Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2867 (ALL)

Sachchidanand Gupta [PIL] Civil v. State of U. P.

2016-08-20

ANANT KUMAR, SATYENDRA SINGH CHAUHAN

body2016
JUDGMENT These two writ petitions have been filed in the nature of Public Interest Litigation challenging the orders passed by the State Government dated 2.7.2010, 17.9.2010, Order No.2929(2)S.C./18-2-2010-51/10 dated 4.01.2011, Order No.2929(3)S.C./18-2-2010-51/10 dated 4.01.2011, Order No.2929(4)S.C./18-2-2010-51/10 dated 4.01.2011 and the orders passed by the Collector Stamp/Additional Collector (F/R) of different districts with a further prayer for mandamus commanding the opposite party no.1 to take decision on the report submitted by the Uttar Pradesh Lok Ayukt and also to revaluate the 21 sugar mills, which have been sold, afresh by an independent agency for the purpose of proceeding with disinvestment. 2. The above orders have been passed as a consequence of the two writ petitions filed at Allahabad numbering Civil Misc. Writ Petition No.39850 of 2009, Chini Mill Karmchari Sangh vs. State of U.P. and others and Civil Misc. Writ Petition No.47934 of 2008, Rajiv Kumar Mishra vs. State of U.P. and others, decided on 1.4.2010. Civil Misc. Writ Petition No.39850 of 2009 was filed on behalf of Chini Mill Karmchari Sangh, Mohiuddinpur Unit through its President alleging therein that they were going to be affected directly and adversely by privatization policy of the State as the same is prejudicial to the interest of the members of the petitioner union and is a gross infraction of existing and prevalent statutes as well as the Constitution of India. Civil Misc. Writ Petition No.47934 of 2008, Rajiv Kumar Mishra vs. State of U.P. and others, was filed with a prayer for quashing the request for proposal for strategic sale of entire equity of the Government of Uttar Pradesh in Uttar Pradesh State Sugar Corporation Limited (for short 'Corporation') as issued on 8.9.2008. Further prayer was made for quashing the Government Order dated 4.6.2007, by means of which the State of U.P. has taken decision for privatisation/sale of units of the Corporation. In the aforesaid writ petitions, an order was passed on 30.9.2008, whereby a direction was given that no third party right shall be created till the next date of listing. During the course of hearing in the said writ petitions, it was brought to the notice of the Court that an ordinance dated 29.9.2008 has been issued, on which the petitioner was directed to challenge the said ordinance, namely, U.P. Sugar Undertakings (Acquisition) (Amendment) Ordinance, 2008 promulgated on 29.9.2008. During the course of hearing in the said writ petitions, it was brought to the notice of the Court that an ordinance dated 29.9.2008 has been issued, on which the petitioner was directed to challenge the said ordinance, namely, U.P. Sugar Undertakings (Acquisition) (Amendment) Ordinance, 2008 promulgated on 29.9.2008. The said ordinance was subsequently replaced by U.P. Sugar Undertakings (Acquisition) (Amendment) Act, 2009. The petitioner was also directed to amend the writ petition by adding the prayer for declaring the Act of 2009 as ultra vires. After the enforcement of the Amendment Act, 2009 an expression-cum-request for publication was issued by the State of U.P. on 29.6.2009 for sale/privatisation of 11 operating units of the Corporation. Both the writ petitions were heard and finally a coordinate Bench of this Court vide judgement and order dated 1.4.2010 came to the conclusion that Section 3-C and Section 3-D of the Amendment Act, 2009 to the extent it provides "closure of the scheduled undertakings or sugar mills of the Corporation and its subsidiaries or in relation to the Corporation itself" was struck down as lack of legislative competence and all consequential actions to the above extent shall automatically fall to the ground. The other provisions of the Amendment Act, 2009 and the actions taken therein were held to be intra-vires. In Writ Petition No.47934 of 2008, Rajiv Kumar Mishra vs. State of U.P., an application for amendment was filed by the petitioner thereby seeking to amend the memo of writ petition extensively by adding as many as fourteen new paragraphs and fourteen new grounds and a prayer for quashing the Request of Proposal for slump sale of 11 operating Sugar Mills dated 29.6.2009 which was allowed by this Court. The request for proposal was challenged on the ground that valuation of the Sugar Mills have wrongly been done and it was stated that the process of slump sale under the Swiss Challenge Method was erroneous and the decision of the State Government to dispose of the property under the Slump Sale Agreement was also challenged. The request for proposal was challenged on the ground that valuation of the Sugar Mills have wrongly been done and it was stated that the process of slump sale under the Swiss Challenge Method was erroneous and the decision of the State Government to dispose of the property under the Slump Sale Agreement was also challenged. The valuation and the process of slump sale under the Swiss Challenge Method was approved by the Division Bench of this Court in the aforesaid writ petitions vide judgement and order dated 1.4.2010 as indicated herein above and certain provisions of the Amendment Act, namely, Section 3-C and Section 3-D were declared ultra vires, which related to the closure of the sugar mills. Against the aforesaid judgment, Rajiv Kumar Mishra preferred Special Leave Petition (Civil) No.16362 of 2010 before the apex Court and the apex Court passed interim orders on 28.5.2010 and on 14.7.2010 to the effect that any action taken by the Government in furtherance of the U.P. Sugar Undertakings (Acquisition)(Amendment) Act, 2009 shall remain stayed subject to the final adjudication of the appeal. The aforesaid order was again modified on 14.7.2010 and therein the apex Court again provided that the condition incorporated in order dated 28.5.2010 adequately protect the interest of the appellant. Any person who purchases the sugar mill in furtherance of the auction conducted by the State Government will be bound by that order. The interim relief applications were disposed of with the aforesaid direction. The petitioner of Writ Petition No.5283 (MB) of 2011, who appears to be interested and concerned with the sale of the Sugar Mills proceeded to file Writ Petition (Civil) No.91 of 2011 before the apex Court under Article 32 of the Constitution of India on 4.2.2011. The interim relief applications were disposed of with the aforesaid direction. The petitioner of Writ Petition No.5283 (MB) of 2011, who appears to be interested and concerned with