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    IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

ORIGINAL SUIT  NO. 5 OF 2012

STATE OF UTTARAKHAND  ...PLAINTIFF  (S)

VERSUS

UNION OF INDIA & ANR.             ...DEFENDANT (S)

WITH

INTERLOCUTORY  APPLICATION NO. 3 OF 2014

AND

INTERLOCUTORY  APPLICATION NO. 4 OF 2016

O R D E R

1. This order will dispose of an application (I.A. No. 3/2014) preferred by

second defendant (hereafter “State of U.P.”) to  recall an order made by this

Court on 16.12.2013 setting it down ex parte.  The State of Uttarakhand has

filed the present Suit under Article 131 of the Constitution for various reliefs,

including a declaration that the allocation of 25% shareholding in the Tehri

Hydro Development Corporation (hereafter “THDC”) in favour of the State of

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U.P.  consequent  to  the  enactment  and  coming  into  force  of  the  U.P.

Reorganisation Act, 2000, is void with effect from 09.11.2000 and a further

declaration that the plaintiff/State of Uttarakhand, is the rightful owner of the

said  shareholding  and  consequently,  decree  of  mandatory  and  permanent

injunction to allocate the said shareholding of THDC in its favour and also

allocate the dividends from 09.11.2000 till disposal of the suit, to it.

2. This court entertained the suit by proceeding dated 06.12.2012 and by

order  dated  12.12.2012  dismissed  the  application  for  interim  relief.   On

02.09.2013,  it  was  noticed  that  chamber  summons  had  been  filed  and  the

Registry  was  directed  to  take  further  steps.   On  07.10.2013,  notice  was

directed to be served upon the Chief Secretary, State of U.P. as well as the

Standing Counsel for the State of U.P.   These notices were served – as evident

from the order dated 10.11.2013.  In spite of service of notice, State of U.P.

was not represented on 16.12.2013 and was set down ex parte.

3. I.A. No. 3/2014 was filed by State of U.P.  on 09.04.2014, seeking recall

of the order dated 16.12.2013.  The application states that notice of the suit

was received by the State of U.P. on 23.10.2013 and the matter was referred to

the concerned  department.  Apparently,  THDC was notified of the pendency

of the proceedings and evidently upon receipt of information with respect to

the order (setting it down  ex parte  on 16.12.2013), further steps were taken,

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which included a Joint Meeting of various Departments on 03.02.2014; the

appointment of the concerned counsel on 11.03.2014 and instructions being

furnished to him to file an application to recall the order setting the State of

U.P.  ex  parte.   The  record  also  indicates  that  the  plaintiff  resisted  the

application and filed a reply dated 08.06.2016, and further sought decree in

terms of Order VIII Rule 1 of the Code of Civil Procedure, 1908.

4. It is apparent from the record that the application for recall of the order

of 16.12.2013 was listed for hearing on 07.09.2015 and thereafter, again on

several  dates,  i.e.  16.10.2015,  23.02.2016  and  10.03.2016.   No  steps  were

taken, nor was the notice of this court brought to the application.  It was only

on 06.04.2016 that this court issued notice on the application and listed it again

on 27.09.2016, at the request of the counsel for the parties.  On 06.02.2017,

learned Senior Counsel appeared for the State of U.P. and requested that the

application  may  be  allowed  subject  to  payment  of  costs.   On  06.05.2019,

matter was again listed and the plaintiff’s counsel sought an adjournment.

5. From the above facts,  it  is  evident  that,  the State of U.P.,  no doubt,

defaulted in entering appearance and was set down  ex parte by order dated

16.12.2013.  Thereafter, I.A. No. 3/2014 was listed and notice issued for the

first time on 07.09.2015.  The State of Uttarakhand resisted this application.

The State of Uttarakhand has,  through a separate affidavit,  indicated that it

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incurred a total expenditure or Rs. 57,48,791/- (Rupees Fifty Seven Lacs Forty

Eight  Thousand  Seven  Hundred  Ninety  One  only)  as  legal  costs  towards

payment of counsel’s fee towards 11 hearings.

6. This court is of the opinion that though the State of U.P. was tardy and

could not ensure timely appearance, yet,  when the concerned officials were

made aware of the pendency of the present suit and order dated 16.12.2013,

prompt steps were taken.

7. At least, after filing of the application- on 09.04.2014, the State of U.P.

cannot be accused of negligence; notice of the application was issued only on

09.04.2016.  Furthermore, the plaintiff sought an adjournment at least on two

occasions, i.e. 27.09.2016 and 06.05.2019.  In these circumstances, it cannot

be said that the entire blame for the delay in dealing with the application and

the costs thereof are to be borne by the State of U.P.   

8. Having  regard  to  the  entirety  of   circumstances,  the  Interlocutory

Application is allowed subject to the State of U.P.  paying costs quantified at

Rs. 30,00,000/- (Rupees Thirty Lacs only) to the plaintiff/State of Uttarakhand,

within four weeks from  today.  I.A. No. 3/2014  is allowed in the above terms.

9. Subject to the above directions, the State of U.P. is permitted to file its

Written statement within four weeks.  The plaintiff’s replication, if any, shall

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be filed within eight weeks from today.  The parties shall, in the meanwhile,

file their documents.  List the suit after twelve weeks for framing the issues.

……..............................................J.                                                              [R.F. NARIMAN]  

.……...........................................J.                                              [S. RAVINDRA BHAT]  

New Delhi, December 6 , 2019.