Judgment :- B.H. MARLAPALLE, J. 1. These Writ Petitions filed under Articles 226 and 227 of the Constitution of India are directed against the order dated 8th October, 2010 passed by the Secretary to the Government of India, Department of Food and Public Distribution thereby deciding the questions referred by this Court as per the order dated 10th November, 2009 passed in Writ Petition Nos.1172 and 1518 of 2008. 2. The admitted facts briefly stated are as under:- 1st petitioner in Writ Petition No.9189 of 2010 is a company registered under the Companies Act, 1956 and is carrying on the business of distillery and 2nd petitioner is its Managing Director. It intended to set up a private sugar factory at village Pal in Taluka Karad of Satara District and, therefore, registered its IEM with the Department of Food and Public Distribution, Government of India on 15th November, 2000, whereas the petitioner No.1 in Writ Petition No.9217 of 2010 is an existing Co-operative sugar factory at Yeshwantnagar in Karad Taluka, Satara District with a crushing capacity of 7500 TCD. One Sudesh Shantilal Shah, respondent No.7 in Writ Petition No.9189 of 2010 and Respondent No.6 in Writ Petition No.9217 of 2010 had obtained an IEM dated 12th October, 1998 as the Proprietor of M/s.Mahavir Sugar Works for setting up a private sugar factory at village Dhavadwadi in Taluka Patan, District Satara. The proposed new sugar factory either by Mr. Sudesh Shantilal Shah or by M/s.Khandoba Prasanna Sakhar Karkhana Limited could not have started at any location within a distance of 15 Kms., from Yeshwantnagar where Sahyadri is an existing sugar factory, , in view of the minimum distance condition laid down in Press Note No.12 dated 31st August, 1998, issued by the Government of India-Secretary for Industrial Assistance in the Ministry of Industry and, therefore, when the IEMs of both these parties were registered on 12th October, 1998 and 15th November, 2000, they had submitted a certificate stating that the proposed locations of their respective sugar factories were at a distance of more than 15 Kms., from Yeshwantnagar in Taluka Karad of Satara District. 2. 3. 2. 3. Originally the IEM of the petitioner in Writ Petition No. 9189 of 2010 was registered on 15th November, 2000 in the name of Khandoba Prasanna Sugars and Allied Products Private Limited and by the certificate of change of name under the Companies Act, 1956 issued on 2nd May, 2001 the name of the said company came to be changed to M/s.Khandoba Prasanna Sugar Karkhana Private Limited as per the fresh certificate of incorporation issued by the Registrar of Companies in Maharashtra on 2nd May, 2001 and on the same day the name of Khandoba Prasanna Sugar Karkhana Private Limited came to be changed to Khandoba Prasanna Sakhar Karkhana Limited as per the certificate issued by the Registrar of Companies, Maharashtra State, Pune. The IEM registered on 15th November, 2000 came to be amended on 10th July, 2001 and 18th July, 2001 in the changed name of “Khandoba Prasanna Sakhar Karkhana Limited” (for short Khandoba). It is also pertinent to note that one more IEM came to be registered on 4th December, 1998 by M/s.Krishna Koyna Sugar and Allied Industries for setting up a private sugar factory at village Dhavadwadi in Taluka Patan, District Satara by Dr. Suresh J.Bhosale in his capacity as the Proprietor of the said firm (for short Krishna Koyana). 4. On10th January, 2006 Shri Sudesh Shah, Proprietor of M/s.Mahavir Sugar Works (for short Mahavir) submitted an application to the Department of Industrial Development, Government of India, for an amendment to IEM No.2034-SIA/IMO/1998 dated 12th October, 1998. It was prayed that the name of the said IEM holder be amended from M/s.Mahavir Sugar Works to Jaywant Sugars Limited. In response to the said application the Under Secretary to the Government of India in the Department of Industrial Policy Promotion (DIPP) Ministry of Industry, amended the IEM by his letter dated 12th January, 2006 in the name of Jaywant Sugars Limited (for short Jaywant). On 16th March, 2006 M/s.Jaywant Sugars Limited submitted an application to the Department of Industrial Development, Government of India, for further amendment in its IEM so as to correct the location of the proposed sugar factory. It was contended that the location of village Dhavadwadi of the proposed sugar factory was correct, but the name of the Tahsil/Taluka was wrongly mentioned in the IEM registered on 12th October, 1998 and amended on 12th January, 2006. It was contended that the location of village Dhavadwadi of the proposed sugar factory was correct, but the name of the Tahsil/Taluka was wrongly mentioned in the IEM registered on 12th October, 1998 and amended on 12th January, 2006. It was stated that village Dhavadwadi is in fact located in Taluka Karad and not in Taluka Patan of District Satara and that it was by inadvertence that the name of the Tahsil was wrongly written as Patan instead of Karad. The said application was allowed by order dated 20th March, 2006 passed by the Under Secretary to the Government of India DIPP and thus the IEM dated 12th October, 1998 registered in the name ofMahavir at village Dhavadwadi, Taluka Patan, District Satara came to be amended in the name of Jaywant at Dhavadwadi, Taluka Karad, District Satara. This amendment of 20th March, 2006 changing the name of the tahsil, came to be challenged in Writ Petition No.2225 of 2007 filed by Khandoba and Writ Petition No.5093 of 2007 filed by Sahyadri. A Division Bench of this Court by its order dated 16th August, 2007 directed all the parties to maintain status quo and not to proceed with any further construction work of the proposed sugar factories during the pendency of the petitions. Both the petitions were disposed off by a common order dated 29th July, 2008 and by directing the Joint Secretary, Government of India, DIPP, New Delhi to decide the following issues:- (i) Whether the submission of IEM of M/s.Mahavir Sugar Works on 10th October, 1998 is valid in law; (ii) Whether the application made by M/s.Mahavir Sugar Works dated 10th January, 2006 for amendment in the IEM was allowed by the authority correctly and legally; (iii) Whether the application made by M/s.Jaywant Sugars Ltd., for amendment in the IEM was allowed in accordance with law by the authorities..” The interim order passed on 16th August, 2007 was directed to be continued till the Joint Secretary would pass the order after hearing all the parties concerned. Accordingly, the Joint Secretary passed his order on 17th December, 2008 and held that (a) the IEM of Mahavir was valid in law (b) the application for amendment of IEM dated 10th January, 2006 for the change of name from Mahavir Sugar Works to Jaywant Sugar Words was correctly allowed (c) the application filed by Jaywant Sugars Limited for the amendment in IEM for change of location was allowed in accordance with law and (d) the issue of location of the petitioner could not be conclusively determined as the matter regarding effective steps having been taken or not, was sub-judice before the High Court. 5. The said order dated 17th December, 2008 came to be challenged in Writ Petition No.1172 and 1518 of 2009 by Sahyadri and Khandoba respectively and by a common order dated 5th November, 2009 passed by consent of the parties the petitions came to be disposed off by setting aside the impugned order dated 17th December, 2008 and directing the Secretary to the Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution to decide the following questions:- A] Whether the submission of Industrial Entrepreneurs Memorandum (for short, IEM) of M/s Mahavir Sugar Works on 10th October 1998 is invalid in law because of admitted wrong mentioning of the location in that IEM ? B] Whether the application made by M/s Mahavir Sugar Works dated 10th January 2006 for amendment in IEM, for substitution of the name of M/s Jaywant Sugars Ltd. In place of M/s Mahavir Sugar Works was allowed by the authorities correctly and legally ? C] Whether the application dated 16th March 2006 made by M/s Jaywant Sugars Ltd. For modification in the IEM was allowed by the authorities in accordance with law ? D] Whether the petitioners – Khandoba Prasanna Sakhar Karkhana Ltd. And M/s Sahyadri Sahakari Sakhar Karkhana Ltd. have locus standi to object to the application dated 10th January 2006 submitted by M/s Mahavir Sugar Works and application dated 16th March 2006 submitted by M/s Jaywant Sugars Ltd.? E] In case the authority comes to the conclusion that the modification and substitution pursuant to the applications dated 10th January 2006 and 16th March 2006 are validly allowed, whether that modification and assignment will operate prospectively from the date of grant or with retrospective effect ? E] In case the authority comes to the conclusion that the modification and substitution pursuant to the applications dated 10th January 2006 and 16th March 2006 are validly allowed, whether that modification and assignment will operate prospectively from the date of grant or with retrospective effect ? F] Whether the petitioners – Khandoba Prasanna Sakhar Karkhana Ltd., M/s Mahavir Sugar Works as well as respondent No.6 – M/s Jaywant Sugars Ltd. have taken effective steps within the meaning of the Sugarcane (Control) (Amendment) Order 2006 ? It was further directed that till the Secretary would pass his order, the interim order passed on 28th April, 2009 would continue to operate and the undertaking of Jaywant was recorded to the effect that unless the matter would be decided by the Secretary it would not commence commercial production of sugar and that no equities would be claimed either before the authority or in the proceedings relating to the subject matter on the basis of any construction carried out or any work done during the pendency of the proceedings. 6. By the impugned order dated 8th October, 2010, the above stated six questions have been decided by the Secretary and both Sahyadri as well as Khandoba claim to be the aggrieved parties by the said order. The findings on the referred issues have been summaried in the impugned order as under:- Issues Findings (A) Whether the submission of Industrial Entrepreneurs Memorandum (for short, IEM) of M/s.Mahavir Sugar Works on 10th October, 1998 is invalid in law because of admitted wrong mentioning of the location in that IEM? The application for IEM dated 10.10.1998 submitted by M/s.Mahavir Sugar Works does not make itself invalid in law because of admitted wrong mentioning of the location in the application for IEM. [para.21.5 to 21.0] (B) Whether the application made by M/s.Mahavir Sugar Works dated 10th January, 2006 for amendment in IEM, for substitution of the name of M/s.Jaywant Sugars Ltd., in place of M/s.Mahavir Sugar Works was allowed by the authorities correctly and legally? The application made by Mahavir Sugar Works dated 10th January for amendment in IAM was allowed by the authorities in conformity with the guidelines issued by the Secretariat for Industrial Approval of the Ministry of Industry through the various Press Notes. The application made by Mahavir Sugar Works dated 10th January for amendment in IAM was allowed by the authorities in conformity with the guidelines issued by the Secretariat for Industrial Approval of the Ministry of Industry through the various Press Notes. [Para.22.3 to 22.5] (C) Whether the application dated 16th March, 2006 made by M/s.Jaywant Sugars Ltd., for modification in the IEM was allowed by the authorities in accordance with law. The application dated 16th March, 2006 made by Jaywant Sugars Limited for modification in the IEM was allowed by the authorities as per the existing guidelines. [Para.23.2 to 23.4] (D) Whether the petitioners – Khanodba Prasanna Sakhar Karkhana Ltd., and M/s.Sahyadri Sahakari Sakhar Karkhana Ltd., have locus standi to object to the application dated 10th January, 2006 submitted by M/s.Mahavir Sugar Works and application dated 16th March 2006 submitted by M/s.Jaywant Sugars Ltd.? Khandoba having not acquired the status of an existing sugar factory have no locus standi to object to the application dated 10th January, 2006 submitted by M/s.Mahavir Sugar Works and application dated 16th March, 2006 submitted by M/s.Jaywant Sugars Ltd., on the ground of being an