the sale of the Sugar Mills proceeded to file Writ Petition (Civil) No.91 of 2011 before the apex Court under Article 32 of the Constitution of India on 4.2.2011. It is to be noted that at the time of filing of the aforesaid petition before the apex Court, the judgment of this Court has already come into existence and widely publicised in electronic and print media and have come to the knowledge of all and sundry, but the petitioner appears to be a person who wanted to misuse the process of the Court and also to mislead the Court and also with a view to play fraud upon the Court, filed the petition under Article 32 of the Constitution of India before the apex Court and in clause 17 of the Listing Proforma which relates to particulars of identical/similar cases, if any, pending or decided cases with citation, he indicated as "N.A." and in clause 17A of the said proforma which relates to 'Was S.L.P./Appeal/Writ filed against same impugned Judgment/Order earlier? If yes, particulars, he has also mentioned as "N.A." and in clause 8A of the Listing Proforma, name of the Judges delivering the judgment was incorrectly mentioned as Hon'ble Ashok Bhushan and Hon'ble Amreshwar Pratap, J in place of Justice Ashok Bhushan and Justice Vineet Saran, and even the correct name of second Judge was not mentioned. The obvious reason being that in case the petitioner would have disclosed the correct state of affairs, the writ petition could have been thrown out and would not have been entertained by the apex Court. The obvious reason being that in case the petitioner would have disclosed the correct state of affairs, the writ petition could have been thrown out and would not have been entertained by the apex Court. Moreover, for the reason that the subject matter in issue was already under consideration before the apex Court in Special Leave Petition No.16362 of 2010 filed by Rajiv Kumar Mishra against the judgment of a Division Bench of this Court dated 1.4.2010, wherein the process of slump sale under the Swiss Challenge Method was pending consideration and in order to get over the interim order passed in the Special Leave Petition, the aforesaid information was given in the writ petition by the petitioner by misleading the facts and the apex Court passed an order to the effect that ends of justice would be better served if the petitioner moves the High Court under Article 226 of the Constitution and after giving that liberty the apex Court further expressed no opinion on the merits of the case and kept open all the arguments under law and the petition was disposed of. After liberty being granted by the apex Court on unfounded facts, the present writ petition No.5283 (MB) of 2011 was filed challenging the sale of 21 sugar mills on taking almost the same grounds which were earlier taken in the case of Rajiv Kumar Mishra's and Chini Mill Karmchari Sangh's petitions, wherein this Court has already dealt with the issue at length and upheld the process of slump sale under the Swiss Challenge Method. The petitioner by practicing fraud upon the Court and by not disclosing the bona fides in a proper manner as required under law, took the advantage of the order passed by the apex Court and thereby challenged the sale of sugar mills by way of the present petition. 3. Counsel for the opposite party no.8 (Namrata Marketing Private Limited) has moved an application with a prayer to dismiss the writ petition and to keep the proceedings of the writ petition in abeyance till the disposal of Special Leave Petition No.16362 of 2010, Rajiv Kumar Mishra vs. State of U.P. pending before the apex Court. 3. Counsel for the opposite party no.8 (Namrata Marketing Private Limited) has moved an application with a prayer to dismiss the writ petition and to keep the proceedings of the writ petition in abeyance till the disposal of Special Leave Petition No.16362 of 2010, Rajiv Kumar Mishra vs. State of U.P. pending before the apex Court. An objection has been filed to the aforesaid application by the petitioners and it has been stated therein that the apex Court has given them liberty to challenge the sale of sugar mills and, therefore, they are not covered under the orders passed by the apex Court and neither the proceedings can be stayed. It has also been argued that similar objection was taken at earlier point of time and the application for deferring the proceedings was rejected by this Court by means of order dated 13.12.2013. The aforesaid order dated 13.12.2013 was put to challenge before the apex Court in Special Leave to Appeal (Civil) No.9229 of 2014 and the apex Court dismissed the said appeal by allowing the respondent to withdraw the special leave petition and it is stated that usually when a request is made, the apex Court grants permission to agitate the matter before the High Court and in similar manner the apex Court granted liberty to the petitioner to re-agitate the issue as and when he desires. In pursuance to the liberty granted by the apex Court, opposite party no.8 has filed this application for keeping the proceedings in abeyance and for dismissing the writ petition by stating therein that the matter is engaging the attention of the apex Court and the subject matter is covered by the interim order passed by the apex Court and so the present writ petitions are not maintainable. 4. Counsel for the petitioners has stated that she reserves the right to argue the matter on merit, but this Court has to see as to whether it is open for the parties to argue the matter on merit at this stage when the matter is taken in its entirety and if a serious look is given to the merit of the matter, then it has to be seen as to whether anything remains to be adjudicated and decided before this Court on merit when the matter is engaging the attention of the apex Court in respect of the subject matter. The sale of sugar mills has been made subject to decision of the appeal and the special leave petition has already been admitted and is pending for adjudication. In the special leave petition, the apex Court clearly provided that sale of the sugar mills will be subject to decision of the appeal. Whether the Swiss Challenge Method is appropriate and correct; whether the adoption of Swiss Challenge Method by process of slump sale is valid or invalid, has already been adjudicated by a coordinate Bench of this Court. Once the validity of process of slump sale under the Swiss Challenge Method has been considered and found to be valid, then it is not open for this Court to consider and decide the issue again and it is not open for the petitioners to agitate the same issue before this Court by arguing that the sugar mills have been sold on an unreasonable price and that the sale method which has been adopted, is not correct or that the sale has been conducted in a mala fide manner. All these questions have been considered and adjudicated in Rajiv Kumar Mishra's case (supra). 