- (1.) SABHAJEET Yadav, J. By this petition, the petitioner has challenged the order dated 4. 10. 2007 passed by Revisional Authority/state Government contained in Annexure-1 of the writ petition seeking relief of writ of certiorari for quashing the said order and a further relief in the nature of mandamus has been sought for restraining the respondent No. 2 from making any further allocation of sugar cane to the respondent No. 3 on the basis of impugned order dated 4. 10. 2007.
(2.) THE relief sought for in the writ petition rest on the assertion that petitioner and respondent No. 3 are companies incorporated under the Indian Companies Act, 1956 and they are running sugar mill units. THE crushing capacity of respondent No. 3 in the crushing season 2005-06 was 4200 TCD and start of crushing season 2006-07 it-has expanded its crushing capacity to 7000 TCD. Cane Commissioner, U. P. in exercise of power under Section 12 of U. P. Sugar Cane (Regulation of Supply and Purchase) Act, 1953 (hereinafter referred to as 'the Act 1953') estimates the requirements of every, sugar mill for the purpose of allocation of sugarcane for crushing. For the crushing season 2006-07, the requirement of respondent No. 3 was fixed by Cane Commissioner, U. P. as 81. 72 lakhs quintals vide order dated 5. 8. 2006. In revision filed by respondent No. 3, against the aforesaid order the State Government has revised the requirement under Section 12 (3) of the Act. It is stated that the requirement was fixed by the Cane Commissioner, Uttar Pradesh treating the capacity of respondent No. 3 as 6000 TCD instead of 7000 TCD claimed by it. However, the requirement was enhanced by the revisional authority by treating its capacity as 7000 TCD. It is stated that the requirement was fixed by Revisional Authority on the basis of policy framed by the Cane Commissioner, Uttar Pradesh for fixing the requirements. THE policy for fixing the requirements was actually based on the capacity of 2005-06 season on the basis of maximum average per day crushing in a month + 80% of the increased capacity. On the basis of revised requirement, sugarcane was allocated to the respondent No. 3 in the last crushing season by Cane Commissioner, Uttar Pradesh vide order dated 12. 10. 2006. It is further stated that for present crushing season the Cane Commissioner, U. P. has again fixed the requirement of sugar mills and for fixing the requirements, the Cane Commissioner has divided the sugar mills into five categories vide Circular dated 27. 7. 2007. A true copy of the said Circular dated 27. 7. 2007 is on record as Annexure-5 of the writ petition. In the first category those sugar mills were placed which had not done any expansion and their requirement is to be fixed on the basis of maximum average of per day crushing in a month during last crushing season multiplied by 180/160 days as the case may be. The crushing season for sugar mills of Western U. P. is 180 days whereas for Eastern U. P. is 160 days. It is stated that although the respondent No. 3 was a sugar mill of first category as it had not done any expansion during the last crushing season but it deliberately applied under category III for fixing its requirement which is the category for sugar mills which have done expansion after closure of mills during last crushing season i. e. 2006-2007. As per policy framed by the Government, inspection was done by a Committee constituted by Cane Commissioner for verifying the expansion and it submitted its report that no expansion has been done by the sugar mill of respondent No. 3 after crushing season 2003-07. It may be mentioned that for verifying expanded capacity the Cane Commissioner vide his order dated 26. 7. 2007 has also constituted a Committee. After having report of the said Committee, the requirement of respondent No. 3 has been fixed by the Cane Commissioner, U. P. vide order dated 24. 9. 2007 on the basis of maximum average of per day crushing in a month during last crushing season multiplied by 180 days which comes to 79. 20 lakh quintals. A true copy of the said order dated 24. 9. 2007 passed by Cane Commissioner, U. P. is on record as Annexure-7 of the writ petition. Feeling aggrieved against the aforesaid order dated 24. 9. 2007 passed by Cane Commissioner, U. P. , respondent No. 3 filed revision the State Government under Section 12 (3) of the Act 1953. During the pendency of revision on 1. 10. 2007 the petitioner moved an application for impleadment in the said revision as it was to be affected directly in case the revision is allowed. However, the said application has been rejected by the Revisional Authority vide its order dated 3. 10. 2007 holding that the petitioner was neither necessary party nor there is requirement under law to implead adjoining mill as necessary party. A true copy of the said order dated 3. 10. 2007 passed by Revisional Authority is on record as Annexure-10 of the writ petition. After rejecting the application for impleadment filed by the petitioner, Revisional Authority allowed the revision of respondent No. 3 vide its order dated 4. 10. 2007 contained in Annexure-1 of the writ petition fixing/revising its requirement from 79. 20 Lakhs quintals to 115. 92 lakhs quintals, hence this petition. Learned Counsel for the petitioner has submitted that from a perusal of impugned order dated 4. 10. 2007 it indicates that Revisional Authority has decided the revision on assumption that the respondent No. 3 has done its expansion from 4200tcd to 7000 TCD and thereafter 80% of the enhanced capacity i. e. 2800 TCD has also been taken into consideration for fixing its requirement. The aforesaid approach of Revisional Authority is wholly illegal and contrary to the own admission of respondent No. 3 to the effect that whatever expansion that was done the start of last crushing season and therefore, on the basis of this admission it was not covered under category III and its requirement was rightly fixed by Cane Commissioner treating it under category I. The Revisional Authority has also ignored the fact that in the last crushing season allocation of sugar cane was done to the respondent No. 3 on the basis of its revised capacity of 7000 TCD after order dated 4. 9. 2006 referred above and there was no occasion for reconsidering the said enhancement for determining the requirement for the present crushing season again treating the respondent No. 3 in category III. The report dated 29. 6. 2006 and inspection said to have been done by National Sugar Institute (NSI) on 1,3. 7. 2007 which has been taken into consideration by Revisional Authority for deciding the matter are wholly irrelevant in view of order passed by Revisional Authority in the last crushing season treating its capacity as 7000 TCD. The Revisional Authority has illegally revised the requirement of respondent No. 3 giving it benefit of expansion in the present crushing season though the same was done start of last crushing season. Thus, the findings arrived at by Revisional Authority are totally perverse and contrary to the record, admitted facts as well as under own judgement and order passed in the revision in the last crushing season. Even otherwise the fixation of requirement by the Revisional Authority is wholly illegal as the same has been calculated on the basis of installed capacity of 4200 TCD+80% of enhanced capacity i. e. 28cotcd. Though, according to policy framed by Cane Commissioner, U. P. for old capacity the maximum per day average of crushing in a month is to be considered and not installed capacity, therefore, the conclusion given by Revisional Authority on the face of it is absurd as the requirement of respondent No. 3 has rightly been fixed by the Cane Commissioner, UP. on the basis of its maximum per day crushing in a month which is 4200 TCD which itself indicates that expansion was Gone the start of last crushing season.