existing sugar factory. It has, however, locus being holder of an IEM for a new sugar factory for a location in the vicinity of the location mentioned in the IEM of M/s.Jaywant. Sahyadri do not have any locus to object to these applications since the sugar factory of Sahyadri is located beyond a distance 15 kms., from the location of the proposed sugar factory of M/s.Mahavir Sugar Works/Jaywant Sugars Limited. [Para.24.4 to 4.6] (E) In case the authority comes to the conclusion that the modification and substitution pursuant to the applications dated 10th January, 2006 and 16th March, 2006 are validly allowed, whether that modification and assignment will operate prospectively from the date of grant or with retrospective affect? The modification sought in the applications dated 10th January, 2006 with regard to the change in the name of company will operate prospectively from the date of grant of permission. As regards modification in respect to the location of the sugar factory sought vide application dated 15th March, 2006, there is no material change in location by virtue of change in spelling or name of tahsil, and hence these changes have to be read with reference to the IEM dated 12.10.1998. As regards modification in respect to the location of the sugar factory sought vide application dated 15th March, 2006, there is no material change in location by virtue of change in spelling or name of tahsil, and hence these changes have to be read with reference to the IEM dated 12.10.1998. [Para.25.2 to 25.5] (F) Whether the petitioners – Khandoba Prasanna Sakhar Karkhana Ltd., M/s.Mahavir Sugar Works as well as respondent No.6- M/s.Jaywant Sugars Ltd., have taken effective steps within the meaning of the sugarcane (Control) (Amendment) Order 2006? In view of detailed analysis contained in para. Above, M/s.Jaywant can be said to have taken effective steps within the meaning of the SCO 2006. The same cannot be said of Kkhandoba. [Para.26.0 to 26.2, 27] 7. It is also pertinent to note at this stage that on 31st August, 1998 the Government of India decided to delete the sugar industry from compulsory licensing under the Industries (Development and Regulation) Act, 1951 and as per the Press Note No.12 it clarified that in order to avoid unhealthy competition amongst the sugar factories to procure sugarcane a minimum distance of 15 Kms., was required to be observed between an existing sugar mill and a new mill (factory). Further, the entrepreneur who desired to avail of the delicensing of sugar industry was required to file an ndustrial Entrepreneur Memorandum (IEM) with the Ministry of Industry. The Government of India further issued the Notification dated 11th September, 1998 under Section 29-B(1) of the Industries (Development and Regulation)Act, 1951 so as to usher the policy of de-licensing and it was required to be read with Press Note No.12 dated 31st August, 1998. The Government of India issued the Sugarcane (Control) (Amendment) Order 2006 on 10th November, 2006, inter alia, laying down the effective steps which the applicants/IEM holders were required to take. The said amendment Order has inserted Clauses 6-A to 6-E into the Sugarcane (Control) Order 2006. 8. Mr. Jahagirdar, the learned Senior Counsel appearing for Khandoba has attacked the impugned order on all counts and the said challenge has been supported by Sahyadri through its Senior Counsel Mr. Korde. The said amendment Order has inserted Clauses 6-A to 6-E into the Sugarcane (Control) Order 2006. 8. Mr. Jahagirdar, the learned Senior Counsel appearing for Khandoba has attacked the impugned order on all counts and the said challenge has been supported by Sahyadri through its Senior Counsel Mr. Korde. It was submitted that the IEM registered on 12th October, 1998 in the name of Shri Sudesh Shantilal Shah as Proprietor of Mahavir could not have been transferred in the name of Jaywant and the amendment in the IEM of Mahavir Sugar Works so as to transfer the said IEM in the name of Jaywant is illegal. Shri Shah registered the IEM in his Proprietary capacity and his application dated 10th January, 2006 for change of name from Mahavir Sugar Works to Jaywant Sugars Limited could not have been allowed. The Press Note Nos.4, 7 and 12 of 1998 read with the format of application for registration of IEM did not provide for such a change to be allowed and even if such change is permissible, it ought to be registered as a fresh IEM from the date the amendment as requested is allowed and in the instant case from 12th January, 2006. It was, therefore, urged that the IEM of Jaywant ought to be held to have been registered on 12th January, 2006 for the first time. It was further submitted that the application for the amendment in the location of the proposed sugar factory submitted by Jaywant was not maintainable and on the basis of such an application the IEM itself is required to be cancelled as the IEM was registered on the basis of a location which was non-existent. Both Shri Shah and Jaywant with their eyes wide open had claimed that the proposed sugar factory was to be located at village Dhavadwadi in Taluka Patan and it has to be presumed that they were fully aware of the said village fell in the Tahsil of Patan, it could not be accepted that after about more than 7 years suddenly Mr. Shah and Jaywant realized that the village Dhavadwadi was not located in Taluka Patan and in fact it was located in Karad Taluka. Shah and Jaywant realized that the village Dhavadwadi was not located in Taluka Patan and in fact it was located in Karad Taluka. Having regard to the condition of minimum distance of 15 Kms., from the existing sugar factory, the applicant applying for IEMs., were under an obligation to know the details of the location of the proposed sugar factory including the Talukas and District and if there was any mistake in such proposed location with respect to Tulka or District the IEM would be registered for a non-existent location. It was submitted that there is a village by name Dhavarwadi in Khandala Taluka of Satara District as well and if that be so it was not permissible for the Secretary to hold that it was a mistake only in respect of Taluka and it was required to be corrected. It was not permissible for the Secretary to hold that the location Dhavadwadi did exist, but it was within the Tahsil limits of Karad Taluka and in the limits of Patan Tahsil there was no such village and, therefore, the application of IEM will not render itself invalid even if the applicant had committed a mistake of indicating the name of Taluka Patan. The Secretary also erred in allowing the correction of location on the ground that on 10th October, 1998 Khandoba had not filed their application for IEM and Sahyadri did not claim that there was a violation of distance norms vis-a-vis their existing factory and that both Khandoba and Sahyadri had accepted that in Karad Taluka there is a village by name Dhavarwadi/Dhavadwadi. The mere existence of village Dhavadwadi/ Dhavarwadi in Taluka Karad could not be a ground to allow the amendment in the location and more particularly for correction of Taluka when a village by the very same name exists in Taluka Khandoba of Satara District. The Secretary erroneously relied upon Press Note No.9 of 1998 issued on 15th June, 1998 so as to allow the amendment for the change in the name of the entrepreneur and what has been contemplated in the scheme of Rule 19A(2) of the Industrial Licensing Rule 1952 does not permit the change of ownership of license and more particularly from individual /proprietor to a company incorporated under the Companies Act. It was also pointed out that Mahavir never claimed to have changed its name to Jaywant and that Jaywant is the successor of Mahavir. It was pointed out that the application dated 10th January, 2006 was submitted by Shri S.C.Shah as a proprietor of Mahavir and the only connection he had with Jaywant was his shareholding of Jaywant (100 shares) and this cannot be a reason to hold that Jaywant was the successor of Mahavir. It was submitted that the change of ownership of license as permissible under Rule 19A(2) of the Industrial License Rules 1952 is in favour of the successor entrepreneur and not in favour of a totally new corporate body. 9. Even otherwise the change of location accepted as per the order dated 16th March, 2006 ought to have been considered as an application for registration of a new IEM and the Secretary ought to have held that the IEM of Jaywant was registered for the first time on 16th March, 2006 for the correct location.. On the issue of locus standi Khandoba has supported the contentions of Sahyadri that it has locus standi to object to the application dated 10th January, 2006 submitted by Mahavir as well as the application dated 16th March, 2006 submitted by Jaywant. Lastly, it was submitted by Mr. Jahagirdar, the learned Senior Counsel that the Secretary while passing the impugned order committed gross errors in holding that Jaywant has taken effective steps and Khandoba has failed in doing so, within the meaning of Sugarcane (Control) (Amendment) Order 2006. Strong reliance in this regard has been placed on the letter/report dated 3rd August, 2007 submitted by the Commissioner of Sugar, Maharashtra to the Chief Director, Sugar, New Delhi. As per Mr. Jahagirdar the findings recorded by the Secretary on the purchase of land and plant and machinery, commencement of civil work and construction of the building, sanction of requisite term loan, are contrary to the record and it ought to have been held that Khandoba had taken all effective steps stipulated in Explanation 4 to Cause 6A of the Sugarcane Control Order as amended in the year 2006 within the stipulated period of two years. 10. So far as the challenge to the impugned order by Sahyadri is concerned, the very same grounds as raised before the Secretary have been advanced before us as well. 10. So far as the challenge to the impugned order by Sahyadri is concerned, the very same grounds as raised before the Secretary have been advanced before us as well. It was contended that the availability of sugarcane in and around Satara District is such that an additional sugar factory could not have been allowed to come up. Sahyadri has increased its crushing capacity from 2500 metric tones to 7500 metric tones and has also invested on various social and economic development schemes in its notified zone to crush additional sugarcane and the coming up of an additional factory would adversely and gravely affect its own performance in as much as the availability of sugarcane supplied would be reduced. It would be difficult for Sahyadri even to maintain its crushing capacity of 7500 metric tones. 