IN THE HIGH COURT OF JUDICATURE AT PATNA
C.W.J.C. NO.20280 OF 2010
M/s Vishnu Sugar Mills Limited, Harakhua, P.O. Vishnu Sugar Mills, District-
Gopalganj through its General Manager P.R.S. Panicker, Son of Sri Raghav
Panikher.
....Petitioner.
Versus
1. The State of Bihar through the Commissioner cum Secretary, Sugarcane
Development Department, Government of Bihar, Patna.
2. The Cane Commissioner, Sugarcane Development Department,
Government of Bihar, Patna.
3. M/s J. H. B. Distilleries & Sugar Mills Ltd., Padrauna, Kushi Nagar, Uttar
Pradesh.
4. M/s Saraiya Sugar Mills, Sardar Nagar, Gorakhpur, Uttar Pradesh.
5. New India Sugar Mills, Dhadha Bujurg Theshil-Hata, District-Kushinagar,
State of Uttar Pradesh.
6. Jitendra Kushwaha S/o Late Kishundeo Prasad, Resident of Village-
Siswania, P.O.- Kiorpatty, P.S.- Thakraha, District-West Champaran.
7. Krishna Bihari Prasad, S/o Sita Saran Prasad, resident of Village-Bhuall
Patti, P.o.-Kiorpatti, P.S.- Thakraha, District-West Champaran.
8. Bijoy Kumar Kushwaha, S/o Sri Jaichand Prasad, resident of Village+
P.O.-Dhum Nagar, P.S.- Thakraha, District-West Champaran.
9. Om Prakash Singh, S/o Late Rajmangal Singh, Village+P.O.-Kiorpatti,
P.S.-Thakraha, District-West Champaran.
10. Bhabhijhan Yadav, S/o Srihlar Pal Yadav, Resident of Village-Motitola,
P.O.+ P.S.-Thakraha, District-West Champaran.
11. Dina Nath Gupta S/o Late Darikhan Gupta, resident of village-Dhatahwa,
P.O.+P.S.- Thakraha, Distt.-West Champaran.
12. Yogendra Prasad S/o Late Ramjee Prasad resident of village-Dhatahwa,
P.O.+P.S.- Thakraha, Distt.-West Champaran.
13. Khatai Yadav S/o Ramjee Yadav, resident of village-Dhatahwa,
P.O.+P.S.- Thakraha, Distt.-West Champaran.
14. Rajendra Prasad S/o Late Shiv Prasad, resident of village-Siswania, P.O..-
Kiorpatti, P.S.- Thakraha, Distt.-West Champaran.
15. Rahim Mia, S/o Wakil Mia, resident of village- Bhuwalpatti, P.O.
Kiorpatti, P.S.-Thakraha, District- West Champaran.
16. Asgar Ali S/o Nawab Ali, resident of village-Malahi Tola, P.S.-
Thakaraha, District-West Champaran.
17. Md. Haroon S/o Late Mahmud Mian, resident of village-Malahi, P.S.-
Thakaraha, District-West Champaran.
18. Manager Yadav S/o Kasi Yadav, resident of village-Baira Tola, P.S.-
Thakaraha, District-West Champaran.
19. Achche Lal Sharma S/o Saudagar Sharma, resident of village-Malahi
Tola, P.S.-Thakaraha, District-West Champaran.
20. Chandrika Chaudhary S/o Vishun Chaudhary, resident of village-Malahi
Tola, P.S.-Thakaraha, District-West Champaran.
21. Devendra Tiwary son of Bhuneshwar Tiwary, resident of H.No.91,
village-Nautan, P.O. Thakraha, District-West Champaran, Bihar.
22. Jhalar Mishra son of Surya Mishra, resident of H.No.73, village-Nautan,
P.O. Thakraha, District-West Champaran, Bihar.
....Respondents.
-2-
With
C.W.J.C. NO.20729 OF 2010
Sasa Musa Sugar Works Ltd., P.O. Sasa Musa, P.S. Kuchaikote, District-
Gopalganj through its Cane Manager Md. Kamran son of Mustaque Ahmed,
resident of Sasamusa Sugar Works Ltd., At & P.O. Sasamusa, District-Gopalganj,
Bihar.
......Petitioner.
Versus
1. The State of Bihar through the Commissioner cum Secretary, Sugarcane
Development Department, Government of Bihar, Patna.
2. The Cane Commissioner, Sugarcane Development Department,
Government of Bihar, Patna.
3. M/s J. H. B. Distilleries & Sugar Mills Ltd., Padrauna, Kushi Nagar, Uttar
Pradesh.
4. M/s Saraiya Sugar Mills, Sardar Nagar, Gorakhpur, Uttar Pradesh.
5. New India Sugar Mills, Dhadha Bujurg Theshil-Hata, District-Kushinagar,
State of Uttar Pradesh.
.....Respondents.
.
---------
For the petitioners : Mr. Y. V. Giri, Senior Advocate with
(in both the cases) Mr. Pranav Kumar & Ashish Giri, Advocates.
