Karnataka High Court
M/S Parrys Sugar Industries Ltd vs The State Of Karnataka on 14 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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WP No. 78099 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 78099 OF 2013 (GM-RES)
BETWEEN
1. M/S. PARRYS SUGAR INDUSTRIES LTD.,
(FORMERLY KNOWN AS GMR INDUSTRIES LTD),
HAVING ITS REGISTERED OFFICE SITUATED AT
VENUS BUILDING, 1/2, 3RD FLOOR,
1ST MAIN ROAD, KALYANAMANTAPA ROAD,
JAKKASANDRA, BENGALURU-560034,
REPRESENTED BY ITS MANAGER LEGAL
L.S. DHANPALAKSHA S/O. T. SRIRANGA,
AGE: 42 YEARS, OCC: MANAGER LEGAL,
R/O: BENGALURU.
2. SRI. SHAJI THOMAS,
S/O. MR. K.V. THOMAS,
AGED ABOUT 38 YEARS,
RESIDING AT: A5, NO.54, VAYUVAJRA,
8TH CROSS, SHARADAMBA NAGAR,
JALAHALLI VILLAGE, BANGALORE.
...PETITIONERS
GIRIJA A
BYAHATTI
(BY SRI. V.M. SHEELVANT, ADVOCATE)
Location: HIGH
COURT OF
KARANTAKA
DHARWAD AND
BENCH
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
DEPARTMENT OF COMMERCE AND INDUSTRY,
VIKAS SOUDHA, BANGALORE-560001.
2. THE COMMISSIONER OF CANE DEVELOPMENT
& DIRECTOR OF SUGARS IN KARNATAKA,
KARNATAKA HOUSING BOARD COMPLEX,
CBAB COMPLEX, 'F' BLOCK, 5TH FLOOR,
KAUVERI BHAVAN, K.G. ROAD, BANGALORE-560001.
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3. THE CHIEF DIRECTOR (SUGAR),
MINISTRY OF CONSUMER AFFAIRS & PUBLIC
DISTRIBUTION, (DEPT. OF SUGAR & EDIBLE OILS),
KRISHI BHAWAN, NEW DELHI-110 001.
4. SHRI DEVI SUGARS PVT. LTD.,
JALIAKATTI, RAMDURG TALUK
BELGAUM DISTRICT,
BY ITS MANAGING DIRECTOR.
5. THE GOVT. OF INDIA,
MINISTRY OF INDUSTRIAL POLICY
DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION
SECRETARIAT OF INDUSTRIAL ASSISTANCE,
NEW DELHI, BY ITS SECRETARY.
...RESPONDENTS
(BY SRI. PRAVEEN K. UPPAR, AGA FOR R1 & R2;
SRI. M.B. KANAVI, ADV. FOR R3 & R5;
SRI. SANJAY S. KATAGERI, ADV. FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE
NATURE OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT, ORDER
OR DIRECTION DIRECTING RESPONDENTS NO.1 & 2 TO
CONSTITUTE AN INDEPENDENT COMMITTEE OF EXPERTS AND
AGRICULTURAL SCIENTISTS TO ASCERTAIN ACCURATELY
AVAILABILITY OF SUGARCANE IN THE BELGAUM DISTRICT,
KARNATAKA STATE AND THE REQUIREMENT OF THE EXISTING
SUGAR FACTORIES AND ALLOCATE SUFFICIENT DESIGNATED AREAS
TO THE PETITIONER TO ENABLE THE PETITIONER TO OPERATE ITS
PLANT AT THE INSTALLED CAPACITY OF 8 LAKH METRIC TON CANE
CRUSHING PER ANNUM; DIRECT RESPONDENTS NO.1 & 2 NOT TO
WITHDRAW ANY CANE AREA ALLOCATED TO THE PETITIONER AT
PRESENT AND TO TAKE EFFECTIVE STEPS AND MEASURES TO
ENSURE THAT NO OTHER SUGAR FACTORY RECEIVES OR ACCEPTS
SUGAR CANE FROM THE AREAS ALLOCATED TO THE PETITIONER;
DIRECT RESPONDENTS NO.2, 3 AND 5 NOT TO PROCESS OR ACCEPT
ANY APPLICATION FOR INDUSTRIAL ENTREPRENEUR MEMORANDUM
UNDER CLAUSE 6(B) OF THE SUGAR CANE [CONTROL] ORDER 1966
AS AMENDED BEFORE A COMPREHENSIVE STUDY IS UNDERTAKEN
TO ENSURE AVAILABILITY OF SUGARCANE FOR ANY NEW SUGAR
FACTORY TO BE SET UP HENCE FORTH IN BELGAUM DISTRICT OF
KARNATAKA STATE.
