IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.11.2009 CORAM: THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P.No.19294 of 2006 Thiru Arooran Sugars Limited, represented by its Executive Director, 112, Uthamar Gandhi Salai, Nungambakkam, Chennai-600 034. ... Petitioner vs. 1.State of Tamil Nadu, represented by Secretary to Government, Agriculture Department, Fort St. George, Chennai-9. 2.Commissioner of Sugar & Cane Commissioner, Nandanam, Chennai-600 035. 3.Chairman, Area Delimitation Committee, Office of the Secretary to Government, Agriculture Department, Fort St. George, Chennai-600 009. 4.Attur, Kattukottai, Malliyakari Firca Sugar Cane Sagubadiyargal Nalasangam, Narasingapurathar Thottam, Manivilundhan Colony, Attur Taluk, Salem District, represented by its President, P.Dhanakodi. (4th Respondent was impleaded as per order dated 17.4.2007 in M.P.No.1 of 2007) ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying to issue a writ of certiorari, calling for the records of the first respondent issued in G.O.Ms.No.277, Agriculture (SC) Department dated 25.10.2005, insofar as it relates to subject No.1 and the consequential proceedings of the second respondent made in Rc.No.21034/Cane-1/05-1 dated 25.10.2005 and in Rc.No.21034/Cane-1/05 dated 23.11.2005 and quash the same. For petitioner : Mr.Sathish Parasaran For respondents : Mr.V.Manoharan, Government Advocate for R1 to R3 : Mr.R.Nalliyappan for R4 ----- O R D E R
The Writ Petition is filed praying to issue a writ of certiorari, calling for the records of the first respondent issued in G.O.Ms.No.277, Agriculture (SC) Department dated 25.10.2005, insofar as it relates to subject No.1 and the consequential proceedings of the second respondent made in Rc.No.21034/Cane-1/05-1 dated 25.10.2005 and in Rc.No.21034/Cane-1/05 dated 23.11.2005 and quash the same.
2. The writ petitioner is a company registered under the Companies Act, 1956 with two Sugar Factories, co-generation facilities and a distillery unit. Petitioner company commenced crushing operation from January, 2003. Petitioner requested the Commissioner of Sugar and Cane Commissioner, the second respondent herein for allotment of 114 villages in Vridhachalam and Tittakudi Taluks of Cuddalore District as reserved area for drawal of sugarcane. Pending allotment, the second respondent allowed the petitioner to carry on crushing operation by diverting the area reserved for Shree Ambika Sugars Limited, Pennadam, an associate company. In order to effectively utilise the sugar mill, the petitioner sought for allotment of additional area in April 2003. This request was made in terms of the clause 6 of the Sugarcane (Control) Order, 1966 which reads as follows:-
“Clause 6: Power to regulate distribution and movement of sugarcane:
(1) The Central Government, may, by order notified in the Official Gazette.
(a) reserve any area where sugarcane is grown hereinafter in this clause referred to as “reserved area” 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 required by it;”
In terms of Clause 6, of Sugarcane (Control) Order 1966, the power is conferred on the Cane Commissioner (Director of Sugar), Tamil Nadu by the Government of India Notification GSR 267(E)/ESS.com/Sugarcane dated 4.6.1977. The officer has the power to examine and recommend the Delimitation Committee the area of operation of the sugar mills in the co-operative, public and private sector. The Government of Tamil Nadu by G.O.Ms.No.468, Industries (MIC) Department dated 6.12.1993 have constituted High Level Committee, called Area Delimitation Committee (ADC). In terms of G.O.Ms.No.217, Industries (MIC.1) Department dated 18.8.97, Government directed that the power relating to demarcation of areas between the existing sugar mills in co-operative and public sector shall be exercised by the Director of Sugar Cane-cum-Cane Commission in terms of the provisions of Sugarcane (Control) Order, 1966. The Area Delimitation Committee will continue to examine the Area Demarcation proposals in respect of new sugar mills and sugar mills in the private sector. The Director of Sugar and Cane Commissioner in his proceedings dated 20.5.2005 in Rc.No.18805/Cane 1/04-IV transferred certain areas from various sugar mills in favour of the petitioner. The subject matter of the present petitioner relates to transfer of five Firkas in favour of the petitioner in Salem District. Serial No.4 of the order, which is relevant, reads as follows:-
Sl.No.
