[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR COMMON ORDER (1) S.B. CIVIL REVIEW PETITION NO. 34/2006 IN S.B. CIVIL WRIT PETITION NO. 4031/2005 M/s K.C. MERCANTILE LIMITED & ANR. Vs. RAJASTHAN STATE INDUSTRIAL DEVELOPMENT AND INVESTMENT CORPORATION LIMITED & (2) S.B. CIVIL REVIEW PETITION NO. 103/2006 IN S.B. CIVIL WRIT PETITION NO. 4031/2005 M/s ARPIT ENGINEERING INDUSTRIES Vs. M/s K.C. MERCHANTILE LIMITED & ORS. Date: 21/08/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Bajrang Lal Sharma, Sr. Advocate with ) Mr. Manish Sharma and ) Mr. Ajeet Bhandari) for the review petitioners/applicants. Mr. Kamlakar Sharma and Mr. A.K. Pareek for the respondents (writ petitioners). **** Since both the review petitions, (i) S.B. Civil Review Petition No. 34/2006 filed by applicant Rajasthan State Industrial Development and Investment Corporation Limited and (ii) S.B. Civil Review Petition No. 103/2006 filed by applicant M/s Arpit Engineering Industries, are directed against the same impugned judgment dated 09.12.2005 passed by this Court, therefore, the same are being decided by this common order. [2] 2. The applicant Rajasthan State Industrial Development and Investment Corporation Limited (for short 'the RIICO') has preferred the review petition on the ground that this Court has not considered that in the Circular dated 25.10.2002 itself it has been mentioned that the RIICO can auction the plot having location advantage in area with a view to fetch better money. 3. It is also vehemently contended on behalf of the applicant RIICO that the petitioner had not applied for allotment of plot as contemplated in Rule 3 of the RIICO Disposal of Land Rules, 1979 (for short 'the Rules of 1979'). As per Rule 3 of the Rules of 1979, it is mandatory that the application is to be made in prescribed Form A. The application form should contain documents as contemplated in Rule 3(i)to 3(v) of the Rules of 1979. The petitioner had sent a simple letter (Annexure-7) and he neither applied in Form A nor attached the documents as contemplated in the Rules. Thus, since the petitioner has not made application in proper format and only a simple application for allotment has been made by the petitioner, therefore, the same cannot be treated as application for allotment of plot. 4. Further it is also disputed that the [3] petitioners had applied for the plots first in Bagrana Industrial Area. Clause (a) of the Circular dated 25.10.2002 specifically provides that a priority registration should be maintained and that a application for allotment of lands should be entered in the priority register only after receipt of application form and requisite money in cash or demand draft. 5. It is also contended that this Court has not considered that the brochure published by the RIICO was only for information regarding various plots of land available with RIICO for allotment. Even the Circular dated 25.10.2002 do not provide that there cannot be auction of the land. 6. The order asked for review has been challenged on the ground that this Court while deciding the writ petition erred in giving direction that the land should be allotted to the petitioners in the writ petition by charging Rs. 135/- per sqm. when admittedly the Infrastructure Development Committee has decided to fix Rs. 175/- per sqm. as minimum rate of development charges for allotment of plot in Bagrana Industrial Area. 7. Learned counsel Mr. Bhandari appearing for the review petitioner further submits that this [4] Court while deciding the writ petition, has not considered the provisions of Rule 27 of the RIICO Disposal of Land Rules, 1979, which read as under:- “27. RESERVATION OR REVOACTION OF PLOT: If in the opinion of the Corporation, any plot or area is required to be reserved or withdrawn from allotment, the Corporation may do so at any time or revoke any proposal to dispose of such a plot or area in such manner as decided by the Corporation. The Corporation reserves the right not to allot a plot of party's choice or not to make allotment at all without assigning any reason. The land area to be allotted for a particular type of industry shall be decided by the Corporation, which shall be final.” 8. Further as per the provisions of Rule 5 of the Rules of 1979, the RIICO is having full right to put a plot for auction. Rule 5 of the RIICO Disposal of Land Rules, 1979 reads as under:- “5. RESERVATION/PUBLIC AUCTION: The Corporation shall have the right to reserve certain plots/land in the industrial area that it may dispose of by public auction or by entertaining individual applications. The terms and conditions governing plot auction shall generally be as laid down by the Corporation as it may deem fit from time to time.” 9. The circulars which are issued by the RIICO cannot be construed contrary to the Rules. Circulars are merely guidelines and are not statutory in nature and the same cannot take place [5] of the Rules. 