Madras High Court
Unknown vs The Commissioner Of Sugars on 11 August, 2022
Author: Abdul Quddhose
Bench: Abdul Quddhose
W.P.No.7692 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 01.08.2022
PRONOUNCED ON : 11.08.2022
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
W.P.No.7692 of 2022 &
W.M.P.No.7698 of 2022
1.Senthil kumar
2.S.Elavarasan
3.Rajasekar
4.R.Murugan
5.R.Kumar
6.A.Pary
7.G.Selvarasu
8.G.Gopalsamy
9.P.Ezhilchelvan
10.T.Subramanian
11.K.Natarajan
12.K.Thenmozhi
13.R.Velmurugan
14.R.Sundaramoorthy
15.K.Dakshinamoorthy
16.R.Vijayasarathi
17.Kathiravan
18.Thirthamani
19.V.Sridevi
20.T.Gajendran
21.Manikandan
22.Nithyalakshmi
1/22
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W.P.No.7692 of 2022
23.Selvaraj
24.Ramalingam
25.Balakrishnan
26.Chinnadurai
27.G.Harikrishnna
28.C.Krishnasamy
29.Velmurugan
30.Veerabadran
31.Rajee
32.R.Selvakumar
33.G.Selvakumar
34.Inbamurthy
35.Ranganathan
36.Manimegalai
37.Tamilmani
38.Anbazhagan
39.Pandurangan
40.Mathiazhagan
41.Katturaja
42.Chinnaraja
43.Elavarasi
44.Gnanasundari
45.Ramanujam
46.Subesan Vageesan
47.Thangam
48.Thiruvengadam
49.R.Pandian
50.Thangadurai
51.K.Ravi
52.Kolanjinathan
53.Bhavani
54.Rajendran
S/o.Appadurai
55.Rajendran,
S/o.Srinivasan
2/22
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W.P.No.7692 of 2022
56.Siva
57.Palanivel
58.Selvam
59.Radhakrishnan
60.Sudhakar
61.Elangovan
62.S.Revathi
63.S.Ariharan
64.R.Shoba
65.E.Sumathi
66.R.Thangappan
67.A.Venkatesan ... Petitioners
Vs
1.The Commissioner of Sugars
(Additional Chief Secretary),
Avvai Illam, 2nd Floor,
3A, Pasumpn Muthuramalinganar Salai,
Nandhanam,
Chennai – 600 035.
2.The General Manager,
EID Parry (India) Pvt. Ltd.,
Nellikuppam,
Cuddalore District.
3.The Managing Director,
M.R.K.Cooperative Sugar Mills,
Sethiathope,
Cuddalore District – 608 702. ... Respondents
3/22
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W.P.No.7692 of 2022
PRAYER: Writ petition filed under Article 226 of the Constitution of India
for writ of certiorari calling for the records leading to the impugned order
dated 01.12.2021 passed by the first respondent in R.C.No.261/Cane2/2019
and quash the same.
For Petitioners : Mr.C.Jagadish
For Respondent 1 : Mr.Neelakandan,
Additional Advocate General
Assisted by Mr.K.H.Ravikumar,
Government Advocate
For Respondent 2 : Mr.R.Parthasarathy
For Respondent 3 : Mr.T.C.Harinath
for Ms.S.Anitha
ORDER
This writ petition has been filed challenging the impugned order dated 01.02.2021 passed by the first respondent allotting the Kammapuram Firka to the third respondent Sugar Mill.
2. The petitioners are sugarcane growers in Kammapuram Firka. Earlier they were supplying sugarcane to Shree Ambika Sugars, Pennadam which went into liquidation and thereafter, Kammapuram Firka was 4/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 annexed as Reserve area to the second respondent Sugar Mill by order dated 07.06.2019 passed by the first respondent. According to the petitioners, the second respondent is a financially sound sugar mill and making payments to the petitioners who are sugarcane farmers on time without committing default. However, according to the petitioners, all of a sudden, despite objections raised by the petitioners, the impugned order dated 01.02.2021 came to be passed by the first respondent under which Kammapuram Firka is allotted to the third respondent sugar mill. According to the petitioners, the third respondent sugar mill is financially unsound and they are defaulters in payment for the supplies of sugarcane effected by the farmers. According to the petitioners, it can be seen that the crushing capacity utilization of the third respondent sugar mill has not at all exceeded 50% from the crushing season of 2016-2017. According to them, because of the improper administration of the third respondent sugar mill and failure to upgrade, there are frequent break downs during every crushing season in the third respondent sugar mill and the third respondent sugar mill hardly functions for at least 45 to 50 days. According to them, if they are made to supply to the third respondent sugar mill, they will not be receiving the payment for 5/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 the sugarcane supplies on time.
