TaxTMI 
TaxTMI 
2016 (8) TMI 1527
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g 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 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 f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thod 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 ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tition 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). 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 fi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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. 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. To the same effect is the decision in Raju Ramsingh Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sively 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 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve 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 subj....
X X X X Extracts X X X X
X X X X Extracts X X X X
....x 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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." 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 poi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....laughter 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-incharge 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. The proposal of I. Ahmed & Company being very vague was not accepted. Respondent No. 5 had....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 actio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xecutive 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." 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 dec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 or....