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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 07.08.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
In this writ petition, by invoking Articles 226 and 227
of the Constitution of India, prayed the following prayers:
(a) Directing the respondent Nos.1 and 2 to constitute
an independent Committee of experts and
Agricultural Scientists to ascertain accurately
availability of sugar cane in Belgaum district,
Karnataka State and the requirement of the
existing sugar factories and allocate sufficient
designated areas to the petitioner to enable the
petitioner to operate its plant at the installed
capacity of 8 lakh Metric Ton cane crushing per
annum.
(b) Direct respondents No.1 and 2 not to withdraw
any cane area allocated to the petitioner at
present and to take effective steps and measures
to ensure that no other sugar factory receives or
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accepts sugarcane from the areas allocated to the
petitioner ;
(c) Direct respondents No.2, 3 and 5 not to process of
accept the application for Industrial Entrepreneur
Memorandum under Clause 6(B) of Sugar Cane
(Control) Order, 1966 as amended before a
comprehensive study is undertaken to ensure
availability of sugar cane for any new sugar
factory to be set up hence forth in Belagaum
District of Karnataka State.
2. The factual matrix of the case of the petitioner
invoking writ jurisdiction it is stated that the first petitioner
is a public limitation incorporated under the provisions of
Companies Act, 1956. The second petitioner is a share
holder of the petitioner. Dhanalakshmi Sahakara Sakkare
Kharkhana Niyamith is a Co-operative society came to be
registered on 04.10.1995 with the object of helping the
farmers who grow sugarcane in Ramdurga Taluka and
nearby areas. The Society was unable to complete and
commission the project even after a lapse of 12 years and
the factory was half constructed. In view of the same, the
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farmers in the area were put to untold misery and
hardship as a result of the factory not being
commissioned. Having no other choice, it was decided
that the Society had to either wind up or take other
remedial measures to revive itself. A notification inviting
tenders was called and ultimately the petitioner herein was
awarded the lease of the factor since its offer was the
highest and under letter dated 29.01.2007 got allotment
of M/s. DSSKNN for a period of 25 years as lessee for a
bid of Rs.171.00 crores towards lease rentals. The
petitioner has made capital investment to the tune of
nearly Rs.109 crores and the unit commenced its
commercial operations successfully during the year 2008-
2009. the social status of the farming community was
improved since the commissioning of the Sugar Plant by
the petitioner. In addition thereto, the petitioner has
employed/engaged almost 400 people for various plant
operations. When the petitioner has completed expansion
of its project in full pace as per the terms and conditions of
lease deed and as per Tender notification, the petitioner
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company was shocked to understand that a new proposal
of respondent No.4 has been recommended for issuance of
Distance Certificate by the Commissioner for Cane and the
Directorate of Sugar, Bangalore for setting up a Sugar
Factor in the nearby locality.
3. Pursuant to the request of the respondent No.4,
the respondent No.2 had invited objections, if any, from
the existing local factories for the issuance of Distance
Certificate to respondent No.4. in view of the low
availability of cane, the petitioner and certain other
companies had attended the meeting called upon by the
respondent No.2 and the petitioner had objected to the
issuance of distance certificate to the area in Ramdurga
Taluka is not adequate to meet the requirements of the
existing factories i.e., the factory of the petitioner and
respondent No.4. The total cane area and cane availability
in Ramdurga Taluka as per the report of Agricultural
Director is 7593 H.A. The production capacity of all the
existing factories is 51,250 tons and cane requirement is
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92.5 lakh M.T. but the cane availability as per the reports
of the respondents is 88043. If distance certificate is
issued having regard to the above particulars on record it
is virtually closing all existing sugar factories. Having
pleading the above facts, the present writ petition is filed.
