Devendra Kumar Arora, J.@mdashThe petitioner, M/s. Rauzagaon Chini Mills, by means of Writ Petition No. 7394 (MS) of 2009 has sought a writ in the nature of certiorari for quashing the order dated 21.12.2009, passed by Special Secretary, Government of U.P., Department of Sugar Industries & Cane Development (respondent No. 2) as contained in Annexure No. 1 to the writ petition. It has further sought a writ in the nature of mandamus commanding the respondent authorities to permit the petitioner to continue to operate the Barwa Cane Centre of Sahkari Ganna Vikas Samiti Ltd. Faizabad as per the Cane Reservation Order dated 5th November, 2009, passed in favour of the petitioner Chini Mill.
2. The other petitioner, namely, K.M. Sugar Mills Ltd. has also sought a writ in the nature of certiorari for quashing the impugned order dated 21.12.2009 passed by the Appellate Authority (respondent No. 2) as contained in Annexure No. 1 to the writ petition to the extent it assigns one part of the Cane Purchase Centre Barwa to the respondent Sugar Mill. It has further sought a direction in the nature of mandamus commanding the respondents to allow the petitioner to purchase sugarcane from both the parts of Cane Purchase Centre, Barwa.
3. Since both the writ petitions are the cross writ petitions, challenging the same order to the extent by which they are affected, the same are being decided together by way of common judgment & order.
4. Heard Sri Prashant Chandra, Senior Advocate, assisted by Sri Akhilesh Kalra, Advocate, learned Counsel for the petitioner in W.P. No. 7394 (MS) of 2009 and also appearing as Counsel for the respondent No. 4 in W.P. No. 10 (M/S) of 2010, Sri Dhruv Mathur, learned Counsel for the opposite party No. 4 in W.P. No. 7394(MS) of 2009 and as counsel for the petitioner in W.P. No. 10 (MS) of 2010, Sri K.S. Pawar, Advocate, appearing on behalf of Sahkari Ganna Vikas Samiti, Faizabad and the learned Standing Counsel for the State.
Facts of Writ Petition No. 7394 (MS) of 2009
5. Rauzagaon Chini Mills Ltd. ( the petitioner in W.P. No. 7394 (MS) of 2009) is an Unit of M/s Balrampur Chini Mills Ltd. which is a Company incorporated under the Companies Act, 1956 having its registered office at FMC Fortuna, 2nd Floor, 234/3-A, A.J.C. Bose Road, Kolkota. The petitioner sugar mill is inter-alia engaged in the business of production and sale of white crystal sugar by Vacuum Pan Process.
6. The petitioner sugar-mill was established in the cane crushing season 1992-93 by M/s Dhampur Sugar Mills and later on in the crushing season 2004-05 it was undertaken by M/s Balrampur Chini Mills Ltd.. The present crushing capacity of the Mill is 8000 TCD.
7. In crushing season 2003-04 Barwa Cane Centre was created by bifurcating Pilkhawan Centre which is the reserved area/centre of the petitioner sugar mill. Barwa Centre is nearer to the petitioner sugar mill being at a distance of 25 Kms. in comparison to the respondent sugar mill being at a distance of 27 Kms. and as such, in order to avoid poaching from Barwa cane centre the petitioner sugar mill vide its reservation proposal dated 8th August, 2009 demanded the said centre. The Cane Commissioner, U.P. Lucknow after obtaining informations from all the sugar factories of the State of U.P. including the reservation proposals from sugar factories as also from cane societies, notified the requirement of all the sugar mills of the State of U.P. vide order dated 16.9.2009.The requirement of the petitioner-sugar mill as also of the respondent sugar-mill was notified as 64 lac quintals for crushing season 2009-10. The Cane Commissioner, in terms of the cane requirement determined u/s 12(2) of the U.P. Sugarcane (Regulation of Supply & Purchases) Act, 1953, (hereinafter referred to as ''Act, 1953'') issued cane reservation orders in favour of the petitioner Sugar-Mill as also of respondent sugar mill on 5th November, 2009. The cane centre Barwa of Sahkari Ganna Vikas Samiti Ltd. Faizabad was assigned in favour of the petitioner sugar mill taking into consideration the parameters of Rule 22 of U.P. Sugarcane (Regulation of Supply & Purchase) Rules, 1954 (hereinafter referred to as ''Rules, 1954).
