IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 443 of 2008 M/s Uttaranchal Packaging Pvt. Ltd., Head Office-Plot No.7 Arkosh Industrial Estate, Village- Dheku, District- Raigad, Khopoli- 410203, Maharastra through its Managing Director. … Petitioner. Versus 1. State of Uttarakhand through Secretary Industries. 2. State Industrial Development Corporation of Uttarakhand Ltd. through its Managing Director, 2 New Cantt. Road, Dehradun. 3. Management Director, State Industrial Development Corporation of Uttarakhand Ltd. 2 New Cantt. Road, Dehradun. 4. General Manager, State Industrial Development Corporation of Uttarakhand Ltd. 2 New Cantt. Road Dehradun. … Respondent. Mr. V.K. Kohli Senior Advocate with Mr. H.S. Dhillon, learned counsel for the petitioner. Mr. B.K.Gupta, learned Additional Advocate General for the respondent No.1. Mr. Vipul Sharma, Advocate for the respondent No. 2 to 4. Date April 21, 2010. Hon’ble B.S.Verma, J. Heard learned counsel for the parties and perused the record. 2. According to the petitioner the petitioner has sought the following relief:- 1. To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 10.10.2007 which has been communicated to the petitioner company through letter dated 11.10.2007 numbered as Ref: 8456/MD/SIDCUL/SC/07 and order dated 15.01.2008 passed by respondent no. 3 by restoring the position to status prior thereto by continuing the allotment and lease deed on the same terms and conditions. 2. To issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the period for construction and production as being extended in the case of the petitioner company, in the fact and circumstances of the case till the attainment of production as intimated to the Excise Department under clause 1.1 (a) of the lease deed. 3. To mould and issue any other writ, order or direction which this Hon’ble Court deems just and proper in the circumstances of the case. 2 4. To award the cost of the petition to the petitioner. 3. The petitioner is a Public Limited Company. The petitioner was allotted plot no. 6 measuring 1000 Sq.Mt., in Sector- 7, SIDCUL area, Rudrapur by the SIDCUL on 30-9-2004. Subsequent to that, the layout plan was changed by the respondents and on 1-3-2005 due to revision of layout plan, the plot of the petitioner was changed from plot no. 6 to plot no. 36. Subsequently, on 15-6-2005 the lease deed of the plot was executed for a term of 90 years and possession was given on 4-3-2006. 4. According to the petitioner on 7-7-2006 the respondents cancelled the allotment of the plot of the petitioner company in arbitrary manner. The petitioner made a representation on 14-7-2006 for extension of time for commencement of production. The request of the petitioner was declined by the respondent-authority, therefore, Writ Petition No. 939 of 2006 (MB) was filed by the petitioner, which was finally disposed of by order dated 21-12-2006 by the Division Bench of this Court in terms of the order dated 16-12-2006 passed in Writ Petition No. 999 of 2006, M/s Falcon Pvt. Ltd. Vs. State of Uttaranchal and others. The order dated 16-12-2006 was challenged by the respondents before the Apex Court in Special Leave Petition ( Civil Appeal No. 3402 of 2007 SIDCUL Vs. Jyoti Industries). Ultimately, the Apex Court by its order dated 1-8-2007 had disposed of the said appeal along with seven appeals with the following directions:- (1) Each of the entrepreneurs who were respondents before us, shall file independent representation before the Managing Director of the appellant-Corporation within two weeks from date questioning the legality or validity of the order of cancellation of allotment and/or for restoration of the properties, as the case may be. (2) The Managing Director of the appellant-Corporation shall hear the parties or their authorized representative, within two weeks thereafter. It will be open to the entrepreneurs to produce such evidence or evidences before the said authority as they may intend to do. 3 (3) The Department may also produce their evidence before the said authority. (4) If found necessary, the Managing Director may inspect the site himself or cause it to be inspected by some other duly authorized officer in this behalf. (5) The Managing Director shall pass appropriate speaking order in each case separately, within six weeks from the date of filing the respective representations. (6) It will be open to the concerned entrepreneurs also to point out that in their cases, either possession had not been handed over or the lease deed/transfer deed had not been executed. (7) Status quo in respect of the properties shall be maintained by the parties in the meantime. 5. In compliance of the aforesaid order of the Supreme Court, the petitioner company made a representation before the respondent no.2. The respondent authority rejected the representation dated 11-08-2007 vide order dated 10-10-2007. On 27-10-2007 the petitioner made an application to the respondents praying that the plot in question may be restored as per the restoration fee of 7.5% of base rate. 6. The respondents however agreed to restore the plot in question after depositing the restoration charges at the current base rate which comes to Rs. 19,40,000/- and by order dated 15-1-2008, observed that since the allottee company has constructed its building and plaster work is also completed, restoration of the plot is allowed as per current restoration policy and the petitioner was directed to deposit restoration charges based on the difference of current base rate and rate at the time of allotment i.e. in the year 2004 of Rs. 19,40,000 for restoration of plot within 15 days. 7. The contention of the learned counsel for the petitioner is that since the possession was given to the petitioner on 4-3-2006, as per lease deed, the period of 24 months shall be reckoned from the date of letter of allotment of demised land. 4 8. The next contention raised on behalf of the petitioner is that the plot was also changed by the respondent authority on 1- 3-2005. The allotment be treated as it was made on 1-3-2005. The plot was cancelled within two years even from the initial date of allotment. 