TMI Blog2016 (8) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainability 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. 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. Petition dismissed. - Misc. Bench No. 5283 of 2011 with Misc. Bench No. 9613 of 2014 - - - Dated:- 20-8-2016 - Hon'ble Satyendra Singh Chauhan And Hon'ble Anant Kumar, JJ. For the Petitioner : Akhilesh Kalra, Chandra Dhari Singh, Dhiraj, Kumar Chaurasiya, Dipak Seth, G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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. 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 concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 75 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. 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. The above order was passed by the apex Court clearly goes to indicate that it was modified knowingly that the sale of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 enterta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. The similar condition has been appended in the Government Order dated 17.9.2000 and in the Government Order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra). 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. 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. 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. Both the writ petitions are accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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