Along with the writ petition, the petitioners have produced
annexures i.e., a copy of the lease agreement as
Annexure-A, copy of the letter dated 05.04.2013 as
Annexure-B, copy of the letter dated 08.04.2013 as
Annexure-C, copy of the report of Agricultural Director as
Annexure-D, copy of notification as Annexure-E, copy of
list of sugar factories as Annexure-F, copy of reports as
Annexures-G to M, copy of map as Annexure-N, copy of
letter of Cane Commissioner as Annexure-P, copy of list of
sugar factories as Annexure-Q, copy of cane zone
allocation as Annexure-R, copy of report of distance
certificate as Annexure-S, copy of interim order passed in
W.P.No.61107/2011 as Annexure-T, copy of
commencement letter as Annexure-V, copy of weighment
slip as Annexure-W, copy of map showing location of
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factories and cane area allocation as Annexure-X, copy of
letters dated 04.11.2011 as Annexures-Y and Z, copies of
objection letter dated 15.11.2011 as Annexures-AA and
BB, copy of proceedings as Annexure-CC and copy of order
in W.P.No.60683/2012 as Annexure-DD.
4. Counsel for the petitioner would vehemently
contend that when the lease was given in favour of
petitioner on 24.10.2007, immediately work was
commissioned in the year 2009 itself and petitioner was
required to make further capital investment as per Clause
3 of the lease agreement for expanding the capacity of the
plant from 2005 TCD to 4000 TCD. The petitioner has
taken steps in order to improve the cultivation and started
cultivating sugarcane extensively with the help of
petitioner-company and formers got benefited of the same
and complied all terms and conditions of lease deed. The
counsel also brought to the notice of the court that Clause
6B of Sugar Cane (Control) Order, 1966 which discloses
requires for filing the Industrial Entrepreneur
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Memorandum. It is also contended that after receiving the
distance certificate one has to file Industrial Entrepreneur
Memorandum i.e., IEM with the Secretariat for Industrial
Assistance for setting up of the sugar factory. It is also
contended that pursuant to the request of the respondent
No.4, respondent No.2 had invited objections and detailed
objects were given and in spite of it, respondents have not
adhered to the objections of the petitioners. It is also
contended that initially the crushing capacity of the
petitioner factor was 2500 TCD and the minimum cane
requirement was 4.5 lakh MT and the petitioner has
expanded the capacity of the factor to 4000 MT. In such a
situation, the requirement of cane for petitioner is
minimum 7.5 lakh MT. If the report of the Agricultural
Director is considered, the total available cane area is
7593 HA and as per the yield per HA is 75 MT, the total
available cane is 5.69 lakh MT which is not sufficient for
the petitioner's requirement. Further the factory of one
M/s Shiv Sagar & Agro Product is of 2500 TCD and their
requirement of cane is around 4.5 lakh MT. Hence, total
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requirement of the two factories in Ramadurga Taluk is 12
lakh MT against the total available cane is 5.69 MT. The
factory namely M/s. Yaragatti Sugars Pvt. Ltd., is also
coming up in the area of which is of 2500 TCD and their
requirement of cane would be around 4.5 lakh MT. Hence,
the total requirement of two factories in Ramadurga is
16.5 lakh MT against the total available cane is 5.69 lakh
MT. At present there are 10 running factories in
Ramadurga and the surrounding Taluka of Gokak,
Suandatti, Naragunda, Mudhol, Ron and Badami and the
cane requirement of the said factories are detailed in
paragraph No.18 of the Writ Petition that capacity is
51,250 and cane requirement in lakh MT is 92.5. The
existing cane area availability in the surrounding taluka as
per the report of the Additional Director of Agriculture is
88043. The counsel would also vehemently contend that
several other competitors have filed for distance
certificates which are pending for consideration before
respondent No.2 and respondent No.2 ignoring the fact
that establishing of a new factory is not adequate to meet
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the requirements of the existing factories, new proposal of
various factory has been considered for recommendation
for issuance of distance certificate.
5. The counsel in his argument also contend that
while giving the list, area is defined but now on account of
a decision as per Anneure-R-11, 20 villages are identified
in Ramadurga Taluk, Belagavi district for excluding these
villages from the area of petitioner and the same are
withdrawn and given to the respondent No.4. The
respondent No.4 is also totally given 35 villages and this
petitioner had invested Rs.109 crores as against Rs.171
crores and without considering all these materials,
committed an error in issuing the distance certificate.
