Ent Nirmata Kalyan Samiti vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

The application to condone the delay in preferring the appeal is not opposed by Ms. Pooja Banga, learned Brief Holder for the State of Uttarakhand, and the delay is, therefore, condoned. Delay condonation application stands disposed of.

The appellant-writ petitioner, an Association of brick manufacturers, has come in appeal against the order passed by the learned Single Judge in WPMS No. 691 of 2019 dated 27.03.2019. The appellant herein filed WPMS No. 691 of 2019 seeking a writ of certiorari to quash the recovery order issued by the fourth respondent; and a writ of mandamus commanding the third respondent to accept the royalty amount as per the directions issued by a Division Bench in its order dated 27.03.2019. By the recovery order, the brick owners were called upon to pay the amount of royalty specified therein.

In the order under appeal, the learned Single Judge has, after referring to the earlier order passed in WPMS No.800 of 2017 dated 21.03.2018, observed that nowhere had the Court fixed the amount of royalty; it had only granted liberty to the Secretary of the State of Uttarakhand to fix interim royalty during the hearing of the representation and, thereafter, to decide the final royalty; it transpired that the petitioner had not made any representation, and had itself decided that the royalty was 50% which was not permissible; by the Government Order dated 05.10.2009, the State Government was pleased to fix the rate of royalty on brick kiln; the Government Order was applicable to the whole of the State of Uttarakhand; while stating that the appellant-writ petitioner is a society of brick kiln owners, they had not disclosed as to how many brick kiln owners were its members; the State Government had framed the policy for royalty by order dated 05.10.2009; and this Court would not interfere in policy matters, until or unless the same are arbitrary or unconstitutional. The Writ Petition was, accordingly, dismissed.

By the earlier order, in WPMS No. 800 of 2017 dated 21.03.2017 on which appellant places heavy reliance upon, the petitioners were directed to make a representation to the Secretary, Industrial Development, Government of Uttarakhand; and the Secretary was directed to decide the same in accordance with law, provided each of the members of the petitioners' Association deposited the entire demand i.e. royalty which was liable to be paid by them as per the order.

While issuing such directions, the learned Single Judge granted liberty to the Secretary, Industrial Development, Government of Uttarakhand to reduce this amount, subject however to the condition that it shall not be less then fifty per cent of the accumulated liability. On such deposit, the Secretary was directed to give a hearing to them, and decide the ultimate liability of each of these brick kiln owners. Though the learned Single Judge had, by his order in WPMS No. 800 of 2017 dated 21.03.2018, permitted representations to be made to the Secretary, Industrial Development, Government of Uttarakhand, who was required to decide the same in accordance with law provided each of the members deposited the entire demand of royalty, no such representations, submitted by any individual brick klin owner, has been placed on record. Reference is made only to the representation submitted by the appellant-society on behalf of its members.

The learned Single Judge was justified in holding, in the order under appeal, that this Court would not interfere in matters of policy relating to fixation of royalty, unless it was arbitrary or unconstitutional. Before us, no such infirmity has been pointed out by Mr. Ajay Veer Pundir, learned counsel for the appellant-writ petitioner. Further the order passed earlier in WPMS No. 800 of 2017 dated 21.03.2018, an order inter-parties, has attained finality. The said order is, therefore, binding on the appellant-writ petitioner herein. It is not open to them, therefore, to now seek a direction contrary to the directions issued in the aforesaid order.

While we find no error in the order under appeal necessitating interference, suffice it to make it clear that the order now passed by us shall not disable the appellant and its members from complying with the order in Writ Petition (M/S) No.800 of 2017 dated 21.03.2018.

Subject to these observations, the Special Appeal fails and is, accordingly, dismissed. No costs.

Let a certified copy of this order be furnished to the learned counsel for the parties, on payment of prescribed charges, by 01.07.2019.