods or materials billed in the name of Mr.
Shafqat Hussain Lone, have actually been used in the hotel, the respondents
shall take appropriate decision and give the required benefit to the petitioner.
For the foregoing reasons, this petition is disposed of with a direction
to respondents 3 and 4 to consider the entire issue in the light of observations
made above and take a final decision with regard to release of
approved/sanctioned subsidy in favour of the petitioner, within a period of
six weeks, from the day a copy of this judgment is served upon respondents
3 and 4.
Needless to say, that in case, the subsidy case of the petitioner is
finally accepted, there shall be no impediment by respondents 1 and 2, in
releasing the requisite amount.
(SANJEEV KUMAR)
JUDGE
SRINAGAR
10.05.2022
"Mir Arif"