11. Mr. Anturkar, the learned Counsel for Jaywant has on the other hands supported the impugned order and further submitted that the petition filed by Sahyadri is required to be dismissed as Sahyadri does not have the locus standi to challenge the impugned order in as much as village Dhavadwadi/ Dhavarwadi in Karad Taluka is located beyond 15 Kms., from Yeshwantnagar in the very same Taluka. It was further submitted that Khandoba could not take any effective steps within the permissible period of two years and, therefore, on account of its failure its IEM registered on 15th November, 2000 and finally amended on 18th July, 2001 stood cancelled having regard to the amended Sugarcane Control Order. It was submitted that the change in location was rightly allowed as there was a mistake in mentioning the taluka of village Dhavadwadi/ Dhavarwadi while registering the IEM by Mahavir and in any case there is no village by the same name existing in the tahsil limits of Patan and by this amendment there was no prejudice caused to Sahyadri which was an existing factory. As per Mr. Anturkar, Khandoba was not an existing factory and, therefore, this amendment in the location of Jaywant cannot be challenged by Khandoba. It was urged that Press Note Nos.4, 7 and 12 of 1998 read with Rule 19A(2) of the Industrial Licensing Rule 1952 together provided for allowing the changes in locations as well as the entrepreneurs. As per Mr. Anturkar, Khandoba was not an existing factory and, therefore, this amendment in the location of Jaywant cannot be challenged by Khandoba. It was urged that Press Note Nos.4, 7 and 12 of 1998 read with Rule 19A(2) of the Industrial Licensing Rule 1952 together provided for allowing the changes in locations as well as the entrepreneurs. He submitted that the hearing before the Secretary was concluded on 27th January, 2010 and time was granted upto 5th February, 2010 to file documents and till this date i.e. 5th February, 2010 there was nothing on record to support the case of Khandoba that it had taken effective steps and in any case the report submitted by the Commissioner of Sugar, State of Maharashtra on 3rd August, 2007 has been found to be factually incorrect by the Secretary in the impugned order. It was urged that the impugned order has set out elaborate reasons and all the material placed before the Secretary by both the parties have been duly considered while deciding all the questions framed by this Court in its order dated 10th November, 2009. Even if it was assumed that Khandoba hold the IEM earlier in point of time, in the light of the observations made in paragraph 27 in the case of Ojas Industries (P) Ltd. vs. Oudh Sugar Mills Ltd. & Ors., (2007) 4 SCC 723 unless it was shown by Khandoba that it had taken effective steps as on 10th November, 2008, Khandoba cannot claim any right to discard Jaywant merely on the basis of the earlier IEM. It was pointed out that Jaywant is not claiming the sugarcane members of Sahyadri who are bound to supply sugarcane to Sahyadry and to the extent of their shares. Reliance has also been placed on the decision of the Supreme Court in the case of Ishwru Yatayat Co-operative Society vs. State Transport Appellate Authority, (1975) 2 SCC 685 and A.P. Tourism Development Corporation Ltd. vs. Pampa Hotels Ltd., (2010) 5 SCC 425 to urge that the IEM of Khandoba was rendered invalid on its failure to take effective steps within two years after the amended Sugar Control Order became effective. 12. So far as the issue of locus standi of Sahyadri is concerned we do not find any substance in the arguments advanced by Jaywant on the same issue. 12. So far as the issue of locus standi of Sahyadri is concerned we do not find any substance in the arguments advanced by Jaywant on the same issue. In the earlier rounds Sahyadri had filed the Writ Petitions challenging the order dated 16th March, 2006 allowing the amendment in IEM as well as the order passed by the Joint Secretary on 17th December, 2008. Even while remanding the issues for fresh considerations of the Secretary, this Court by its order dated 10th November, 2009 had allowed all the parties to appear before the Secretary to present their own case so as to decide all the six referred issues. The record further shows that Sahyadri appeared before the Secretary and its contentions have reflected in the impugned order. Merely because the location of Jaywant at village Dhavadwadi/Dhavarwadi in Taluka Karad is beyond the distance of 15 Kms., from Yeshwantnagar it cannot be accepted that Sahyadri has no locus standi to challenge the order passed by the Secretary, in the facts of continued litigation before this Court. However, when it comes to the merits of the challenge by Sahyadri and even on the grounds of likely adverse effect, Sahyadri may not have a case to support its challenge to the impugned order. We, therefore, do not agree that the petition filed by Sahyadri i.e. Writ Petition No.9217 of 2010 is required to be dismissed on the ground of locus standi. 13. All the parties before us have referred to and relied upon the law laid down in the case of Ojas Industries (P) Ltd. (supra) and, therefore, it would be imperative to refer to the said decision so as to examine the challenge to the impugned order on merits. It would be appropriate to reproduce paragraphs 29, 30 and 31 of the said judgment, “29. In this connection, the question which arises for determination is: firstly, whether the Sugarcane (Control) (Amendment) Order, 2006 operates retrospectively and if so whether the effective steps enumerated in Explanation 4 to clause 6-A are adequate. In this connection, we have to keep in mind the conceptual difference between the distance certificate, the concept of effective steps to be taken by an IEM-holder ande the question of bona fides. 30. The Sugarcane (Control) (Amendment) Order, 2006 inserts clauses 6A to 6-E in clause 6 of the Sugarcane (Control) Order, 1966. It retains the concept of “distance”. In this connection, we have to keep in mind the conceptual difference between the distance certificate, the concept of effective steps to be taken by an IEM-holder ande the question of bona fides. 30. The Sugarcane (Control) (Amendment) Order, 2006 inserts clauses 6A to 6-E in clause 6 of the Sugarcane (Control) Order, 1966. It retains the concept of “distance”. This concept of “distance” has got to be retained for economic reasons. This concept is based on demand and supply. This concept has to be retained because the resource, namely, sugarcane, is limited. Sugarcane is not an unlimited resource. “Distance” stands for available quantity of sugarcane to be supplied by the farmer to the sugar millo. On the other hand, filing of bank guarantee for Rs.1 crore is only as a matter of proof of bona fides. An entrepreneur who is genuinely interested in setting up of sugar mill has to prove his bona fides by giving bank guarantee of Rs.1 crore. Further, giving of bank guarantee is also a proof that the businessman has the financial ability to set up a sugar mill (factory). Therefore, giving of bank guarantee has nothing to do with the distance certificate. 31. As far as effective steps are concerned we may point out that apart from the steps enlisted in the earlier notification dated 11-9-1998 read with Press Note 12 dated 31-8-1998, the Sugarcane (Control) Amendment) Order, 2006 has laid down such steps like purchase of required land in the name of the factory (mill), placement of a firm order for purchase of plant and machinery for the factory, payment of advance or opening of letter of credit with suppliers, commencement certificate of civil work and construction of building, sanction of requisite term loans from the banks or financial institutions and any other step prescribed by the Central Government in this regard. In our view clauses 6-A to 6-E have been introduced in clause 6 of the Sugarcane (Control) Amendment) Order, 1966. In our view clauses 6-A to 6-E are clarificatory in nature. There are certain norms mentioned in the accounting standards of the Institute of Chartered Accountants for setting up industries. They may be sugar mills, paper mills, textile mills, etc. In our view clauses 6-A to 6-E have been introduced in clause 6 of the Sugarcane (Control) Amendment) Order, 1966. In our view clauses 6-A to 6-E are clarificatory in nature. There are certain norms mentioned in the accounting standards of the Institute of Chartered Accountants for setting up industries. They may be sugar mills, paper mills, textile mills, etc. When effective steps are enlisted in the Sugarcane (Control) (Amendment) Order, 2006 dated 10-11-2006 vide Explanation 4 to clause 6-A those in-built norms are made explicit, therefore, Explanation 4 to clause 6-A is clarificatory. Therefore, it is retrospective.” 14. The Supreme Court held that the Sugarcane (Control) (Amendment) Order, 2006 is retrospective and the Central Government seeks to put a bar in all the pending cases for setting up a new sugar factory for a limited period during which the former or the earlier EMI-holder is required to take effective steps. The amendment order of 2006 does not put a ban on setting up of a new unit and it is only giving priority in the setting up of new units. The Sugarcane (Control) (Amendment) Order, 2006 therefore, operates retrospectively and it would not apply to the mills which are already functioning. The Sugarcane (Control) (Amendment) Order, 2006 will apply only to cases where IEMs are pending in dispute in various Courts and it will also apply after the judgment to those cases which are in dispute and where milling is not commenced or permitted to commence. 15. Thus as per the law laid down in the case of Ojas Industries (P) Ltd., (supra), the Sugarcane (Control) (Amendment) Order, 2006 which has been issued on 10th November, 2006 is applicable retrospectively and it will not apply to the mills which were functional on 10th November, 2006. The said (Amendment) Order, 2006 will apply to cases where IEMs are pending in dispute in various Courts and also after the judgment in Ojas Industries (supra) to those cases which are in dispute and where milling has not commenced or permitted to be commenced. Hence the law laid down in Ojas Industries (supra) is applicable to the instant case as well and the Secretary while passing the impugned order has proceeded on that basis. Hence the law laid down in Ojas Industries (supra) is applicable to the instant case as well and the Secretary while passing the impugned order has proceeded on that basis. As noted earlier, the Amendment Order 2006 has inserted Clauses 6-A to 6-E in the in the Sugar Control Order 1966 and it would be appropriate to reproduce the said clauses 6-A to 6-E, 6A. Restriction on setting up of two sugar factories within the radius of 15 Kms. - Notwithstanding anything contained in Clause 6, no new sugar factory shall be set up within the radius of 15 Kms of any existing sugar factory or another new sugar factory in a state or two or more states: Provided that the State Government may with the prior approval of the Central Government, where it considers necessary and expedient in public interest, notify such minimum distance higher than 15 Kms or different minimum distances not less than 15 Kms for different regions in their respective States. Explanation 1. - An existing sugar factory shall mean a sugar factory in operation and shall also include a sugar factory that has taken all effective steps as specified in Explanation 4 to set up a sugar factory but excludes a sugar factory that has not carried out its crushing operations for last five sugar seasons. Explanation 2. - A new sugar factory shall mean a sugar factory, which is not an existing sugar factory, but has filed the Industrial Entrepreneur Memorandum as prescribed by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry in the Central Government and has submitted a performance guarantee of rupees one crore to the Chief Director (Sugar), Department of Food and Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution for implementation of the Industrial Entrepreneur Memorandum within the stipulated time or extended time as specified in Clause 6C. Explanation 3. - The minimum distance shall be determined as measured by the Survey of India. Explanation 4. Explanation 3. - The minimum distance shall be determined as measured by the Survey of India. Explanation 4. - The effective steps shall mean the following steps taken by the concerned person to implement the Industrial Entrepreneur Memorandum for setting up of sugar factory: (a) purchase of required land in the name of the factory; (b) placement of firm order for purchase of plant and machinery for the factory and payment of requisite advance or opening of irrevocable letter of credit with suppliers; (c) commencement of civil work and construction of building for the factory; (d) sanction of requisite term loans from banks or financial institutions; (e) any other step prescribed by the Central Government, in this regard through a notification. 6B. Requirements for filing the Industrial Entrepreneur Memorandum. - (1) Before filing the Industrial Entrepreneur Memorandum with the Central Government, the concerned person shall obtain a certificate from the Cane commissioner or Director (Sugar) or Specified Authority of the concerned State Government that the distance between the site where he proposes to set up sugar factory and adjacent existing sugar factories and new sugar factories is not less than the minimum distance prescribed by the Central Government or the State Government, as the case may be, and the concerned person shall file the Industrial Entrepreneur Memorandum with the Central Government within one month of issue of such certificate failing which validity of the certificate shall expire. (2) After filing the Industrial Entrepreneur Memorandum, the concerned person shall submit a performance guarantee of rupees one crore to Chief Director (Sugar), Department of Food and Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution within thirty days of filing the Industrial Entrepreneur Memorandum as a surety for implementation of the Industrial Entrepreneur Memorandum as a surety for implementation of the Industrial Entrepreneur Memorandum within the stipulated time or extended time as specified in Clause 6C failing which Industrial Entrepreneur Memorandum shall stand derecognized as far as provisions of this Order are concerned. 