6. Per contra, counsel for the respondent No.3
contend that they have filed statement of objections and
also brought to the notice of the Court the position of law
and would contend that the sugar industry was deleted
from the list of industries required a compulsory licensing
under the provisions of the Industries (Development and
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Regulation) Act, 1951. However, while de-licencing the
sugar factory, the Government also decided in order to
avoid unhealthy competition among sugar factories to
procure sugarcane, a minimum distance of 15 km would
continued to be observed between an existing and a new
mill by exercise of powers for the Sugarcane (Control)
Order, 1996. It is also contended that Clause-6 of the
Sugarcane (Control) Order, 1996 gives powers to the
Central Government to regulate distribution and
movement of sugarcane. He also contended that sub-
clause (1) of Clause 6 provides that Central Government
may, by order, notified in the Official Gazette reserve any
area where sugarcane is grown for a factory having regard
to the crushing capacity of the factory, the availability of
sugarcane in the reserved area and the need for
production of sugar with a view to enabling the factory to
purchase the quantity of sugarcane by it. Now the power
of the Central Government is delegated to the State
Governments vide notification dated 16.07.1966 vide
Annexure-R1 and also contended that minimum distance
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criteria of 15 km as mentioned in Press Note dated
31.08.1998 is directive in nature and not mandatory.
Counsel also brought to the notice of this Court the expert
advice of the Department of Legal Affairs was sought in
the matter and the Department vide their advice dated
07.07.2006 adviced as since there is no provision
regarding providing limitation minimum distance between
two existing or proposed mills in the Sugarcane (Control)
Order, 1996, the Sugarcane (Control) Order, may be
amendment suitably. Taking into note of the said advice,
after the consolidation with the State Governments, the
representatives of the sugar factory sugarcane farmers,
the amendments to Sugarcane (Control) Order, 1996 was
made vide Sugarcane (Control) (Amendment) Order dated
10.11.2006 and a copy of the same is produced as
Annexure-R2. The counsel also brought to the notice of
this Court that the Explanation 1 and 2 defines the existing
and new sugar factories and also Explanation 4 defines the
effective steps. It is also contended that Clause-6B
explains the requirements for filing the Industrial
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Entrepreneur Memorandum (IEM) and it provides before
filing Industrial Entrepreneur Memorandum (IEM) with the
Central Government, the concerned person shall obtain a
certificate from the Sugarcane Commissioner or Director
(Sugar) or Specified Authority of the concerned State
Government and after filing Industrial Entrepreneur
Memorandum (IEM), the concerned person shall submit a
performance guarantee of Rs.1 crore to Chief Director
(sugar), within thirty days of filing the Industrial
Entrepreneur Memorandum (IEM) as a surety for
implementation of the Industrial Entrepreneur
Memorandum (IEM) within the stipulated time or extended
time as specified in Clause 6C failing which Industrial
Entrepreneur Memorandum (IEM) shall stand de-
recognized as far as provisions of this Order are
concerned. It is also contended that Clauses 6C and 6D
provide time limit to implement Industrial Entrepreneur
Memorandum (IEM) and the consequences of non-
implementation of Industrial Entrepreneur Memorandum
(IEM). It is also contended that Clause 6 C relations to
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application of Clauses 6B and 6C to the person who's
Industrial Entrepreneur Memorandum (IEM) has already
been acknowledged. The counsel also brought to the
notice of this Court the judgment of the Hon'ble Supreme
Court in the case of M/s. Ojas Industries (P) Ltd., Vs.
M/s. Oudh Sugar Mills Ltd., and others1 which has
been narrated in paragraph 15 of the statement of
objections and contend that Clause 6A of Sugarcane
(Control) (Amendment) Order, 2006, dated 10.11.2006
emphatically puts restriction on setting up of two sugar
factories within the radius of 15 km. In this regard, it is
also contended that there is no any violation of distance of
more than 15 km as prescribed.