3. The petitioners have challenged the impugned order on the ground of violation of principles of natural justice. According to them, as per the provisions of section 9 of the Tamil Nadu Sugar Cane Factories Control Act, 1949, personal hearing ought to have been given to the occupier and the sugarcane grower before passing such an impugned order. According to the petitioners, the first respondent has misused the power of eminent domain thereby depriving the sugarcane growers' rights guaranteed under Article 14, 19 and 21 of the Constitution of India.
4. According to the petitioners, the third respondent sugar mill is almost on the verge of being declared as a sick unit. At this juncture, transferring the reserve area from the second respondent sugar mill to the third respondent sugar mill would amount to penalizing the sugarcane growers and thereby, putting them to untold misery and irreparable injury.
5. A counter affidavit has been filed by the first respondent denying the allegations of the petitioners. It is their contention that the impugned 6/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 order protects the interest of the petitioners as the distance between the sugarcane farms and the third respondent sugar mill is around 25 kms only, whereas the distance between the sugarcane farms and the second respondent sugar mill is more than 50 kms.
6. According to the first respondent, they invoked Rule 6(1)(a) of Sugarcane (Control) Order, 1966 which is applicable to the whole of India and the same was issued in exercise of powers conferred by section 3 of Essential Commodities Act, 1955. According to them, only in accordance with the said Rule, they are empowered to notify the reserve area. According to them, they have not invoked section 9 of the Tamil Nadu Sugarcane Factories (Control) Act , 1949. According to them, under Rule 6 of the Sugarcane (Control) Order, there is no provision of personal hearing for the occupier of the factory of the sugarcane growers. Therefore, there is no misuse of power of eminent domain by the first respondent. According to the first respondent, the existing registration of the petitioners with the second respondent Mill by the petitioners could not be taken as a reason for challenging the impugned order. According to the first respondent, the 7/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 reasons of the third respondent Management along with the investment utilization in the last five seasons have also been taken into account before passing the impugned order. According to the first respondent, they have followed the procedure established under law before passing the impugned order. It is also their contention that the petitioners have come forward with this writ petition after a period of three months with some oblique motive
7. The third respondent has also filed a counter affidavit denying the allegation of the petitioners. According to them, they are not defaulters as alleged by the petitioners. They have given statistics with regard to the capacity utilization for their past five seasons. In the counter affidavit, they have also compared the cane utilization of the second respondent mill in the past five seasons. According to them, considering the lesser capacity utilization, reduction in cane registration, additional land acquisition proposed by Neyveli Lignite Corporation of India Ltd., the shortest distance, the commencement of Cogeneration and Ethanol plant in the third respondent Sugar Mill and willingness of the sugarcane farmers and to protect the welfare of the sugarcane farmers, the kammapuram firka in 8/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 Cuddalore District was allocated to the third respondent Sugar Mills.
8. According to the third respondent, they were established in the year 1987 and registered as a Cooperative Society under the Tamil Nadu Cooperative Societies Act, 1961. According to them, they are running successfully their sugar mill for more than three decades and providing employment opportunities directly to 600 employees, indirectly to 6000 cane harvest men and women, agricultural labourers and 400 Tractor Drivers. The third respondent also contends that it has daily capacity to crush 2500 TCD and liable for crushing 4.30 LMT of cane per year with 5.0 MW power exporting capacity with the Co-generation Plant. But according to the third respondent, for the past five seasons, full capacity of 4.30 LMT's of cane crushing could not be achieved in view of decline in cane production due to various reasons like cultivation, urbanization and industrialization of other competitive and marketable crops. According to the third respondent, the Department of Sugar is only implementing National Agriculture Development Program (NADP) to support the needy farmers by providing subsidy of Rs.12,000/- per Hectare for purchase of breeder seed, subsidy of 9/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 Rs.11,000/- per Hectare for purchase of bud chip seedlings and subsidy of Rs.90,000/- per Hectare to purchase Tissue Culture Seedlings. The third respondent also contends that for the past five years, the cane payment to the cane growers were fully settled by the third respondent Mill.
9. Heard Mr.C.Jagadish, learned counsel for the petitioner and Mr.Neelakandan, learned Additional Advocate General assisted by Mr.K.H.Ravikumar, learned Government Advocate appearing for the first respondent, Mr.R.Parthasarathy, learned counsel for the second respondent and Mr.T.C.Harinath, learned counsel representing Ms.S.Anitha, learned counsel for the third respondent.
10. Learned counsel for the petitioner drew the attention of this Court to the Division Bench Judgment of this Court in the case of Nadippisai Pulavar K.R.Ramasamy Co-operative Sugar Mills Cane Growers Association vs. Union of India and others reported in 2010 SCC Online Mad 3392 and would submit that adherence to the principles of natural justice is mandatory.