6C Time limit to implement Industrial Entrepreneur Memorandum.- The stipulated time for taking effective steps shall be two years and commercial production shall commence within four years with effect from the date of filing the Industrial Entrepreneur memorandum with the Central Government, failing which the Industrial Entrepreneur Memorandum shall stand de- recognized as far as provisions of this Order are concerned and the performance guarantee shall be forfeited: Provided that the Chief Director (Sugar), Department of Food and Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution on the recommendation of the concerned State Government, may give extension of one year not exceeding six months at a time, for implementing the Industrial Entrepreneur Memorandum and commencement of commercial production thereof. 6D. Consequences of non-implementation of the provisions laid down in Clauses 6B and 6C.-If an Industrial Entrepreneur Memorandum remains unimplemented within the time specified in Clause 6C, the performance guarantee furnished for its implementation shall be forfeited after giving the concerned person a reasonable opportunity of being heard. 6E. Application of Clauses 6B, 6C and 6D to the person whose Industrial Entrepreneur Memorandum has already been acknowledged.- (1) Except the period specified in Sub-clause (2) of Clause 6B of this Order, the other provisions specified in Clauses 6B, 6C and 6D shall also be applicable to the person whose Industrial Entrepreneur Memorandum has already been acknowledged as on date of this notification but who has not taken effective steps as specified in Explanation 4 to the Clause 6A. (2) The person whose Industrial Entrepreneur Memorandum has already been acknowledged as on date of this notification but who has not taken effective steps as specified in Explanation 4 to the Clause 6A shall furnish a performance guarantee of rupees one crore to the Chief Director (Sugar), Department of Food and Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution within a period of six months of issue of this notification failing which the Industrial Entrepreneur Memorandum of the concerned person shall stand derecognized as far as provisions of this Order are concerned”. 16. The sugar industry was delicensed on 31st August, 1998 and Press Note No.12 of 1998 was issued accordingly. 16. The sugar industry was delicensed on 31st August, 1998 and Press Note No.12 of 1998 was issued accordingly. It was, however, stated therein that to avoid any unhealthy competition amongst the sugar factories so as to procure sugarcane, a minimum distance of 15 Kms., would continue to be observed between an existing sugar mill and a new mill by exercise of powers under the Sugar (Control) Order 1966. In the said Press Note no time limit was laid down for setting up of an industry after the acknowledgment of an IEM. However, the amended Order of 1966 in terms of Clauses 6-C and 6-D has laid down the time limit for the holder of an IEM to set up the sugar factory and the consequences of non-implementation of the IEM. As per these clauses the time limit for taking effective steps would be two years and the commercial production should commence within four years with effect from the date of filing of the IEM with the Central Government failing which the IEM shall stand derecognised. As per Clause 6-A of the amended Sugarcane (Control) Order no sugar factory shall be set up within the radius of 15 Km., of an existing sugar factory or another new sugar factory in a State or two or more States. Whereas Clause 6-B makes it mandatory for obtaining a certificate from the concerned authority in the State with regard to distance and also stipulates that after filing the IEM, the entrepreneur shall submit a performance guarantee of Rs.1 crore as surety for the implementation of the IEM. An existing sugar factory and a new sugar factory have been defined in the explanation below Clause 6-A, which also lists out the effective steps which the holder of an IEM is required to be taken for setting up a sugar factory. 17. The first issue which was referred for the decision of the Secretary by this Court was whether the IEM of Mahavir registered on 12th October, 1998 was invalid in law because of the admitted wrong mentioning of the location in that file. 17. The first issue which was referred for the decision of the Secretary by this Court was whether the IEM of Mahavir registered on 12th October, 1998 was invalid in law because of the admitted wrong mentioning of the location in that file. Firstly, the question of whether the name of the village where the sugar factory was proposed to be started by Mahavir was “Dhavadwadi” or “Dhavarwadi,” a small variation in the spelling of the village name would not really create any doubt as to the specific village intended unless there are two separate villages one by name “Dhavadwadi” and the other by name “Dhavarwadi”. Therefore, the correction in the spelling of the name of the village should not be an issue of serious dispute between the parties. The only contention of Khandoba and Sahyadri was that the said village does not lie in taluka Patan. However, it appears to us that the questions “A” and “C” are inter connected. We shall, therefore, first deal with the findings on Question B, which is regarding the change of name of the entrepreneur i.e. from Mahavir Sugar Mills to Jaywant Sugars Limited. In the impugned order while answering the said question in the affirmative reliance has been placed on Press Note No.4 of 15th June, 1998, Press Note No.7 of 20th July, 1998, Press note No.12 of 31st August, 1998 read with Pres Note No.17 of 28th November, 1997. There is no dispute that the amendment in the IEM was allowed prior to the issuance of Press Note No.7 dated 20th July, 1998. Let us reproduce all these three Press Notes as under:- “Press Note No.4 of 1998 Series, dated 15th June, 1998: In the Press Note No.18 (1997 Series) dated 26.11.97, it was notified that henceforth all proposals for foreign collaboration and industrial licences would be accepted by the Secretariat for Industrial Assistance (SIA) in the Ministry of Industry in composite form. It was also clarified that Industrial Entrepreneurs Memorandum (IEM) form would be revised separately for entrepreneurs to file their intentions in the revised format. Accordingly, a copy of the revised IEM form is enclosed as Annexure to this Press Note for the use of entrepreneurs. This will take effect from 1.7.1998. 2. It was also clarified that Industrial Entrepreneurs Memorandum (IEM) form would be revised separately for entrepreneurs to file their intentions in the revised format. Accordingly, a copy of the revised IEM form is enclosed as Annexure to this Press Note for the use of entrepreneurs. This will take effect from 1.7.1998. 2. The procedures in the Press Note dated 2.8.91 for filing an IEM with the SIA in the Ministry of Industry and the clarifications notified subsequently vide Press Notes dated 24.12.91, 27.7.93, 28.11.97 will continue to remain in operation.” PRESS NOTE NO.7 (1998 Series) AMENDMENT TO THE INDUSTRIAL ENTREPRENEURS MEMORANDUM: Subject: Amendments to the Industrial Entrepreneurs In terms of Press Note Number 22(1991 Series) dated 24th December, 1991, no amendments/modifications can be made in the Industrial Entrepreneurs Memorandum (IEM) already filed and acknowledged in the Secretariat of Industrial Assistance (SIA), except for clerical errors in the acknowledgement. Whenever any correction or amendment is sought to be made in the IEM, entrepreneur is required to submit a fresh memorandum for issue of fresh acknowledgment. In terms of Press Note No.6 (1993 Series) dated 29th July, 1993, an IEM is deleted from the records of SIA, if on scrutiny, it is found that the proposal contained in any IEM is not exempted from licensing. 2. Many entrepreneurs have represented that since an IEM once filed is not serviced for any amendment/modifications thereafter, they face hardship in cases where after initial filing of IEM, any of the project parameters like the location, the name of the company, the items and capacities proposed to be manufactured etc., undergo change, as a result of which for the same investment proposal, they have to file multiple IEMs. 3. The matter has been considered in the Government. It has now been decided that IEMs filed in the new form made effective from 1st July, 1998, and notified through Press No. 4(1998 Series) dated 15.6.98, would be amended/modified as per the request of the entrepreneurs. The amendments would be subject to the terms and conditions spelt out in Press Note No.17 (1997 Series) dated 27th November, 1997 with reference to the Statutes/regulations/notifications issued by the Central and State Governments issued from time to time. PRESS NOTE NO.12 (1998 Series) Government of India, Ministry of Industry, Department of Industrial Policy and Promotion, Udyog Bhavan. Sub: De-Licensing of Sugar Industry. ....... 1. PRESS NOTE NO.12 (1998 Series) Government of India, Ministry of Industry, Department of Industrial Policy and Promotion, Udyog Bhavan. Sub: De-Licensing of Sugar Industry. ....... 1. The Government has further reviewed the list of Industries retained under compulsory licensing and has decided to delete sugar industry from the list of industries requiring compulsory licensing under the provisions of the Industries (development and Regulation) Act, 1951. However, in order to avoid unhealthy competition among sugar factories to procure sugar cane, a minimum distance of 15 KM would continue to be observed between an existing sugar mill and a new Mill by exercise of powers under the Sugarcane Control Order, 1966. 2. The entrepreneurs who wish to avail themselves of the delicensing of sugar industry would be required to file an Industrial Entrepreneur Memoranda (IEM) with the Secretariat of Industrial Assistance in the Ministry of Industry as laid down for all de-licensed industries in terms of the Press note dated 2nd August, 1991 as amended from time to time. 3. Entrepreneurs who have been issued Letters of Intent (LOI) for manufacture of sugar need not file an initial IEM in such cases, the LO holder shall only file Part -B of the IEM at the time of commencement of commercial production against the LOI issued to them it is however open to entrepreneurs to file an initial IEM (in lieu of the LOI/Industrial licence held by them if they so desire whenever any variation from the conditions and parameters stipulated in the LOI/Industrial License is contemplated.” Rule 19A(2) of the Registration of Licensing of Industrial Undertakings Rule 1952 reads as under:- “19A. Notice of certain facts to be given.-- (2) If there is any change in the owner of a registered industrial undertaking or an undertaking in respect of which a license or permission has been granted the new owner thereof shall, within fourteen days from the date of such change, give notice in writing of the fact to the Ministry of (Industrial Development), Government of India, New Delhi; and forward the registration certificate or the license, as the case may be to that Ministry for endorsing thereon the change in the owner of the industrial undertaking.” 