7. Learned AGA appearing for the State also
brought to the notice of this Court that at paragraph 1 of
the statement of objections filed on behalf of the State, it
is reiterated that as per Clause 6A of Sugarcane (Control)
Order, 1966, there is restriction for setting up of two sugar
1
Civil Appeal NO.1730/2007, dated 02.04.2007
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factories within the radius of 15 kms between the new
sugar and existing factories. Learned AGA would further
brought to the notice of this Court that as per Clauses 6A
and 6B of Sugarcane (Control) Order, 1966, the Cane
Commissioner shall issue distance certificate as per
distance measured and furnished by Survey of India. It is
contended that the Survey of India furnished the distance
measurement certificate on 27.01.2012, based on the
measurement certificate furnished by the Survey of India,
the distances between the places of 4th respondent to new
and existing sugar factories was more than 15 kms.
Hence, the certificate as required under Clause 6B of
Sugarcane (Control) Order, 1966 is issued and distance
between the petitioner sugar factory and factory of
respondent No.4 is 16.8 kms as measured and furnished
by Survey of India. Learned AGA would vehemently
contend that Annexure-R1 is very clear that in terms of
the Government Order dated 11.09.2007, every sugar
factory is expected to develop the allotted reserved area
and to procure the required sugarcane to their factory.
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Since there were no sugar factory located nearby the
petitioner-factory, all the villages of Ramadurga Taluk
were allotted to the petitioner factory as reserved area.
As such, the contention of the petitioner that sugarcane
available is not sufficient is not correct. Learned AGA
would submit that Section 7 of the Karnataka Sugarcane
(Regulation of Purchase and Supply) Act, 2013 (for short,
'the Act, 2013') contemplates that a sugarcane grower in
reserved area may sell sugarcane grown to the occupier of
the factory to which the area given so reserved and also
Section 10 of the Act, 2013 refers penalty for
contravention of any provisions of the Act.
8. The counsel appearing for respondent No.4 has
also filed statement of objections along with Annexures-R1
to R-20. The counsel would vehemently contend that the
relief sought for in the writ petition cannot be granted as
the reliefs are in the nature of public interest litigation
itself, as seeking the respondent Nos.1 and 2 to constitute
an independent Committee of experts and Agriculture
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Scientist to ascertain accurately availability of sugarcane
in Belagavi District for requirement of the existing sugar
factories and allotment etc. The said relief is seeking
entire District of Belagavi, which cannot be carried out and
no purpose would be served in this regard. As such the
said relief is in the nature of public interest. The counsel
would contend with regard to second relief sought in the
writ petition that not to withdraw any sugarcane area
reserved for the petitioner sugar factory and not to allot
the same to any other sugar factory is curtailing the rights
and interest of other sugar factories as well as sugarcane
growers and it amounts to restricting the power and rights
of the respondent No.2. The availability of the cane area
and the potential of its development are taken into
account when any such cane area is reserved or de-
reserved in this regard. Hence, such relief is beyond any
rights and interest of the petitioner herein and therefore
the same is untenable and not available to the petitioner
to agitate the same in this writ petition. The counsel
would vehemently contend that in view of the policy
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framed by the Central Government of de-licensed the
sugar industry in the year 1998 itself. The counsel
referring these prayers would contend that the said reliefs
cannot be granted and the petitioner was aware regarding
the conditions of the cane availability as well as the
proposed new sugar factories coming up in the said area
when the lease was executed in its favour. He would
further contend that the respondent No.4 was granted the
permission to establish new sugar factory by respondent
Nos.1 to 3 by taking into account the availability of the
cane area and the aerial distance certificate as existing
between the petitioner sugar factory and the respondent
No.4. The distance is more than 16.8 km from the
petitioner sugar factory. The distance certificate came to
be issued by the Joint Director of Agriculture, Belagavi,
District Belagavi stating that at present then in the year
2011, the cane production is 13.74,080 MT and to be
developed to the extent of 18,986 MT. Thus, in all around
14,34,090 MT of sugar cane availability was estimated in
just two talukas of Belagavi District. The copy of the said
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estimation of sugarcane issued on 07.09.2011 is produced
and marked as Annexure-R2. The aerial distance between
the petitioner-factory and factory of respondent No.4 was
also taken note before issuing distance certificate. The
counsel would also contend that the respondent No.4 was
taken as new sugar factory in the said area and was
directed to take effective steps from 30.01.2015 within the
stipulated period of 2 years and in fact it has been
subsequently extended taking into consideration the
development work taken by the respondent No.4 and also
hampering of the work during the Covid-19 pandemic.
