Bombay High Court
Taluka Jamkhed vs The State Of Maharashtra on 14 December, 2011
Bench: Naresh H. Patil, T.V. Nalawade
WP No. 1289/11
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IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 1289 OF 2011
Sangmeshwar Sugar Limited
(Gut No. 151) Sonegaon (Yamainagar)
Taluka Jamkhed, District Ahmednagar
Through its Chairman
Suresh s/o. Mahadev Bhosale,
Age 58 years, Occu. Agri. & Business,
R/o. Venkatesh Traders, Beed Road,
Jamkhed, Taluka Jamkhed,
District Ahmednagar.
ig ....Petitioner.
Versus
1. The State of Maharashtra
Through Principal Secretary
Co-operation and Textile Department,
Mantralaya, Maharashtra State,
Mumbai.
2. The Commissioner of Sugar,
Maharashtra State, Sahakar
Sankul, Shivajinagar, Pune.
3. Shri. Rajendra Chavan,
The Commissioner of Sugar,
Maharashtra State, Sahakar
Sankul, Shivajinagar, Pune.
4. The Union of India,
Through Ministry of Industries,
Government of India,
New Delhi.
5. The Ministry of Consumer Affairs,
Food and Public Distribution,
Government of India, Krishi Bhavan,
New Delhi.
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6. The Additional Surveyor
General,/ Director
Office of additional Surveyor
General,/ Maharashtra and
Goa, G.D.C. Survey of India
Phule Nagar, Alandi Road,
Pune.
7. Pearl Sugar Limited,
Chinchpur, Tq. Paranda,
District Osmanabad.
Through its Director,
Jaisingh Shivajirao Pandit,
Age 40 years, Occu. Agri.,
R/o. C/o. Rajgad Subhash Road,
Beed, District Beed. ....Respondents.
Mr. N.L. Jadhav, Advocate for petitioner.
Mr. S.K. Kadam, A.G.P. for respondent Nos. 1 to 3.
Mr. Alok Sharma, A.S.G. for respondent Nos. 4 to 6.
Mr. R.N. Dhorde, Advocate for respondent No. 7.
CORAM : NARESH H. PATIL &
T. V. NALAWADE, JJ.
DATED : 14th December, 2011.
JUDGMENT : [ PER T. V. NALAWADE, J. ]
1. Rule. Rule made returnable forthwith. Heard for final
disposal by consent of parties.
2. The writ petition is filed under Article 226 of
Constitution of India to challenge the orders made by Sugar
Commissioner in matters of grant of Aerial Distance Certificate for
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starting private sugar factories. Copies of relevant record are
produced by both the sides. Advocates of both the sides are
heard.
3. The petitioner is a Sugar Factory registered under the
Companies Act, 1956. For starting another sugar factory at
Sonegaon, Yamainagar, Tahsil Jamkhed, District Ahmednagar,
Maharashtra, the petitioner obtained Aerial Distance Certificate
from Survey Office of Government of India on 10.6.2008 and on
21.6.2008 it applied for getting Aerial Distance Certificate from
Commissioner of Sugar, Pune. As per Sugarcane Control Order,
1966 the aerial distance between two sugar factories is
prescribed as 15 k.m. On 12.7.2008 respondent No. 2 Sugar
Commissioner issued proclamation in "Daily Lokmat" newspaper
to call for the objections. It is contended that no objections were
filed by anybody, but the matter remained pending till the year
2010. One P.I.L. [Public Interest Litigation] No. 20/2006 was filed in
Bombay High Court, Principal Seat and the High Court had
granted stay to granting of permission by the State Government
for new sugar factories in the State of Maharashtra.