18. In our considered opinion, reliance of the Secretary on these Press Notes is misplaced while answering Question B in the affirmative. In our considered opinion, reliance of the Secretary on these Press Notes is misplaced while answering Question B in the affirmative. Along with Press Note No.4 of 1998, the prescribed form for IEM has been published by the Government of India and Clause IV of the said form reads as under:- “IV. Status of Promoter/Industrial Undertaking (1) Status of the Promoter/Industrial Undertaking (Please tick [ ] the appropriate box) [ ] Central Government Undertaking [ ] Private Sector Undertaking [ ] State Government Undertaking [ ] Individual Promoter. [ ] State Industrial Development [ ] Assisted Sector Corporation Undertaking [ ] Joint Sector Undertaking [ ] Co-operative Undertaking (2) Indicate whether this proposal is for (Please tick [ ] the appropriate box) [ ] Establishment of a New [ ] Change of Location Undertaking. [ ] Effecting Substantial Expansion [ ] Change of Ownership/ name of Company. [ ] Manufacture of New Articles [ ] Others.” In the first part the status of the entrepreneur has been set out and in the second part, the change of the location and ownership has been provided for. Undoubtedly the IEM of Mahavir registered on 12th October, 1998 was in the category of “Individual Promoter” and it was not either a Co-operative Sector Undertaking or a Private Sector Undertaking or a Private Limited or Public Limited Company. At the same time it is not the case of Mahavir or Jaywant for that matter that Jaywant is the successor of Mahavir and it could not be so, in as much as Mahavir was shown to be an individual proprietory concern whereas Jaywant is a Public Limited Company incorporated under the Companies Act, 1956 on 5-2-2006. Mr. S.S. Shah, who claims to be the individual promoter of Mahavir is shown to be holding 100 shares of Jaywant (.001%) and that by itself cannot make Jaywant as a successor of Mahavir. Mahavir is a totally new entrepreneur and, therefore, such a change of entrepreneur from individual promoter to a Public Limited Company is not envisaged under Clause IV of the prescribed form of IEM. Secondly, though in the second part of Clause IV of the prescribed form of IEM amendment in the name of location is envisaged, change of ownership/name of company has also been provided for. Secondly, though in the second part of Clause IV of the prescribed form of IEM amendment in the name of location is envisaged, change of ownership/name of company has also been provided for. In the instant case it was never contended either by Mahavir or Jaywant that Jaywant has taken over Mahavir and, therefore, there is a change of ownership. At the same time change of the name of the company would imply the change in the name of the very same company whose IEM was registered, like it had happened in the case of Khandoba. If the object behind the amendment in the Sugarcane Control Order 1966 has to be effective and meaningful the trading of IEM cannot be permitted. Unless there is a change in the name of the company which alpplied for IEM or the said Company has been taken over or merged with another company, change of ownership cannot be accepted in a pending IEM. The record shows that Jaywant had applied for incorporation of a public limited company on 16th December, 2005 and it was granted the incorporation certificate on 5th January, 2006 by the Registrar of Companies. Shri S.S. Shah is one of the seven directors of Jaywant and other six directors are the family members of Dr. Suresh Bhosale. If such a change in ownership from a private entrepreneur to a public Ltd., company is allowed, there is every likelihood of trading of IEM and the purpose behind the amendment of the Sugarcane Control Order would be defeated. Hence question No.B is required to be answered in the negative and we are satisfied that the Secretary fell in error in answering the said issue in the affirmative. Reliance by Shri Anturkar on Rule 19A(2) of the Registration and Licensing of Industrial Undertakings Rules 1952 is misplaced. As per Rule 19A(2) if there is any change in the owner of a registered industrial undertaking or an undertaking in respect of which a license or permission has been granted, the new owner thereof shall, within fourteen days from the date of such change, give notice in writing of the fact to the Ministry of Industrial Development, Government of India and forward the registration certificate or the license, as the case may be to that Ministry for endorsing thereon the change in the owner of the industrial undertaking. As we have noted earlier the scheme of registration of IEMs does not envisage transfer of IEM from one undertaking to the other unless the later is the successor in law of the former or there has been a merger between the two. Any other interpretation and more particularly as sought by Jaywant in this case, would lead to encouraging trading of IEM, which has been eschewed by the amended Sugar Control Order. We have also noted that the application dated 10th January, 2006 for the amendment to the IEM so as to change the name of the entrepreneur was not submitted by Jaywant and in fact it was submitted by Shri S.S. Shah in his capacity as a Proprietor of Mahavir and, therefore, it would indicate that as if Shri Shah was transferring the IEM registered in the name of Mahavir on 12th October, 1998 to an entirely new and alien entity by name Jaywant Sugar Limited. Such a change from a proprietary individual concern to a Public Limited Company is not envisaged under Press Note No.4 read with the form prescribed for IEM and annexures thereto, unless the new entrepreneur is the successor in law of the previous entrepreneur in whose name the IEM is registered. However, if the Government of India informed Jaywant by its letter dated 12th January, 2006 that the amendment was allowed, in our opinion, the said letter could be treated as a new IEM registered in the name of Jaywant Sugars Limited as on that date i.e. 12th January, 2006 and not as a transferor of IEM of Mahavir registered on 12th October, 1998 having regard to the liberalised policy of licensing for new industries. At the same time the IEM of Mahavir registered on 12th October, 1998, remained intact as on 12th January, 2006. By its communication dated 12th January, 2006 DIPP also referred to the location as Dhavarwadi, Taluka Patan, District Satara. Thus for the same location in addition to the IEM of Mahavir, the IEM of Jaywant may also be deemed to be registered on 12th January, 2006. There was also a third IEM registered for the same location and that was in the name of the Proprietor of Krishna Koyana Sugar and Allied Industries. Thus for the same location in addition to the IEM of Mahavir, the IEM of Jaywant may also be deemed to be registered on 12th January, 2006. There was also a third IEM registered for the same location and that was in the name of the Proprietor of Krishna Koyana Sugar and Allied Industries. The IEM of the said concern was registered on 4th December, 1998 at the location of village Dhavarwadi, Taluka Patan, District Satara on the basis of the application submitted by Dr. S.J. Bhosale, Proprietor. Hence as on 12th January, 2006 there would be three different IEMs for the same location of village Dhavarwadi namely (1) Mahavir Sugar Works through its Proprietor, (2) Jaywant Sugars Limited and (3) Krishna Koyana Sugar and Allied Industries through its Proprietor Dr. S.J. Bhosale. Question B is thus answered by us on the above lines. 19. Question A: Whether the IEM dated 12th October, 1998 of Mahavir Sugar Works become invalid in law because of wrong name of the taluka of village Dhawarwadi? It was submitted by both Sahyadri as well as Khandoba that on account of the wrong name of the Tahsil as appeared in the IEM of Mahavir i.e. village Dhavarwadi, Taluka Patan, the IEM of Mahavir registered on 12th October, 1998 had become invalid in law. This issue has been answered in the negative in the impugned order and we do not find any error in the same. At the first place the prescribed form along with Press Note 4 of 1998 provides for location change by the same entrepreneur. Secondly, it is not in dispute between all the three contesting parties namely Mahavir, Jaywant, Sahyadri and Krishna Koyana that there is no village by name Dhavarwadi or Dhavadwadi in Patan Taluka of Satara District. It is also an admitted position that a village by name Dhavarwadi is located in Taluka Karad as well as Taluka Khandala of Satara District. It is nobody’s case and more particularly of Khanodba and Sahyadri that the IEM of either Mahavir or Krishna Koyana was registered by the Government of India for village Dhavarwadi in Taluka Khandala in Satara District. Thirdly, there are three distance certificates on record. It is nobody’s case and more particularly of Khanodba and Sahyadri that the IEM of either Mahavir or Krishna Koyana was registered by the Government of India for village Dhavarwadi in Taluka Khandala in Satara District. Thirdly, there are three distance certificates on record. The Deputy Director (Technical) Survey of India, Pune, issued a certificate dated 19th January, 2006, the Executive Engineer (Sugar) issued the letter dated 1st March, 2007 and the Sub Divisional Officer, Karad issued the certificate dated 7th July, 2007 and finally the Superintending Surveyor, Survey of India issued the letter dated 1st September, 2008 stating the distance of the proposed sugar factory at village Dhavarwadi with reference to Yeshwant Nagar. As per the letter dated 19th January, 2006 issued by the Survey of India the distances of village Dhavarwadi are mentioned as under:- Dhavarwadi to Marli - 17 Kms. Dhavarwadi to Yeshwantnagar - 18 Kms. Dhavarwadi to Shendre - 19 Kms. As per the letter dated 1st March, 2007 issued by the Executive Engineer (Sugar) the distance between village Pal, Taluka Karad and village Dhavarwadi, Taluka Karad is 3 Kms. As per letter dated 1st September, 2008 issued by the Survey of India location of village Dhavarwadi of Taluka Karad is within a distance of 4.5 Kms., from the outward boundary of Taluka Karad. The letter further states that village Dhavarwadi in Karad taluka does not fall on the boundary of Karad and Patan taluka whereas the villages Vhavanwadi and Jangalwadi are located on the taluka boundary of Karad and Patan. All the parties are aware of these distances. In our opinion, the Secretary erred in her observations that when Mahavir submitted its IEM for village Dhavarwadi there was a mistake in writing its Tahsil and erroneously tahsil Patan was written/typed and, therefore, the IEM of Mahavir for village Dhavarwadi would not be renedered invalid in the eyes of law for such an error. At no point of time any distance certificate was issued by any of the authorities with reference to village Dhavarwadi in Khandala Taluka of Satara District. Hence, the findings on Question A in the impugned order are required to be confirmed and we agree that the IEM of Mahavir did not become invalid, on account of the error in mentioning of the tahsil/taluka of village Dhawadwadi. Hence, the findings on Question A in the impugned order are required to be confirmed and we agree that the IEM of Mahavir did not become invalid, on account of the error in mentioning of the tahsil/taluka of village Dhawadwadi. Even otherwise also a change in the location is permissible as observed while recording our findings on Question B and, therefore, the IEM registered would not render invalid on such a ground. Question C: Whether the application dated 16th March, 2006 made by M/s.Jaywant Sugars Ltd., for modification in the IEM was allowed by the authorities in accordance with law? It was submitted by Sahyadri as well as Khandoba that the application dated 16th March, 2006 submitted by Jaywant for modification in the IEM was erroneously allowed by the authorities and the order dated 20th March, 2006 acknowledging the amendment/modification in the IEM of Jaywant was illegal. The application dated 16-3-2006 submitted by Jaywant was acknowledged by the Secretariat for Industrial Approvals ((SIA) without application of mind and without any physical verification of the site which was necessary so as to verify whether any other sugar factory was coming up within the prescribed distance of 15 Kms. It was also urged that Press Note 7 was issued on 20th July, 1998 i.e. prior to the registration of IEM of Mahavir on 12th October, 1998 and, therefore, the said Press Note could not be relied upon and the sugar industry was still subject to licensing till 31st August, 1998. Even otherwise, if the location in the original IEM was permitted to be amended, the amendment could not operate retrospectively and it would operate only from the date it was acknowledged and in the instant case from 20th March, 2006 and reliance in this regard was placed on the Office Memorandum dated 17th October, 2008 which was issued by the Department of Industrial Policy and Promotion (DIPP). In the said OM dated 17th October, 2008 it has been clarified that in case of an IEM holder for a sugar manufacturing unit a change of location cannot be allowed without submitting a fresh Distance Certificate from the Specified Authority of the concerned State Government. On the other hand it was submitted by Jaywant that the acknowledgment dated 20th March, 2006 cannot be termed as a change of location of the proposed sugar manufacturing unit. On the other hand it was submitted by Jaywant that the acknowledgment dated 20th March, 2006 cannot be termed as a change of location of the proposed sugar manufacturing unit. All that was sought to be changed was the name of the Tahsil from ‘Patan” to ‘Karad’. Before the application dated 16th March, 2006 was submitted by Jaywant for correction of the taluka of village Dhawadwadi, the distance certificate dated 19th January, 2006 by the Survey of India had already mentioned about village Dhawadwadi, taluka Karad and this was within the knowledge of Khandoba as well as Sahyadri. The acknowledgment dated 20th March, 2006 by the SIA in response to the application dated 16th March, 2006 for correction/modification/amendment in the IEM reads as under:- “Application dated 16th March, 2006 submitted by M/s.Jaywant Sugar Ltd., for amendment/modification in the IEM acknowledgment was processed in terms of Press Note No.7 (1998 series) dated 20th July, 1998 read with Press Note No.17 dated 17th November, 1997. The stated mistake in the spelling of the name of village and name of Taluka was corrected as per request of the company who furnished a copy of the Certificate (copy enclosed) from the Tehsil Office, Karad”. 