The respondent No.4 has got permission from the Deputy
Commissioner, Belagavi to purchase the agricultural land
for commercial purpose and even entered into civil
contract for the purpose of supply of the materials and for
design, supply, erection and commission of the said 3500
TCD with expandable to 500 TCD sugar plant with 21 MW
and 60 KLPD distillery for total work of Rs.228.92 crore.
The copy of the said agreement and amount paid by the
respondent No.4 is produced and marked as Annexure-
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R16. The counsel would vehemently contend that the
petitioner is not having any right or locus-standi to
question issuance of Industrial Entrepreneur Memorandum
(IEM) to the respondent No.4 since respondent No.4 has
been taken as new sugar factory by the respondent No.3
as provided under the Sugarcane (Control) Order, 1966
Amended, 2006 since the aerial distance between the
petitioner and the respondent No.4 is more than 17.23 km
which is more than 15 km radial distance. Hence, the
petitioner cannot find fault with issuance of distance
certificate in favour of respondent No.4. The counsel
would also contend that the respondent No.4 by
establishing the sugar factory will create job opportunity to
the rural employment and also other indirect employment
in the vicinity. The counsel also relied upon the judgment
of the Apex Court in the case of Ojas Industries Pvt.
Ltd., (supra) and in the case of Bajaj Hindustan Ltd.,
Vs. Sir Shadi Lal Enterprises Ltd.,2 and contend that
2
(2011) 1 SCC 640
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the prayers in the present writ petition are policy matters
of the State Government and therefore the grievance of
the petitioner, more particularly, as against the
respondent No.4 are untenable and illogical and sought for
dismissal of the writ petition.
9. Having considered the pleadings of the
petitioner as well as the statement of objections filed by
the respective respondents, this Court has to examine the
material available on record whether the reliefs sought in
the petition by the petitioner can be granted?
10. Having considered the material available on
record and particularly pleadings of the petitioner, there is
no dispute with regard to the fact that Dhanalakshmi
Sahakara Sakkare Kharkhana Niyamith is a Co-operative
society came to be registered on 04.10.1995. It is also
not in dispute that the notification was issued allotting
cane zone to M/s. DSSKN on 08.01.2007. It is contended
that since Dhanalaxmi sugars was running under huge
loss, it was decided to lease it to the petitioner for 25
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years for a rental of Rs.171 crores under lease agreement.
It is the specific case of the petitioner that the petitioner
commenced commercial operations in the year 2008-2009.
It is not in dispute that the second respondent addressed
as letter calling for the objections, if any for issuing
distance certificate to M/s Yaragatti Sugars Pvt. Ltd., on
11.11.2011 and the petitioner also filed objections for
issuance of distance certificate and a writ petition was also
filed seeking relief of mandamus not to process of accept
the application for Industrial Entrepreneur Memorandum
(IEM) and for other reliefs, and second respondent has
also called for the objections for issuance of distance
certificate to respondent No.4. It is important to note that
the counsel appearing for petitioner has also filed a memo
along with the order passed by this Court in earlier writ
petition which was filed against M/s Yaragatti Sugars Pvt.
Ltd. Wherein the petitioner sought permission to withdraw
the writ petition with liberty to make a representation to
the Cane Commissioner as well as highlighting their
grievances and seeking for an appropriate redressal and
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this Court granted liberty to do so and dismissed the
petition as withdrawn and observed if any representation
is made, the Cane Commissioner and the State
Government shall consider the same as expeditiously as
possible and at any rate within a period of three months
from the date of receipt of the representation. It is also
important to note that the relief sought in the said writ
petition was to direct the respondent Nos.1 and 2 to
constitute an independent committee of experts and
agricultural scientists to ascertain accurately availability of
sugar cane in Belgaum District, Karnataka State and the
requirement of the existing sugar factories and allocate
sufficient designated areas to the petitioner to enable the
petitioner to operate its plant at the capacity of 4000 TCD.