For respondent nos.1 & 2 : Mr. Awanishnandan Sinha, G. P. 11
(in both the cases) Mr. Shubhankar Sharma, A.C. to G.P. 11.
For respondent nos.3 & 4 : Ms. Sushmita Mishra, Advocate
(in both the cases)
For respondent no.5 : M/s Siddarth Prasad & Md. Faiz Ahmad, Advocates.
(in both the cases)
For respondent nos. 6 to 20 : M/s Sanjeet Kumar & Raj Kamal, Advocates.
(in CWJC No.20280/2010)
For respondent nos.21 & 22 : Mr. Vikas Ratan Bharti, Advocate.
(in CWJC no.20280/2010)
______
PRESENT
HON'BLE MR. JUSTICE S. N. HUSSAIN
------
ORDER
27/ 14 -11-2011 I. A. No.273 of 2011 has been filed on behalf of 10 applicants for
being added as party-respondents to CWJC No.20280 of 2010. Similarly,
I.A.No.287 of 2011 has been filed by five applicants for being added as party-
respondents to CWJC No.20280 of 2010. The claim of the aforesaid intervenors-
-3-
applicants is that they are local farmers and are cane growers of the concerned
area and they are interested in supplying sugarcane of the area to respondent nos.
3 and 4 and are satisfied by the fair weighment and prompt payment by them.
They also claimed that earlier the cane growers of the area used to supply
sugarcane to the petitioners etc. but they adopted unfair practice in weighment
and payment due to which the cane growers suffered a lot and their sugarcane
were also not lifted by the petitioners entirely due to which it remained lying in
the field and hence the aforesaid attitude of the petitioners’ Mills and other mills
of the State of Bihar also spoiled the prospect of Rabi crops in the lands in
question. Hence, they claimed that they are necessary party to be heard in the
matter. Considering the aforesaid facts and circumstances of the case, both the
above mentioned interlocutory applications are allowed and their respective
applicants are directed to be impleaded as respondent nos. 6 to 20 in CWJC
no.20280 of 2011.
2. Another I.A.No.482 of 2011 has been filed on behalf of two
applicants, namely Devendra Tiwary and Jhalar Mishra for being added as party
respondents to CWJC No.20280 of 2010. Their claim is that they are the genuine
growers/farmers of sugarcane of Thakraha area situated in the district of West
Champaran, whereas applicants of I.A.No.273 of 2011 and 287 of 2011 are not
genuine farmers or cane growers of the said area. They further claimed that they
have been supplying sugarcane to the petitioners’ Mills since decades, but they
have got no grievance against the petitioners who had developed the area and at
their instance culverts, village roads etc. have been constructed for the betterment
of the area and convenience of the farmers and have also been carrying various
cane development programmes in the area and have been paying genuine prices to
them regularly. Considering the aforesaid facts and circumstances of the case, the
said interlocutory application is allowed and the applicants are directed to be
impleaded as respondent nos. 21 and 22 in CWJC No.20280 of 2010.
-4-
3. Both the aforesaid writ petitions have been heard together and are
being decided by this common judgment/order as they are filed by two Sugar
Mills of the State of Bihar with respect to exactly the same subject matter and the
reliefs claimed therein are also common. They are as follows:-
i) To issue an appropriate writ/order/direction in the nature of
certiorari for quashing the allotment order no.1947 dated
16.11.2010 issued by the Cane Commissioner, Bihar in favour
of respondent no.3 M/s J.H.B. Distilleries & Sugar Mills Ltd.