20. While answering Question “A” we have already referred to the prescribed form for IEM registration and noted that in Clause 4 Part II of the said application, change of location is permissible. At the same time while answering Question No.B we have held that the acknowledgment dated 12th January, 2006 could be treated as an IEM by Jaywant registered for the first time on 12th January, 2006. For the very same reasons the Change of Tahsil from “Patan” to Karad did not amount to a change of location in the instant case. The findings in the impugned order by the Secretary are required to be confirmed on this question. 21. For the very same reasons the Change of Tahsil from “Patan” to Karad did not amount to a change of location in the instant case. The findings in the impugned order by the Secretary are required to be confirmed on this question. 21. Question D: Whether the petitioners Khandoba Prasanna Sakhar Karkhana Ltd., and M/s.Sahyadri Sahakari Sakhar Karkhana Ltd., have locus standi to object to the application dated 10th January, 2006 submitted by M/s.Mahavir Sugar Works and the application dated 16th March, 2006 submitted by M/s.Jaywant Sugar Ltd. It is contended by Jaywant that Khandoba as well as Sahyadri have no locus standi to object to the application dated 10th January, 2006 submitted by Mahavir and the application dated 16th March, 2006 submitted by Jaywant to the SIA for change/modification/amendment to the IEM. On the issue of locus standi of Sahyadri it was submitted that the distance between Yeshwantnagar where its factory is located and village Dhavarwadi, Taluka Karad is more than 15 Kms., and, therefore, Sahyadri has no locus standi or any reason to challenge the IEM of Jaywant acknowledged for village Dhavarwadi, Taluka Karad. It was also submitted that pursuant to the changes in Zoning Regulation in Maharashtra a Co-operative Sugar Factory is entitled to claim sugarcane only from its members and that too in proportion to the shares held by such members. It was further pointed out that there is no restriction on non-members or members to supply excess sugarcane cultivated by them over and above the shares held to any other sugar factory. In such circumstances Sahyadri cannot claim that it has a monopoly for the supply of sugarcane from its zone. Coming to the locus of Khandoba it was submitted by Jaywant that Khandoba’s IEM was acknowledgted on 15th November, 2000 and the company was registered only on 2nd January, 2001. Prior to 2nd January, 2001 the IEM registered on 15th November, 2000 was obtained by a legally non-existent entity. Finally it was contended that in any case Khandoba cannot be said to be an existing sugar factory as it did not take any effective steps till the date of hearing before the Secretary and it had only set up an Ethanol Plant at village Pal. The distance of 15 Kms., for sugar mills is not applicable with reference to a factory which produces Ethanol/Alcohol. The distance of 15 Kms., for sugar mills is not applicable with reference to a factory which produces Ethanol/Alcohol. Jaywant, therefore, urged that the distance condition applicable to it has to be considered with reference to Yeshwantnagar and not village Pal in Karad taluka. We have already noted above that the IEM acknowledged on 15th November, 2000 was in favour of Khanodba Sugar and Allied Private Limited which was an incorporated company under the Companies Act, 1956. The name of the said company came to be changed to “Khandoba Prasanna Sakhar Karkhana Ltd.,” as per the certificate issued on 2nd May, 2001 by the Registrar of Companies. On the same day i.e. on 2nd May, 2001 the Registrar of Companies yet issued another certificate for change of name of “Khandoba Prasanna Sakhar Karkhana Pvt. Ltd. Whereas Khandoba Prasanna Sugar and Allied Products Private Limited came to be registered under the Companies Act, 1956 as per the certificate of incorporation dated 2nd January, 2001. Hence Khandoba Prasanna Sugar and Allied Products Private Limited in whose favour the IEM was registered on 15th November, 2000 changed its name by following the due process of law to Khandoba Prasanna Sakhar Karkhana Limited and, therefore, it cannot be accepted that the IEM dated 15th November, 2000 or its amendment dated 10th July, 2001 or the second amendment dated 18th July, 2001 was of a non-existent legal entity. At the same time, as per the certificate issued by the Survey of India, the distance between village Dhavarwadi, and Pal both in taluka Karad, only 3 Kms., and in view of the Explanation 2 below Clause No.6-A of the Sugarcane Control (Amendment) Order 2006 a new sugar factory shall mean the sugar factory which is an existing sugar factory which has filed the IEM and submitted a performance guarantee of Rs.1.00 crore to the Chief Director (Sugar), Department of Food and Public Distribution, for implementation of the IEM within the stipulated time or extended time as specified in Clause 6-C. Khandoba has already submitted the performance guarantee of Rs.1.00 crore within the given time. Hence, the contention of Jaywant that Khandoba has no locus standi has to be discarded. Hence, the contention of Jaywant that Khandoba has no locus standi has to be discarded. So far as Sahyadri is concerned, so long as the proposed sugar factory was being set up beyond the distance of 15 Kms., from its location-Yeshwantnagar in Taluka Karad it could not challenge the establishment of such a factory merely on the apprehensions that there would be an unhealthy competition and its supply of sugarcane was likely to be adversely affected. The amended Sugarcane Control Order as well as the law laid down in Ojas Industrie’s case (supra) does not support such a ground to challenge location of a new factory. We are, therefore, in agreement with the findings recorded in the impugned order that Sahgyadri did not have adequate grounds to object to the IEM granted in favour of Jaywant on 10th January, 2006 and modified/corrected on 20th March, 2006, but at the same time Khandoba has a locus in the matter and, therefore, the findings on Question No.D recorded in the impugned order are hereby confirmed. 22. Question E: In case the authority comes to the conclusion that the modification and substitution pursuant to the applications dated 10th January, 2006 and 16th March, 2006 are validly allowed, whether that modification and assignment will operate prospectively from the date of grant or with retrospective affect? On this question we are not in agreement with the findings recorded in the impugned order. For the reasons set out by us while answering Questions “B” and “C” we hold that the modification and substitution in the acknowledgment dated 12th January, 2006 was to be treated as a fresh IEM registered in favour of Jaywant for the first time and the acknowledgment dated 20th March, 2006 was validly granted but it shall operate from 12th January, 2006.. The reasons set out in the impugned order in reply to Question E cannot be upheld in view of the reasons we have set out while answering Questions B and C above. 23. Question F: Whether the petitioners Khandoba Prasanna Sakhar Karkhana Ltd., M/s.Mahavir Sugar Works as well as respondent No.6 M/s.Jaywant Sugars Ltd., have taken effective steps within the meaning of the Sugarcane (Control) (Amendment) Order 2006? 23. Question F: Whether the petitioners Khandoba Prasanna Sakhar Karkhana Ltd., M/s.Mahavir Sugar Works as well as respondent No.6 M/s.Jaywant Sugars Ltd., have taken effective steps within the meaning of the Sugarcane (Control) (Amendment) Order 2006? This question has to be considered on the back drop of our findings that the IEM of Khanodba was acknowledged on 15th November, 2000 for village Pal and that of Jaywant on 12th January, 2006 for village Dhavarwadi, both villages located in Karad Tahsil. As per the explanation below Clause 6A of the amended Sugar Control Order for examining as to which of these two entrepreneurs could fall within the meaning of “existing sugar factory”, it would be necessary to examine which of them has taken effective steps. As per Explanation 1 below Clause 6A of the amended Sugar Control Order, the existing sugar factory shall mean a sugar factory in operation and shall also include a new sugar factory that has taken all the effective steps as specified in Explanation 4, to set up a sugar factory, but excludes a sugar factory that has not carried out its crushing operations for the last 5 sugar seasons. Thus when we are required to consider the minimum distance conditions of 15 Kms., from any existing sugar factory or another new sugar factory the requirements of taking effective steps are required to be examined and the factory which has taken effective steps shall mean an existing sugar factory and the factory which has submitted a performance guarantee but has not taken effective steps shall mean a new factory. If it is held that Jaywant is an existing sugar factory on the basis of the effective steps taken by it with reference to a particular date and Khandoba has failed to do so, with reference to the same date, Khandoba will be treated as a new sugar factory as per Explanation 2. Consequently, the location of Khandoba has to be beyond a distance of 15 Kms., from village Pal in Karad Taluka, as per the minimum distance condition prescribed in the amended Sugar Control Order. Let us, therefore, examine the effective steps of both and find out which one of them i.e. Khandoba and Jaywant has taken effective steps as Explanation 4, to Clause 6-A of the amended Sugar Control Order, within the prescribed period of two years. Let us, therefore, examine the effective steps of both and find out which one of them i.e. Khandoba and Jaywant has taken effective steps as Explanation 4, to Clause 6-A of the amended Sugar Control Order, within the prescribed period of two years. We must also note that as per Clause 6-E of the amended Sugar Control Order (SCO) the provisions specified in Clauses 6-B, 6-C and 6-D except the period specified in sub-clause (2) of Clause 6-B shall be applicable to the person whose IEM has already been acknowledged on 10th November, 2006, but has not taken effective steps as specified in Explanation 4 to Clause 6-A. Whereas as per Clause 6-E (2) of the amended SCO the person whose IEM has already been acknowledged as on 10th November, 2006 but has not taken effective steps as specified in Explanation 4 to Clause 6-A shall furnish a performance guarantee of Rs1.00 crore to the Chief Director (Sugar), Department of Food and Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution, within a period of 6 months from 10th November, 2006, failing which the IEM of the person concerned shall stand derecognised as per the provisions of the said Order. 