8. The respondent sugar mill filed an appeal before the Appellate Authority seeking the allotment of cane centre in question primarily on the ground that the parameters of Rule 22 are in their favour. The petitioner in response to the appeal of the respondent sugar-mill submitted its objection as well as parawise reply inter alia representing therein that all the parameters of Rule 22 including the resolution of the society and also the distance factor are in favour of the petitioner sugar mill. The Appellate Authority even though considered and observed that the proposal of cane society for cane centre in question is in favour of the petitioner sugar-mill and is also nearer to petitioner sugar-mill in comparison to the respondent sugar-mill bifurcated the Barwa cane centre by creating a new centre, and has assigned a newly created cane centre in favour of the respondent sugar mill vide impugned order dated 21.12.2009.
9. The submission of learned Counsel for the petitioner is that the Appellate Authority although observed that the cane growers as also the Society are having discontent with the respondent sugar-mill due to late payment, disinterest in cane development activities, as apparent from the report of the Cane Society and its proposal as also from the report of the District Cane Officer, passed the impugned order assigning the newly created centre in favour of the respondent sugar-mill which is not sustainable in the eyes of law.
10. It is also submitted by learned Counsel for the petitioner sugar-mill that in the previous year 2008-09 the petitioner sugar mill started its crushing operations on 2nd December, 2008 but it was compelled to close on 8th February, 2009 and, therefore, it could run only for 69 days due to inadequate cane allotment. In the crushing season 2008-09 the petitioner sugar-mill had been made available only 33.60 lac quintals of sugarcane for crushing against the allotment of 97.02 lac quintals cane production whereas respondent sugar-mill had been allotted 102.41 lac quintals of cane production but it could achieve only 31.98% of drawl and had crushed 32.75 lac quintals of cane in 79 crushing days. Thus, the petitioner sugar-mill has been made to suffer on account of shortage of sugarcane.
11. Learned Counsel for the petitioner sugar-mill has vehemently argued that it has been held by the Appellate Authority itself in a matter that the division of centre or creation of centre is within the authority of Cane Commissioner, U.P., Lucknow in view of the provisions of U.P. Sugarcane (Regulation of Supply & Purchase) Act, 1953 and, as such, the impugned order on the face of it is without any authority of law and since the Appellate Authority is not vested with jurisdiction to create a new centre by bifurcating the existing cane centre namely, Barwa and, as such, the impugned order is illegal and arbitrary. It is also submitted by the learned Counsel for the petitioner sugar-mill that the State Government/Cane Commissioner in exercise of its power for regulating and maintaining supply of sugarcane in any area, as from time to time issued several guidelines and in continuation thereof it had notified the guidelines on 09.8.2000 wherein it had been categorically provided that the cane centre having less than .50 lac quintals of sugarcane or after the creation of new centre, the earlier cane centre is having less than 0.75 lac quintals of cane production, new cane centre would not be opened.
12. The State Government issued another guidelines vide order dated 21st May, 2001 inter-alia providing therein that the earlier guidelines issued by the Cane Commissioner would continue to be followed being correct and practical and while issuing the said order it had been reiterated that before bifurcation/creation of a new centre, the concerned society, the respective sugar mill, District Cane Officer and Regional Deputy Cane Commissioner would be consulted.
13. It is submitted that admittedly, cane production of cane centre Barwa is 0.76 lac quintals only and, therefore, bifurcation/division thereof is not permissible even by the Cane Commissioner, U.P., Lucknow, who alone is the competent authority for the same. As such, usurping the said authority by the respondent No. 2 and that too in contravention of the guidelines of the State Government is illegal and arbitrary as well as respondent-Sugar Mill has been benefited illegally ignoring the parameters of Rule 22.
