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2009 DIGILAW 271 (ALL)

KASHIPUR SUGAR MILLS LTD. v. STATE OF U. P.

2009-01-27

PRADEEP KANT, SHABIHUL HASNAIN

body2009
JUDGMENT By the Court.—Notice on behalf of respondents 1 and 2 has been accepted by learned Chief Standing Counsel, on behalf of respondents 3 and 4 notice has been accepted by Dr. R.K. Srivastava, whereas on behalf of respondent No. 5 notice has been accepted by Sri Manish Mathur. 2. Heard the learned counsel for the petitioner Sri Pinaki Misra, Senior Advocate assisted by Sri Akhilesh Kalra and the learned counsel appearing for the respective respondents. The respondents counsel has raised a preliminary objection saying that the writ petition itself is not maintainable for the reasons firstly; that statutory appeal is provided under Section 15(4) of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953, (hereinafter referred to as the Act) which has not been filed and secondly; since the period of limitation stands expired and the petitioner has filed the instant writ petition under Article 226 of the Constitution challenging the order of reservation dated 27th November, 2008, which had already attained finality, as such entertaining the writ petition at this stage would mean to overcome the limitation against an order which has attained finality by not filing the appeal. 3. Sri Pinaki Misra, learned Senior Advocate, assailing the reservation order dated 27.11.2008 submits that a very small sugarcane area has been allocated to the petitioner without considering the actual requirement of the petitioner factory and in violation of the terms of the MOU between the State of U.P. and State of Uttarakhand. He further submits that total quantity of sugarcane which has been made available is 1.85 lac qtls. whereas in previous years, the petitioner was given a larger quantity of sugarcane. 4. Sri Pinaki Misra further submits that since the allocation of sugarcane area as well as the yield of the sugarcane in the said area is much less than the requirement of sugar factory and every year appeal is filed but to no avail, therefore, it cannot be said that this Court has no jurisdiction to entertain the writ petition. 5. Elaborating the aforesaid argument he submits that looking to the previous years allocation, this time allocation of sugarcane area and the yield of the sugarcane which is likely to occur is very-very less as against the requirement of the petitioner factory, which is also against the terms of MOU. 6. Learned counsel for the respondents 3 and 4, Dr. 5. Elaborating the aforesaid argument he submits that looking to the previous years allocation, this time allocation of sugarcane area and the yield of the sugarcane which is likely to occur is very-very less as against the requirement of the petitioner factory, which is also against the terms of MOU. 6. Learned counsel for the respondents 3 and 4, Dr. R.K. Srivastava submitted that the petitioner has not disclosed in the writ petition, the requirement of sugarcane as might have been determined for this year under Section 12 of the Act nor the petitioner has given the yield of sugarcane which is in abundance in his area and as such the petitioner will not face any shortage of sugarcane. His further submission is that there is no statement made in the writ petition that what steps for development of the sugarcane area had been taken by the petitioner in the previous years, therefore, the petitioner cannot claim for any additional sugarcane. Their case is that the petitioners have not developed the area given to them earlier, which was their statutory responsibility. 7. The learned counsel for the respondents 3 and 4 in support of their plea also place reliance upon the decision of the High Court of Uttarakhand at Nainital in Writ Petition No. 2479 of 2007(MS) in re: M/s Kashipur Sugar Mills Ltd. v. Union of India and others, decided on 27th August, 2008. 8. Sri Manish Mathur learned counsel for the respondent No. 5, however, says that he has also been allotted and allocated the area where the yield is very low as against the requirement of respondent No. 5 as per the allotment made in the previous year. He further submits that the respondent No. 5 has already filed an appeal before the State Government (Appellate Authority), which is pending consideration. 9. In our opinion the controversy raised is a controversy regarding allocation of cane centres i.e. reservation/assignment and the allocation of sugarcane area. The centres are to be allocated namely; reserved or assigned, keeping in mind the provisions of the relevant Act and the Rules framed thereunder. 9. In our opinion the controversy raised is a controversy regarding allocation of cane centres i.e. reservation/assignment and the allocation of sugarcane area. The centres are to be allocated namely; reserved or assigned, keeping in mind the provisions of the relevant Act and the Rules framed thereunder. The High Court would rarely entertain a petition where such disputed questions need be considered viz; what is the requirement of the petitioner sugar factory, what steps have been taken by the sugar mill to develop the area reserved earlier and how much sugarcane be made available to a sugar mill looking to the shortage of sugarcane in the State of Uttarakhand and the State of U.P. and many more questions need be considered and decided by the Cane Commissioner, and the appellate authority where the parties may approach and seek their remedy. Unless there is some exception or any question of law which need be decided by the High Court, the Court would be loath in entertaining the petition with respect to reservation or assignment of cane centres. 10. Though in the instant case the respondent No. 5 who is aggrieved by reservation order had filed an appeal before the State Government which is pending consideration but the petitioner on his own wisdom despite reservation order having been passed on 27th November, 2008 did not choose to challenge the said order either before the State Government (Appellate Authority) or before the High Court under Article 226 of the Constitution. 11. Under the circumstances, this Court would not entertain the writ petition. Besides, the dispute raised is regarding allocation of centrers i.e. reserved or assigned area for the particular season, and therefore, we feel that the petitioner has the remedy of appeal and as prayed by the counsel for the petitioner, we allow the petitioner to avail the statutory remedy of appeal and in case the appeal is filed within seven days from today, the same be considered and decided on merit instead of rejecting the same on the ground of limitation. 12. This order we are passing also for the reasons that the appeal filed by respondent No. 5 is also pending before the State Government (Appellate Authority), and therefore, it would be appropriate that the petitioner be also given an opportunity to file the appeal. 13. Learned counsel for the petitioner says that he will file the appeal within a week. This order we are passing also for the reasons that the appeal filed by respondent No. 5 is also pending before the State Government (Appellate Authority), and therefore, it would be appropriate that the petitioner be also given an opportunity to file the appeal. 13. Learned counsel for the petitioner says that he will file the appeal within a week. In case the appeal is filed within a week, then after giving notices to the respondents and the concerned parties, the same shall be considered and decided by a reasoned and speaking order, within a maximum period of two weeks from the date of filing of the appeal. 14. We have not addressed ourselves on the points in issue but any observation made in this order would not come in the way of the Appellate Authority while deciding the question involved in the appeal and shall decide the appeal as per his own discretion in accordance with law. Subject to aforesaid directions, the petition is dismissed. ————