5. In the aforesaid circumstances, we have to consider as to whether the application has to be disposed of along with writ petition. If we record a finding in respect of disposal of the application, then we find that such disposal of an application will lead to the decision virtually on merit. Therefore, this Court is of the opinion that petitions should be heard and disposed of finally. Apart from it, a coordinate Bench of this Court presided over by Hon'ble the Chief Justice vide order dated 17.12.2014 has passed the order to the effect that the parties are directed to complete their pleadings by 12.01.2015 so the hearing before the assigned Bench granted roster, can proceed with the final hearing in the matter. For ready reference the order dated 17.12.2014 is quoted as under: - "In pursuance of the liberty which has been granted by the Hon'ble Supreme Court by order dated 04 December 2014, this Court was apprised to the fact that an application for de-tagging of writ petition 5283 of 2011 (Misc. Bench) has been filed. For ready reference the order dated 17.12.2014 is quoted as under: - "In pursuance of the liberty which has been granted by the Hon'ble Supreme Court by order dated 04 December 2014, this Court was apprised to the fact that an application for de-tagging of writ petition 5283 of 2011 (Misc. Bench) has been filed. Learned counsel appearing on behalf of the petitioner in Writ Petition No. 5283 of 2011, who has filed a de-tagging application states that his honest endeavour is to ensure that the petition is taken up for hearing and final disposal at an early date and if an early date is granted for hearing of both petitions, that would serve the interest of justice. Accordingly, it has been agreed that the writ petition No. 5283 of 2011 and Misc. Bench No. 9613 of 2014 shall be placed for hearing and final disposal before the Bench assigning for hearing of PIL cases on Monday i.e. 12.01.2015. Parties are directed to complete their pleadings by that date so that the hearing, before the assigned Bench granted roster, can proceed on 12.01.2015. In terms of the request which has been made before the Court, the hearing of the petition is peremptorily fixed on 12.01.2015. The de-tagging application, as already noted above, has not been pressed before this Court." 6. We, therefore, do not approve the argument of counsel for the petitioners to argue the matter on merit at later point of time and propose to dispose of the writ petitions finally rather keeping the same pending here as the apex Court would be in a better position to decide all the issues after hearing the petitioners as well as the opposite parties, where the entire issue relating to merit and de-meirt of the method of sale under the Amendment Act, 2009 and the process of slump sale under the Swiss Challenge Method are under consideration. The apex Court though has granted liberty to the petitioner, but the said liberty was taken by the petitioner by playing fraud upon the apex Court. Before the apex Court the writ petition was filed under Article 32 of the Constitution of India and in the said writ petition the petitioner deliberately did not disclose the pendency of the litigation in the apex Court or the decision dated 1.4.2010 of a coordinate Bench of this Court comprising of Justice Ashok Bhushan and Vineet Saran. Before the apex Court the writ petition was filed under Article 32 of the Constitution of India and in the said writ petition the petitioner deliberately did not disclose the pendency of the litigation in the apex Court or the decision dated 1.4.2010 of a coordinate Bench of this Court comprising of Justice Ashok Bhushan and Vineet Saran. In clause 8A of the Listing Proforma the petitioner has disclosed the Bench comprising of Hon'ble Ashok Bhushan and Hon'ble Amreshwar Pratap, J. and even the correct name of the second Judge has not been mentioned as Justice Vineet Saran nor the number of Special Leave Petition was mentioned in clause 4 of the Listing Proforma and it remained blank. Had the correct name of the Division Bench would have mentioned in the writ petition filed under Article 32 of the Constitution, then certainly registry could have reported that the Special Leave Petition against the said judgment is pending and the writ petition would have been connected with the aforesaid Special Leave Petition. But it appears that the petitioner deliberately played fraud upon the apex Court by not mentioning the name of the Hon'ble Judges correctly. He ought to have mentioned the name of the Division Bench as Justice Ashok Bhushan and Justice Vineet Saran, but with a view to mislead the apex Court, name of the Bench was mentioned as Hon'ble Ashok Bhushan and Hon'ble Amreshwar Pratap, J. With what intention this was done though it was in the knowledge of the petitioner that in clause 17 of the Listing Proforma particulars of identical/similar cases were required to be mentioned. In clause 17 (a) against the pending cases 'N.A.' has been written and in clause 17 (b) which relates to decided cases also mentions 'N.A.' In clause 17A it was required to be mentioned as to whether an SLP/Appeal/Writ was filed against same impugned Judgement/Order earlier and in stead of mentioning the special leave petition which was filed against the judgment dated 1.4.2010, the petitioner has mentioned as 'N.A.' The aforesaid fact itself goes to indicate that the petitioner has deliberately concealed the pendency of the Special Leave Petition as well as the decision by the High Court. Therefore, the petitioner can not take the benefit of any fraud being committed upon the apex Court and neither he can now be allowed to file the present writ petition when it was in his knowledge that judgment has been rendered by a Division Bench of this Court on 1.4.2010 and that is why names of the Judges were wrongly been mentioned in clause 8A of the Listing Proforma. The judgment rendered by this Court was widely circulated in electronic and print media, so the petitioner can not say that it was not within his knowledge that any judgment was rendered in the matter. The petitioner with deliberate intention played fraud upon the apex Court and thus obtained the liberty on 7.3.2011 wherein the following order was passed : - " Heard learned counsel for the petitioner. We are of the view that ends of justice would be better served if the petitioner moves the High Court under Article 226 of the Constitution. We express no opinion on the merits of the case. All arguments are kept open. The writ petition is disposed of accordingly." 