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2018 DIGILAW 31 (UTT)

Bhalotia Enterprises v. State of Uttarakhand

2018-01-11

V.K.BIST

body2018
JUDGMENT : V.K. BIST, J. This review application is pending since long. Application was listed on 21.12.2017, on which day, following order was passed : “Mr. Vipul Sharma, Advocate for respondent nos.2 & 3 sought adjournment on the ground that Senior Advocate Mr. U.K. Uniyal is out of station. Mr. P.S. Bisht, Advocate for the petitioner submits that he has no objection for adjournment in case some early date is fixed in the matter. I have gone through the order sheet. I find that after filing of the review application, the case has been listed many times. The case was adjourned either on the request of the counsel for the petitioner or on the request of counsel for respondent nos.2 & 3. On few occasions, the case was adjourned on the joint request of the counsel for the parties. From the perusal of the order sheet, I find that at no point of time, any of the parties opposed the adjournment. Today also the adjournment is not opposed by the counsel for the petitioner. I repeatedly asked the counsel for the petitioner whether he has any objection to the adjournment being sought by Mr. Vipul Sharma, counsel for respondent nos.2 & 3. Mr. P.S. Bisht, counsel for the petitioner replied that he has no objection and stated that the case be listed on 02.01.2018. Considering the fact that both the parties have agreed for adjournment, adjournment is granted. In such circumstances, I direct that case be listed on 02.01.2018. In case I am not sitting singly, necessary permission be sought from Hon’ble the Chief Justice for constituting the Bench.” 2. Again on 02.01.2018 following order was passed : “Heard learned counsel for the parties. After arguing for a while, learned counsel for the parties sought adjournment and prayed that the case may be listed on 11.01.2018. List this matter on 11.01.2018 at 03:00 p.m., after obtaining approval from Hon’ble the Chief Justice.” 3. Review application has been filed by the petitioner/review applicant for reviewing the judgment passed by this Court on 31.12.2009. Further prayer is made to recall the judgment and order dated 31.12.2009. 4. Writ petition filed by the petitioner was dismissed in the following manner : “10. Review application has been filed by the petitioner/review applicant for reviewing the judgment passed by this Court on 31.12.2009. Further prayer is made to recall the judgment and order dated 31.12.2009. 4. Writ petition filed by the petitioner was dismissed in the following manner : “10. This Court finds that there is a written contract between the parties i.e. the lease deed, which clearly indicates that prior permission from SIDCUL is necessary before transferring the plot in question, thus there is no deemed permission to transfer the industrial plot. Moreover, even if an entrepreneur gives the transfer fee, prior written consent/ permission is required from the SIDCUL. But said permission was not given to the petitioner. Under the transfer policy dated 27.03.2006 the case of the petitioner does not fall within the zone of consideration for granting permission to transfer the plot, as such, the petitioner has rightly been included in the list of non-transferable lease. The respondent nos.2 & 3 have come up with the case that on 27.03.2007 the SIDCUL issued an order regarding transfer of industrial plots stipulating therein the Clause (ii) that the allottees (except those who have executed lease deed) will be given a chance to surrender the plots to SIDCUL @ 90% of the prevailing price. The main idea behind the welfare State is to increase human resources in the State so that mass of people may dig up advantages. In this very context the State of Uttarakhand is giving relaxation in excise duty and other rebates to the companies in establishing industrial units in the State. It is visualized from the facts that in the area of SIDCUL, there are so many companies, which are interested to establish new industries in the same conditions prevailing at the site. Thus, the action of the respondents cannot be said as arbitrary. Moreover, the petitioner has already executed lease deed in his favour, therefore it is not possible to permit him to transfer the allotted plot and it is not open to the petitioner to transfer the aforesaid lease deed to any other entrepreneurs. Thus, the action of the respondents cannot be said as arbitrary. Moreover, the petitioner has already executed lease deed in his favour, therefore it is not possible to permit him to transfer the allotted plot and it is not open to the petitioner to transfer the aforesaid lease deed to any other entrepreneurs. Suffice it to observe that, in case, if the petitioner is reluctant to accept the proposal of respondents, he may claim the cost of the plot compared with the circle rate of the area, after surrendering the plot in favour of the respondents, and may also claim for other investments incurred by him, which may be assessed by any specialist. 11. In the forgoing facts and circumstances of the case this Court is not inclined to issue a writ of mandamus as prayed by the petitioner. I find no illegality, infirmity or perversity in the order no. 1574 dated 27.03.2006 and in the order dated 03.11.2006 passed by the State Industrial Development Corporation of Uttarakhand. The petition lacks merit and is liable to be dismissed.” 5. Learned counsel for the review applicant submitted that the judgment and order dated 31.12.2009 is based on incorrect facts. He submitted that order dated 31.12.2009 has been passed by the Court by relying on the office order dated 27.03.2006. He submitted that the said office order is said to be based on the resolution passed by the Board of Directors but the said resolution does not discriminate between the allottees who had executed the lease deeds and the allottees who had not executed the lease deeds. He submitted that after disposal of the writ petition he filed an application under right to information and he came to know that the said facts were incorrect. Thus, respondents played fraud with the Court and the order dated 31.12.2009 deserves to be recalled. 6. Mr. U.K. Uniyal, learned Senior Advocate for respondent nos.2 & 3 submitted that petitioner’s counsel who appeared before the Court at the time when the order dated 31.12.2009 was passed, is not before the Court for pressing the review application. He submitted that another counsel cannot be permitted to appear in the case. He submitted that review petition filed by the petitioner is not maintainable as the counsel is different from one who appeared before the Court in earlier round. He submitted that another counsel cannot be permitted to appear in the case. He submitted that review petition filed by the petitioner is not maintainable as the counsel is different from one who appeared before the Court in earlier round. He also submitted that in fact, subsequent to the order passed by this Court, after cancellation of the lease, the plot in question was sold to another person and he is not before the Court. He further submitted that subsequently on 18.02.2010 the petitioner himself wrote to the Managing Director SIDCUL stating therein that the petitioner is not interested to set up due to financial reason and requested for payment of money. Said request made by the petitioner was considered by SIDCUL and was rejected on 11.03.2010. That order is also not challenged. 7. This Court finds that counter affidavit was served on petitioner’s counsel on 17.12.2008. Petition was decided on 31.12.2009. Petitioner had sufficient time to verify the facts mentioned in the counter affidavit. If some incorrect facts were mentioned in the counter affidavit, it was the duty of the petitioner to point out those facts at the time of hearing of the case. The Court decided the case on the basis of material available before it and also on the basis of arguments advanced by the counsel for the parties. The counsel, who represented the petitioner at the time of hearing of the case, is not before the Court. This Court does not find any error apparent on the face of record. The review application as well as recall application are dismissed.