9. On behalf of the respondent nos. 2 to 4 counter affidavit has been filed. It has been stated in paragraph no. 4 that there was alternate remedy of arbitration clause available to the petitioner, therefore, writ petition is not maintainable. It is stated in paragraph nos. 9 and 10 of the counter affidavit that the respondent corporation revised the plot no. 6 to plot no. 36 on 1-3-2005. As per condition no. 5 of the allotment letter, it was incumbent upon the petitioner to take possession of the plot within 60 days of the allotment or within 60 days of the execution of lease deed whichever is earlier and the petitioner has committed default on the above condition. It is also stated that the failure on the part of the petitioner leads to automatic cancellation of the allotted plot. It is stated that the lease deed was executed on 15-6-2005 and petitioner was given various notices for utilization of the industrial plot but no construction was made by the petitioner until 5-7-2006. 10. I have heard learned counsel for the parties and perused the record including the memo of writ petition, the counter version as well as the rejoinder affidavit filed by the petitioner. 11. The factual aspect mentioned above has not been disputed. According to the respondents, the petitioner had not taken possession within the stipulated period of 60 days and construction was not started within 60 days and production had not commenced. 12. So far as the contention of the respondents that the petitioner ought to have taken possession within a period of 60 days from the date of initial allotment of plot is concerned, it is pertinent 5 to mention that the respondent authority had changed the plot due to change in layout plan, therefore, this contention is not acceptable. 13. The contention of the learned counsel for the respondents-SIDCUL is that in any case, the production has to be commenced within two years from the date of allotment. The possession was given after changing the plot from plot no. 6 to plot no. 36 by the respondent authority on 4-3-2006 and this fact is not disputed by the petitioner. 14. Along with the rejoinder affidavit, the petitioner has annexed Annexure RA-1, which is an information obtained under the Right to Information Act. A perusal of this document shows that possession of the land was given to the SIDCUL of the land in question on 11-2-2005. 15. So far as the contention of the of the respondents that the petitioner should have invoked arbitration clause is concerned, this Court while allowing the Writ Petition No. 1008 of 2008 (M/S) M/s Falcon Contracts Pvt. Ltd. Vs. State of Uttarakhand and others by order dated 23-3-2010 has observed that “no doubt, there is a provision of an arbitration in the lease deed and that the parties could be relegated to an arbitration proceedings but after one round of litigation, this Court finds that substantial justice was required to be done between the parties and that there would be a travesty of justice if the parties were relegated to an alternate remedy by raising a dispute before an Arbitrator.” It was also observed that the “decision of the authority rejecting the representation could not be a matter of dispute to be decided in an arbitration proceedings under Clause 9.2 of the lease deed. The arbitration is only confined to the terms and conditions and the rights and obligations of the parties arising under the lease deed. The representation which was rejected by the respondents was outside the arbitration proceedings.” 6 16. Since the petitioner is aggrieved by the order of rejection of representation dated 10-10-2007 and the order dated 15-1-2008, which is in continuation of the order dated 10-10-2007, I am of the considered view that the writ petition is fully maintainable. The contention of the learned counsel for the respondents on the maintainability of writ petition is not tenable for the reasons above. 17. For the reasons and discussion above, the writ petition deserves to be allowed and the order dated 10-10-2007 and the order dated 15-1-2008 impugned in this writ petition are liable to be quashed and are accordingly quashed. 18. The writ petition is allowed with the following directions:- 1. The impugned orders dated 10-10-2007 and the order dated 15-1-2008, rejecting the representation of the petitioner, passed by the respondents are quashed. 2. The petitioner shall be allowed to move for restoration of his plot by making an application by depositing extra charge @ 7.5% of the amount of base rate of the year 2004. 3. On depositing the amount, the lease shall continue for the remaining period of lease. 4. The petitioner shall start commercial production of the items mentioned in the lease within a period of nine months from the date of this order. ( B.S.Verma, J.) RCP 7