Subsequently, it was made clear that stay was not applicable to
the matters in which the applications were made for starting
private sugar factories. In P.I.L. No. 20/2006 three Civil
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Applications were filed (Civil Application Nos. 128/2009, 130/2009
and 137/2009) for giving direction to Sugar Commissioner to
process and consider the applications made by the applicants for
granting Aerial Distance Certificate to start private sugar
factories. Order was made to issue such direction as similar order
was made in Civil Application No. 81/2007 on 27.2.2008. The
three Civil Applications came to be allowed on 21.1.2010. Writ
Petition No. 3222/2010 was also pending at the Principal Seat and
it was in respect of starting of private sugar factories. The
previous P.I.L. Was in respect of co-operative sugar factories. This
petition (WP No. 3222/2010) came to be disposed of on 16.4.2010
in following terms:-
"3. In our opinion, the direction sought by the
Petitioner is a benign relief which the Authority
is obliged to observe while deciding the
concerned application for Aerial Distance
Certificate under statutory power under
Sugarcane (Control) Order.
4. Notably, learned A.G.P. on behalf of the
Respondents, in all fairness, submits that the
Authorities are bound to follow the regime
specified in Sugarcane (Control) Order and
cannot give preference to some other Applicant
not in order of chronology. In the circumstances,
Petition is made absolute in terms of prayer
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clause (A)."
4. After the aforesaid order made in Writ Petition No.
3222/2010 the Sugar Commissioner started processing the
applications received by him. It is the case of Sugar Commissioner
that by letter dated 20.4.2010 a direction was given to the
petitioner and similar applicants (applications of 2008 and 2009)
to produce fresh Aerial Distance Certificate issued by Survey
Department of Government of India for updating the information.
It is the case of the petitioner that this letter was not received by
it, but it received letter dated 24.4.2010, in which it was informed
that Serial No. 35 was given to the petitioner in priority list
prepared on the basis of directions given by this Court in Writ
Petition No. 3222/2010 and it was further informed that the Sugar
Commissioner had called meeting of all the applicants on
30.4.2010. It is the case of the petitioner that on 30.4.2010, it was
first time informed by the Sugar Commissioner that fresh Aerial
Distance Certificate needs to be obtained from Survey
Department of Government of India. It is contended that such
application was made by the petitioner and the certificate was
issued by Survey Department of Government of India on
31.5.2010. It is contended that the certificate was submitted
before the Sugar Commissioner on 2.6.2010. It is the case of
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respondent No. 2 - Sugar Commissioner that in the letter dated
20.4.2010 time of four weeks was given for production of such
new certificate and it was made clear that in case of default, the
application would be filed. It is the case of the respondents that
on 21.5.2010 the Sugar Commissioner passed order and filed the
application of petitioner as no recent certificate issued by Survey
Department of Government of India was produced by the
petitioner. It is also contended that in the past petitioner was at
Serial No. 35 in priority list prepared by respondent No. 2 and
after filing of the fresh certificate by the petitioner,the petitioner
came to be placed at Serial No. 96.
5. The respondent No. 7 made application to Sugar
Commissioner on 19.5.2010 for certificate in respect of area
covered by proposal of petitioner and it produced Aerial Distance
Certificate issued by Survey Department of Government of India
dated 8/15.2.2010. On 1.10.2010 public notice came to be issued
by the Office of Sugar Commissioner to invite objections in
respect of applications of petitioner and respondent No. 7.
Objections were raised to the application of respondent No. 7 by
the petitioner and one more sugar factory viz. Jai Shriram Sugar
and Agro Product Limited, Halgaon, Tahsil Jamkhed, District
Ahmedndagar. Objection was raised to the application of present
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petitioner by present respondent No. 7. It was submitted for
respondent, Sugar Commissioner that in view of the observations
made by this Court [ Coram : P. V. HARDAS & N.D.
DESHPANDE, JJ.] in Writ Petition No. 5240/2010 the
applications of petitioner and respondents were considered
together as they were in respect of the same region. Orders came
to be passed on 21.1.2011 on both the applications. The
application of respondent No. 7 came to be allowed and the
application of petitioner came to be rejected. Reasoning is given
that the application of respondent No. 7 was filed prior in time, it
was at Serial No. 93 and the application of the petitioner was filed
subsequently and it was at Serial No. 96. It is observed that
petitioner should obtain new certificate from Survey Office of
Government of India as the application of respondent No. 7 is
allowed.