7. Therefore, the argument of learned counsel for the petitioners that after liberty was granted to the petitioner, he approached this Court by filing writ petition, on the face of record, is not tenable and rather the petitioner has to blame himself who approached this Court in such a clandestine manner and thereafter filed the writ petition on the strength of the order passed by the apex Court. Whether the petitioner can be allowed to take benefit of such a fraud which has been committed by him, which is evident from the record. 8. The law in this regard has been settled by the apex Court in the case of A.V. Papayya Sastry v. State of A.P., (2007) 1 SCC 613, wherein the apex Court held that fraud renders any judgment, decree or order a nullity and non est in the eye of the law. 9. To the same effect is the decision in Raju Ramsingh Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54 . 10. The following prayer was made in Civil Misc. 9. To the same effect is the decision in Raju Ramsingh Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54 . 10. The following prayer was made in Civil Misc. Writ Petition No.39850 of 2009 (PIL), which was filed before the Division Bench of this Court : - " i) issue an appropriate writ, order or direction declaring the provisions of the U.P. Sugar Undertakings (Acquisition) (Amendment) Act, 2009 as ultra vires the powers and beyond the legislative competence of the State Legislature; ii) issue an appropriate writ, order or direction declaring that the State Government has no jurisdiction or authority to sell off the units of the U.P. State Sugar Corporation as came to be vested in it pursuant to the provisions of the U.P. Sugar Undertakings (Acquisition) Act, 1971; iii) issue an appropriate writ, order or direction in the nature of certiorari calling for all records and decisions of the State Government in relation to the slump sale in question and to quash the same; iv) issue an appropriate writ, order or direction in the nature of certiorari quashing the entire bidding process as being conducted pursuant to the Expression of Interest/ RFQ issued on 29th June 2009 (Annexure-1 to the writ petition); v) Pass such other and further order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case. vi) Award the cost of the writ petition." 11. The following prayer was made in Civil Misc. Writ Petition No.47934 of 2008 (PIL) : - "i) issue an appropriate writ, order or direction commanding the respondents concerned to produce the entire record and thereupon quash the request for proposal for strategic sale of entire equity of Government of Uttar Pradesh in Uttar Pradesh State Sugar Corporation Ltd. ( as contained in Annexure No.1 to this writ petition). ii) Issue an appropriate writ, order or direction commanding the respondents concerned to produce the copy of the Government Order No.1215-S/C/18-to-07-56/07 T.C.-1 dated 4.6.2007 containing the decision of disinvestment of eh Uttar Pradesh State Sugar Corporation Limited and upon such production quash the same. Iii) Issue an appropriate writ, order or direction commanding the respondents concerned not to proceed in any manner in the matter of disinvestment of the Uttar Pradesh State Sugar Corporation Limited. Iii) Issue an appropriate writ, order or direction commanding the respondents concerned not to proceed in any manner in the matter of disinvestment of the Uttar Pradesh State Sugar Corporation Limited. iv) Issue an appropriate writ, order or direction commanding the respondent no.6 not to take any action in the matter of sale of equity of Government of Uttar Pradesh in Uttar Pradesh State Sugar Corporation Limited. v) Issue any other and further writ, order or direction which this Hon'ble Court deems fit and proper in the circumstances of the case. vi) Award the cost of the writ petition." 12. The aforesaid prayers made in the writ petitions are ample proof of the fact that an application for amendment was filed by the petitioner in Rajiv Kumar Mishra vs. State of U.P. in Civil Misc. Writ Petition No.47934 of 2008, wherein the memo of writ petition was extensively amended and as many as fourteen new paragraphs and fourteen new grounds along with the prayer for quashing the request of proposal for slump sale of 11 operating Sugar Mills dated 29.6.2009 was made. In the grounds of challenge, it was stated that the request for proposal was not proper as the valuation of the Sugar Mills was not done properly and it was also stated that the process of slump sale under the Swiss Challenge Method was erroneous and the decision of the State Government to dispose of the property under the Slump Sale Agreement was also challenged, but the Division Bench of this Court did not interfere with the grounds so raised in both the writ petitions and rather approved the request for proposal of slump sale under the Swiss Challenge Method and the consequential auction did not also find favour with the Court. Therefore, all the grounds which have been taken in the present writ petitions have already been considered and decided by this Court in the aforesaid two writ petitions. Therefore, this Court can not reconsider and reopen the issue which has already been decided by this Court. The principles of constructive res judicata would apply in respect of the present proceedings which have been initiated and challenged earlier before this Court and the same have attained finality. 13. Therefore, this Court can not reconsider and reopen the issue which has already been decided by this Court. The principles of constructive res judicata would apply in respect of the present proceedings which have been initiated and challenged earlier before this Court and the same have attained finality. 13. The law in this regard has been settled by the apex Court in the following cases: - "Shiv Chander More and others v. Lieutenant Governor and others, (2014) 11 SCC 744 ; Soma Isolux NH One Tollway Private Limited v. Harish Kumar Puri and others, (2014) 6 SCC 75 " 14. Special Leave Petition No.16362 of 2010 was filed before the apex Court Challenging the judgement and order dated 1.4.2010 passed by a Division Bench of this Court in the aforesaid cases, wherein the following order was passed on 28.5.2010 : - " Leave granted. Hearing expedited. Any action taken by the respondents in furtherance of the U.P. Sugar Undertakings (Acquisition) (Amendment) Act, 2009 shall remain subject to the final adjudication of the appeal." 