wherein the Cane Commissioner in purported exercise of
power vested under Section 31(1) of the Bihar Sugarcane
(Regulation of Supply and Purchase) Act, 1981 (hereinafter
referred to as ‘the Act’ for the sake of brevity) has ordered to
respondent no.3 M/s J. H. B. Distilleries & Sugar Mills Ltd. to
operate ten cane purchasing centre under Dhanaha area, Block
Thakraha in the District of West Champaran, Bihar for the
season 2010-2011 and allot those purchasing centre in favour
of petitioner.ii) To issue an appropriate writ/order/direction in the nature of
certiorari for quashing the allotment order no.1948 dated
16.11.2010 issued by the Cane Commissioner, Bihar in favour
of respondent no.4 M/s Saraiya Sugar Mills wherein the Cane
Commissioner in purported exercise of power vested under
Section 31(1) of the Cane Act has ordered to M/s Saraiya
Sugar Mills to operate six cane purchasing centre within the
Dhanaha area Block Thakraha in the District of West
Champaran, Bihar for the season 2010-2011.iii) To issue an appropriate writ/order/direction in the nature of
Mandamus commanding respondent no.2 to refrain from giving
any further effect to the reservation order dated 16.11.2010
issued in favour of respondent no.3 & 4 M/s J.H.B. Distilleries
& Sugar Mills Ltd. and M/s Saraiya Sugar Mills under Section
31 of the Bihar Sugarcane (Regulation of Supply and Purchase)
Act, 1981 in relation to allotment of road cane purchasing
centre within the Dhanaha area Block Thakraha in the District
of West Champaran, Bihar for the season 2010-2011, until the
demands of supply of sugarcane of the local sugar factories are
fully satisfied and unless there is surplus sugarcane available in
the State for allotment to external sugar factory.iv) To any other relief or reliefs for which the petitioner is found to
be entitled.v) To issue an appropriate writ/order/direction in the nature of
certiorari for quashing the allotment order no.1928 dated
10.11.2010 issued by the Cane Commissioner, Bihar in favour
of respondent no.5 New India Sugar Mills, Dhadabujurg,
Tehsil-Hata, District Kushinagar, State of Uttar Pradesh
wherein the Cane Commissioner in purported exercise of
power vested under Section 31(1) of the Bihar Sugarcane
-5-(Regulation of Supply and Purchase) Act, 1981 (hereinafter
referred to as the ‘Cane Act’) has ordered to respondent no.5
New India sugar Mills to operate eight cane purchasing centre
under Dhanaha area, Block Thakraha in the District of West
Champaran, Bihar for the season 2010-2011 and further prays
that the New India Sugar Mills, Dhadhabujurg, Tehsil-Hata,
District-Kushinagar, State of Uttar Pradesh may be added as
respondent no.5 in the main writ application and allot those
purchasing centre in favour of petitioner.4. The claims of the petitioners of both the writ petitions are as
follows:-
(i) Since 1995 not a single stick of sugarcane grown in the State of
Uttar Pradesh has been reserved, assigned, allotted in favour of any bordering
factory situated in Bihar nor any purchasing centre for them has been allowed to
be operated in the State of Uttar Pradesh (hereinafter referred to as ‘U.P.’ for the
sake of brevity) by the authorities of U.P. including the Cane Commissioner, U.P.
Though the local sugar factories including the petitioners of both the present cases
have been applying to the Cane Commissioner, U.P. for reservation or allotment
of a sugarcane or operating purchasing centre within the State of U.P. duly
recommended by the Cane Commissioner, Bihar but the authorities of U.P. has
not allotted any sugarcane as indicated above. The petitioner Sasamusa Sugar
Mills is just within about 12 KM on the border of U.P. whereas the other
petitioner Vishnu Sugar Mill is about 25 K.M. However for the reasons best
known to the authorities of Bihar they have been allotting about 30 to 40 lac
quintals of sugarcane every year to the sugar factories of U.P. (Para 35 and
Annexure-2 of the writ petition)
(ii) The District Magistrate, Gopalganj sent letter dated 06.07.2000 to
the Chief Secretary, Government of Bihar, a copy of which was given to the Cane
Commissioner, requesting him not to allot any sugarcane from the area of Bihar
within the District of Gopalganj and Siwan to any factory of Uttar Pradesh. The
District Magistrate, Gopalganj had also apprised the State authorities of revenue
-6-loss being caused by the State exchequer to the extent of over Rs.11 crores on
account of allotment of sugarcane to a Sugar Factory of the neighbouring State of
Uttar Pradesh and which had also been duly calculated by him in his letter dated
06.07.2000. (Annexure-12).
(iii) The petitioner through letter no.1703 dated 04.01.2010 drew
attention of the Principal Secretary, Department of Sugarcane Industries that
Bihar Factories are not getting adequate cane for crushing as per their NCR but no
action was taken and the Bihar Government is loosing good amount of revenue.
(Annexure-2).
(iv) The Cane Officer, Gopalganj vide his letter no.98 dated
05.07.2010 written to the Cane Commissioner specifically requested and
recommended that the sugarcane of the Districts of Gopalganj and Siwan should
not be allotted to the sugar factories of Uttar Pradesh. He also pointed out that the
sugar factories of Uttar Pradesh do not make adequate and prompt payment of the
cane price. He further stated in his letter that external sugar factories do not take
any initiative or steps for the development of the cane plantation in the State.
(Annexure-21 of petitioner’s rejoinder).
(v) The petitioner sent letter dated 22.7.2010 addressed to the Cane
Commissioner, Bihar regarding allotment of cane from Dhanaha area and made
proposal for allotment of road centre at Dhanaha and attachment/reservation of
village from there for the reason that the crushing capacity of the factory is 5000
TCD(50 lacs quintals) and the factory is not getting more than 32 lacs quintal of
cane (Annexure-3), although the normal cane requirement claimed by the first
petitioner from the Cane Commissioner was 60-70 quintals u/s 27 of the Act.
(vi) On 17.08.2010 the Cane Commissioner, Government of Bihar
passed order under Section 31 of the Act in relation to the petitioner factory by
which he declined to reserve the claim of 31 villages of Dhanaha area to be
-7-reserved in favour of the petitioner and allowed the area to remain free.
(Annexure-7).