14. Shri Prashant Chandra, senior advocate asserted that directions of the Appellate Authority is without jurisdiction as bifurcation of the cane purchase center is under the domain of Cane Commissioner and as also contrary to the guidelines issued by the Cane Commissioner and is, therefore, without jurisdiction. It is further submitted there was no prayer in the appeal for bifurcation of the cane purchase centre in question.
Facts of Writ Petition No. 10 (MS) of 2010
15. Learned Counsel for the petitioner (K.M. Sugar Mills Ltd.) submitted that his petition be treated as counter affidavit to the writ petition filed by M/s Rauzagaon Chini Mills Ltd.
16. K.M. Sugar Mills Ltd. (the petitioner in Writ Petition No. 10 (MS) of 2010) is a Company incorporated and registered under the Companies Act, 1956 and has set up a factory for manufacture of white crystal sugar through vacuum pan process at Motinagar, district Faizabad.
17. The crushing capacity of the Mill is 8000 TCD. The Cane Commissioner, U.P. Lucknow in exercise of its powers u/s 12 of the Act, 1953, determined the requirement of cane as 64.00 lac quintal and on the basis of the said estimate reservation order was passed on 05.11.2009 thereby allotting 66.66 lac quintals sugarcane. Similarly on the same estimated requirement of Rauzagaon Sugar Mill Ltd. i.e. 64 lac quintals, by means of reservation order 71.41 lac quintal sugarcane was allotted.
18. The comparison of reservation order of both the Mills will indicate the expected drawl of sugarcane of M/s. K.M. Sugar Mills Ltd. is 96%, whereas Rauzagaon Sugar Mills Ltd. has been given more sugarcane in comparison to M/s. K.M. Sugar Mills Ltd. inspite of the fact that the estimated requirement of both the sugar mills is identical i.e. 64.00 lac quintal and, thus, the order of Cane Commissioner, U.P., Lucknow smacks of colourable exercise of power and is reflective of arbitrariness.
19. Aggrieved by the order passed by the Cane Commissioner, U.P., Lucknow M/s K.M. Sugar Mills Ltd. preferred appeal No. (5)72/2009-10 thereby challenging the allocation of cane purchase centre Barwa to Rauzagaon Sugar Mill Ltd.
20. It is submitted by Sri Dhruv Mathur, learned Counsel for K.M. Chini Mills Ltd. that the Cane Purchase Centre Barwa belongs to Faizabad Cane Society and has traditionally been a reserved centre of the K.M. Sugar Mills Ltd. The Pilkhuwa & Barwa were physically allotted to the petitioner''s Mill in 2003-04. Subsequently, on the basis of agreement Pilkhuwa cane purchase centre was assigned in favour of Rauza-gaon Chini Mills Ltd. It is further submitted that Barwa cane purchase centre is 25 Kms. away from K.M. Sugar Mills Ltd. and is part of its reserved area and has been taken away from the petitioner and centre Sadhiyawan, which is at a distance of more than 100 kms. away from the petitioner sugar mill has been allotted to it. It is also submitted that the proposal of Cane Society has not been made in favour of K.M. Sugar Mills Ltd. only for the reason that the Mill has not made payment of commission to the Cane Society on the purchase of sugarcane whereas the fact is that the K.M. Sugar Mills Ltd. has made entire payment of cane price as well as commission well in time. This fact indicates that the resolution of cane society appears to be manipulated and seems to be based on extraneous consideration to the determent of the petitioner.