15. Thereafter, the matter was again taken up and on the application for modification of the order dated 28.5.2010, the following order was passed : - "These applications have been filed for modification of order dated 28.05.2010. We have heard Sri Tulika Prakash, learned counsel for the appellant and perused the records. In our view the condition incorporated in order dated 28.5.2010 adequately protect the interest of the appellant. Any person who purchases the sugar mills in furtherance of the auction conducted by the state Government will be bound by that order." 16. The above order was passed by the apex Court clearly goes to indicate that it was modified knowingly that the sale of sugar mills has taken place and that is why it was provided that the interest of the appellant in that appeal has been protected in view of the condition incorporated in the order dated 28.5.2010. In the initial order dated 28.5.2010 it was indicated that the Amendment Act, 2009 shall remain subject to the final adjudication of the appeal. It appears that later on it was brought to the notice of the apex Court that sale of sugar mills has taken place. In the initial order dated 28.5.2010 it was indicated that the Amendment Act, 2009 shall remain subject to the final adjudication of the appeal. It appears that later on it was brought to the notice of the apex Court that sale of sugar mills has taken place. So the modification application was moved with a specific statement and thereafter the apex Court provided that any person who purchases the sugar mills in furtherance of the auction conducted by the State Government will be bound by that order. This modification of the order itself goes to indicate that sale of sugar mills is under consideration before the apex Court in the pending Special Leave Petition. Moreover, the prayer clause (ii) made in the writ petition filed on behalf of Chini Mill Karmchari Sangh specifically dealt with the issue in question for declaring that the State Government has no jurisdiction or authority to sell off the units of the U.P. State Sugar Corporation as they came to be vested in it pursuant to the provisions of the U.P. Sugar Undertakings (Acquisition) Act, 1971. Prayer (iii) also challenges the slump sale method wherein a prayer has been made in the nature of certiorari calling for the records and decisions of the State Government in relation to the slump sale in question and to quash the same. Further prayer was made in the nature of quashing the entire bidding process as being conducted pursuant to the Expression of Interest/RFQ issued on 29th June, 2009. The question of sale by process of slump sale under the Swiss Challenge Method was virtually put to challenge before the Division Bench of this Court in the aforesaid two writ petitions filed earlier and both the questions were decided and found to be valid by a Division Bench of this Court and further that the issue of sugar mills being sold away on the throw away price was also subject matter of consideration in the earlier round of litigation. The pleadings were there to the effect in both the writ petitions that the valuation of the sugar mills has not been done properly and that the sale has taken place maliciously just to give benefit to certain persons. The auction method which has been provided, is also not proper and correct as provided under law. The pleadings were there to the effect in both the writ petitions that the valuation of the sugar mills has not been done properly and that the sale has taken place maliciously just to give benefit to certain persons. The auction method which has been provided, is also not proper and correct as provided under law. When all these matters have been taken into consideration and decided, then it is not open for this Court to consider and reopen the issue and decide them afresh in respect of the matters which have attained finality and are subject matter of consideration before the apex Court. 17. To what extent the Court should interfere in the policy matters and in respect of distribution of largesse by inviting open tenders or by public auction and whether negotiation is permissible in such cases, the apex Court considered the issue in the case of M.P. Oil Industries and another v. State of Madhya Pradesh and others, AIR 1998 SC 145 and in paragraph 45 of the said judgement it has been held as under : - " 45. Although to ensure fair play and transparency in the State action, distribution of largesse by inviting open tenders or by public auction is desirable, it cannot be held that in no case distribution of such largesse by negotiation is permissible. In the instant case, as a policy decision protective measure by entering into agreements with selected industrial units for assured supply of sal seeds at concessional rate has been taken by the government. The rate of royalty has also been fixed on some accepted principle of pricing formula as will be indicated hereafter. Hence, distribution or allotment of sal seed at the determined royalty to the respondents and other units covered by the agreements cannot be assailed. It is to be appreciated that in this case, distribution by public auction or by open tender may not achieve the purpose of the policy of protective measure by way of supply of sal seeds at concessional rate of royalty to the industrial units covered by the agreements on being selected on valid and objective considerations." 18. In the case of State of Punjab and others v. Ram Lubhaya Bagga etc. In the case of State of Punjab and others v. Ram Lubhaya Bagga etc. etc., AIR 1998 SC 1703 , the apex Court held that the policy of the Government is not subject to scrutiny by the Court when it is based on expert opinion. In paragraph 25 of the judgment, the apex Court held as Under : - "25. Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee,his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a Government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. so far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying modifying or annulling it, based on however sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. it would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 When it restricts reimbursement on account of its financial constraints." 