10. The decision of RIICO is in public interest that the public auction would fetch a better price. Even otherwise, when there are more claimants, it is always in the interest of public exchequer that the land is put to auction. If allotment at the rate of Rs. 135/- per sqm. is made to the petitioners, the public exchequer would be put to loss. 11. Another connected review petition i.e. S.B. Civil Review Petition No. 103/2006 has been preferred by applicant M/s Arpit Engineering Industries on the ground that this Court while deciding the writ petition, has wrongly considered that the petitioner is the first applicant as per the brochure amended up to 30.09.2004, whereas the letter (Annexure-7 of the writ petition) in absence of prescribed application form and project report cannot be termed as completion of requisite formalities and, therefore, the candidature of the petitioners ought not to have been considered for allotment of industrial plot at Bagrana Industrial Area as against the candidature of the review petitioner/applicant who has completed all the requisite formalities and is willing to purchase the said plots @ Rs. 175/- per sqm. [6] 12. In addition to the submissions made on behalf of the applicant RIICO in the connected review petition, it is contended on behalf of the review petitioner/applicant M/s Arpit Engineering Industries (applicant in Review Petition No. 103/2006) that joint writ petition was filed by petitioners M/s K.C. Mercantile Limited and M/s Neelkanth Colloides Limited and the same is not maintainable and is also not maintainable as no notice for demand of justice was given prior to filing the writ petition and in the absence of notice for demand of justice, the direction in the nature of mandamus ought not to have been issued in favour of the petitioners M/s K.C. Mercantile Limited and M/s Neelkanth Colloides Limited. 13. It is not disputed that the RIICO has published a brochure for industrial area setting up by it in the State of Rajasthan which indicated rate of development charges of industrial area where land is available. To apply for said allotment of plots mentioned in the brochure, the interested persons have to buy a prescribed application form for Rs. 100/- from RIICO and to submit the same after fulfilling the terms and conditions mentioned therein by depositing security money @ 1% of the prevailing rate of development charges, 25% cost of land of the prevailing [7] development charges would be given along with the application for allotment and project report land requirement and utilities and the review petitioner is the only person who has completed the requisite formalities. 14. It is further admitted that the applicant/ review petitioner offered the development charges @ Rs. 135/- per sqm. and it is also not disputed that demand draft deposited by the review petitioner was returned and the request was turned down by the RIICO while stating that the Management has decided to dispose off the industrial land of Industrial Area Bagrana by way of auction inviting bids as per rule for which a separate advertisement in the news paper shall be given shortly. 15. It is further contended that after receipt of the said letter, the review petition was waiting for issuance of the fresh advertisement in order to participate in the said bid or auction proceedings. On 09.12.2004, the RIICO published the advertisement to this effect and fixed the date of auction as 22.12.2004, but on the said date the review petitioner came to know that the respondent cancelled the auction and a fresh notice will be published very soon. When the said advertisement was not published, in the month of March, 2006 the [8] petitioner has personally visited in the Office of Jaipur South of RIICO in order to ascertain the latest position regarding allotment of industrial plot situated at Bagrana and the applicant was intimated by the officials of the RIICO that the petitioners (respondent Nos. 1 and 2 here in the review petition) have filed a writ petition before the High Court, wherein RIICO has been directed by this Court to allot the aforesaid land in favour of the petitioners after charging Rs. 135/- per sqm. Since the rights of the review petitioner/applicant are being seriously prejudiced by the said order and the applicant being one of the directly affected party, therefore, after obtaining the certified copy of the order as also of the writ petition, has preferred the instant review petition. 16. Learned counsel appearing for the review petitioner submits that even the review petitioner was not party in the original writ petition, can file the review petition. 