Shri Gurudatta Sugars Ltd. And ... vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 641 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Rule returnable forthwith so far as respondents No. 1 to 6 are concerned. Since the order we are proposing to pass in the present petition would not in any way adversely affect respondents No. 7 and 8, we have proceeded to hear and dispose of the petition finally.

2. Mr. R.S Apte, learned Counsel, appears and waives service of notice of rule on behalf of respondents No. 1 to 4. Mr. R.M. Patne, learned A.G.P., appears and waives service of notice of rule on behalf of respondents No. 5 and 6.

3. This petition is filed for several reliefs prayed in the petition. It is, however, not necessary to enter into larger question. We may state that against cancellation and revocation of Industrial Entrepreneur Memoranda (IEM), the petitioners had approached this Court earlier by filing writ Petition No. 5320 of 2002. In that petition. legality of certain orders was challenged inter alia on the ground that they had been passed against the petitioners in violation of principles of natural justice. The Division Bench by an order dated 1st October, 2002 upheld the said contention, set aside the orders and observed as under:-

"Notwithstanding this order, the authorities shall be free to hear and decide the matter afresh in question in accordance with law after following principles of natural justice and affording reasonable opportunity of hearing to the petitioners."

A notice was thereafter issued to the petitioners on 17th March, 2003 (Exhibit 'W') against which the petitioners have approached this Court.

4. It may be stated that the present petition was filed on 13th May, 2003. The learned Vacation Judge passed an order observing that in pursuance of the order passed by the Division Bench in Writ Petition No. 5320 of 2002, the petitioners attended the meeting and requested the respondents to let them know the material against them. The respondents, however, declined to supply such materials. Respondents also declined to decide the preliminary objection raised in the petition regarding jurisdiction. The learned Vacation Judge observed that the petitioners apprehended that the respondents would decide the matter and cancel the petitioners licence without granting them effective hearing and without affording them an opportunity to show cause in respect of the material to be used against them. The learned vacation Judge, therefore, stated:-

"In the circumstances, by way of ad-interim relief, the respondent nos. 1 to 4 are restrained from cancelling the I.E.M. granted to the petitioners without affording to the petitioners a reasonable opportunity of hearing which includes informing to the petitioners the material on the basis of which any action is proposed to be taken against them. Let the petition come up for hearing on admission and hearing on interim relief in the second week of June, 2003. Copy of this order authenticated by the court sheristedar be issued to the parties."

5. In our opinion, however, the authorities should be allowed to proceed with the matter and to take a decision according to law. Whether or not an order is passed relying on material which ought to be supplied to the petitioners and yet not supplied and hence it is illegal and violative of natural justice can be decided only after the order is passed and the court is satisfied that the order is based on material which has not been furnished to the petitioner and hence, it is in contravention of the principles of natural justice. If on the bald assertion or ipse dixit of a party, an authority is restrained from passing an order, it is impossible for the authority to decide a matter, It is equally impossible for a court to come to a conclusion and record a finding whether an order has been made relying on material which ought to have been supplied to the opposite party and yet not supplied. We are, therefore, of the confirmed view that the authorities must be allowed to decide the matter after considering objections raised by the party.

6. The learned Counsel for the petitioners. no doubt, contended that in spite of the order passed by the Division Bench in Writ Petition No. 5320 of 2002, opportunity of hearing has not been afforded to the petitioners inasmuch as the allegations have not been clearly, expressly and unequivocally stated as to why action is sought to be taken against the petitioners. Moreover, the material which is relevant for the purpose of defence of the petitioners has not supplied. Further, the Chief Director of Sugar-Respondent No. 4 has no power, authority of jurisdiction to take the decision.

7. On merits, it was stated that the rule relating to distance of 15 kilometers between two sugar factories is no more force. In the circumstances, the actions sought to be taken proceedings initiated are required to be quashed and set aside. Reliance in this connection was placed on the decision of the Constitution Bench of Supreme Court in Calcutta Discount Co. Ltd. v. Income-tax Officer, Companies District I, Calcutta and Anr, It was, therefore. submitted the petitioners are entitled to relief and appropriate writ, direction or order be issued to the authorities and proceedings be quashed.

8. The learned Counsel for the respondents, on the other hand, submitted that in past when the action was taken and this court found that it was not in consonance with the principles of natural justice, the order was set aside. Thereafter the petitioners are called to upon to explain and submit as to what they have to say. It is for them to explain the circumstances and put forward their case in response to the show cause notice. According to the respondents, the petitioners are aware of the allegations against them and appropriate decision will be taken by the authority after complying with the principles of natural justice. It is open to them to press preliminary objection raised in the petition but the petition is premature at this stage and deserves to be dismissed.

9. Having heard the learned Counsel for the parties, in our opinion, ends of justice would be met if we dispose the petition by directing the respondents to take appropriate decision in accordance with law. It is open to the petitioners to raise all contentions taken in the petition. It is also open to them to challenge the jurisdiction, power and authority of Chief Director of Sugar. They can urge that the '15 kilometers rule' is no more in force. It is also open to them to argue that proceedings have been initiated at the instance of third party.

10. It is, therefore, open to respondents to pass an appropriate order. If the order is against the petitioners, they may take appropriate proceeding in accordance with law and disposal of this petition will not come in their way.

11. If the petitioners intend to file any reply, it is open to them to do so. It may be done or or before 30th June, 2003. Thereafter, authorities will take an appropriate decision in accordance with law. We may also observe that as and when the case will come up before appropriate authority, it will issue notice to SIG in the order. Rule is accordingly made absolute to the extent indicated above. In the facts and circumstances of the case, however, there shall be no order as to costs.

12. In view of the above order passed, ad-interim relief granted earlier stands vacated.

Parties be given copies of this order duly authenticated by the Sheristedar of this Court.