(vii) A notice dated 11.10.2010 vide memo no.1766 was sent by the
office of the learned Cane Commissioner to the sugar factories situated in Bihar
and only to M/s Pratappur Sugar Factory situated in U.P. for submission of their
proposal but the notice did not contain the name of respondent nos. 3, 4 & 5 and
no proposal was invited by them. (Annexure-22 of rejoinder).
(viii) Thereafter the petitioner through its letter no.54/2010-11/ 1436
dated 18.10.2010 addressed to the Cane Commissioner, Bihar, Patna requested
that if any proposal is received from any factory situated in Uttar Pradesh for
allotment of purchase centre in Dhanaha the petitioner would be seriously
affected and hence he be given a chance of hearing before taking any final
decision in that regard. (Annexuure-4).
(ix) In Thakraha Block the total agriculture land available is 5571
acres, out of which only 55 percent of land is used for cane production and the
estimated cane production is about 450000 quintal which is apparent from letter
dated 16.10.2010 of Thakraha CD & CM Union Ltd., Bettiah regarding the
availability of cane in Thakraha Block and the same figure was also issued by
Motipur PACS as well as by Thakraha PACS vide its letter dated 25.10.2010.
(Annexure-11 series).
(x) The petitioner sent its letter no.54/2010-11/1538 dated 04.11.2010
addressed to the Cane Commissioner, Bihar in which the petitioner submitted his
objection against any allotment of cane to U.P. sugar factories and requested for
allotment/reservation of Thakraha and Malhi Tola villages from Dhanaha area for
the season 2010-11. (Annexure-6).
(xi) In pursuance of the notice vide letter no.1860 dated 28.10.2010
from Cane Commissioner a meeting was held on 08.11.2010 at 11 AM for
allotment of purchasing centre for the season 2010-11 but no proposal for
-8-allotment of purchasing centre in Dhanaha area in favour of respondent nos. 3, 4
& 5 was discussed in the said meeting. (Annexure-5).
(xii) Allotment order no.1928 dated 10.11.2010 was issued by the
respondent Cane Commissioner, Bihar, Patna in favour of respondent no.5
regarding allotment of road cane purchasing centre in which respondent no.5 had
been allowed to operate eight road cane purchasing centres in West Champaran,
Bihar for the season 2010-11. (Annexure-13).
(xiii) Respondent no.3 has made proposal on 10.11.2010 after the
meeting which was held on 08.11.2010 for allotment of purchasing centre which
is evident from the counter affidavit filed on behalf of respondent no.3.
(Annexure-E of the counter affidavit of respondent no.3).
(xiv) Allotment order nos. 1947 and 1948 both dated 16.11.2010 were
issued by the respondent Cane Commissioner, Bihar, Patna in favour of
respondent nos. 3 and 4 regarding allotment of road cane purchasing centre in
which respondent no.3 had been allowed to operate five road cane purchasing
centre under Thakraha Block and respondent no.4 had been allowed to operate six
road cane purchasing centre under Thakraha Block in West Champaran, Bihar for
the season 2010-11. (Annexure-9 &10).
(xv) A perusal of the Cane receipts dated 12.12.2010 and 26.12.2010 of
the external sugar factories situated outside the State of Bihar show that they are
not paying more cane prices to the cane supplies made from Bihar (Annexure-20
of rejoinder). Furthermore Purchase centres of U.P. Mills are fixed near the
reserved areas of Bihar Mills which is going to affect them adversely. (paras 20,
21, 22, 23).
(xvi) Purchasing centers are in villages themselves, which facilitates not
only the growers but also the petitioners’ Mills and similarly situated other Mills
of Bihar as they have to bring purchased sugar canes to their Mills which are
nearby and the condition of the roads have also improved. Hence the petitioners
-9-wrote to government not to allocate any such purchase centre for the Mills of
U.P., but that remained unheeded. (Annexure-3).
5. In furtherance of their aforesaid claims, learned counsel for the writ
petitioners argued that the authorities of Bihar were not empowered under the Act
to reserve areas and fix outlets in Bihar for the mills of Uttar Pradesh. In this
connection, they relied upon Section 31 read with Section 1(2) of the Act. They
stated that a village can be reserved for outside mills under Section 31 but only
after completion of all the formalities, whereas the impugned orders were not with
respect to reserved areas, rather they were with respect to establishment of
purchasing centers only. There is no provision in the Act empowering the Cane
Commissioner for establishing purchasing centre of U.P. Mills in this State.
6. Learned counsel for the petitioners averred that Section 31(2) of
the Act is a provision of appeal against order passed under Section 31(1), but the
impugned order is not under Section 31(1), rather it is under Section 29 of the Act
against which no appeal is provided in the Act, nor Bihar Sugar Cane (Regulation
of supply & Purchase) Rules, 1978 provide any appeal and only a provision of
revision is made under Section 29(2) (4) of the Act.