11. It is also important to note that the said writ
petition was filed in the year 2012 and the present writ
petition is filed in the year 2013. When the distance
certificate was issued in favour of respondent No.4, the
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relief sought for in the earlier writ petition and in the
present writ petition is similar.
12. It is the grievance of the petitioner that
issuance of distance certificate in favour of respondent
No.4 is nothing but snatching the right of the petitioner.
When this Court already granted permission to the
petitioner in the earlier writ petition of liberty to file
representation and time stipulation was also mentioned
and the grievance of the petitioner, no decision was taken
as per the direction in the earlier writ petition. The main
contention of the petitioner after obtaining distance
certificate as per Clause 6B of the Sugarcane (Control)
Order, 1966, one has to file Industrial Entrepreneur
Memorandum (IEM) to the Director of Sugarcane and
thereafter to issue necessary orders as required under the
Sugarcane (Control) Order, 1966. The main contention of
the petitioner that taking into account the same, for all the
villages it hindrance to procure the sugarcane to reach the
TCD of 4000 in terms of the list. It has to be noted that
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the statement of objections filed by respondent No.3 is
very clear in the detailed account statement with regard to
establishment of new sugar factory. It is also very clear
that while de-licensing sugar factory, the Government also
decided that in order to avoid unhealthy competition
among sugar factories to procure sugarcane, a minimum
distance of 15 km would continue to be observed between
an existing and a new mill by exercise of powers for the
Sugarcane (Control) Order, 1996. It is also important to
note that the distance between the petitioner sugar factory
and factory of respondent No.4 is 16.8 kms but only
contention that it affects procuring the sugarcane. It is
important to note that Clause 6A of the Sugarcane
(Control) (Amendment) Order, 2006, dated 10.11.2006
clearly restricts for setting up of two sugar factories within
the radius of 15 km. It is also important to note that the
minimum distance criteria of 15 km is mentioned in Press
Note dated 31.08.1998 with the approval of the Central
Government. The powers vested with the Central
Government have been delegated to the State
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Government vide notification dated 16.07.1966 vide
Annexure-R1. When such being the case, the contention
of the petitioner that issuing distance certificate is nothing
but snatching the right of the petitioner cannot be
accepted and in terms of Clause 6A, minimum distance
criteria is provided and also it is to be noted that it is the
contention of the petitioner that investing more than
Rs.100 crores and lease is for Rs.171 crores and the
petitioner has to make efforts in procuring sugarcane
within the area.
13. The very contention of the petitioner that some
of the villages have been removed from the jurisdiction of
the petitioner sugar factory, there is a force with regard to
the said contention is concerned and there cannot be any
snatching of any villages of area reserved for the
petitioner. No doubt the specific contention is that some
of the villages have been removed and hence, it is
appropriate to give a direction to the respondents with
regard to reconsider the same. However, taking into note
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of issuance of distance certificate, when Clause 6A has
been complied, the very grievance of the petitioner cannot
be addressed in this writ petition and the same will not
take away the right of the petitioner. The relief sought in
the petition cannot be granted by issuing mandamus and
the same is policy matter and the judgment in Bajaj
Hindustan Pvt. Ltd. referred supra by the counsel for
respondents is very clear that when the policy decision
was taken and the same is impermissible and the Courts
cannot interfere when there is clear norms or provisions or
otherwise not to exercise its discretion and there cannot
be any judicial review with regard to policy decision is
concerned and also the decision of experts in formulating
policies. Hence, I do not find any ground to grant the
relief of mandamus as sought by the petitioner to
constitute an independent Committee of experts and
Agriculture Scientist to ascertain accurately availability of
sugarcane in Belagavi District. Hence, except consideration
of the prayer for removing of the some of the villages
within the area of petitioner sugar factory to consider the
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same, no other relief can be granted. Hence, I pass the
following:
ORDER
(i) Writ Petition is allowed in part.
(ii) The respondents are directed to consider the representations of the petitioner vide Annexures-AA and BB dated 15.11.2011 and 15.11.2011 with regard to removal of some of the villages within the area of the petitioner as per Annexures-R4 and R11.
(iii) The other prayers in the writ petitions are rejected.
Sd/-
(H.P. SANDESH) JUDGE Naa List No.: 1 Sl No.: 69