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Judgment
Shabihul Hasnain, J.
An Application for allowing the petitioners to start construction work and commissioning the factory without executing the lease deed on terms communicated by the State Government supported with an affidavit has been filed today, by Sri Brijesh Kumar Shukla.
Heard Dr. Ashok Nigam and Sri Mohd. Arif Khan,Senior Advocates assisted by Sri Brijesh Kumar Shukla and Maya Shanker Srivastava learned counsel for the petitioners and Sri D.K. Upadhya, learned Chief Standing Counsel for the State.
It may be relevant to put on record that the petitioners in the writ petition have challenged the order of cancellation dated 11.10.2008 passed by the State Government by means of which the land allotted to the petitioners for establishment of Railway Coach Factory, has been cancelled. The petitioners claimed that it is a grant and could not have been cancelled in the manner, as it has been cancelled. In the meantime the State government decided to lease out the aforesaid land to the petitioners for establishment of Railway Coach Factory.
It is admitted case of the State that a thoroughly revised draft lease deed has already been handed over to the petitioners on 8th December 2008 and in paragraph 24 of the Counter Affidavit the State has stated that since the request made by the Railway Authorities to give the land on lease has been duly accepted by the State Government, no dispute remains to be adjudicated upon in the writ petition.
By our order dated 11th November 2008, considering the plea of both the sides e.g petitioners as well as the State Government and finding that in either way i.e. whether challenge to the cancellation order passed by the State Government succeeds in the writ petition or even if, it fails, the State Government having decided to give the land on lease, direction was issued for the execution of the lease deed so that construction may be started.
The draft lease deed which was initially handed over to the petitioners contained certain clauses which were not acceptable to the petitioners, as a consequence of which, the revised draft lease deed has been furnished.
The petitioners, though, have some reservation with respect to certain clauses of proposed lease deed i.g, the maximum period of lease being only 90 years and not a perpetual lease and also the condition of taking permission from the State Government, in case the petitioners want to sublet the land for any other purpose, however, on the application for interim relief there is consensus amongst the petitioners as well as the State Government that subject to any orders which might be passed later on, the petitioners may be allowed to start the construction of Railway Coach Factory for which purpose the parties will execute the lease deed.
We, on consideration of the issues involved, are of the view that in view of the agreement between both the parties for establishment of Railway Coach Factory, the petitioners be allowed to raise construction subject to the execution of the lease deed as suggested by Sri D.K. Upadhya. The lease deed may be executed by the petitioners subject to any further orders which might be passed by the Court in the writ petition and in case after execution of the lease deed, if it is found that some clauses of the lease deed, need be reconsidered or modified that may also be considered and the parties can negotiate on such issues.
In regard to the clause that permission be obtained by the petitioners, in case, they want to sublet any portion of the land of the lease deed to any other private person for the purpose not connected with the establishment of Railway Coach Factory or its functioning or running, the permission would be obtained from the State Government, does not call for any interference at this stage. However, if any ancillary unit in connection with the coach factory is to be established by any third person, the question of taking permission by the State Government may be required to be considered at some later stage, or may be considered in detail after the lease deed is executed and when the matter is heard by the Court.
Sri D.K. Upadhya, though clarifies that so far the establishment/construction of Railway Colony for the purpose of staff and workers is concerned, that can obviously be done under the lease without any permission and joint venture establishment can also be established for which permission may not be required. In our opinion, these issues, if necessary, may be considered later on.
Since the State Government has agreed to provide the land in question on lease, therefore, whether the writ petition challenging the cancellation of grant, succeeds or fails, the right of the petitioners to use the land for the Railway Coach Factory shall not be affected.
We, under the circumstances provide and direct that the petitioners are at liberty to start construction of the Railway Coach Factory as aforesaid, on execution of lease deed, subject to any orders which might be passed in the writ petition. This order has been passed without prejudice to the rights of either parties with respect to their claim in the writ petition as well as also with respect to the lease deed, which is being executed in view of the facts and circumstances, stated above.
The parties counsel says that the lease deed be executed within a week so the work can be started immediately thereafter.
Let this matter be listed for hearing on 21st January 2009.