Dis-trict
Taluk
Firka
Already allotted to
Trans-ferred to
4
Salem
Attur (Part)
i.Attur (Full)
ii.Peddanai-kanpalayam (Full)
iii.Malliakarai (Full)
iv.Ettapur (Full)
v.Kattukottai (Full)
GEA Energy Systems Ltd.
Kallakurichi II Cooperative Sugar Mills, Kachiraya-palayam
Thiru Arooran Sugars Ltd. A.Chittur.
Thiru Arooran Sugars Ltd. A.Chittur.
3. After transfer of the area, the petitioner company were drawing cane from this five Firkas. It appears that the sugarcane growers of the Attur area have made representation to the Director of Sugar and Cane Commissioner and other authorities to transfer their area from the petitioner sugar mill to the co-operative sugar mill. In view of the representation, the matter was considered by the 28th Area Delimitation Committee held on 21.10.2005 and it gave a report. Such report was considered and ordered by the Government in G.O.Ms.No.277 Agriculture (SC) Department dated 25.10.2005. The subject matter of the present writ petition was taken up as subject No.1 and the relevant portion reads as follows:-
“ORDER:-
In the G.O. first read above, the Government have constituted the Area Delimitation Committee (ADC) to recommend the area of operation of each sugar mills for getting sugarcane from the Growers. In the G.O. second read above, Government has ordered that powers relating to demarcation of cane areas among the existing sugar mills in Co-operative and public sector shall be vested with Director of Sugar-cum-cane Commissioner and that the Area Delimitation Committee (ADC) shall continue to examine the Area Demarcation proposals in respect of new Sugar Mills and the Sugar Mills under private sector.
2. In the reference third read above, the Director of Sugar has reported that the 28th Area Delimitation Committee Meeting was held on 21-10-2005 and that four subjects were placed before it for its consideration and recommendations. Of the four subjects placed before the 28th Area Delimitation Committee one subject was deferred and the Committee took decision on 3 subjects and its recommendations thereon are as below:-
Sub-ject No.
Subject
Recommendation of the Area Delimitation Committee
1
Request of the cane growers Association to retransfer of Attur Taluk areas to Subramaniya Siva Co-operative Sugar Mills and Salem Co-op. Sugar Mills from Thiru Arooran Sugars.
The Committee after discussion has considered that the request of the Cane Growers Association and the cane availability for optimum utilization for the co-operative Sugar Mills. The Committee took a decision to cancel and withdraw the 5 Firkas of Attur Taluk viz., i) Attur(Full) ii)Peddanaikkenpalayam(Full) (iii)Malliyakarai(Full) vi) Ettappur(Full) & v) Katukottai(Full) which is allotted to M/s.Thiru Arooran Sugar, A.Chittoor vide the proceedings Rc.No.18805/Cane-1/04-IV dated 20.5.2005 of Director of Sugar and Cane Commissioner.
After the issue of cancellation orders, the Director of Sugar is instructed to reallot the cane areas to the respective cooperative Sugar Mills.
4. Based on the above said G.O., the Director of Sugar and Cane Commissioner passed the order dated 25.10.2005 in Rc.No.21034/Cane/1/05 transferring the five Firkas to nearby Co-operative Sugar Mills stating that the notification will be published subsequently. Thereafter, The Director of Sugar and Cane Commissioner by referring the G.O.No.277 dated 25.10.2005 and the earlier order of the Cane Commissioner dated 25.10.2005 passed another order dated 23.11.2005 in Rc.No.21034/Cane 1/05 reallotting the five Firkas, which were already withdrawn from the petitioner company, to various other co-operative sugar mills. All the three orders are under challenge in the present writ petition.