21. The Appellate Authority was pleased to allow the petitioner''s Appeal No. (5) 72/2009-10 only to the extent that Cane Purchase Centre Barwa was directed to be divided into two parts and one part of the said centre was reserved in favour of the petitioner and other part continued to remain assigned to the Rauza-gaon Chini Mills. The submission is that since petitioner is facing acute shortage of Sugarcane in its area, the Appellate Authority though accepted the same, but allocated less Sugarcane. The Appellate Authority ought to have reserved the entire Cane Purchase Centre of Barwa to the petitioner instead of only part of it. Since no justification has been given by the Appellate Authority for allowing only part of the Cane Purchase Centre Barwa to the petitioner, thus, to this extent the order of the Appellate Authority seems to be unreasoned, unjustified and unfair.
22. Shri Dhruv Mathur, learned Counsel for the K.M. Sugar Mill Ltd. while replying to the submissions of Sri Prashant Chandra, Senior Advocate submitted that Sri Chandra has raised basically three points namely;
[1] The Appellate Authority did not have the jurisdiction to bifurcate the cane purchase center and it was the authority of the Cane Commissioner,
[2] if Appellate Authority has authority, the Appellate Authority violated its own guidelines, and
[3] there was no prayer in the appeal for bifurcation of the cane purchase centre.
23. Shri Dhruv Mathur submitted that in the appeal the entire cane purchase center was claimed and the Appellate Authority gave only half of the center by bifurcating the same. It is further submitted that the appeal is continuation of the original proceedings and, therefore, anything which could have been done in the original proceedings, the appellate authority is competent to do the same in the appeal. In support of his submission Sri Dhruv Mathur placed reliance in para-17 of the judgment reported in
17 ...An appeal is continuation of the proceedings; in effect the entire proceedings are before the Appellate Authority and it has the power to review the evidence subject to statutory limitations prescribed. But in the case of revision, whatever powers the revisional authority may or may not have, it has no power to review the evidence, unless the statute expressly confers on it that power.
24. The reliance has also been placed in paras-14 and 15 of the judgment reported in (2006) 13 SCC 295 Kamla Devi v. Kushal Kanwar and Anr. The same reads as under:
14. Whether Section 100-A takes away such a right is the question. In our opinion, it does not. An appeal, as is well known, is a continuation of the original proceedings.
15. In Shiv Shakti Coop. Housing Society v. Swaraj Developers this Court held: (SCC p 669, para 17)
17. Right of appeal is statutory. Right of appeal inhered in no one. When conferred by statute it becomes a vested right. In this regard there is essential distinction between right of appeal and right of suit. Where there is inherent right in every person to file a suit and for its maintainability it requires no authority of law, appeal requires so. As was observed in State of Kerala v. K.M. Charia Abdulla and Co. the distinction between right of appeal and revision is based on differences implicit in the two expressions. An appeal is continuation of the proceedings; in effect the entire proceedings are before the Appellate Authority and it has the power to review the evidence subject to statutory limitations prescribed. But in the case of revision, whatever powers the revisional authority may or may not have, it has no power to review the evidence, unless the statute expressly confers on it that power. It was noted by the four-Judge Bench in Hari Shankar v. Rao Girdhari lal Chowdhury that the distinction between an appeal and a revision is a real one. A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way, as has been done in second appeals arising under the Code. The power of hearing revision is generally given to a superior court so that it may satisfy itself that a particular case has been decided according to law. Reference was made to Section 115 of the Code to hold that the High Court''s powers under the said provision are limited to certain particular categories of cases. The right there is confined to jurisdiction and jurisdiction alone.
25. It is also submitted that provisions of Subordinate Legislation cannot supplant, the provisions of enabling Act but supplement it and placed reliance on the judgment reported in
10. ...The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and regulations made by reason of the specific power conferred by the statutes to make rules and regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the statute.
26. The reliance has also been placed in the case reported in
8. A survey of the provisions of the Act relating to the status, powers and functions of the competent authority and of the provisions of the Rules shows that the Rules are not, as indeed they cannot be, made to supplant the provisions of the Act but to supplement them and they have to be read as such.