19. In the case of Raunaq International Ltd. v. I.V.R. Construction Ltd. and others, AIR 1999 SC 393 , the apex Court again reiterated the same proposition of law that while dealing with the issue of public interest litigation challenging the award of a contract by the State or any public body to a particular tenderer, the Court must satisfy itself that the party which has brought the litigation is litigating bona fide for public good. The Court can examine the previous record of public service rendered by the organisation bringing public interest litigation. In paragraph 12 of the judgment, the apex Court held as under : - "12.When a petition is filed as a public interest litigation challenging the award of a contract by the State or any public body to a particular tenderer, the court must satisfy itself that party which has brought the litigation is litigating bona fide for public good. The public interest litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition. The court can examine the previous record of public service rendered by the organisation bringing public interest litigation. Even when a public interest litigation is entertained the court must be careful to weigh conflicting public interests before intervening. Intervention by the court may ultimately result in delay in the execution of the project The obvious: consequence of such delay is price escalation. If any re-tendering is prescribed, cost of the project can escalate substantially. What is more important, ultimately the public would have to pay a much higher price in the form of delay in the commissioning of the project and the consequent delay in the contemplated public service becoming available to the public. If it is a power project which is thus delayed, the public may lose substantially because of shortage in electric supply and the consequent obstruction in industrial development. If the project is for the construction of a road, or an irrigation canal, the delay in transportation facility becoming available or the delay in water supply for agriculture being available, can be a substantial set back to the country's economic development. Where the decision has been taken bona fide and a choice has been exercised on legitimate considerations and not arbitrarily, there is no reason why the court should entertain a petition under Article 226." 20. In the case of Bhavesh D. Parish and others v. Union of India and another, (2000) 5 SCC 471 , the apex Court while considering the question of interference by the Courts in respect of economic reform matters, held as under : - "Before we conclude there is another matter to which we must advert to. In the case of Bhavesh D. Parish and others v. Union of India and another, (2000) 5 SCC 471 , the apex Court while considering the question of interference by the Courts in respect of economic reform matters, held as under : - "Before we conclude there is another matter to which we must advert to. It has been brought to our notice that Section 45- S of the Act has been challenged in various High Courts and few of them have granted the stay of provisions of Section 45-S. When considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restrain in staying the applicability of the same. Merely because a statute comes up for examination and some arguable point is raised, which persuades the courts to consider the controversy, the legislative will should not normally be put under suspension pending such consideration. It is now well- settled that there is always a presumption in favour of the constitutional validity of any legislation,unless the same is set- aside after final hearing and,therefore, the tendency to grant stay of legislation relating to economic reform, at the interim stage, cannot be understood. The system of checks and balances has to be utilised in a balanced manner with the primary objective of accelerating economic growth rather than suspending its growth by doubting its constitutional efficacy at the threshold itself. While the courts should not abrogate its duty of granting interim injunctions where necessary, equally important is the need to ensure that the judicial discretion does not abrogate from the function of weighing the overwhelming public interest in favour of the continuing operation of a fiscal statute or a piece of economic reform legislation, till on a mature consideration at the final hearing, it is found to be unconstitutional. It is,therefore, necessary to sound a word of caution against intervening at the interlocutory stage in matters of economic reforms and fiscal statutes." 21. It is,therefore, necessary to sound a word of caution against intervening at the interlocutory stage in matters of economic reforms and fiscal statutes." 21. In the case of Netai Bag and others v. State of W.B. and others, (2000) 8 SCC 262 , the apex Court while dealing with the similar question held as Under : - "In the backdrop of the legal position noticed herein, it has to be seen, in the instant case, as to whether the action of the respondent No.1 was illegal, arbitrary or malafide. To justify their action of entering into an agreement of lease by negotiation, even in the absence of pleadings on behalf of the appellants, the State has submitted that the entire transaction of granting the lease to the respondent No.5 for an integrated food processing unit with an abattoir in a semi-rural area, which was a low lying land, despite their best efforts, the state Government were unable to set up any project. The lease was given to respondent No.5 upon consideration of all the facts and circumstances with the object of setting up an industry in the State of West Bengal which was likely to generate employment to more than 300 persons and earn foreign exchange worth more than Rs.50 crores. The negotiations were resorted to ensure the disposal of the slaughter house at Durgapur which was proved to have been running in losses. The respondent-State had failed to get any buyer for Durgapur Project despite Newspaper advertisements. The Government had decided to make a package deal for the purposes of transferring the Durgapur Project and establishment of Mourigram Project. Earlier a memorandum of understanding had been arrived at between Government of India and Australia which ultimately did not mature in the shape of an abattoir. Due to financial constraints,continuous loss suffered at Durgapur and lack of technical expertise, the respondent-State could not venture to undertake the Mourigram Project for setting up of an abattoir. Having failed in all its efforts, the then Minister-in-charge of the Animal Husbandry and Veterinary Services Department of the Government of West Bengal is stated to have written to some Bombay based firms, reputed in the field, to salvage the two projects. Positive response is stated to have been received from some firms including Genagro Foods (India) Limited, namely, respondent No.5 and M/s.I.Ahmed & Company. Positive response is stated to have been received from some firms including Genagro Foods (India) Limited, namely, respondent No.5 and M/s.I.Ahmed & Company. The proposal of I.Ahmed & Company being very vague was not accepted. Respondent No.5 had shown interest in