7. Learned counsel for the petitioners also stated that there is no
notification that the Rules of 1978 would also be deemed to be under the Act of
1981 and hence the provisions of the said Rules cannot be legally made applicable
to the functions of the authorities concerned as per the provisions of the Act of
1981.
8. Learned counsel for the petitioners submitted that the impugned
order of the Cane Commissioner was absolutely without jurisdiction as power
under Section 29 of the Act is given to the Collector of the District only and hence
the impugned order is only under Section 29(1) of the Act and not under Section
29(4) thereof.
– 10 –
9. So far the question of alternative remedy being available to the
petitioners as claimed by the respondents is concerned, learned counsel for the
petitioners relied upon two decisions of the Apex Court as well as a Division
Bench decision of the Patna High Court, in case of Whirlpool Corporation
Versus Registrar of Trade Marks, Mumbai and others reported in 1998(8) SCC
1 (Paras 14, 15 & 20); in case of State of H.P. & others Versus Gujarat Ambuja
Cement Ltd. and another reported in 2005(6) SCC 499 (para-23); and in case
of M/s Indian Oil Corporation Ltd. Versus The State of Bihar & Ors. reported
in 2006(3) PLJR (DB) 146 (Paras 3, 11 &24).
10. Respondent nos.3 and 4 are same in both the writ petitions and are
Sugar Mills situated in Uttar Pradesh in whose favour the impugned orders had
been passed. They are the main contestants to the claim of the petitioners and both
the said respondents have been represented by the same learned counsel,
specifically denying the assertions raised by learned counsel for the petitioners on
each and every point.
11. Learned counsel for respondent nos. 3 and 4 claimed that they had
been purchasing sugarcane from Bihar since several decades, whereas the instant
matter is only for the season 2010-2011, but earlier none of the petitioners ever
challenged purchases of sugarcane made by U.P. Mills from the cane growers of
Bihar and hence now they cannot be allowed to raise such disputes. He also stated
that a similar objection was raised earlier by Bihar Sugar Mills Association vide
CWJC No. 11886 of 2005 but a Division Bench of this Court vide order dated
26.09.2007 (Annexure-J to C.A. of R.3), considering the nature of grievances and
submissions made by learned counsel for the petitioners dismissed the said writ
petition as not pressed with a liberty to the petitioner to raise all the grievances
which had been raised in that writ petition before the Cane Commissioner, Govt.
of Bihar by way of a representation which was to be disposed of in accordance
– 11 –
with law by a reasoned order within four weeks. Pursuant to the said order no step
was taken by the said Bihar Sugar Mills Association.
12. Learned counsel for respondent nos. 3 and 4 submitted that the
Mill Owners of Bihar were also free to approach the authorities of Government of
U.P. for allotment of sugarcane, but there is no material at all to show that the
petitioners ever sought sugarcane from U.P. or their claim was ever rejected by
the authorities of the Government of U.P., hence the entire allegation of the
petitioners in this regard is absolutely frivolous and is against the bipartite
agreement between the two States.
13. Learned counsel for respondent nos. 3 and 4 also averred that
although the petitioners have been crying hoarse that they were starving for
sugarcane but the chart (Annexure-J to Suppl. C. A. of R.4) clearly showed that it
was a matter of record that during the previous crushing seasons the petitioners
had not lifted sugarcanes from the cane centers allotted in their favour as there
was vast difference in sugarcane allotted and sugarcane purchased by the
petitioners. Thus, the petitioners were unable to crush even the sugarcane of the
reserved area allotted to them which resulted in huge and irreparable loss to the
cane growers and the petitioners are bound to pay compensation to the cane
growers for the said default of the petitioners. He also stated that in these
circumstances, the Cane Commissioner, Govt. of Bihar vide his order dated
17.08.2010 (Annexure-7 to the writ petition) rejected the application of the
petitioners for allotment of further villages in their favour, but the said order was
never challenged by the petitioners before the authority prescribed under Section
31(2) of the Act, although admittedly the said order was passed under Section
31(1) of the Act, nor the petitioners approached the High Court against the said
order.
14. Learned counsel for respondent nos. 3 and 4 further submitted that
although their factories had huge capacities, but U.P. Government allotted them
– 12 –
lesser sugarcane for 2010-11 only due to the possibility of respondent nos.3 and 4
getting sugarcane from Bihar, whereafter the said respondents sent request to the
Bihar Government which was allowed and they got whatever they asked for vide
order dated 16.11.2010 (Annexure-8) which also provided Mill gate and
purchased centers in the villages themselves for conveniences of the cane growers
and for selling them for long distance supply.
15. Learned counsel for respondent nos. 3 and 4 argued that
admittedly the impugned order dated 16.11.2010 (Annexure-9) had been passed
under Section 29 of the Act which was with respect to establishment of
purchasing center and under the said provision the authority was empowered to
shift or establish purchase centre, but under the said provision only the occupier,
who was the proposer was to be heard and not the petitioners who were not the
occupiers, as per the said provision.
