IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. NO.20280 OF 2010 M/s Vishnu Sugar Mills Limited, Harakhua, P.O. Vishnu Sugar Mills, District- Gopalganj through its General Manager P.R.S. Panicker, Son of Sri Raghav Panikher. ….Petitioner. Versus 1. The State of Bihar through the Commissioner cum Secretary, Sugarcane Development Department, Government of Bihar, Patna. 2. The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna. 3. M/s J. H. B. Distilleries & Sugar Mills Ltd., Padrauna, Kushi Nagar, Uttar Pradesh. 4. M/s Saraiya Sugar Mills, Sardar Nagar, Gorakhpur, Uttar Pradesh. 5. New India Sugar Mills, Dhadha Bujurg Theshil-Hata, District-Kushinagar, State of Uttar Pradesh. 6. Jitendra Kushwaha S/o Late Kishundeo Prasad, Resident of Village- Siswania, P.O.- Kiorpatty, P.S.- Thakraha, District-West Champaran. 7. Krishna Bihari Prasad, S/o Sita Saran Prasad, resident of Village-Bhuall Patti, P.o.-Kiorpatti, P.S.- Thakraha, District-West Champaran. 8. Bijoy Kumar Kushwaha, S/o Sri Jaichand Prasad, resident of Village+ P.O.-Dhum Nagar, P.S.- Thakraha, District-West Champaran. 9. Om Prakash Singh, S/o Late Rajmangal Singh, Village+P.O.-Kiorpatti, P.S.-Thakraha, District-West Champaran. 10. Bhabhijhan Yadav, S/o Srihlar Pal Yadav, Resident of Village-Motitola, P.O.+ P.S.-Thakraha, District-West Champaran. 11. Dina Nath Gupta S/o Late Darikhan Gupta, resident of village-Dhatahwa, P.O.+P.S.- Thakraha, Distt.-West Champaran. 12. Yogendra Prasad S/o Late Ramjee Prasad resident of village-Dhatahwa, P.O.+P.S.- Thakraha, Distt.-West Champaran. 13. Khatai Yadav S/o Ramjee Yadav, resident of village-Dhatahwa, P.O.+P.S.- Thakraha, Distt.-West Champaran. 14. Rajendra Prasad S/o Late Shiv Prasad, resident of village-Siswania, P.O..- Kiorpatti, P.S.- Thakraha, Distt.-West Champaran. 15. Rahim Mia, S/o Wakil Mia, resident of village- Bhuwalpatti, P.O. Kiorpatti, P.S.-Thakraha, District- West Champaran. 16. Asgar Ali S/o Nawab Ali, resident of village-Malahi Tola, P.S.- Thakaraha, District-West Champaran. 17. Md. Haroon S/o Late Mahmud Mian, resident of village-Malahi, P.S.- Thakaraha, District-West Champaran. 18. Manager Yadav S/o Kasi Yadav, resident of village-Baira Tola, P.S.- Thakaraha, District-West Champaran. 19. Achche Lal Sharma S/o Saudagar Sharma, resident of village-Malahi Tola, P.S.-Thakaraha, District-West Champaran. 20. Chandrika Chaudhary S/o Vishun Chaudhary, resident of village-Malahi Tola, P.S.-Thakaraha, District-West Champaran. 21. Devendra Tiwary son of Bhuneshwar Tiwary, resident of H.No.91, village-Nautan, P.O. Thakraha, District-West Champaran, Bihar. 22. Jhalar Mishra son of Surya Mishra, resident of H.No.73, village-Nautan, P.O. Thakraha, District-West Champaran, Bihar. ….Respondents. - 2 - With C.W.J.C. NO.20729 OF 2010 Sasa Musa Sugar Works Ltd., P.O. Sasa Musa, P.S. Kuchaikote, District- Gopalganj through its Cane Manager Md. Kamran son of Mustaque Ahmed, resident of Sasamusa Sugar Works Ltd., At & P.O. Sasamusa, District-Gopalganj, Bihar. ……Petitioner. Versus 1. The State of Bihar through the Commissioner cum Secretary, Sugarcane Development Department, Government of Bihar, Patna. 2. The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna. 3. M/s J. H. B. Distilleries & Sugar Mills Ltd., Padrauna, Kushi Nagar, Uttar Pradesh. 4. M/s Saraiya Sugar Mills, Sardar Nagar, Gorakhpur, Uttar Pradesh. 5. New India Sugar Mills, Dhadha Bujurg Theshil-Hata, District-Kushinagar, State of Uttar Pradesh. …..Respondents. . --------- For the petitioners : Mr. Y. V. Giri, Senior Advocate with (in both the cases) Mr. Pranav Kumar & Ashish Giri, Advocates. For respondent nos.1 & 2 : Mr. Awanishnandan Sinha, G. P. 11 (in both the cases) Mr. Shubhankar Sharma, A.C. to G.P. 11. For respondent nos.3 & 4 : Ms. Sushmita Mishra, Advocate (in both the cases) For respondent no.5 : M/s Siddarth Prasad & Md. Faiz Ahmad, Advocates. (in both the cases) For respondent nos. 6 to 20 : M/s Sanjeet Kumar & Raj Kamal, Advocates. (in CWJC No.20280/2010) For respondent nos.21 & 22 : Mr. Vikas Ratan Bharti, Advocate. (in CWJC no.20280/2010) ______ P R E S E N T HON’BLE MR. JUSTICE S. N. HUSSAIN ------ O R D E R 27/ 14 -11-2011 I. A. No.273 of 2011 has been filed on behalf of 10 applicants for being added as party-respondents to CWJC No.20280 of 2010. Similarly, I.A.No.287 of 2011 has been filed by five applicants for being added as party- respondents to CWJC No.20280 of 2010. The claim of the aforesaid intervenors- - 3 - applicants is that they are local farmers and are cane growers of the concerned area and they are interested in supplying sugarcane of the area to respondent nos. 3 and 4 and are satisfied by the fair weighment and prompt payment by them. They also claimed that earlier the cane growers of the area used to supply sugarcane to the petitioners etc. but they adopted unfair practice in weighment and payment due to which the cane growers suffered a lot and their sugarcane were also not lifted by the petitioners entirely due to which it remained lying in the field and hence the aforesaid attitude of the petitioners’ Mills and other mills of the State of Bihar also spoiled the prospect of Rabi crops in the lands in question. Hence, they claimed that they are necessary party to be heard in the matter. Considering the aforesaid facts and circumstances of the case, both the above mentioned interlocutory applications are allowed and their respective applicants are directed to be impleaded as respondent nos. 6 to 20 in CWJC no.20280 of 2011. 2. Another I.A.No.482 of 2011 has been filed on behalf of two applicants, namely Devendra Tiwary and Jhalar Mishra for being added as party respondents to CWJC No.20280 of 2010. Their claim is that they are the genuine growers/farmers of sugarcane of Thakraha area situated in the district of West Champaran, whereas applicants of I.A.No.273 of 2011 and 287 of 2011 are not genuine farmers or cane growers of the said area. They further claimed that they have been supplying sugarcane to the petitioners’ Mills since decades, but they have got no grievance against the petitioners who had developed the area and at their instance culverts, village roads etc. have been constructed for the betterment of the area and convenience of the farmers and have also been carrying various cane development programmes in the area and have been paying genuine prices to them regularly. Considering the aforesaid facts and circumstances of the case, the said interlocutory application is allowed and the applicants are directed to be impleaded as respondent nos. 21 and 22 in CWJC No.20280 of 2010. - 4 - 3. Both the aforesaid writ petitions have been heard together and are being decided by this common judgment/order as they are filed by two Sugar Mills of the State of Bihar with respect to exactly the same subject matter and the reliefs claimed therein are also common. They are as follows:- i) To issue an appropriate writ/order/direction in the nature of certiorari for quashing the allotment order no.1947 dated 16.11.2010 issued by the Cane Commissioner, Bihar in favour of respondent no.3 M/s J.H.B. Distilleries & Sugar Mills Ltd. wherein the Cane Commissioner in purported exercise of power vested under Section 31(1) of the Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 (hereinafter referred to as ‘the Act’ for the sake of brevity) has ordered to respondent no.3 M/s J. H. B. Distilleries & Sugar Mills Ltd. to operate ten cane purchasing centre under Dhanaha area, Block Thakraha in the District of West Champaran, Bihar for the season 2010-2011 and allot those purchasing centre in favour of petitioner. ii) To issue an appropriate writ/order/direction in the nature of certiorari for quashing the allotment order no.1948 dated 16.11.2010 issued by the Cane Commissioner, Bihar in favour of respondent no.4 M/s Saraiya Sugar Mills wherein the Cane Commissioner in purported exercise of power vested under Section 31(1) of the Cane Act has ordered to M/s Saraiya Sugar Mills to operate six cane purchasing centre within the Dhanaha area Block Thakraha in the District of West Champaran, Bihar for the season 2010-2011. iii) To issue an appropriate writ/order/direction in the nature of Mandamus commanding respondent no.2 to refrain from giving any further effect to the reservation order dated 16.11.2010 issued in