5. The primary contention raised by Mr.Sathish Parasaran, the learned counsel appearing for the petitioner is that the Area Delimitation Committee meeting held on 21.10.2005 and the Government while passing G.O.Ms.No.277 dated 25.10.2005 did not give the petitioner an opportunity to refute the reasons given by the so-called Cane Growers seeking withdrawal of the five Firkas allotted to the petitioner company. Even at the time of transfer of the five Firkas to other co-operative mills, the petitioner company were not given sufficient opportunity to submit their objections. The Government and the Area Delimitation Committee while considering the case of the representation of the so-called Cane Growers are bound to call upon the petitioner to state their views in terms of clause 6 of the Sugar (Control) Order 1966. Several relevant factors have not been taken into consideration which includes the size of the petitioner factory, viz., the crushing capacity, availability of the sugarcane in the reserve area and the need for production of sugar with a view to enabling the factory to purchase the quantity of sugarcane required by it which will ultimately benefit the ryots. These factors which are relevant for the purpose of deciding the delimitation of area have not been considered in the 28th meeting held on 21.10.2005 and has been decided unilaterally without giving an opportunity to the petitioner to refute the sugarcane growers request for withdrawal and transfer of the five Firkas to the other co-operative mills. This will be opposed to the principles of natural justice.
6. On the plea of violation of principles of natural justice, learned counsel for the petitioner relied upon the decision of the Apex Court in Purtabpur Company Ltd., – v. – Cane Commissioner of Bihar and others reported in AIR 1970 Supreme Court 1896, wherein the Apex Court held in para 22 as follows:-
“The representations made by the 5th respondent or even the substance thereof were not made available to the appellant. The proposal to split the reserved area into two or the manner in which it was proposed to be split was not made known to the appellant and his objections invited in that regard. The appellant complains that the manner in which the area had been divided had caused great prejudice to it. Its grievance may or may not be true but the fact remains that it had no opportunity to represent against the same. Hence, the appellant is justified in complaining that the principles of natural justice had been contravened.”
In the case before the Apex Court, the order altering the reservation of Cane area by the Cane Commissioner was on the direction of the Chief Minister. It was found fault by the Apex Court stating that the Chief Minister is not a recognised authority under Clause 6 of Sugar (Control) Order, 1966. It further held that an opportunity should have been given to the company to represent their case at the time of modification of the reserve area.
7. Heard Sri Nalliappan, learned counsel appears for the fourth respondent sugar cane growers. He stated that the rights of sugarcane growers, the fourth respondent herein, have been protected by the Division Bench of this Court in Writ Appeal No.849 of 2007 dated 4.9.2007. The petitioner is willing to abide by the said order. The learned counsel for the petitioner further states that the fourth respondent, who are members of the association can opt either to supply cane to the petitioner mill or to the co-operative mill at their choice in terms of the order of the Division Bench.
8. The learned Government Advocate Mr.V.Manoharan submitted that the Area Delimitation Committee has considered the representation of the Sugarcane Growers and only thereafter order was passed. A counter-affidavit was filed explaining the reason for passing the impugned proceedings.
9. This court, however, is not inclined to accept the statement made in the counter-affidavit only for the reasons that what is not found in the order under challenge cannot be explained and improved by way of a counter-affidavit. It is trite law that the case of the respondents cannot be improved on the basis of the counter-affidavit or the written submissions vide Mohinder Singh Gill and another v. – The Chief Election Commissioner, New Delhi and others AIR 1978 Supreme Court 851 and S.N.Mukherjee v. – Union of India (1990)4 SCC 594. In para 8 of the decision in AIR 1978 SC 851 reads as follows:-
“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhani (AIR 1952 SC 16)(at p.18):
“Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself”.
Orders are not like old wine becoming better as they grow older.”
10. In this case, the petitioner was not given an opportunity to represent the grievance of the company in respect of the stand taken by the cane growers before the Area Delimitation Committee. The petitioner company claims that their valuable right has been affected. The breach of Clause 6 of the Sugar (Control) Order and the plea of prejudice finds favour by this court.
11. In such view of the matter the impugned G.O.Ms.No.277 dated 25.10.2005 and the consequential orders passed by the second respondent are set aside and the matter is remitted back to the appropriate authority for reconsideration of the matter in accordance with law after affording sufficient opportunity to all the rival parties. The Writ Petition is ordered accordingly. No order as to costs.
ts
To
1.The Secretary to Government,
Agriculture Department,
Fort St. George,
Chennai-9.
2.Commissioner of Sugar & Cane Commissioner,
Nandanam,
Chennai-600 035.
3.Chairman,
Area Delimitation Committee,
Office of the Secretary to Government,
Agriculture Department,
Fort St. George,
Chennai 600 009