16. Learned counsel for respondent nos. 3 and 4 also argued
that the impugned orders dated 16.11.2010 (Annexure-9), 16.11.2010 (Annexure-
10), 16.10.2010 (Annexure-11) etc. being under Section 29 of the Act they could
have been challenged by the petitioners under Section 29 (4) of the Act read with
Rule 40(3) of the Bihar Sugarcane (Regulation of Supply & Purchase) Rules
1978. The said Rule although notified in Bihar Gazette on 30.12.1978 was not
affected by the coming into force of Bihar Sugarcane (Regulation of Supply &
Purchase) Act 1981 as Section 66 thereof saved the said Rules.
17. Learned counsel for respondent nos. 3 and 4 claimed that
according to Section 29(2) of the Act council was to be consulted which was
headed by the Collector, but since the Collector was busy in the work of assembly
election of 2010, the said order was passed by the Cane Commissioner who being
the highest authority in rank had ample authority to pass such order. He also
stated that under the said provision petitioners were not required to be heard, but
the petitioners were present through their managers as would appear from the
– 13 –
record (Annexure-I to C.A. of R.3), hence their entire claims are illegal and
frivolous and also against the provisions of law and the relevant facts.
18. Learned counsel for respondent no.5 is same in both the
writ petitions and the said respondent is also a Sugar Mill situated in U.P. and in
both the cases it is represented by the same learned counsel, who fully adopted the
arguments raised by learned counsel for respondent nos. 3 and 4 against the claim
of petitioners of both the writ petitions.
19. In addition to that, it was further argued on behalf of
respondent no.5 that for the crushing season 2010-11 respondent no.5 applied for
8 road cane purchasing centers, including Mill gate vide letter dated 11.10.2010
(Annexure-3 of R/5) for a total quantity of 14 lac quintals of sugarcane for the
said season and pursuant to it the Assistant Cane Commissioner, North Bihar,
Muzaffarpur submitted his report dated 06.11.2010 (Annexure-4 of C.A. of R.5)
recommending allotment of 8 road cane purchasing centres in favour of
respondent no.5 in Dhanaha area which was a free area not reserved for any Sugar
Mill. He also stated that on 08.11.2010 a meeting was called by the Cane
Commissioner for discussion and for considering objections for finalising road
cane purchasing centres for different sugar mills and the said meeting was
attended by representatives of all the private sugar mills, including representatives
of the petitioners and respondent no.5 and no objection whatsoever was raised by
the said representatives against allotment of required cane purchasing centres.
20. Learned counsel for respondent no.5 also claimed that
signature of the petitioners on the proceeding book (Annexure-7 of C.A. of R.5)
clearly proved that writ petitioners made false statement in the writ petition which
was affidavited by none else than the General Manager of the petitioners and
hence the petitioners having made false statement on affidavit and having not
approached this court with clean hands their writ petitions have to be dismissed
on this score alone. In this regard, he relied upon a decision of the Apex Court in
– 14 –
case of Dalip Singh Vs. State of Uttar Pradesh & others reported in (2010) 2
SCC 114.
21. Respondent nos. 6 to 20 (applicants of I.A.No.273 of 2011
and I.A.No.287 of 2011 of CWJC No.20280 of 2010) are represented by the same
counsel, who denying the claim raised by the petitioners, adopted the arguments
of learned counsel for respondent nos. 3, 4 and 5.
22. Learned counsel for respondent nos. 6 to 20 further averred
that they had suffered a lot in the past due to unfair weighment and even non-
payment of appropriate price of their yield at proper time by the petitioners’ mills
and other mills of the State of Bihar. It was also submitted that the cane growers
have been suffering a lot as their sugarcane were lying in the field not being taken
by the petitioners and other similarly situated mills of the State of Bihar who after
taking allotment of huge areas had failed to lift the sugarcane grown in that area.
He also stated that for the year in question there was a bumper crop and there is
strong apprehension that the petitioners would not lift the sugarcane and if the
cane growers would be left at the mercy of the petitioners, they would have no
remedy but to burn their sugarcane for removing them to prepare lands for Rabi
crops. It was also claimed that if the claim of the writ petitioners are allowed, the
cane growers would be put to immense loss and there will be total collapse of the
sugarcane industry and economy leading to unrest among the cane growers.
23. However, learned counsel for respondent nos.21 and 22
(applicants of I.A.No.482 of 2011 in CWJC No.20280 of 2010) are represented by
their learned counsel who supported the claim of the petitioners in toto and denied
the objections raised by respondent nos.3 to 20.
24. He also stated that the cane growers have never suffered
due to any act of the petitioners as payment of the price for the yield of sugarcane
had never been denied nor had been delayed, whereas it is the mills of the outside
State who did not make payment of the price of their yield at proper rate and time
– 15 –
to the sugarcane growers of Bihar. He further averred that the genuine farmers
had never any grievance against the petitioners. Hence, he submitted that if the
claim of the writ petitioners are not allowed, the cane growers would be put to
immense loss and there will be total collapse of the sugar industry and economy
of the area in question within the State of Bihar.