6. It was submitted for petitioner that its application was
filed on 21.6.2008, the objections were called on 12.7.2008 and
as no objections were received in respect of the application of
petitioner, the certificate could have been granted by Sugar
Commissioner in the year 2008 itself. It was submitted that only
due to the aforesaid stay order, the certificate was not issued. It
was submitted that as per the directions given by this Court
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[Principal Seat in Writ Petition No. 3222/2010] the applications
were arranged in chronological order and the Sugar Commissioner
ought not to have kept the application of 2008 pending after
receipt of aforesaid order of this Court [made in Writ Petition No.
3222/2010]. It was also submitted that there was no reason for
the petitioner to know that there was respondent No. 7, making
claim in respect of the same region and it came to know first time
about such claim when it came across the public notice published
by respondent No. 2 on 1.10.2010. It was also submitted that
there was no uniformity adopted by the Sugar Commissioner in
fixing the time in respect of production of fresh Aerial Distance
Certificates issued by Survey Department of Government of India
and the actions of Sugar Commissioner are not reasonable. It was
submitted that the actions were malafied and there was intention
to deprive the petitioner from its genuine claim. It was also
submitted that in any case, the Sugar Commissioner could not
have changed the priority number given to the petitioner.
7. It was submitted for respondent Nos. 2 and 7 that
similar directions were given to other applicants also. It was
submitted that if at all, there was the grievance of the petitioner
in respect of such direction, the petitioner ought to have
challenge the correspondence made with it on 20.4.2010 and also
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the order made by Sugar Commissioner on 21.5.2010. It was
submitted that as the previous application was filed on 21.5.2010
due to non compliance of directions given by the Sugar
Commissioner, after receipt of the new certificate, new Serial No.
viz. 96 was given to the application of the petitioner.
8. This Court has gone through the record and various
orders made by this Court and by the Principal Seat. This Court
has also gone through the reported cases cited for both the sides.
9. The order made by Principal Seat of this High Court in
Writ Petition No. 3222/2010 dated 16.4.2010, which is already
quoted, shows that a specific direction was given by the Principal
Seat that the applications received for issuance of Aerial Distance
Certificate were to be decided strictly in accordance with the
chronological order in which the applications were received and
without breaking the chronological order. It was further observed
that the authority was bound to observe such procedure while
deciding the concern applications. In affidavit in reply filed for
respondent No. 2, following contention is made :-
"I say and submit that, as per the orders
of Hon'ble High Court, in Civil Application No.
128/2009, 130/2009, 137/2009 the aerial
distance certificates were issued to some
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applicants. It was necessary to know the aerial
distance of these new sugar factories from the
proposed sugar factories of pending application.
Hence, it was necessary for applicants to
submit fresh aerial distances certificate after
considering the aerial distance from these new
sugar factories. Hence, the Commissioner of
Sugar directed all applicants who has submitted
application in the year 2007-08 and 2008-09 to
submit fresh aerial distance certificate for
processing the pending applications."
10. The common order dated 21.1.2010 made in
aforesaid three Civil Applications shows that in these three civil
applications and in one Civil Application No. 81/2007 directions
were given to Sugar Commissioner to consider the applications.