taking over both Durgapur & Mourigram sites under certain terms and conditions for the purpose of revitalising and making operational the existing abattoir at Durgapur and for setting up of Integrated Food Processing Unit along with abattoir at Mourigram. It is further stated in the counter-affidavit of the respondent-State, that: - "Since, no response was received from the advertisements and the personal requests made in the manner above by the Minister-in-charge of the Department from any concern except as aforesaid, the State took into account the credentials of the group of companies of which Genagro Foods (India) Ltd.,was one, including the export award certificate awarded to M/s.Allanasons Limited for outstanding contribution for promotion of agricultural and processed food products during the year 1992-93 as proof of their excellence in their field and thereupon proceeded to finalise the lease terms and conditions under which inter alia the Mourigram land would be leased out to the respondent No.5 for setting up of an integrated food processing unit along with an abattoir,products whereof could be exported as well as sold in the State of West Bengal. Respondent No.5 alongwith its associated companies was the first company in India to export 1000 million rupees on agricultural and process food products (in 1992-93). The Agriculture and Processed Foods Export Development Authority (APEDA), Ministry of Commerce,Govt. of India, had acknowledged and certified the efforts of Respondent No.5 and its associated companies in the export of Meat and other agro products such as rice, tea, coffee, spices, onion, cashew, pulses extractions, marine products and processed Food and vegetable." In view of the peculiar facts and circumstances of the case we are not persuaded to hold that the action of the respondent-State in executing the lease deed with respondent No.5 was unreasonable, illegal, arbitrary or actuated by extraneous considerations. In this regard it is worth noticing that none except the erstwhile owners and the propounders of vegetarianism have made any grievance to the effect that the market value of the property, as charged from respondent No.5, was either allegedly for a song or at a throw away price." 22. In this regard it is worth noticing that none except the erstwhile owners and the propounders of vegetarianism have made any grievance to the effect that the market value of the property, as charged from respondent No.5, was either allegedly for a song or at a throw away price." 22. In the case of Kushum Lata vs. Union of India and others, AIR 2006 SC 2643 , the apex Court while dealing with the issue of maintainability of the Public Interest Litigation, laying down the principles for maintainability of the Public Interest Litigation provided certain guidelines and norms which have been laid by the Court from time to time and thereafter held that the person who has filed the petition though he was a tenderer and was questioning the legality of the auction being a party, the High Court was right in dismissing the writ petition. In the aforesaid judgment, the apex Court held as under : - "In S.P. Gupta v. Union of India (1981 Supp. SCC 87), it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigant. He has also left the following note of caution: (SCC p.219, para 24) " But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective." In State of H.P. v. A Parent of a Student of Medical College, Simla and Ors. ( 1985 (3) SCC 169 ), it has been said that public interest litigation is a weapon which has to be used with great care and circumspection. In the instant case, the appellant has styled the petition as PIL though it relates to a tender where she herself claims to be a tenderer. In another petition, questioning legality of the auction, she is a party. The High Court was perfectly justified in dismissing the writ petition styled as a PIL. In the instant case, the appellant has styled the petition as PIL though it relates to a tender where she herself claims to be a tenderer. In another petition, questioning legality of the auction, she is a party. The High Court was perfectly justified in dismissing the writ petition styled as a PIL. We make it clear that Writ Petition No.349/2003 which is stated to be pending shall be considered in its own perspective in accordance with law. We express no opinion on the merits of the said writ petition." 23. To the same effect is the case rendered by the apex Court in the case of Ram Singh Vijay Pal Singh and others v. State of U.P. and others, (2007) 6 SCC 44 . 24. In the case of Ravi Development v. Shree Krishna Prathisthan and others, (2009) 7 SCC 462 , the Swiss Challenge Method has been approved by the apex Court and it was held that the decision to apply Swiss Challenge Method clearly fell within the realm of executive discretion and the same was exercised after due application of mind and the High Court is not justified in striking out the Swiss Challenge Method without allowing the State Government to exercise its executive discretion on a pilot basis. Therefore, there was neither any arbitrariness nor unreasonableness in adoption of the said policy. It was not possible to reject the claim of the State of Maharashrta and MHADA, in view of the shortage of land, increasing cost in housing sector, the Central and State Governments recommended strongly for public-private joint ventures and in the said category Swiss Challenge method is the acceptable democratic method as compared to other options. In paragraphs 49 and 56 the apex Court held as Under : - "49. The decision to apply Swiss Challenge Method clearly fell within the realm of executive discretion and in this case, exercised after due application of mind. It is clear from the materials placed before us that there is neither arbitrariness nor unreasonableness in the adoption of the said policy. 56. In those circumstances, the High Court is not justified in striking out the Swiss Challenge Method without allowing the State Government to exercise its executive discretion on a pilot basis. It is clear from the materials placed before us that there is neither arbitrariness nor unreasonableness in the adoption of the said policy. 56. In those circumstances, the High Court is not justified in striking out the Swiss Challenge Method without allowing the State Government to exercise its executive discretion on a pilot basis. It is not possible to reject the claim of State of Maharashtra and MHADA, in view of shortage of land, increasing cost in housing sector, the Central and State Governments recommended strongly for public private joint ventures and in the said category Swiss Challenge method is the acceptable democratic method as compared to other options." 