24. The Secretary concluded in the impugned order that Jaywant has taken all effective steps stipulated in Explanation 4 to Clause 6-A of the SCO but Khandoba cannot be said to have taken effective steps and if that be so, Jaywant will have to be treated as an existing factory and Khandoba will fall within the ambit of a new factory. The distance between the location of Jaywant i.e. Dhawarwadi and Khandoba (at village Pal) is required to be more than 15 Kms., but the proposed location of Khandoba is village Pal in Taluka Karad which is at a distance of 3 Kms., from village Dhawarwadi in the same Taluka. 25. Mr. Jahagirdar, the learned Senior Counsel for Khandoba has strongly relied upon the comparative progress report regarding effective steps taken by Jaywant and Khandoba and submitted by the Commissioner of Sugar, Maharashtra State to the Chief Director (Sugar), Department of Food and Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution, Government of India and urged that the impugned order has been passed in utter disregard to the said report. He further submitted that the period of two years within which the effective steps are required to be taken will have to be counted from 10th November, 2006 and Khandoba has submitted a performance guarantee of Rs. One crores on 9th May, 2007 within the stipulated time. On 16th August, 2007 this Court passed an order in Writ Petition No.2225 of 2007 and 5093 of 2007 directing all the parties to maintain status quo and not to proceed with any construction work of the sugar factories till the petitions are decided. On 17th December, 2008 the Joint Secretary, Ministry of Consumer Affairs, Foot and Public Distribution, Government of India, passed his order and the same was the subject matter of challenge in Writ Petition Nos. 1172 and 1518 of 2009. In the meanwhile the said order granted on 16th August, 2007 by this Court was operative till 17th December, 2008 i.e. for 16 months. The original period of two years would expire on 10th November, 2008 having regard to the date of the amended SCO i.e. 10th November, 2006. However, as on 10th November, 2008 the said order passed by this Court was continued for a period of 16 months and if this period of 16 months is added from 10th November, 2008 the outer limit for completion of effective steps would be 10th March, 2010. It was further submitted by Mr. Jahagirdar, the learned Senior Counsel that as on 10th March, 2010 Khandoba had taken effective steps and, therefore, it was required to be treated as an existing factory and not a new factory. It was further urged that the Secretary while passing the impugned order has failed to apply her mind to the reports and other records placed before her and erroneously recorded a finding that Khandoba had failed to take effective steps. 26. We have noted that the impugned order refers to the report dated 3rd August, 2007 submitted by the Commissioner of Sugar, Maharashtra State to the Chief Director (Sugar), Department of Food and Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution, Government of India. The record as well as reports placed before the Secretary during the course of hearing has also been duly considered. The parties were heard by the Secretary on 11th December, 2009 and 5th January, 2010. The record as well as reports placed before the Secretary during the course of hearing has also been duly considered. The parties were heard by the Secretary on 11th December, 2009 and 5th January, 2010. On 25th January, 2010 this Court passed an order on the Civil Application filed and thereafter on 27th January, 2010 the parties were again heard by the Secretary and time upto 5th February, 2010 was granted to file documents. The report of the concerned Department was received on 17th August, 2010 and the impugned order has been passed on 8th October, 2010. In our opinion the impugned order is in keeping with the principles of natural justice and all the parties i.e. Sahyadri, Khandoba and Jaywant have been duly heard and were granted sufficient time to file additional documents. 27. Explanation 4 to Clause 6-A of the SCO deals with the meaning of “effective steps” and reads as under:- Explanation 4.-- The effective steps shall mean the following steps taken by the person concerned to implement the Industrial Entrepreneur Memorandum for setting up of sugar factory-- (a) purchase of required land in the name of the factory. (b) placement of firm order for purchase of plant and machinery for the factory and payment of requisite advance or opening of irrevocable letter of credit with suppliers; (c) commencement of civil work and construction of building for the factory; (d) sanction of requisite term loans from banks or financial institutions; (e) any other step prescribed by the Central Government, in this regard through a notification. Based on the submissions and documents submitted by Khandoba and Jaywant, the factual position with regard to the effective steps taken by both of them has been considered in respect of (a) purchase of land; (b) purchase of plant and machinery; (c) commencement of civil work and construction of the building and (d) sanction of requisite term loan. The effective steps taken by both Khandoba and Jaywant on all these infrastructural requirements and investments have been set out as under:- A. PURCHASE OF LAND: (i) Khandoba It relied upon the report dated 3rd August, 2007 submitted by the Commissioner of Sugar, Maharashtra State that Khandoba had purchased 48 acres of land for setting up of the sugar factory project in the year 2001 and the said land was sufficient to cover the factory requirement. During the oral submissions before the Secretary, Khandoba had contended that the land was purchased through the account of Khandoba Prasanna Sahakari Karkhana Limited maintained with the Karad Urban Co-operative Bank Ltd. This was disputed by Jaywant and it was pointed out that Khandoba had purchased only 0.34 hectares of land in the name of the proposed sugar factory and in support of this submission the concerned extracts from the revenue record of the state Government were placed on record. It was seen from these documents that the purchase/transfer of land in the name of Khandoba sugar factory took place only on 4th February, 2010 as admitted by Khandoba and the transfer of land was made by Shri J.T. Bhingardeve and Shri S. Bhingardeve the Chairman and Managing Director of the Khandoba respectively. This land was held in the individual names prior to 4th February, 2010 and it would not be said to have acquired/purchased by Khandoba. (ii) Jaywant: On the other hand Jaywant submitted relevant copies of the revenue record showing purchase and transfer of land in its name at a total costs of Rs.43.41 lakhs. It had submitted before the Secretary the details of the Vendor, the area of the land along with the Survey Numbers as well as the monetary consideration paid to the owners. This record went to show that Jaywant had purchased 87 acres of land between 3rd March, to 6th November, 2006 in the name of “Jaywant Sugar Limited”. Thus so far as the purchase of land is concerned, Jaywant was ahead of Khandoba as on 4th February, 2010. B. PURCHASE OF PLANT AND MACHINERY: (i) Khandoba Khandoba contended before the Secretary that it entered into an agreement on 13th April, 2002 with M/s.Shantaram Reshellers Pvt. Ltd., for the design, procurement, manufacture, supply and supervision of erection and commissioning of the plant and machinery and it was further stipulated that the design and drawing for the plant and machinery would be done by M/s. S.S. Engineers. A copy of the agreement dated 13th April, 2002 was placed on record and in the delivery clause of the said agreement it was provided that the supply of plant and machinery shall be completed in all respects to the satisfaction of the purchaser and the said machinery shall be commissioned and made ready for commercial production and use by the end of January, 2003 or within 7 months from the date of opening of Operating Letter of Credit and payment of advance whichever is later. It was further mentioned in the said clause that time was the essence of the contract, but no last date was fixed with reference to the date of Operating Letter of Credit and payment of advance and no proof of payment was available. It also produced a copy of the letter dated 16th July, 2007 received from M/s.Shantaram Machineries Pvt. Ltd. (formerly Shantaram Reshellers Pvt. Ltd.) confirming their readiness to supply the sugar machinery and equipments. It was further confirmed that Shantaram Machineries Pvt. Ltd., had paid an advance to M/s. S.S. Engineers for complete design and drawing. However, no proof was submitted by Khandoba of any payment of advance to any of these parties or opening Operating LOC as per the terms and conditions. To falsify the claim of Khandoba, Jaywant submitted copies of two letters dated 1st April, 2007 and 10th August, 2007 of M/s. S.S. Engineers informing Jaywant that they had not carried out any work for Khandoba pursuant to the Agreement dated 13th April, 2002 nor was the Agreement any more valid. To deal with these letters it was submitted by Khandoba that it had entered into an agreement on 3rd February, 2010 for placement of firm orders for purchase of plant and machinery with M/s.Shantaram Machineries Private Ltd., and has given an irrevocable letter of credit of Rs.25 lakhs on 3rd February, 2010. Thus as per Khandoba the Agreement dated 3rd February, 2010 was signed for setting up plant and machinery of sugar factory of the capacity of 600 TCD which was much less than its proposed capacity shown in the IEM. Khandoba had not taken effective steps for the purchase of plant and machinery, can be safely concluded. Thus as per Khandoba the Agreement dated 3rd February, 2010 was signed for setting up plant and machinery of sugar factory of the capacity of 600 TCD which was much less than its proposed capacity shown in the IEM. Khandoba had not taken effective steps for the purchase of plant and machinery, can be safely concluded. (ii) Jaywant: Jaywant placed on record a copy of the agreement dated 6th October, 2006 with M/s.S.S. Engineers for supply of complete sugar plant of 2500 TCD at a total price of Rs. 31.50 crores. It also polaced on record copies of payment vouchers dated 6th October, 2006. A copy of the letter dated 28th October, 2006 of M/s.S.S. Engineers acknowledging the receipt of an amount of Rs.1.575 crores from Jaywant. Further receipts were placed on record indicating that an amount of Rs.2.33 crores was paid on 13th November, 2006 and a further amount of Rs.2.34 crores was paid on 13th November, 2006 to M/s.S.S. Engineers. Thus Jaywant had already paid an amount of Rs.6.2 crores to M/s.S.S. Engineers towards supply of complete sugar plant of 2500 capacity till February, 2007 as against the total price of Rs. 31.50 crores and, therfore, it was way ahead of Khandoba in terms of the purchase of plant and machinery. C. COMMENCEMENT OF CIVIL WORK AND CONSTRUCTION OF THE BUILDING: (i) Khandoba The report dated 3rd August, 2007 submitted by the Commissioner of Sugar indicated that Khandoba had entered into an agreement with M/s.Reward Construction Pvt. Ltd., Pune and finalised the civil work and building construction on 28th March, 2003 and that the ethanol project was completed in April, 2004. The said ethanol project was operational when the report of the Sugar Commissioner was submitted. This report further stated that the sugar factory and the distillery project work was in progress. However, this was disputed by Jaywant and it was pointed out that Khandoba had appointed Beri Architect and Engineers Pvt. Ltd., as architects and that the said firm by its letter dated 29th May, 2007 addressed to Jaywant had informed that though the Karkhana had placed a work order for architectural and structural and RCC design it was for the distillery and the said project was already executed. This letter of the architects therefore, indicated that the agreement dated 28th March, 