- (1.) SHASHI Kant Gupta, J. Sri Pinaki Mishra learned Senior Advocate assisted by Sri Akhilesh Kalra and Sri Piyush Kumar Agarwal appearing for the revisionist. Sri K. N. Tripathi learned Senior Advocate assisted by Sri Mukesh Prasad, Sri Ashok Kumar Srivastava and Sudeep Kumar, advocates are appearing for respondent no. 4 and 5. Sri Ritu Raj Awasthi, learned Assistant Solicitor General of India is appearing for the Union of India respondent no. 3, Sri Jaydeep Narayan Mathur, Addl. Advocate General represents respondent nos. 1 and 2. THE FACTs 1. This civil revision is filed under Section 115 of the C. P. C. against the issuance of a notice dated 18. 9. 2008, by Civil Judge (Senior Division), Lucknow in Regular Suit No. 1192 of 2008 (M/s Saraya Sugar Mills Ltd. Vs. State of U. P. And others) on the application for interim injunction filed under Order 39 Rule 1 readwith Section 80 (2) of CPC.
(2.) THE brief facts which emerge from the affidavit filed by the revisionist in support of the application for interim relief are as follows:- THE plaintiff company is a registered company and is in the business of manufacture of sugar by Vaccum Pan Process and at present has its Industrial Undertaking (Existing Sugar Mill) at Sardar Nagar, Tehsil Chauri Chaura, District Gorakhpur, since the year 1933. THE Central Government had issued a notification dated 10-11-2006, whereby amended the Sugarcane (Control)Order 1966 ,which was interpreted by the Hon'ble Supeme Court to have retrospective effect, as a consequence whereof the criterion of maintaining 15 Kilometer distance, which was held by the Hon'ble High Court of Delhi on 22- 12-2005, to have statutory force, was upheld and was made applicable from the date it was deleted from the Industrial (Development) Regulation (in short IDR) at 1951. It is further stated that the Supreme Court in the appeal namely, M/s Ojus Industries (P) Limited Vs. Oudh Sugar Mills Limited and others held that the Sugarcane (Control) (Amendment) Order, 2006 imposes a bar on the subsequent Industrial Enterpreneur Memorandum (in short referred to as "iem" } holder in the matter of setting up new sugar mill during the stipulated period given in the earlier IEM. It is further pleaded that as per the amendment to the Sugar cane (Control) Order, 1966, as amended on 10-11-2006, any proposal to construct a sugar factory will be dealt with accordingly. Such an Entrepreneur shall not be accorded permission to do so, in case, if an industry which is going to be established is within 15 Km. from any existing factory or a new factory as defined in Explanation- 2 to Clause 6a of the Sugarcane (Control) Order, 1966 as amended on 10-11-2006. It is further stated that M/s New India Sugar Mill opposite party no. 4 filed an IEM expressing its intention to set up a sugar industrial undertaking at Village Dharaha Buzurg, Tehsil Hata district Kushinagar, U. P. And the said IEM was issued on 25-2-2005. It is further pleaded that the period of two years for taking of the effective steps having elapsed and as such IEM issued on 25-2-2005 stood de recognized on 25-2-2007 as per the provisions of clause 6-C of the Notification dated 10-11-2006 and now no order infusing new life can be issued. According to the learned counsel for the revisionist the respondents no. 1 to 3 have not followed the direction and observation of the Supreme Court in the judgement, referred to above, as from the distance certificate (Annexure-12) issued by the Office of Director, U. P. Geospatial data Centre, Survey of India. It is evident that distances are 13. 91 and 13. 97 Kms. which have been measured on circle and dot. It is further stated that a certificate of distance dated 19-4-2005 has been issued by the Survey of India in favour of defendant no. 4 showing the distance of the village where sugar factory is proposed to be set up ,to be more than 15 Kms. From the existing factory of the plaintiff.
(3.) THE defendant respondent no. 2 has also issued no objection certificate certifying the distance of the proposed sugar mill from that of the plaintiff's sugar and other sugar mills in the area. It is stated that in order to safe guard its right and interest the revisionist filed a suit for declaration, mandatory and permanent injunction against the opposite parties-defendants in the court of Civil Judge, Lucknow which was registered as Regular suit no. 1122 of 2008.;