Karnataka High Court
M/S Karnataka State vs M/S Sai Construction on 13 December, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2023:KHC-D:14617-DB
WA No. 100370 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
WRIT APPEAL NO. 100370 OF 2023 (GM-RES)
BETWEEN:
M/S KARNATAKA STATE
TOURISM DEVELOPMENT CORP.
BMTC-TERMINAL, YASHAWANTPUR
BANGALORE
R/BY ITS MANAGING DIRECTOR
THROUGH THE MANAGER LEGAL
...APPELLANT
(BY SRI. ANOOP G DESHPANDE, ADVOCATE)
AND:
M/S SAI CONSTRUCTION
R/BY ITS MANAGING PARTNER
SRI. RAMCHANDRA DASANNAVAR
AGED ABOUT 64 YEARS,
OCC. BUSINESS
Digitally
signed by
SHIVAKUMAR
R/O.73, CHENNABASAVESHWARANAGAR
SHIVAKUMAR HIREMATH
HIREMATH Date:
2023.12.20
12:16:59
KUD-ROAD, DHARWAD-580007
+0530
...RESPONDENT
(BY SRI.DINESH M.KULKARNI, ADVOCATE)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON BLE COURT TO, SET ASIDE
THE ORDER DATED 21-04-2022 PASSED BY THE LEARNED SINGLE
JUDGE IN W.P.NO.3301/2008 (SC/ST) IN THE INTEREST OF
JUSTICE.
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NC: 2023:KHC-D:14617-DB
WA No. 100370 of 2023
THIS APPEAL, COMING ON FOR PRELIMINARY HEARING, THIS
DAY, S.SUNIL DUTT YADAV, J., DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been filed by the
Concessioner to the Concession Agreement dated
14.11.2011 calling in question the correctness of the order
of the learned Single Judge, whereby, the learned Single
Judge has set aside the order of termination at Annexure-
D dated 27.01.2018 passed by the Karnataka State
Tourism Development Corporation (for short 'KSTDC') and
directed for restoration/redelivery/handing over all vacant
possession of the schedule premises as described in the
Concession Agreement dated 14.02.2011 back to the
petitioner within a period of four weeks from the date of
receipt of the copy of the order.
2. The parties are referred to by their ranking
before the writ proceedings for the sake of convenience.
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3. The petitioner had filed a writ petition calling in
question the correctness of the order of termination issued
by the KSTDC dated 27.01.2018.
4. The admitted facts are that, the petitioner and
KSTDC had entered into a Concession Agreement which
had various clauses including conditions of continuance of
the concession and termination. It is submitted that, after
the order at Annexure-D which is a termination order the
dispute arose. It is the case of the petitioner that, the
possession was taken over high handedly by the
respondent-KSTDC and at that point of time the order of
termination was sought to be assailed in the writ
proceedings.
5. After hearing the matter for some time, it is
noticed that, admittedly the possession has been taken by
the KSTDC. In the light of the same, various disputed
contentions have been raised including as to the mode and
manner for recovery of the possession pursuant to the
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order of Annexure-D. Such disputed questions cannot be
adjudicated in the present proceedings.
6. Article 10 of the Concession Agreement which
provides for dispute resolution reads as follows:
"DISPUTE RESOLUTION:
10.1. Arbitration
(a) In case of any dispute, the same
shall be referred to arbitration, with Principal
Secretary, Tourism, Government of Karnataka
being the sole arbitrator and his decision shall
be binding on the parties.
(b) Place of Arbitration
The place of arbitration shall ordinarily be
Bangalore but by agreement of the parties, the
arbitration hearings, if required, may be held
elsewhere. Further Courts at Bangalore alone
has jurisdiction for any other applications and
the like regarding any dispute arising out of this
agreement."
7. Noticing the present state of affairs, the counsel
for the petitioner submits that they would invoke
substantive remedy in terms of Article 10 and initiate
Arbitration proceedings, but however, submits that, till
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that substantive remedy is invoked there may be interim
protection.
8. Counsel for the respondent fairly submits that,
that would be the only course available for adjudication of
the correctness of the termination order at Annexure-D.
9. In the light of the same, without adjudication
regarding the correctness of the order of the learned
Single Judge the appeal is disposed of. The petitioner is
reserved liberty to take recourse to the procedure
provided under Article 10 for dispute resolution.
10. Counsel for the petitioner submits that, they
would take appropriate steps to initiate the proceedings
under Article 10.1. within a month from the date of receipt
of the certified copy of this order.
11. However, in the light of the submissions made
by both sides, the nature of the schedule property as it
exists till date is to be maintained without creating third
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party interest till the interim relief as may be sought for in
the Arbitration Proceedings is considered by the Arbitrator.
12. All contentions of both the parties are kept
open.
13. Needless to state that, the Arbitrator is not to
be influenced by the observations made by the learned
Single Judge in the order in W.P.No.100758/2018 or by
the observations made in the present order. Accordingly,
the appeal is disposed off.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