27. Shri Mathur further submitted that the guidelines are non-statutory in nature and do not confer any enforceable right to the petitioner. The Guidelines being non- statutory in nature will not vitiate the impugned order. It is also submitted that the guidelines keeps on changing and in support of his arguments placed reliance in paras-11 and 12 of the judgment reported in 1996 AWC 267 Siel Ltd. v. State of U.P. and Ors., which are being reproduced:
11. Firstly, this position is not disputed that guidelines contained in Annexure-6 are in the nature of instructions and do not have statutory force of law, therefore, do not confer upon the petitioner a legally enforceable right.
12. Secondly, it is also not disputed that policy or guidelines can always be changed by the appropriate authority. In the instant case, the guidelines referred to by the learned Counsel and said to have been violated, as contained in Annexure-6 to this petition, dated 20.05.1992, are framed and issued by the Cane Commissioner, U.P. himself. But while issuing the order impugned dated 19.10.1995, the learned Cane Commissioner, U.P. very categorically in so many words in the order itself did mention that it is being issued in supersession of all previous orders/instructions. This being so, how the ratio laid down by the Apex Court in Home Secretary case (supra) helps the petitioner, we fail to understand.
28. Sri K.S. Pawar, learned Counsel for the opposite party No. 5 submitted that Barwa Cane Purchase Centre was proposed in favour of respondent sugar mill i.e. Rauzagaon Chini Mills The committee of management of the answering respondent vide its resolution dated 8th August, 2009 has also proposed the Barwa cane purchase centre for being assigned in favour of the respondent sugar mill. The said resolution was passed on the ground that the petitioner sugar mill has not paid the Cane Commission to the tune of Rs. 6.63 lacs for the crushing season 2007-2008, Rs. 18.83 lacs commission for the crushing season 2008-09 and same caused financial hardship to the Society. Apart from this, the said resolution was also passed on the ground that the petitioner sugar mill has not paid any heed in development work in the area of the Society, which has caused adverse affect upon the cane area development. It is further submitted by learned Counsel for the respondent No. 5 that the expected production of the cane at Barwa Cane Purchase Centre is 0.76 lakh quintals only and after the bifurcation of the cane purchase centre, there will be less than 0.50 lakh quintals of sugarcane at each of the newly created centers.
29. The further submission of Shri Pawar is that under Rule 5 of the U.P. Sugarcane Supply and Purchase Order 1954, the decision of the Cane Commissioner regarding the dispute whether a particular system adopted for purchase of sugarcane is equitable or not is final, the sub Rule 10 further provides that an occupier of the factory shall establish cane purchase center only if it so directed by the Cane Commissioner. The power to bifurcate a cane purchase center is vested in the Cane Commissioner and vide letter number 103/C/Kray /Sur. Lucknow, dated 9 August 2000 Cane Commissioner laid down the guidelines regarding bifurcation/establishment of new cane purchase centre. It was a specifically provided in the said order that no new cane purchase centre shall be open where the expected availability upon the old center is less than 0.75 lakh quintals.
30. In the present case, admittedly the total availability of the sugarcane is 0.76 lakh quintals and after bifurcation it will be less than 0.50 lakh quintals in the newly created centre and hence, the bifurcation of the cane purchase center, Barwa by the opposite party number 2 is contrary to the guidelines, issued by the Cane Commissioner dated 9th August, 2000 which are statutory in nature. The distance of the disputed cane purchase centre from the respondent sugar mill is 25 km and from the petitioner sugar-mill is 27 km.
31. The respondent No. 5 had also filed an objection in the appeal stating therein that the petitioner sugar-mill has not given the details of the unpaid cane price to the various cane growers and also have not given the said amount to the society. The petitioner sugar-mill has also not given the share money at @ Rs. 200/-per cane-grower, a total amounting to Rs. 133415.85 to the Society. The Cane Commissioner, under the survey policy, directed for conducting the joint survey of the cane area but no employee of the petitioner sugar-mill was made available for conducting the joint survey, therefore, the survey was conducted by the Society alone. The petitioner sugar mill has also not paid the development commission in time.