2003 was only in respect of the ethanol project of Khandoba. This letter of the architects therefore, indicated that the agreement dated 28th March, 2003 was only in respect of the ethanol project of Khandoba. To deal with this controversy Khandoba contended before the Secretary that the civil work and construction of building for the factory by supplementary agreement dated 3rd February, 2010 was entrusted to M/s.Reward Constructions Pvt. Ltd., and an irrevocable letter of credit dated 3rd February, 2010 was given to the said contractor for a sum of Rs.200.00 lakhs, for setting up of the sugar factory. This amounted to an admission by Khandoba that till 3rd February, 2010 it had not taken any effective steps for commencement of the civil work and construction work of the building for its proposed sugar factory. (ii) Jaywant: Jaywant placed on record a copy of the letter 26th January, 2006 by which M/s.Beri Architects and Engineers were appointed as Architects for the new sugar factory with a token payment of Rs.25,000/- on 3rd April, 2006. Jaywant also placed on record a copy of the voucher dated 19th January, 2006 by which a further payment of Rs.3.98 lakhs was released in favour of Beri Architects. By letter dated 1st December, 2006 Jaywant had appointed M/s.Anand Construction Company as their contractor for the civil works of their sugar factory at a total cost of Rs.8.11 crores (approximately). To support the progress of civil work and construction of the factory, Jaywant placed on record copies of the receipts dated 20th April, 2007 for Rs.25.00 lakhs and 3rd May, 2007 for Rs.63.00 lakhs. The certificate dated 28th October, 2007 issued by S.H. Surana, Chartered Accountant to Jaywant went to show that Jaywant had incurred an expenditure of Rs.7,98,36,070/-on the building and civil work of its proposed sugar factory. In addition the report dated 14th May, 2009 submitted by the Principal District Judge at Satara as a Court Commissioner appointed by this Court indicated that the main structure of the factory was completed to about 70%, excavation was done at several spots, construction material was lying on the spot, foundation was prepared for some structures but structures were not yet constructed. Based on these documents the Secretary recorded a finding that on the date of inspection in May, 2009, by the Court Commissioner the construction of various works for the sugar factory of Jaywant, was in progress and thus Jaywant was ahead of Khandoba even for commencing civil work and construction of the proposed sugar factory. D. SANCTION OF REQUISITE TERM LOAN: (i) Khandoba Khandoba relied upon the report dated 3rd August, 2007 submitted by the Commissioner of Sugar wherein it was stated that it had raised term loan from Canara Bank on 18th October, 2003 and an investment of Rs.600 lakhs was already made. It was further contended that most of the works were completed through its own funds. These contentions were seriously disputed by Jaywant in their written as well as oral submissions. It was pointed out that the sanction letter dated 18th October, 2003 of the Canara Bank in favour of Khandoba was for a term loan of Rs.1.5 crores only and further the 6th Annual Report of Khandoba for the year 2005-06 went to show that the said term loan was used for setting up the ethanol factory and it was not used for setting up of the sugar factory. To get over this deficiency Khandoba stated before the Secretary that the term loan of Rs.100 lakhs was sanctioned to it on 3rd February, 2010 for a period of 5 years and that moratorium of 6 months against the sugar factory. But Khandoba did not indicate any other financial arrangement in that regard. (ii) Jaywant: The very same report of the Commissioner of Sugar, Maharashtra State stated that Jaywant had raised funds amounting to Rs.35.00 crores from IDBI, Federal Bank and Shamrao Vitthal Bank between 12th January, 2007 to 25th June, 2007. Jaywant was sacntioned a term loan of Rs. 10.00 crores by IDBI on 17th January, 2007, on 17th May, 2007 the Federal Bank had sanctioned term loan of Rs.15.00 crores and Shamrao Vitthal Co-operative Bank had sanctioned term loan of Rs.10.00 crores to Jaywant. The certificate dated 28th October, 2009 issued by the Chartered Accountant indicated that apart from the investment on the purchase of land, plant and machinery and construction of civil work, the company had invested an additional sum of Rs.749 lakhs approximately on allied activities like fixed assets, pre-operative and other expenses and water supply scheme, as on 38th October, 2009. The certificate dated 28th October, 2009 issued by the Chartered Accountant indicated that apart from the investment on the purchase of land, plant and machinery and construction of civil work, the company had invested an additional sum of Rs.749 lakhs approximately on allied activities like fixed assets, pre-operative and other expenses and water supply scheme, as on 38th October, 2009. The total investment certified was to the tune of Rs.49.47 crores made by Jaywant. The Secretary, therefore, recorded that Jaywant was very much ahead of Khandoba in regard to the raising of funds as well as investments. 28. Thus on all counts Jaywant was noted to be ahead of Khandoba as on the date of the last hearing i.e. 27th January, 2010 before the Secretary and even on the date of filing of the documents i.e. 5th February, 2010. The fact finding exercise undertaken by the Secretary on the issue of effective steps taken by both Jaywant and Khandoba does not suffer from any infirmities. It was not pointed out before us that any of the documents referred to in the impugned order on these investments were either not reliable or concocted. We, therefore, hold that the findings recorded by the Secretary in the impugned order that Jaywant had taken effective steps within the meaning of the amended SCO of 2006 and Khandoba could not be said to have taken similar steps and Jaywant was way ahead of Khandoba. are required to be upheld. 29. The impugned order dated 8th October, 2010 has recorded its findings on all the six questions referred by this Court and though we have differed with the findings on Questions B and C, we have held that the IEM of Jaywant shall be deemed to have been acknowledged on 12th January, 2006 and stood corrected so as to correct the name of the tahsil of village Dhawarwadi by the Acknowledgment dated 20th March, 2006, while recording our findings on Question E. The challenge in these petitions mainly rests on the findings on Question F in view of the amended Sugar Control Order and the law laid down by the Supreme Court in case of Ojas Industries (supra). Even Khandoba contended, as noted earlier, that the IEM in favour of Jaywant for village Dhawarwadi, taluka Karad was required to be treated as registered prospectively from 20th March, 2006 and that is how Question E came to be recorded for adjudication. We have agreed with the findings of the Secretary as set out in the impugned order, that Jaywant had taken effective steps prior to February, 2010 and even as on 3rd February, 2010 Khandoba had not taken adequate steps, leave alone effective steps, so as to act upon its IEM to set up the sugar factory at village Pal. As per Explanation 1 to Clause 6A as inserted in the amended Sugarcane Control Order a sugar factory that has taken all effective steps as specified in Explanation 4 to set up a sugar factory also falls in the ambit of “an existing sugar factory”. Hence having regard to the findings on Question F recorded by the Secretary and confirmed by us, Jaywant shall have to be treated as an existing factory at village Dhawarwadi, taluka Karad, District Satara and the minimum distance condition of 15 Kms., set out in Clause 6-A of the said Order will have to be considered with reference to the location of Jaywant and in exclusion of the location of Sahyadri at Yeshwantnagar. It is an admitted position that the proposed location of Khandoba at village Pal is at a distance of 3 Kms., from village Dhawarwadi and, therefore, Khandoba suffers the disqualification on the ground of minimum distance condition with reference to village Dhawarwadi, irrespective of the fact that the distance between Yeshwantnagar and village Pal is more than 15 Kms. Under these circumstances, the challenge to the impugned order passed by the Secretary must fail, despite our findings on Questions B and C. 30. Before we part with these petitions, we deem it appropriate and in public interest to record some observations regarding the condition of minimum distance of 15 Kms., between the existing sugar factory and the new sugar factory, in terms of Clause 6A of the amended Sugarcane Control Order. We are aware that PIL Petition No.20 of 2006 is pending before this Court and one of the issues is to increase the minimum distance between an existing sugar factory and a new sugar factory. We are aware that PIL Petition No.20 of 2006 is pending before this Court and one of the issues is to increase the minimum distance between an existing sugar factory and a new sugar factory. As per the proviso below Clause 6A of the amended Sugarcane Control Order, the State Government may, with the prior approval of the Central Government, where it considers necessary and expedient in public interest notify such minimum distance either of 15 Kms., or different minimum distance not less than 15 Kms., for different regions in their respective States. The Executive Engineer from the office of the Sugar Commissioner in his affidavit filed in the earlier round of litigation arising between the present parties had pointed out that in Satara District there were 9 sugar factories in the Cooperative Sector and one sugar factory in the Private Sector. He had also expressed his apprehension about the availability of sugarcane vis-a-vis the crushing capacity of all these sugar factories in Satara District. It is well known that some of the Districts in the State of Maharashtra like Satara, Kolhapur, Sangli, Pune, Ahmednagar and Solapur are known to be the centres of sugar factories. The number of sugar factories in these districts are as under, as on 31st January, 2011:- Sr.No. Name of District Number of sugar factories Total crushing capacity. 1. Kolhapur 18 72,700 TCD 2. Sangli 15 38,400 TCD 3. Pune17 45,750 TCD 4. Satara13 + 2 = 15 35,750 TCD 5. Ahmednagar 19 52,100 TCD 6. Solapur 23 57,750 TCD In all these districts availability of water from the dams has encouraged more sugar factories to be set up, but ultimately even the availability of adequate water supply from the dams is solely dependent on the rain fall which has been fluctuating. Whereas in some other revenue divisions of the State of Maharashtra viz. Nashik, Aurangabad, Amravati and Nagpur the rain fall has been uncertain, erratic and inadequate over the last few decades or so, by and large. Sahyadri has brought on record the reports of some Expert Committees as appointed by the Government of Maharashtra and we agree with the concern expressed by Sahyadri regarding the availability of sugarcane, so as to utilize the crushing capacity of all the existing sugar factories in Satara district. Sahyadri has brought on record the reports of some Expert Committees as appointed by the Government of Maharashtra and we agree with the concern expressed by Sahyadri regarding the availability of sugarcane, so as to utilize the crushing capacity of all the existing sugar factories in Satara district. However, once the minimum distance of 15 Kms., condition as set out in the Sugarcane Control Order is met the objection on the ground of location cannot be considered unless the State Government recommends in public interest that the minimum distance should be more than 15 Kms., in a particular District. In our view the minimum distance condition in future for the districts like Kolhapur, Sangli, Satara, Solapur, Pune and Ahmednagar should not been less than 25 Kms., and for the other revenue divisions like Nasik, Aurangabad, Amravati and Nagpur the minimum distance to be recommended by the State Government should be more than 50 Kms. However, it is for the State Government to consider the same as a matter of policy for the future. 31. In the premises, these petitions fail and the same are hereby dismissed. Rule discharged with no order as to costs.