As there was stay granted in P.I.L.No. 20/2006 by order dated
12.7.2006, the authority was prevented from giving permission for
new sugar factories in the State of Maharashtra and this stay
continued till 21.1.2010. It can be said that there was the
probability that the authority had issued the permission only to
applicant of Civil Application No. 81/2007. From the record it is not
difficult to infer that only after receipt of order dated 21.1.2010
the applications of three applicants from aforesaid three Civil
Applications could have been processed by the authority, Sugar
Commissioner. The process involves public notice and
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consideration of objections. The application of the petitioner was
pending since 2008 and even public notice was issued in respect
of its application in the year 2008. In view of these circumstances,
it is not possible to believe that due to the grant of permission by
the Principal Seat of this High Court in aforesaid four cases, it had
become necessary for the Sugar Commissioner to issue a
direction to petitioner for production of fresh Aerial Distance
Certificate issued by the Survey Department of Government of
India. From the office record itself the Sugar Commissioner could
have ascertained as to whether certificate was issued by him in
respect of the region where the petitioner wanted to start sugar
factory. In any case, in view of the directions given by the
Principal Seat in Writ Petition No. 3222/2010, it was not open for
the Sugar Commissioner to change the chronological order,
priority order, fixed already.
11. With the affidavit filed by way of rejoinder by the
petitioner, some record is produced. There is a copy of letter
given to Asmita Infra Developers Private Limited by Sugar
Commissioner dated 22.6.2011 In this letter time of two months
was given to the said applicant in that case for production of fresh
certificate. Submissions were made for respondents that it was
open to the petitioner to take objection to such procedure and
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challenge the directions given by the Sugar Commissioner. A copy
of judgment delivered by this Court in Writ Petition No. 5240/2010
is produced in this regard. This proceeding was filed by Devrajan
Laxman Sugars Limited, Tahsil Udgir, District Latur. The
application of this applicant was given Serial No. 41 in the
aforesaid priority list. This applicant had also contended that
letter dated 20.6.2010 was not received and it was represented
before the Sugar Commissioner that other claimant was influential
person and the other claimant was likely to get orders due to
political pressure. This applicant did not attend the meeting dated
30.4.2010. In that case, the other claimant had submitted
application for issuance of Aerial Distance Certificate on
9.12.2009, later in time, and in that case also the certificate was
issued in favour of respondent No. 7 of that case. In that matter,
this Court referred to the aforesaid order made in Writ petition No.
3222/2010 on 16.4.2010. This Court considered the facts of the
case and held that the Sugar Commissioner was not justified in
giving preferential treatment to the application of respondent No.
7 of that proceeding. It is observed that if Sugar Commissioner
wanted to consider the application of respondent No. 7, in that
case also the Sugar Commissioner could have considered the
application of the petitioner, which was pending and the
petitioner could have been asked to remove deficiencies or
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shortcomings, if any, from his application. A direction was given to
decide the applications atleast in order of chronology, in which
they were received in the Office of Sugar Commissioner or to
decide the applications of the petitioner and respondent No. 7 of
that case in accordance with law preferably together.
12. It was submitted for respondent No. 2 that the
direction given in Writ Petition No. 5240/2010 is not in consonance
with the directions given by the Principal Seat in Writ Petition No.
3222/2010 as the Principal Seat had given direction to decide the
applications only after arranging them in chronological order and
decide the applications in the same order. This submission cannot
help respondents in justifying the action of the Sugar
Commissioner in the present case. Admittedly, the petitioner from
the present case, obtained fresh Aerial Distance Certificate and it
came to be produced before the Sugar Commissioner on
2.6.2010. Applications given by petitioner to Sugar Commissioner
on 2.6.2010, 4.10.2010 and the objections filed to the application
given by respondent No. 7 show that subsequent record including
the fresh certificates were produced in the application which was
filed in the year 2008.There is record to show that the petitioner
had attended the meeting dated 30.4.2010 and the petitioner is
admitting the same. In view of this circumstance and also similar
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contentions which were made in Writ petition No. 5240/2010 by
the petitioner of that proceeding, there is no reason to disbelieve
the petitioner. In view of these circumstances, this Court holds
that there was no need for the petitioner to challenge the
direction given to him in the month of April 2010 to produce fresh
Aerial Distance Certificate issued by Survey Department of
Government of India. This Court has no hesitation to observe that
in the past there was no cause of action to the petitioner and so
the relief cannot be refused by accepting the contention of other
side that the petitioner ought to have challenge the directions
given in April 2010 or the order made in May 2010.