25. On the other hand, learned counsel for the respondents-
State of Bihar and its authorities (respondent nos. 1 and 2) in both the aforesaid
writ petitions claimed that admittedly the impugned orders had been passed under
Section 29 of the Act for establishing purchasing centres in free areas.
26. Learned counsel for respondent no.1 and 2 stated that
Section 29 of the Act speaks about factory only, not mentioning whether situated
in Bihar, U.P. or anywhere else and the Collector has been authorized to establish
purchasing centers after considering local situation and the requirement of the
cane growers. He also stated that opinion of the co-operative society cannot be
legally considered as they had already been dissolved and the Act does not
consider them. Hence, he averred that the allotment of purchase centres for
factories situated outside the State of Bihar is legal and as per the policy decision
of the Government and bipartite agreements between the two States.
27. Learned counsel for respondent nos.1 and 2 further claimed
that hundreds of villages have been reserved for petitioners’ mills which is more
than enough for them and are not being disturbed but these writ petitions have
been filed only to raise supply by ousting respondent nos. 3 to 5 which would
lessen the demand of sugarcane and enable the petitioners to have sugarcane at
lower price. He thus averred that this would seriously and adversely affect the
poor sugarcane growers which cannot be allowed.
28. Learned counsel for respondent nos.1 and 2 further stated
that the demand and supply of sugarcane for the local sugar factories of the State
has been properly taken care of during the consideration of reservation of villages
– 16 –
to sugar factories under section 31 of the Act wherein 412 villages had been
reserved for the petitioners’ sugar factories in the district of Gopalganj and East
Champaran providing more than enough cultivable area capable of insuring
sugarcane to fulfill their need. He thus averred that for petitioners’ factories more
than sufficient villages had been reserved and it is up to them to encourage their
cane growers of those areas to adopt and enhance sugarcane cultivation in order to
meet their required demand as the cane growers are bound by reservation under
section 31 of the Act. Furthermore the petitioners were heard during the hearing
of allotment of purchasing centers along with mill gate from Dhanaha area with
the required quantity of sugarcane as per their proposal, but at that time they did
not object, as the authorities allotted sufficient sugarcane purchase centers to them
also as per their own proposal.
29. It was also stated on behalf of respondent no.1 and 2 that
geographical location of the southern part of Dhanaha area is such that it is
accessible mainly from U.P. side, whereas its Bihar side is bounded by rivers and
hence any cane sent from Dhanaha area to Gopalganj district has to come only
through U.P. covering a large distance which is inconvenient to the cane growers
of the area. Hence in view of the larger interest of cane growers of the region, the
neighbouring sugar factories of U.P. (Hata, Padrauna and Sardarnagar) which are
fairly connected by road from Dhanaha area have been allowed to operate their
purchase centers in the said area since last several decades and accordingly were
allowed to operate in the current season 2010-11 also.
30. In view of the pleadings of the parties and the materials on
record, these writ petitions have been filed by the petitioners challenging
allotment of cane purchasing centres within Dhanaha area situated in Thakraha
Block of West Champaran to the Sugar Mills of U.P., namely respondent nos. 3, 4
and 5. In the said circumstances, Section 31 of the Act which is with respect to
declaration of reserved area is not involved in these cases and only the provision
– 17 –
of Section 29 of the Act with respect to establishment of cane purchasing centre is
attracted to the reliefs claimed by the writ petitioners. Section 29 of the Act reads
as follows:-
29. Establishment of purchasing centres.- (1) The occupier of a
factory, or the secretary of a co-operative society may establish a
purchasing centre after giving a notice in writing to the Collector at
least thirty days before the commencement of purchase of cane and
copies of such notice shall be sent by the occupier of the factory or
the secretary of the society forthwith to the Cane Officer concerned
and the Cane Comisioner:Provided that in urgent circumstances, a purchasing centre may
be established at shorter notice, with the previous approval of the
Collector:Provided further that establishment of a purchasing centre at
any railway station or at any place within eight kilometers of the
purchasing centre already established for supply of cane to another
factory shall require previous sanction of the Cane Commissioner.(2) The Collector may subject to sub section (1) after
consulting the council concerned and giving the occupier of the
factory or the secretary of the co-operative society, an opportunity of
being heard, order in writing that such occupier or secretary shall-(a) shift the location of any purchasing centre to another
place in accordance with the order;(b) establish a new purchasing centre at a place specified in
such order; and(c) suspend the operation of a purchasing centre already
establish.
(3) The prescribed authority may, either suo motu or on an
application made to it by the occupier of the factory or the Secretary
of the Co-operative Society within fifteen days of the receipt of
Collector’s order under sub section (2), revise such order.