favour of respondent no.3 & 4 M/s J.H.B. Distilleries & Sugar Mills Ltd. and M/s Saraiya Sugar Mills under Section 31 of the Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 in relation to allotment of road cane purchasing centre within the Dhanaha area Block Thakraha in the District of West Champaran, Bihar for the season 2010-2011, until the demands of supply of sugarcane of the local sugar factories are fully satisfied and unless there is surplus sugarcane available in the State for allotment to external sugar factory. iv) To any other relief or reliefs for which the petitioner is found to be entitled. v) To issue an appropriate writ/order/direction in the nature of certiorari for quashing the allotment order no.1928 dated 10.11.2010 issued by the Cane Commissioner, Bihar in favour of respondent no.5 New India Sugar Mills, Dhadabujurg, Tehsil-Hata, District Kushinagar, State of Uttar Pradesh wherein the Cane Commissioner in purported exercise of power vested under Section 31(1) of the Bihar Sugarcane - 5 - (Regulation of Supply and Purchase) Act, 1981 (hereinafter referred to as the ‘Cane Act’) has ordered to respondent no.5 New India sugar Mills to operate eight cane purchasing centre under Dhanaha area, Block Thakraha in the District of West Champaran, Bihar for the season 2010-2011 and further prays that the New India Sugar Mills, Dhadhabujurg, Tehsil-Hata, District-Kushinagar, State of Uttar Pradesh may be added as respondent no.5 in the main writ application and allot those purchasing centre in favour of petitioner. 4. The claims of the petitioners of both the writ petitions are as follows:- (i) Since 1995 not a single stick of sugarcane grown in the State of Uttar Pradesh has been reserved, assigned, allotted in favour of any bordering factory situated in Bihar nor any purchasing centre for them has been allowed to be operated in the State of Uttar Pradesh (hereinafter referred to as ‘U.P.’ for the sake of brevity) by the authorities of U.P. including the Cane Commissioner, U.P. Though the local sugar factories including the petitioners of both the present cases have been applying to the Cane Commissioner, U.P. for reservation or allotment of a sugarcane or operating purchasing centre within the State of U.P. duly recommended by the Cane Commissioner, Bihar but the authorities of U.P. has not allotted any sugarcane as indicated above. The petitioner Sasamusa Sugar Mills is just within about 12 KM on the border of U.P. whereas the other petitioner Vishnu Sugar Mill is about 25 K.M. However for the reasons best known to the authorities of Bihar they have been allotting about 30 to 40 lac quintals of sugarcane every year to the sugar factories of U.P. (Para 35 and Annexure-2 of the writ petition) (ii) The District Magistrate, Gopalganj sent letter dated 06.07.2000 to the Chief Secretary, Government of Bihar, a copy of which was given to the Cane Commissioner, requesting him not to allot any sugarcane from the area of Bihar within the District of Gopalganj and Siwan to any factory of Uttar Pradesh. The District Magistrate, Gopalganj had also apprised the State authorities of revenue - 6 - loss being caused by the State exchequer to the extent of over Rs.11 crores on account of allotment of sugarcane to a Sugar Factory of the neighbouring State of Uttar Pradesh and which had also been duly calculated by him in his letter dated 06.07.2000. (Annexure-12). (iii) The petitioner through letter no.1703 dated 04.01.2010 drew attention of the Principal Secretary, Department of Sugarcane Industries that Bihar Factories are not getting adequate cane for crushing as per their NCR but no action was taken and the Bihar Government is loosing good amount of revenue. (Annexure-2). (iv) The Cane Officer, Gopalganj vide his letter no.98 dated 05.07.2010 written to the Cane Commissioner specifically requested and recommended that the sugarcane of the Districts of Gopalganj and Siwan should not be allotted to the sugar factories of Uttar Pradesh. He also pointed out that the sugar factories of Uttar Pradesh do not make adequate and prompt payment of the cane price. He further stated in his letter that external