17. In support of his submission that writ is not maintainable in the absence of notice for demand of justice, the learned counsel for the review petitioner placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case [9] of State of Haryana Vs. Chanan Mal etc., reported in AIR 1976 SC 1654, more particularly para 42 of the judgment. 18. As per the ratio decided by the Hon'ble Supreme Court, any petitioner who applies for a writ or order in the nature of a Mandamus should, in compliance with a well-known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a Court for such an order even where the alleged obligation is established. 19. To this effect, he also placed reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Saraswati Industrial Vs. U.O.I., reported in AIR 1975 SC 460. 20. It is further contended that as the review petitioner was not made party to the writ petition and after decision of the writ petition when the review petitioner came to know about the judgment dated 09.12.2005 passed by this Court, therefore, after obtaining certified copy of the order, has preferred the review petition on 24.07.2006 and in support of his submissions, he placed reliance on [10] the judgment rendered by the Hon'ble Supreme Court in the case of Surjit Singh & Ors. Vs. U.O.I, reported in 1997(1) SCC 592 and in the case of A.R. Antuley Vs. R.S. Nayak, reported in 1998(2) SCC 602. 21. After referring the aforesaid judgments, the learned counsel for the review petition further submits that since the respondents (petitioners in the writ petition) have not arrayed the review petitioner as party respondent being a necessary party, therefore, the writ petition is liable to be dismissed for want of non-joinder of necessary party, as held by the Hon'ble Supreme Court in the cases of Prabodh Verma Vs. State of U.P., reported in 1984(4) SCC 251, Sadhu Bhagwandas Durlabhram & Ors. Vs. Udaykumar H. Dave & Ors., 2006(9) SCC 599 and in the case of Dattatreya & Ors. Vs. Mahaveer & Ors., 2004(10) SCC 665. 22. In reply to the preliminary objection raised by the respondents that the review petition is not maintainable, the review petitioner has referred the judgment rendered by the Hon'ble Supreme Court in the cases reported in 2005(12) SCC 149 and (1994) 2 SCC 622. 23. Per contra, learned counsel appearing for [11] the respondents (petitioners in the writ petition) has strongly controverted the submissions made on behalf of the review petitioners and has raised a preliminary objection that the review petition filed by review petitioner M/s Arpit Engineering Industries is not maintainable as the review petitioner was not party to the writ petition which was decided by this Court vide order dated 09.12.2005 and the review petitioner cannot be allowed to file the review petition. 24. Learned counsel further contended that it is an established fact that the order even though it may be erroneous cannot be reviewed unless it is brought within the parameters of the principles as mentioned in Order 47 Rule 1 CPC. 25. He also submits that as per the brochure issued by the RIICO, the applications were invited for allotment of plots on the principle of 'First In First Out' and for Bagrana Industrial Area, the reserve price was fixed as Rs. 100/- per sqm. When RIICO had itself notified the vacancies of plots, there was no justification for it to return the applications subsequently along with refund of the payment made on the ground that it had taken a decision to auction the plot. [12] 26. It is also contended that even in the case of failure of the writ petition, the applicant/ review petitioner M/s Arpit Engineering Industries will not get any relief as the review petitioner has not challenged the order of cancellation of his plot Annexure-R/2. 27. In support of his submissions, the learned counsel for the respondents (writ petitioners) placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Gopabandhu Biswal Vs. Krishan Chandra Mohanty and others, reported in AIR 1998 SC 1872, wherein in Head Note- B, it has been observed by the Hon'ble Supreme Court as under:- “(B). Administrative Tribunals Act (13 of 1985), S. 22(3)(f)- Civil P.C. (1908), O.47, R.1- Review petition- By “person aggrieved”- Tribunal in judgment impugned, interprets service rule- And directing main applicant to main petition to be considered for promotion to police service between a particular period and not thereafter- Applicants to review petition nowhere within zone of consideration for promotion to police service- Merely having a chance of future promotion does not confer any legal right on them- Applicants cannot be considered as “parties aggrieved” by impugned judgment- Review petition by them is not maintainable- Person not directly affected by impugned order cannot be considered as person aggrieved.” [13] 28. After referring the aforesaid judgment, learned counsel Mr. Kamlakar Sharma further submits that in the instant case the review petition is not based on new factual discovery non on ground of error apparent on face of record, as held by the Division Bench of this Court in the case of Pema Ram & Anr. Vs. Rajendra & Ors., reported in 2002 WLC (Raj.) UC 526. 