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11. Per contra learned standing counsel appearing for the first respondent would reiterate the contents of the counter affidavit filed by the first respondent in this writ petition. He would submit that only in accordance with law, the impugned order has been passed and there is no necessity to provide an opportunity of hearing to the petitioners as per the Sugarcane (Control) Order 1966.
12. Learned counsel for the third respondent would submit that the third respondent is not a defaulter as alleged by the petitioners in this writ petition and according to him, since the petitioners (sugarcane farmers) are close to the factory (third respondent sugar mill), the impugned order has been passed declaring kammapuram firka is falling within the close proximity of the third respondent Sugar Mill.
13. Admittedly as seen from the impugned order, no opportunity of hearing has been granted to the petitioners. Section 9 of the Tamil Nadu Sugar Factories Control Act, 1949 reads as follows: 11/22
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(2) The Sugarcane Commissioner may, at any time by notification, modify or cancel any notification issued under sub-section (1):
Provided that before doing so, he shall give a reasonable opportunity to the occupier of the factory and the growers of sugarcane concerned, for making their representations, if any, in regard thereto.
(3) Any person aggrieved by an order of the Sugarcane Commissioner under sub-section (1) or sub-
section (2) may within the prescribed time, appeal to the Government and the Government may pass such orders as they deem fit on such appeal.”
14. As seen from the aforementioned section, a reasonable opportunity of considering their objections insofar as the occupier of the 12/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 factory and the growers of sugarcane are concerned, will have to be given, in case of modification or cancellation of any earlier notification issued under sub-section (1). In the case of hand, the petitioners were directed to supply to the second respondent Mills as per the first respondent notification. However, without granting any opportunity to raise objections, the petitioners have now been directed to supply sugarcane to the third respondent sugar mill.
15. The contention of the petitioners in this writ petition is that the third respondent sugar mill is not financially sound and they are likely to commit default in the payment of the dues payable to the petitioners for the supply of sugarcanes made to them. The first respondent however disputes the contention of the petitioners and would submit that the impugned order has not been passed under Tamil Nadu Sugar Factories Control Act, 1949, but has been passed under Sugarcane (Control) Order dated 16.07.1966. However, the contention of the third respondent is disputed by the first respondent and they would reiterate that the impugned order has been passed only under Tamil Nadu Sugar Factories Control Act XX of 1949. 13/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 The third respondent also contends that they are financially sound to pay for the sugarcane to be supplied by the petitioners. Both the first respondent and the third respondent contend that the kammapuram firka area is close to the proximity of the third respondent sugar mill and that is the reason for the first respondent passing the impugned order directing the petitioners to supply sugarcane to the third respondent sugar mill.
16. The aforementioned contentions of the respective parties could have been considered on merits and in accordance with law only when a fair hearing was afforded to the petitioners including granting them the right of personal hearing. As seen from the impugned order, no opportunity of hearing was granted to the petitioners.
17. Section 9 of the Tamil Nadu Sugar Factories Control Act, XX of 1949 makes it clear that an opportunity to raise objections will have to be granted to the farmers (petitioners herein) before modifying the earlier notification. Under the earlier notification, the petitioners were directed to supply to the second respondent mill which has now been modified under 14/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 the impugned order by which the petitioners have been directed to supply to the third respondent sugar mill. Whether the Tamil Nadu Sugar Factories Control Act, XX of 1949 or the Sugarcane Control Order 1966 applies to the facts of the petitioners is a matter for consideration on merits and in accordance with law after hearing the petitioners as well as the second and third respondents. Since no opportunity of hearing has been granted by the first respondent before passing the impugned order, this Court is of the considered view that principles of natural justice has been violated by the first respondents.
18. The Division Bench of this Court in its decision in the case of Nadippisai Pulavar K.R.Ramasamy Co-operative Sugar Mills Cane Growers Association vs. Union of India and others reported in 2010 SCC Online Mad 3392 by following the definition of “civil consequence” as laid down in the decision of the Hon'ble Supreme Court in the case of Mohinder Singh Gill vs. Chief Election Commissioner reported in (1978) 1 SCC 405 has enumerated the list of grievances expressed by the sugarcane growers which is extracted hereunder:
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(a) The cane growers were not represented in the Area Delimitation Committee.
(b) As part of Co-operative sugar mill various helps extended to them through such society will stand deprived off.
(c) The distance between the cane area and the new sugar mills varies from 15 to 120 kilometres.
(d) As most of the cane growers have their own tractors and used to transport their sugarcane to the sugar mills and get the transportation charges, after the bifurcation, due to the distance factor they are not in a position to use their own tractors instead they will have to go in for hired vehicles by which they will be deprived of sufficient income.
(e) Being the members of the Co-operative sugar mills, and having regard to the concept of Co-operative movement, by virtue of the delimitation, they will be forced to supply to private new mills in which they have no right of ownership. According to the cane growers, they would be too willing to supply to their own Co- operative mills in which they are members.