sugar factories do not take any initiative or steps for the development of the cane plantation in the State. (Annexure-21 of petitioner’s rejoinder). (v) The petitioner sent letter dated 22.7.2010 addressed to the Cane Commissioner, Bihar regarding allotment of cane from Dhanaha area and made proposal for allotment of road centre at Dhanaha and attachment/reservation of village from there for the reason that the crushing capacity of the factory is 5000 TCD(50 lacs quintals) and the factory is not getting more than 32 lacs quintal of cane (Annexure-3), although the normal cane requirement claimed by the first petitioner from the Cane Commissioner was 60-70 quintals u/s 27 of the Act. (vi) On 17.08.2010 the Cane Commissioner, Government of Bihar passed order under Section 31 of the Act in relation to the petitioner factory by which he declined to reserve the claim of 31 villages of Dhanaha area to be - 7 - reserved in favour of the petitioner and allowed the area to remain free. (Annexure-7). (vii) A notice dated 11.10.2010 vide memo no.1766 was sent by the office of the learned Cane Commissioner to the sugar factories situated in Bihar and only to M/s Pratappur Sugar Factory situated in U.P. for submission of their proposal but the notice did not contain the name of respondent nos. 3, 4 & 5 and no proposal was invited by them. (Annexure-22 of rejoinder). (viii) Thereafter the petitioner through its letter no.54/2010-11/ 1436 dated 18.10.2010 addressed to the Cane Commissioner, Bihar, Patna requested that if any proposal is received from any factory situated in Uttar Pradesh for allotment of purchase centre in Dhanaha the petitioner would be seriously affected and hence he be given a chance of hearing before taking any final decision in that regard. (Annexuure-4). (ix) In Thakraha Block the total agriculture land available is 5571 acres, out of which only 55 percent of land is used for cane production and the estimated cane production is about 450000 quintal which is apparent from letter dated 16.10.2010 of Thakraha CD & CM Union Ltd., Bettiah regarding the availability of cane in Thakraha Block and the same figure was also issued by Motipur PACS as well as by Thakraha PACS vide its letter dated 25.10.2010. (Annexure-11 series). (x) The petitioner sent its letter no.54/2010-11/1538 dated 04.11.2010 addressed to the Cane Commissioner, Bihar in which the petitioner submitted his objection against any allotment of cane to U.P. sugar factories and requested for allotment/reservation of Thakraha and Malhi Tola villages from Dhanaha area for the season 2010-11. (Annexure-6). (xi) In pursuance of the notice vide letter no.1860 dated 28.10.2010 from Cane Commissioner a meeting was held on 08.11.2010 at 11 AM for allotment of purchasing centre for the season 2010-11 but no proposal for - 8 - allotment of purchasing centre in Dhanaha area in favour of respondent nos. 3, 4 & 5 was discussed in the said meeting. (Annexure-5). (xii) Allotment order no.1928 dated 10.11.2010 was issued by the respondent Cane Commissioner, Bihar, Patna in favour of respondent no.5 regarding allotment of road cane purchasing centre in which respondent no.5 had been allowed to operate eight road cane purchasing centres in West Champaran, Bihar for the season 2010-11. (Annexure-13). (xiii) Respondent no.3 has made proposal on 10.11.2010 after the meeting which was held on 08.11.2010 for allotment of purchasing centre which is evident from the counter affidavit filed on behalf of respondent no.3. (Annexure-E of the counter affidavit of respondent no.3). (xiv) Allotment order nos. 1947 and 1948 both dated 16.11.2010 were issued by the respondent Cane Commissioner, Bihar, Patna in favour of respondent nos. 3 and 4 regarding allotment of road cane purchasing centre in which respondent no.3 had been allowed to operate five road cane purchasing centre under Thakraha Block and respondent no.4 had been allowed to operate six road cane purchasing centre under Thakraha Block in West Champaran, Bihar for the season 2010-11. (Annexure-9 &10). (xv) A perusal of the Cane receipts dated 12.12.2010 and 26.12.2010 of the external sugar factories situated