(3.) ON the basis of assertions made in paragraph 29 and onward in the writ petition, leafned Counsel for the petitioner Sri Raghavendra Singh has submitted that the reservation order on the basis of requirement fixed by Cane Commissioner, UP has already been issued on 3. 10. 2007 for the petitioner as well as respondent No. 3. A true copy of the reservation order dated 3. 10. 2007 issued with respect of the petitioner as well as respondent No. 3 are on record as Annexures-11 and 12 respectively to the writ petition. The reserved area assignee for the petitioner's Unit is just adjoining to the area of respondent No. 3. In fact the Unit of respondent No. 3 was established in the reserved area of petitioner and its huge area has been given to the respondent No. 3 after its establishment and if any allocation of sugarcane is done to the respondent No. 3 on the basis Revisional order/revised capacity, the petitioner's area would necessarily be take out and it would be directly affected. It is also submitted that allocation of suger cane to the petitioner's Unit has been done at drawl percentage of 80. 68%, where it has been done to the respondent No. 3 on 63. 71 % of drawl. In case any further diversion of cane from petitioner's area is done, its drawl percentage would further increase and it would be impossible for it to achieve the same and it would face heavy shortage of sugarcane in the present crushing season. Learned Senior Counsel Sri S. R Gupta assisted by Sri P. Bist appearing for caveator respondent No. 3 in the writ petition while raising preliminary objection about the maintainability of writ petition has contended that the writ petition can be dismissed in limine without going into merits merely on two counts. Firstly, it is premature and secondly, the petitioner has no locus standi to challenge the order impugned in the writ petition. While substantiating his first ground of attack against maintainability of instant petition learned Senior Counsel Sri S. P. Gupta has argued that by the impugned order dated 4th October, 2007 passed in revision filed by respondent No. 3 under Section 12 (3) of the Act the requirement of sugar mill of respondent No. 3 for current crushing season has been increased/enhanced from 79. 20 Lakhs quintals to 115. 92 Lakhs quintals. After such determination of the requirement under Section 12 of the Act, the Cane Commissioner is required to reserve any area (hereinafter called as 'reserved area') and assign any area (hereinafter called as 'assigned area') under Section 15 (1) of the Act for the purpose of supply of cane to factory in accordance with the provisions of Section 16 during one or more crushing seasons as may be specified and may likewise at any time Cane Commissioner can cancel such order or alter boundaries of an area so reserved or assigned. The consequence of declaration of reserved area and assigned area are only this much that where any area has been declared as a reserved for a factory, the occupier of such factory shall, if so directed by the Cane Commissioner, purchase all cane grown in that area which is offered for sale to the factory and where an area has been declared as assigned area for a factory, the occupier of such factory shall purchase such quantity of cane grown in that area which is offered for sale to the factory as may be determined by Cane Commissioner. However, at any time such order can be cancelled and modified by the Cane Commissioner whereby the boundaries of the reserved and assigned area can be altered and modified. Against such declaration of reserved area and assigned area made by the Cane Commissioner, the aggrieved person can also prefer an appeal to the State Government under sub-section (4) of Section 15 of the Act, therefore, the submission of learned Counsel for respondent No. 3 in nut-shell is that since the State Government has determined the requirement of respondent No. 3 under Section 12 (3) of the Act for the purpose of Section 15 of the Act on the basis of which the proceeding Cane Commissioner is going on under Section 15 of the Act, therefore, in case the petitioner would have any grievance against the order passed by Cane Commissioner under Section 15 (1) of the Act, it has remedy to file appeal under Section 15 (4) of the Act the State Government against such order to be passed by the Cane Commissioner under Section 15 (1) of the Act on the basis of revised requirement fixed by the State Government in revision filed by the respondent No. 3 under Section 12 (3) of the Act. Thus, at this stage the writ petition filed by the petitioner on the basis of speculation and apprehension that its reserved area is bound to be reduced on the basis of revised requirement fixed by the State Government in revision filed by the respondent No. 3 under Section 12 (3) of the Act is misplaced and writ petition is liable to be dismissed as premature.;