29. Similarly, a co-ordinate Bench of this Court in the case of Govind Poojara Vs. Mohan Lal & Ors., reported in 1999(1) WLC (Raj.) 384, has held that no review is maintainable on the ground that impugned order was highly erroneous, illegal or wrong. 30. Further in the case of Shanker Lal Bachhani Vs. Shradha Manava Kalyan Samiti & Ors., reported in 1999(1) WLC (Raj.) 18, the Division Bench of this Court has held that “Review petition by person not arrayed in writ petition disposed on 28.1.1998- Review incompetent- Petitioner can seek alternative remedy for vindication or protection of his rights by filing suit for injunction or declaration against threatened demolition of structure from area in question.” 31. I have heard rival submissions of the [14] respective parties and carefully gone through the order dated 09.12.2005 passed by this Court in the writ petition as well as the provisions of RIICO Disposal of Land Rules, 1979 as also the judgments referred by the learned counsels appearing for the respective parties including the material available on the record. 32. The review petition which has been filed by applicant/review petitioner RIICO is mainly on the ground that the RIICO is empowered to allot the plots/land as per the brochure or by way of open auction as per Rule 27 of the Rules of 1979. Further challenged on the ground that the petitioners have not submitted proper application in the format as prescribed in the rules. 33. The application which was sent by the respondent (writ petitioners) was not rejected by the RIICO on the ground that it is not submitted in the format as prescribed in the rules but the required money which was deposited along with the application was returned on the ground that the Corporation has decided to allot the plots by way of open auction. Thus, the plea taken by the review petitioner RIICO as well as by review petitioner M/s Arpit Engineering Industries that the petitioners have not properly submitted the [15] application is not tenable. It was for the RIICO that the application which was not submitted in the prescribed format should not be accepted but the same was not rejected on this count. 34. The impugned order dated 09.12.2005 passed by this Court has been further challenged on the ground that this court has wrongly fixed the rate of Rs. 135/- per sqm. The rate which was fixed was on the basis of the submissions made on behalf of the RIICO that M/s Arpit Engineering Industries has offered Rs. 135/- per sqm. but as the respondent (writ petitioner) was the first applicant who moved the application, as per the brochure he has got right of First In First Out. Therefore, the rate of Rs. 135/- per sqm. was fixed in the interest of public exchequer, although in the brochure the rate of Rs. 100/- per sqm. was fixed, but in the interest of public exchequer, rate of Rs. 135/- per sqm. was fixed as alleged to be offered by review petitioner M/s Arpit Engineering Industries. 35. In the review petition filed by M/s Arpit Engineering Industries, it is submitted that the writ petition is not maintainable as prior to filing the writ petition no legal notice or notice for demand of justice was served and in the absence of notice for demand of justice, the writ of [16] mandamus cannot be issued. 36. Prior to filing of the writ petition, the notice for demand of justice was sent by the Counsel for the respondents (writ petitioners) on 24.03.2005 and the same has been annexed as Annexure-16 along with the writ petition. 37. Thus, the plea taken by the review petitioner M/s Arpit Engineering Industries in S.B. Civil Review Petition No. 103/2006 is contrary to the factual aspects. 38. Considering the overall facts and circumstances of the case and as per the settled preposition of law laid down by the Hon'ble Supreme Court and this Court, there is limited scope of review and the submissions made on behalf of the review petitioners are on factual aspects not on legal aspects. The review petitioners are not able to point out any illegality or error in the impugned order dated 09.12.2005 passed by this Court in the writ petition and if they are aggrieved by the order passed by this Court, they have remedy to file an appeal against such order, but in any case, both the review petitions filed on behalf of applicants/review petitioners Rajasthan State Industrial Development and Investment [17] Corporation Limited and M/s Arpit Engineering Industries deserve to be dismissed being devoid of merit. 39. In the result, both the review petitions fail being devoid of merit and the same are hereby dismissed with no order as to costs. (K.S. RATHORE),J. /KKC/ (Reserved)