SACHCHIDANAND GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) 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. 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 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. 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. 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. 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.