32. I have gone through the record of both the writ petitions and considered the submissions of the respective counsels.
33. In Writ Petition No. 7394 (MS) of 2009, M/s. Rauzagaon Chini Mills v. State of U.P. and Ors. two basic questions cropped up for consideration:
(i) Whether creation of a new cane purchase centre falls within the domain and jurisdiction of the Cane Commissioner? and
(ii) Whether the State Government, while exercising powers of the Appellate Authority u/s 15(4) of the Act, has jurisdiction and authority to bifurcate and create a new cane purchase centre while deciding an appeal?
34. The record shows that the Cane Commissioner for regulating and maintaining supply of sugarcane in an area notified guide-lines on 09.8.2000 wherein it has been specifically provided that the cane centre having less than .50 lac quintals sugarcane or after creation of new centre, the earlier cane purchase centre is having less than 0.75 lac quintals of cane production, new cane centre will not be opened and for opening new cane purchase centre the proposal of the Cane Society, consent of concerned Sugar Mill and the recommendations of the District Cane Officer as well as of Regional Deputy Cane Commissioner should be taken into consideration.
35. The State Government also vide letter dated 21st May, 2001, directed the Cane Commissioner that no proposal for creation of a new cane purchase centre should be considered until and unless it is supported by the proposal of the Managing Committee of the Cane Development Society and before opening a new centre, the view of the concerned sugar mill should also be obtained. Apart from this, the reserved centre of a mill will not be assigned to another mill by bifurcating the centre and the cane centres should also be not bifurcated. If there is excess of sugarcane in any cane purchase centre then a direction should be given to the concerned mill for establishing extra purchase facility.
36. From the examination of the aforesaid policy guide-lines dated 9th August, 2000 and 21st May, 2001, it is crystal clear that for opening of a new cane purchase centre, it is necessary to examine the proposal of the Cane Society, the consent of the concerned sugar mill and the recommendations of the District Cane Officer as well as of Regional Deputy Cane Commissioner and after considering the aforesaid material, the Cane Commissioner is required to give direction for creation/establishment of a new cane purchase centre. Secondly, the State Government itself restrained the Cane Commissioner from bifurcating any reserved cane centre of one mill and assigning to other mill. The State Government has also restrained for bifurcation of centres and directed that if there is excess of sugercane in any cane purchase center then directions be given to the concerned mill for establishing extra purchase facility.
37. The policy also provides that no new cane purchase centre shall be opened by bifurcating a centre where availability of sugarcane in old centre is less then 0.50 lac quintals or after creation of new center, the earlier purchase center is having less than 0.75 lac quintals of cane production.
38. The Rule 5 of U.P. Sugarcane Supply & Purchase Order, 1954 provides that the decision of Cane Commissioner regarding the dispute whether the particular system adopted for purchase of sugarcane is equitable or not, is final and the sub-rule 10 further provides that an Occupier of a factory shall establish cane purchase centre only if so is directed by the Cane Commissioner.
39. Since for creation and bifurcation of new cane purchase centre, the proposal of Cane Society, consent of the concerned sugar mill as well as recommendations of the District Cane Officer alongwith the recommendations of the Regional Deputy Cane Commissioner is to be taken into consideration by the Cane Commissioner. Therefore, Appellate Authority, lacks jurisdiction and authority and the order passed by the Appellate Authority is not sustainable in the eyes of law. Further, from perusal of the provisions of U.P. Sugarcane Supply & Purchase Order, 1954 readwith guidelines issued by the Cane Commissioner dated 9th August, 2000 and the directions dated 21st May, 2001, issued by the State Government, it is, thus, absolutely clear that it is the Cane Commissioner who has power, authority and competence for creation of new cane purchase centre/bifurcation of the cane purchase centre and the State Government while exercising the appellate jurisdiction, cannot create or bifurcate any cane purchase centre although it has power to delete a particular cane purchase centre from the reserved/assigned area of a Mill and allot the same to other Mill while assessing the requirement of the sugarcane in a particular crushing season but when it comes to bifurcation of cane purchase centre, it is incumbent upon the Appellate Authority to remand the matter back to the Cane Commissioner for exercising its power of examining the parameters prescribed for creation/bifurcation of a cane purchase centre.