25. The apex Court laid down the law to the same effect in the following cases : - "Villianur Iyarkkai Padukappu Maiyam v. Union of India and others, (2009) 7 SCC 561 . Bajaj Hindustan Limited v. Sir Shadi Lal Enterprises Limited and another, (2011) 1 SCC 640 , Narmada Bachao Andolan v. State of Madhya Pradesh, AIR 2011 SC 3199 ." In the case of Arun Kumar Agrawal v. Union of India and others, (2013) 7 SCC 1 , the apex Court while considering the question of interference in the policy decisions of the State, held as under : - "70. In such circumstances, we find no merits in the writ petition which was filed without appreciating or understanding the scope of the decision or the making process concerning economic and commercial matters which gives liberty to States and its instrumentalities to take appropriate decision after weighing advantages and disadvantages of the same and this Court sitting in this jurisdiction, as already indicated, is not justified in interfering with those decisions, especially when there is nothing to show that those decisions are contrary to law or actuated to mala fide or irrelevant considerations. The writ petition, therefore, lacks merits. Hence, the same is dismissed." 26. In the present two writ petitions the Government Orders dated 2.7.2010, 17.9.2010 and 4.01.2011 have been challenged in respect of the sale of 33 sugar mills on the basis of irregularities committed in the sale of valuation of sugar mills. The writ petition, therefore, lacks merits. Hence, the same is dismissed." 26. In the present two writ petitions the Government Orders dated 2.7.2010, 17.9.2010 and 4.01.2011 have been challenged in respect of the sale of 33 sugar mills on the basis of irregularities committed in the sale of valuation of sugar mills. The aforesaid Government orders which have been issused clearly indicate that all these are subject to the order passed in Special Leave Petition No.16362 of 2010 Rajiv Kumar Mishra vs. State of U.P. and others, pending before the apex Court regarding the sale of units of the Corporation. For ready reference, the condition appended in the orders selling sugar mills is quoted as under : - "All further action pertaining to sale shall be subject to the outcome of the SLP No.16362/2010 Rajeev Kumar Mishra Vs. State of U.P. and others pending before the Hon'ble Supreme Court of India regarding the sale of units of UP State Sugar Corporation." 27. The similar condition has been appended in the Government Order dated 17.9.2000 and in the Government Order dated 4.11.2011. Looking to the conditions appended in the aforesaid Government Orders, whether it is permissible for this Court to adjudicate anything beyond the orders passed in the Special Leave Petition regarding which the State itself has passed an order subject to decision of the orders passed in the Special Leave Petition? All issues in regard to issue of sale, method of valuation, applicability of Swiss Challenge Method, are pending before the apex Court and they are to be decided by the apex Court. Therefore, in these circumstances, this Court feels difficulty in deciding the issue by entertaining the matter on merits though the same has already been adjudicated upon and has already been considered by a coordinate Bench of this Court. Whether it is permissible for this Court to go into that area and decide the issues which are not otherwise available to be decided in view of the foregoing facts which have been indicted herein above. 28. The apex Court in the case of Soma Isolux NH One Tollway Private Limited (supra) held as under "- "67. Whether it is permissible for this Court to go into that area and decide the issues which are not otherwise available to be decided in view of the foregoing facts which have been indicted herein above. 28. The apex Court in the case of Soma Isolux NH One Tollway Private Limited (supra) held as under "- "67. Besides the above, it is more than well settled that a question or an issue which has been raised earlier before the High Court, adjudicated on which a final judgment/order was delivered, cannot be allowed to be raised for the second time as that would be clearly barred by the principle of constructive res judicata which is too well known a principle to be dealt with herein. Suffice it to say that the well-acknowledged principle and equally well settled legal position seems to have been ignored and lost sight of not merely by the respondents but by the appellant company also which filed a writ petition in the High Court of Delhi raising the issue of shifting of Toll Plaza which finally was dismissed since the High Court of Punjab and Haryana had already dealt with it as also by filing an application for referring the dispute to the Arbitrator under the Arbitration and Conciliation Act, 1996 completely overlooking that at least this part was not permissible to be referred for arbitration once on the judicial side permission to shift the Toll Plaza was permitted by the High Court of Punjab and Haryana vide its judgment and order passed in CWP No.21332/2011and LPA No.170/2012 which had settled the issue regarding shifting of Toll Plaza." To the same effect is the decision in Shiv Chander More and others (supra). 29. The issue, therefore, in the present cases seems to be in a narrow compass and we find that the judicial propriety demands that we should not indulge into a field which is not otherwise permissible under law. The judicial discipline would be to relegate the parties to the apex Court where the Special Leave Petition is pending for adjudication in accordance with law. But so far the question of entertaining these writ petitions at this stage in the present facts and circumstances of the case is concerned, we do not find appropriate to adjudicate the issue on merit. But so far the question of entertaining these writ petitions at this stage in the present facts and circumstances of the case is concerned, we do not find appropriate to adjudicate the issue on merit. The settled legal position puts an embargo on us to hear the matter and reopen the same issue which has already been concluded by a coordinate Bench of this Court, against which a Special Leave Petition is pending and in the said petition the sale of sugar mills has also been made to subject to the interim order dated 28.5.2010 passed by the apex Court. 30. Considering the entire facts and circumstances of the case and looking to the fact that the issue in question does not require any interference by this Court, we do not think it proper to entertain these writ petitions. 31. Both the writ petitions are accordingly dismissed.