(f) As a member of the Co-operative sugar mills whatever loan they borrow, they gain an advantage of 16/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 periodical waiver of loans announced by the State Government.
(g) There is likelihood of ceasing of membership of the Co-operative sugar mill when their cane area is allowed to private mills.
(h) Even as per the counter statement of the Government, serious prejudice is caused to cane growers and therefore they should be heard before any delimitation takes place.
(i) By the impugned orders, the developed areas have been allotted to private new mills diverting it from the Co-operative sugar mills to its prejudice.
(j) Diversion of sugarcane area will offend Article 19(1)(f) of the Constitution and consequently an hearing should have been afforded to the farmers.
(k) By referring to certain clauses in the bylaws of Thirupathur Co-operative sugar mill it has been pointed out that if a sugarcane grower ceases to be a producer member, he will lose the benefit of membership of the mill which will have serious consequence.
(l) It was also pointed out that the crushing capacity of Co-operative sugar mill in the case of the respondent in S.A.No.540 of 2009, the proposed capacity 17/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 of the proposed new sugar mill is 5 lakhs MT and that the cane area of Co-operative sugar mill if diverted that would seriously impair the crushing operations of the Co-
operative sugar mill which would in turn result in extrication of the very Co-operative sugar mill itself.
(m) It was further pointed out that by virtue of the stipulations relating to the new sugar mills wherein the sugarcane growers are expected to bear the 10% of the cost of the self generating power supply unit, that would seriously impinge upon the rights of the cane growers.
(n) It was also pointed out that in the details of payments contained in the statement issued by the new sugar mills deduction by way of transport charges and dividend has been made which deduction was never made by the Co-operative sugar mill.
(o) In respect of Kallakurichi sugar mill it was pointed out that already Kallakurichi sugar mill was bifurcated into two and a further bifurcation of sugarcane areas to Dhanalakshmi Srinivasan Sugars (P) Ltd. will cause further set back in the functioning of the Kallakurichi Sugar Mills, which may ultimately result in closure of the said mill.
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(p) When the Area Delimitation Committee in its proceedings has specifically recorded that they heard the representatives of the New Sugar Mills, there was no justification in not affording such an opportunity to the sugar cane growers.
19. The Division Bench of this Court in paragraph 96 of the very same judgment has held that it was imperative that the representatives of the cane growers should have been given an opportunity to participate in the proceedings of the Area Delimitation Committee and the relevant paragraph is extracted hereunder:
“96. The above grievances listed out on behalf of the cane growers are intrinsically connected and are germane in nature. In this context the statutory prescriptions of the Madras Sugar Factories Control Act, 1949, assumes greater significance. When statutorily it was though fit to include two of the representatives of cane growers in the Advisory Committee, and when the competent Authority namely, the Cane Commissioner and the State Government thought it fit to constitute the Area Delimitation Committee mainly to consider the bifurcation of the cane areas, it was imperative that the 19/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 representatives of the cane growers should have been given an opportunity to participate in the proceedings of the Area Delimitation Committee.”
20. Therefore, the petitioners ought to have been granted an opportunity to raise their objections before passing the impugned order. But as seen from the impugned order, no opportunity has been granted to the petitioners to raise their objections. Being a non speaking order with regard to the contentions of the petitioners in this writ petition and being an order passed by violating the principles of natural justice, the impugned order passed by the first respondent has to be necessarily quashed and the matter has to be remanded back to the first respondent for fresh consideration on merits and in accordance with law after affording a fair hearing to the petitioners.
21. For the foregoing reasons, the impugned order dated 01.12.2021 passed by the first respondent is hereby quashed and the matter is remanded back to the first respondent for fresh consideration on merits and in 20/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 accordance with law after affording affording a fair hearing to the petitioners as well as the second and third respondents including granting them the right of personal hearing. The first respondent shall pass final orders within a period of four weeks from the date of receipt of a copy of this Order.
22. With the aforesaid direction, this writ petition is disposed of. No costs. Consequently connected miscellaneous petition is closed.
11.08.2022 nl ABDUL QUDDHOSE, J.
nl 21/22 https://www.mhc.tn.gov.in/judis W.P.No.7692 of 2022 To
1.The Commissioner of Sugars (Additional Chief Secretary), Avvai Illam, 2nd Floor, 3A, Pasumpn Muthuramalinganar Salai, Nandhanam, Chennai – 600 035.
2.The General Manager, EID Parry (India) Pvt. Ltd., Nellikuppam, Cuddalore District.
3.The Managing Director, M.R.K.Cooperative Sugar Mills, Sethiathope, Cuddalore District – 608 702.
Pre-Delivery order in W.P.No.7692 of 2022 11.08.2022 22/22 https://www.mhc.tn.gov.in/judis