IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 21 of 2010 Vega Auto Accessories Pvt. Ltd. ….Appellant Versus State of Uttarakhand and others. …Respondents. Mr. M.S. Pal, Senior Advocate with Mr. Tarun P.S. Takuli, Advocate for the appellant. Mr. P.C. Bisht, Advocate for respondent no. 1. Mr. Rakesh Thapliyal, Advocate for respondent nos. 2, 3 and 4. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. Khehar, C.J, (Oral) The appellant was allotted plot No. 22 in Sector 4 of the Industrial Integrated Estate, Pant Nagar, Udham Singh Nagar. The aforesaid allotment envisaged certain conditions relating to construction and commencement of production. The factual position depicted in paragraph 7 of the impugned order dated 29.12.2009 reveals that the appellant did not fulfil any of the aforesaid conditions. This factual position flows naturally from the fact that when the Regional Manager, SIDCUL inspected the site on 18.12.2007, he found that the appellant had not even started construction of the factory. As such, there was no question of production therein. Based on the violation of the conditions of allotment, the SIDCUL cancelled the plot allotted to the appellant. Thereafter, on a representation made by the appellant, an order dated 7.3.2008 was passed by the SIDCUL allowing him restoration subject to the following conditions :- “(i) Petitioner has to submit a time bound programme for starting commercial production. (maximum time nine months) 2 (ii) He has to submit an undertaking. (draft of the same is enclosed) (iii) He is further required to submit a bank guarantee of Rs. 5,00,000/- regarding commencement of commercial production within stipulated period. (draft of the same is enclosed)” In addition to the aforesaid conditions, the appellant was also directed to pay restoration charges uniformly applied to all such cases. Despite agreeing with the appellant so as to enable it restoration, the appellant approached this Court by filing Writ Petition (MS) No. 387 of 2009 so as to impugn the order dated 7.3.2008. The aforesaid writ petition was disposed of by a learned Single Judge of this Court by the impugned order dated 29.12.2009. Through the impugned order, the appellant was directed to comply with the three conditions stipulated in the order dated 7.3.2008, as also, to pay restoration charges. The aforesaid determination by the learned Single Judge in his order dated 29.12.2009 disposing of Writ Petition (MS) No. 387 of 2009 has been assailed by the appellant through the present special appeal. During the course of hearing of the instant special appeal, the solitary contention of the learned counsel for the appellant is that the claim of the appellant has been prejudiced, inasmuch as, the liberty available to the appellant to initiate arbitration proceedings envisaged in a lease agreement executed by the appellant with the respondents on 12.5.2006 has been foreclosed. The clause of the lease agreement relied upon by the learned counsel for the appellant is being extracted hereunder :- “9.2 All disputes and differences in relation to the applicability, interpretation, rights and obligations of the parties hereunder and/or arising under these presents, shall be referred to a Sole Arbitrator, to be nominated by the Managing Director of the Lessor. Writhing thirty (30) days 3 from the date of receipt of a request for nomination of Sole Arbitrator, the Managing Director of the Lessor shall, nomination of Sole Arbitrator and issue communication in respect of the same to the parties. In case, the Sole Arbitrator is not nominated within the period stipulated hereinabove, the parties will be at liberty to invoke the provision of the Arbitration and Conciliation Act, 1996 and any subsequent amendments thereto or enactment(s) in substitution thereof, for appointment of Sole Arbitrator.” We have considered the solitary contention advanced by the learned counsel for the appellant. Learned counsel for the appellant has not assailed the determination rendered by the learned Single Judge on the basis of the violation of any statutory or legal provision nor has he assailed the same on the basis of any Government Order. It is, therefore, apparent that the determination rendered by the learned Single Judge in upholding the conditions of restoration extracted hereinabove, as also, the payment of restoration charges is not in violation of any statutory or legal provision, nor is the same in violation of any Government Order. It is in the background of the aforesaid conclusion, that we are liable to examine the solitary submission advanced by the learned counsel for the appellant on the basis of clause 9.2 of the lease agreement (extracted hereinabove). On the issue adjudicated upon by the learned Single Judge, it is now not open for this Court to allow the appellant to seek relief at the hands of an Arbitrator. The appellant having approached this Court through the Writ Petition (MS) No. 387 of 2009 so as to assail the impugned order dated 7.3.2008 must be deemed to have forgone his remedy to seek arbitration proceedings on the subject matter in respect whereof, he had approached this Court. A decision having been rendered against the 4 appellant by a learned Single Judge, it is now not open to the appellant to retrace his steps. Allowing the appellant to do so may result in handing over a controversy, which has already been adjudicated upon by this Court, to the hands of an Arbitrator i.e. a person inferior to this Court, as also, subject to the jurisdiction of this Court. In view of the above, we find no merit in the instant appeal and the same is hereby dismissed. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J) 15.3.2010 Avneet