(4) Subject to other provisions of this Act any order or direction of
the Cane Commissioner in respect of purchase of cane or its
movement from any area including its dispatch by rail may be
revised by the prescribed authority which shall have the power to
initiate proceedings in revision either suo motu or on an application
made to it by any aggrieved person within fifteen days of the receipt
by him of such order or direction.”
31. It is not in dispute that the sugar factories of Hata, Padrauana and ,
Sardar Nagar (including respondent nos. 3, 4 and 5) which are situated in U.P.
near its boarder of Bihar adjacent to Dhanaha area within Thakraha Block of West
Champaran, had been allowed to operate their purchase centres in the areas in
question since several years continuously and accordingly they were allowed to
operate the said purchase centers for the season 2010-2011 also by the impugned
orders.
– 18 –
32. It is also not in dispute that reserved areas have already been
declared and allotted to the petitioners Mills as per their proposals by the
authorities concerned under the provision of Section 31 of the Act and the said
reserved areas and purchase centers granted to the petitioners are not being
affected, altered, modified or taken away by the impugned orders of the
authorities in any manner whatsoever. The petitioners have thus raised no
grievance in these writ petitions with respect to any declaration of reserved area
made by the authorities and hence the provision of Section 31 of the Act is not
attracted.
33. From a bare perusal of Section 29 of the Act it transpires that there
is no bar to the establishment of a cane purchasing centre for any factory of
outside Bihar and the stress had always been for development of the cane growers
in the area for which Zonal Development Council had been provided under
Section 7 of the Act and under the said provision also no bar is provided for
supply of sugarcane to any outside Mill. A Division Bench of this Court had
decided CWJC Nos.4120 and 4121 of 1987 vide order dated 08.11.1990 by which
that part of the order impugned therein was quashed by which the factories
located in U.P. had been kept out of exemption granted under Section 49(2) (a) of
the Act and the authorities were directed to consider their matter for exemption in
the same manner as it had considered the case of the factories located in Bihar.
34. Section 16 (b) of U.P. Sugarcane (Regulation of Supply &
Purchase) Act 1953 provides that the State Government may, for maintaining
supplies, by order regulate purchase of cane in any area other than a reserved or
assigned area, whereas clause 19 of the U.P. Sugarcane Supply Order 1954
provided that occupier of a factory situate outside U.P. may make purchase of
sugarcane in U.P. either himself or through any person employed or appointed by
– 19 –
him and they shall be bound by the Rules or the Order as if the factories were
situated in U.P.
35. In view of the aforesaid provisions of the Act, Rule and Order of
the State of U.P. the Sugar Mills of Bihar, including the petitioners, were fully
entitled to apply before the authorities of U.P. Government for providing same
facilities and the Mills of U.P., including respondent nos. 3, 4 and 5 could not
have legally objected to it, but there is no material at all to show that the
petitioners ever sought sugarcane from U.P. or their claim was ever rejected by
the authorities of the Government of U.P. Hence, such objections raised by
learned counsel for the petitioners cannot be held to be legal in view of the
provisions of law and the agreement between the two States.
36. Moreover even within the State of Bihar the petitioners’
Mills applied for certain number of purchasing centres and the authorities allotted
sufficient sugarcane purchasing centres as per their proposal and hence at the
relevant time they made no objection thereto. Although petitioners have claimed
that they were starving for want of sugarcane but the chart produced by the
respondents (Annexure-5 to Suppl. C.A. of R.4) clearly showed that it was a
matter of record that during the previous crushing seasons the petitioners had not
lifted sugarcane from the cane centres allotted in their favour as vast difference
was found in sugarcane allotted and sugarcane purchased by the petitioners. This
naturally would have affected the cane growers severely and adversely. In the said
circumstances, the Cane Commissioner, Govt. of Bihar vide his order dated
17.08.2010 (Annexure-7 to the writ petition) rejected the application of the
petitioners for allotment of further reserved villages in their favour, but the said
order has never been challenged by the petitioners either before the authorities
prescribed under Section 31 of the Act or before the High Court.
37. The Act has been provided by the legislature not only for
the proper supply of sugarcane to the Mills, but also for the betterment of the
– 20 –
conditions of the cane growers by providing them facilities for selling their
products in the purchase centres and in that view of the matter Section 29 had
been provided authorizing the Collector to establish cane purchasing centre at
appropriate places after considering the local situation and the predicaments of the
cane growers. The impugned orders had been passed by the Cane Commissioner,
who was the highest authority, keeping in view the purposes of the Act, the
situation of the area and the condition of the cane growers.
38. Considering the aforesaid situation in its entirety and the
specific provisions of law in that regard, this Court does not find any illegality in
the impugned orders of the authorities concerned, nor does it find any merit in the
claims raised by the petitioners. Accordingly, both these writ petitions are
dismissed with a direction to the respondents authorities to be vigilant and to take
all the necessary action or steps to prevent any harassment or loss whatsoever to
the cane growers/farmers of the areas in question at the hands of any Sugar Mills
either of Bihar or of Uttar Pradesh.
(S. N. Hussain, J.)
Sunil