40. Apart from this, the order passed by the Cane Commissioner u/s 15(1) of the Act can be subjected to an appeal u/s 15(4) of the Act before the State Government. Further, the exercise of the power by Cane Commissioner for creation of a new cane purchase centre/bifurcation of a centre does not fall u/s 15(1) of the Act and, therefore, it is not open for the State Government to exercise other powers of the Act, Rules and Orders while exercising the appellate power u/s 15(4) of the Act. In other words, the State Government has power to exercise the power of cane commissioner while deciding the appeal specifically relating to reservation or assignment of an area while considering requirement of a sugar mill.
41. No doubt, the power of the Cane Commissioner and the State Government are coordinate and co-extensive to each other but from perusal of the Scheme of Act, it is evident that the appeal u/s 15(4) of the Act to the State Government lies against the order passed by the Cane Commissioner u/s 15(1) of the Act.
42. Thus, the answers to the aforesaid questions are:
(I) Creation/bifurcation of the new cane purchase center falls within the domain and jurisdiction of the Cane Commissioner;
(II) the State Government while acting as Appellate Authority u/s 15(4) of the Act, has no power or jurisdiction to bifurcate or create a new cane purchase center while deciding an appeal.
43. In the present case, although the Appellate Authority appreciated the facts that the cane growers as also the Society were having discontent with the K.M. Sugar Mills due to late payment, disinterest in cane development activities and the proposal of the Cane Society as well as the report of District Cane Officer was in favour of the petitioner, the Appellate Authority without assigning any reason just bifurcated Barwa Cane Purchase Centre.
44. The judgment relied by Sri Dhruv Mathur with respect to guidelines reported in 2006 AWC 265 Siel Ltd. v. State of U.P. and Ors. is not applicable in the present case as in the said decision the Cane Commissioner in its subsequent order mentioned that the same was issued in supersession of all the previous orders/instructions, whereas in the present case, the guide lines issued by the Cane Commissioner dated 9th August, 2000 and direction of the State Government dated 21st May, 2001 are fully in enforce and it is nobody''s case that they have been superseded nor in the impugned order anything with respect to supersession of the guidelines have been mentioned. Therefore, the aforesaid judgment does not apply in the present case. Similarly, other cases are also not applicable as the act of creation of new cane purchase centre or bifurcation of a cane purchase centre is an act which is to be done by Cane Commissioner after taking into consideration various factors and while assessing requirement of a sugar mill, the appellate authority can take out a particular centre and allot the same to other sugar mill in its appellate jurisdiction but cannot bifurcate or create a new purchase centre.
45. I am, therefore, of the considered view that the impugned order dated 21st December, 2009, passed by the Special Secretary, Government of U.P., Department of Sugar Industries & Cane Development, contained in Annexure No. 1 to the writ petition, has been passed without jurisdiction and, therefore, the same deserves to be quashed.
46. Accordingly, Writ Petition No. 7394 (MS) of 2009, M/s. Rauzagaon Chini Mills v. State of U.P. and Ors. is allowed in part and Writ Petition No. 10 (MS) of 2010, K.M. Sugar Mills Ltd. v. State of U.P. and Ors. is dismissed.
47. The matter is remanded back to the Appellate Authority to re-consider the requirements of the respective sugar-mills and pass afresh orders in the Appeal No. 5 (72) 2009-2010 filed by K.M. Sugar Mills Ltd. after affording opportunity of hearing to all the concerned within period of fifteen days from presentation of certified copy of this order.
