Bombay High Court
Bhavna Agro Products And Services ... vs Commissioner Of Sugar, State Of ... on 11 August, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
LETTERS PATENT APPEAL NO. 238 OF 2012
IN
WRIT PETITION NO. 858 OF 2012
Bhavna Agro Products and Services
Private Limited (Gat No. 47),
Bhokarkheda, Tq. Risod, District -
Washim, A company incorporated
under Indian Companies Act, 1956,
through its Director - Shri Ashok s/o
Narayan Gandole. ... APPELLANT
Versus
1. The Commissioner of Sugar,
State of Maharashtra, having its
office at Sugar Complex, Shivaji
Nagar, Pune - 5.
2. Shri Balaji Cooperative Sugar
Factory Limited, Keshav Nagar,
Tq. Risod, District - Washim,
through its Liquidator and
District Special Auditor (Class -I)
Cooperative Societies, Washim.
3. Shri Pandurang s/o Tukaram
Thakre, aged - Major, occupation
Agriculturist, resident of Ansingh,
Tq. & District - Washim. ... RESPONDENTS
1. Vijay @ Suresh Tulshiram Jadhav,
aged about 52 years, occupation -
Business, r/o Bhat Galli, Tilak Chowk,
Washim, Tq. & District - Washim.
2. Maharashtra State Cooperative Bank
Ltd., Head Office, Fort, Mumbai,
through its Managing Director. ... INTERVENORS.
::: Uploaded on - 12/08/2016 ::: Downloaded on - 13/08/2016 00:32:41 :::
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Shri Firdos Mirza, Advocate for the appellant.
Shri S.B. Bissa, AGP for respondent Nos. 1 & 2.
Shri R.L. Khapre, Advocate for respondent No. 3.
Shri S.R. Deshpande, Advocate for the intervenor No. 1.
Shri M.V. Samarth, Advocate for intervenor No. 2.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
AUGUST 11, 2016.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Firdos Mirza, Advocate for the
appellant, Shri S.B. Bissa, AGP for respondent Nos. 1 & 2, Shri R.L.
Khapre, Advocate for respondent No. 3, Shri S.R. Deshpande,
Advocate for intervenor No. 1 and Shri M.V. Samarth, Advocate for
intervenor No. 2.
2. With consent, the Letters Patent Appeal is admitted
and heard finally. Appellant is a Private Limited Company,
which desires to set up a Sugar Mill and for that purpose needs
Aerial Distance Certificate as contemplated by Clause 6-A of the
Sugarcane (Control) Order, 1966 (hereinafter referred to as
Sugarcane Order). The effort made by it failed as the authority
has found that the Aerial Distance between two chimneys of
factories was not taken into account. The chimneys of
proposed Sugar Plant/ Factory of the petitioner has to be at the
distance of 25 kms. from the chimney of existing sugar factory
in the area.
3. This was questioned by the petitioner in Writ
Petition No. 858 of 2012 and the learned Single Judge has on
30.04.2012, dismissed that petition holding that first Aerial
Distance Certificate must be obtained by the petitioner and,
thereafter, its contention about the factory in the vicinity not
being in existence, needed to be looked into.
4. By inviting attention to Clause 6-A and 6-B of the
Sugarcane Order, Shri Mirza, learned counsel submits that the
Sugar Factory in the vicinity must not only be in existence but
also operative. He submits that Sugar factory i.e. Respondent
No. 2 in present LPA has seized to be in operation and is
defunct since 2001 and hence, there was no question of its
chimney being looked into for finding out Aerial Distance of
chimney of the petitioner's Sugar factory.
5. Shri Khapre, learned counsel points out the brief
past history. He submits that the Sugar factory of Respondent
No. 2 is attempted to be revived by Respondent No. 3 and the
material steps have been taken in that direction. Writ Petition
No. 2895 of 2010 is already filed for seeking mandamus for
that purpose and it has been admitted for final hearing. Huge
public land and public money is already invested in that Sugar
factory and if the Sugar factory of the petitioner is allowed to
come up, the plans of revival of Respondent No. 2 - Sugar
factory would be frustrated. Without prejudice, he adds that
Respondent No. 2 has got ancillary distillery which is
functioning and as such it cannot be said that the Sugar factory
of Respondent No. 2 is not operational.
6. Shri Samarth, learned counsel appearing for
intervenor No. 2 - Maharashtra State Cooperative Bank
Limited, submits that Maharashtra State Cooperative Bank has
to recover huge public money from Respondent No. 2 - factory,
if any other Sugar Factory is allowed to come up in the vicinity,
the loan recovery by the Maharashtra State Cooperative Bank
through auction of property of Respondent No. 2 would be
defeated.