13. For respondent No. 7 following cases were cited :-
(i) (2010) 8 SCC 313 [Pernod Ricard
India Private Ltd. Vs. Commissioner of
Customs, ICD Tughlakabad],
(ii) (2011) 1 SCC 694 [Siddharam
Satlingappa Mhetre Vs. State of
Maharashtra & Ors.],
(iii) (2009) 8 SCC 483 [Bihar School
Examination Board Vs. Suresh Prasad
Sinha],
(iv) (2009) 6 SCC 379 [Vishnu Dutt
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Sharma Vs. Manju Sharma].
In view of the observations made already, this Court holds
that these cases are of no help to respondent No. 7.
14. For petitioner one case reported as AIR (SC) 1999
3558 [Chandra Kishor Jha Vs. Mahavir Prasad & Ors] was
cited. The Apex Court has observed that, "It is well settled
statutory principle that if a statute provides for a thing to be done
in a particular manner, then it has to be done in that manner and
in no other manner." It was submitted that with reference to Sugar
Control Order direction was given by High Court in Writ Petition
No. 3222/2010 and so the direction ought to have been followed
in letter and spirit. This proposition cannot be disputed and
sufficient discussion is made in this regard. One case reported as
1987 AIR (SC) 2195 [Raj Kumar Dey Vs. Tarapada Dey] was
cited. In this case, it is observed by the Apex Court that law does
not compel a man to do that which he cannot possibly perform. It
was submitted that the direction given by the Sugar
Commissioner was such that the petitioner could not comply it
and only after issuance of the certificate by Survey Department of
Government of India, the petitioner could have produced it before
the Sugar Commissioner. It was submitted that the application to
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Survey Department for getting such certificate was made well in
time fixed by the Commissioner, but the petitioner could not get
the certificate immediately and so it cannot be made to suffer.
There is force in this submission made for the petitioner.
15. For respondent No. 7 one case reported (2010) 8
SCC 313 [Pernod Ricard India Private Ltd. Vs.
Commissioner of Customs, ICD Tughlakabad], was cited. It is
on the principal of estoppal, acquiescence and waiver and it is
cited in support of the contention that the petitioner ought to
have challenge the directions given to him in April 2010 and
further, the order made in 2010. Sufficient discussion in this
regard is also made. This case also cannot help the respondent
No. 7 in view of the peculiar facts of the case.
16. In view of the discussion made above, this Court holds
that the actions of the Sugar Commissioner which are challenged
in the proceeding were unreasonable and the orders under
challenge cannot sustain in law. In the result, the petition is
allowed in following terms.
ORDER
1) The petition is allowed.
2) The order dated 21-1-2011 rejecting the application of
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the petitioner for issuance of Aerial Distance Certificate by
respondent No.2 bearing No. Commissioner of Sugar/desk-15/Ha
pra/63/1803/2011 is hereby quashed and set aside.
3) The order dated 21-1-2011 issued by the respondent
No.2 allowing the application of respondent No.7 for issuance of
Aerial Distance Certificate bearing No. Commissioner of
Sugar/desk-15/Ha pra/1798 Jai Tulajabhavani/58/2011 is hereby
quashed and set aside.
4) Respondent No.2 is hereby directed to process and
decide afresh the applications of petitioner and respondent No.7
by presuming that the application of the petitioner is at Sr.No.35
and the application of respondent No.7 is at Sr.No.93 in the
priority list prepared by respondent No.2.
5) Rule made absolute in aforesaid terms.
6) At this stage, the Advocate for respondent No.7 prays
for stay of this order for a period of five weeks. For a period of five
weeks from today the operation of this oder stands suspended.
[ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.]
ssc/