7. Shri Deshpande, learned counsel for intervenor No.
1 - Vijay @ Suresh Tulshiram Jadhav, supports the arguments
of Shri Khapre and Shri Samarth, learned counsel. He submits
that Sugar factory of Respondent No. 2 must be revived.
8. With the assistance of the respective counsel, we
have perused Clause 6-A and 6-B of Sugarcane Order. Clause
6-A envisages Aerial Distance Certificate for the purposes of
enabling the petitioner to process its proposal for establishing a
Sugar factory. The Aerial distance to be counted is from the
chimney of existing Sugar factory or another new Sugar factory
in the State or in two or more States. At the relevant time, bar
was, to set up new Sugar factory within the radius of 15 kms.
It is not in dispute that now this distance is increased to 25
kms. Explanation (1) defines "existing sugar factory" to mean a
sugar factory in operation and also includes a sugar factory
that has taken all effective steps as specified in
Explanation 4 to set up a Sugar factory but then it excludes a
Sugar factory which has not carried out its crushing operations
for last five sugar seasons. Explanation 2 defines "new sugar
factory" to mean a sugar factory which is not an existing sugar
factory but has filed the Industrial Entrepreneur Memorandum
as prescribed by the Department of Industrial Policy and
Promotions, Ministry of Commerce and Industry in the Central
Government and has submitted a performance guarantee of Rs.
One crore to the Chief Director (Sugar), as stipulated therein.
As per Clause 6-B, before filing the Industrial Entrepreneur
Memorandum with the Central Government, the concerned
person has to obtain a Certificate from the Cane Commissioner
or from the Director (Sugar) or Specified Authority of the
concerned State Government that distance between the site
where he proposes to set up sugar factory and adjacent existing
sugar factories and new sugar factories is not less than the
minimum distance prescribed by the Central Government or the
State Government, as the case may be.
9. The scheme, therefore, shows that a person desirous
of establishing a Sugar factory has to first obtain an Aerial
Distance Certificate. The certificate has to be in relation to site
to be chosen by him and site of existing sugar factory or the
new sugar factory. It is not in dispute here that the appellant
has to obtain an Aerial Distance Certificate between his site
and the site of Respondent No. 2, which claims to be the
existing sugar factory. Thus, we are not required to look into
the definition of new sugar factory in this matter.
10. The contention of the respondents is as distillery is
in operation, sugar factory must be presumed to be in
operation. We have already looked into Explanation (1) which
throws some light in this respect.
11. The question is, whether merely because ancillary
activity of a distillery is going on, can it be said that the sugar
factory is operational ? If the Sugar factory is not operational,
the question of computing distance from its site to the site of
the petitioner may not arise.
12. In this situation, the interpretation of scope or
scheme as envisaged in Clause 6-A and 6-B of the Sugarcane
Order, by the learned Single Judge, cannot be sustained. If
there is no existing operational Sugar factory in the vicinity, the
appellant may not be required to obtain such distance
certificate from the plant of Respondent No. 2. If the plant of
Respondent No. 2 is to be treated as an existing Sugar factory
in operation, then the requirement will have to be fulfilled.
13. The first question, therefore, to be looked into is
about the status of the Sugar factory of Respondent No. 2. As
on today, efforts for its revival are underway and it cannot and
does not make it an existing Sugar factory in operation, if it is
not satisfying the mandate of Clause 6-A of the above
mentioned Sugarcane Order. This question has not been gone
into by any of the authorities. It may also require some
scrutiny by the expert in the field.
14. In this situation, this question can be more
conveniently examined by Respondent No. 1. Respondent No.
1, therefore, to proceed to find out whether the plant of
Respondent No. 2 can be treated as an existing sugar factory in
operation for the purposes of Clause 6-A or Clause 6-B of the
Sugarcane Order. This exercise shall be completed within a
period of ten weeks from today. If necessary, an opportunity of
hearing shall be extended to the appellant as also to
Respondent No. 2 and Respondent No. 3.
15. With these directions and keeping all rival
contentions open, we partly allow the present Letters Patent
Appeal and dispose it of. However, there shall be no order as
to costs.
16. Needless to mention that in view of the above
observations, Intervention Application (CAZ) Nos. 219 of 2013
and 228 of 2013 are allowed. Intervenors be added as
intervenors in cause title after the last respondent.
JUDGE JUDGE
******
*GS.
C E R T I F I C A T E
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