outside the State of Bihar show that they are not paying more cane prices to the cane supplies made from Bihar (Annexure-20 of rejoinder). Furthermore Purchase centres of U.P. Mills are fixed near the reserved areas of Bihar Mills which is going to affect them adversely. (paras 20, 21, 22, 23). (xvi) Purchasing centers are in villages themselves, which facilitates not only the growers but also the petitioners’ Mills and similarly situated other Mills of Bihar as they have to bring purchased sugar canes to their Mills which are nearby and the condition of the roads have also improved. Hence the petitioners - 9 - wrote to government not to allocate any such purchase centre for the Mills of U.P., but that remained unheeded. (Annexure-3). 5. In furtherance of their aforesaid claims, learned counsel for the writ petitioners argued that the authorities of Bihar were not empowered under the Act to reserve areas and fix outlets in Bihar for the mills of Uttar Pradesh. In this connection, they relied upon Section 31 read with Section 1(2) of the Act. They stated that a village can be reserved for outside mills under Section 31 but only after completion of all the formalities, whereas the impugned orders were not with respect to reserved areas, rather they were with respect to establishment of purchasing centers only. There is no provision in the Act empowering the Cane Commissioner for establishing purchasing centre of U.P. Mills in this State. 6. Learned counsel for the petitioners averred that Section 31(2) of the Act is a provision of appeal against order passed under Section 31(1), but the impugned order is not under Section 31(1), rather it is under Section 29 of the Act against which no appeal is provided in the Act, nor Bihar Sugar Cane (Regulation of supply & Purchase) Rules, 1978 provide any appeal and only a provision of revision is made under Section 29(2) (4) of the Act. 7. Learned counsel for the petitioners also stated that there is no notification that the Rules of 1978 would also be deemed to be under the Act of 1981 and hence the provisions of the said Rules cannot be legally made applicable to the functions of the authorities concerned as per the provisions of the Act of 1981. 8. Learned counsel for the petitioners submitted that the impugned order of the Cane Commissioner was absolutely without jurisdiction as power under Section 29 of the Act is given to the Collector of the District only and hence the impugned order is only under Section 29(1) of the Act and not under Section 29(4) thereof. - 10 - 9. So far the question of alternative remedy being available to the petitioners as claimed by the respondents is concerned, learned counsel for the petitioners relied upon two decisions of the Apex Court as well as a Division Bench decision of the Patna High Court, in case of Whirlpool Corporation Versus Registrar of Trade Marks, Mumbai and others reported in 1998(8) SCC 1 (Paras 14, 15 & 20); in case of State of H.P. & others Versus Gujarat Ambuja Cement Ltd. and another reported in 2005(6) SCC 499 (para-23); and in case of M/s Indian Oil Corporation Ltd. Versus The State of Bihar & Ors. reported in 2006(3) PLJR (DB) 146 (Paras 3, 11 &24). 10. Respondent nos.3 and 4 are same in both the writ petitions and are Sugar Mills situated in Uttar Pradesh in whose favour the impugned orders had been passed. They are the main contestants to the claim of the petitioners and both the said respondents have been represented by the same learned counsel, specifically denying the assertions raised by learned counsel for the petitioners on each and every point. 11. Learned counsel for respondent nos. 3 and 4 claimed that they had been purchasing sugarcane from Bihar since several decades, whereas the instant matter is only for the season 2010-2011, but earlier none of the petitioners ever challenged purchases of sugarcane made by U.P. Mills from the cane growers of Bihar and hence now they cannot be allowed to raise such disputes. He also stated that a similar objection was raised earlier by Bihar Sugar Mills Association vide CWJC No. 11886 of 2005 but a Division Bench of this Court vide order dated 26.09.2007 (Annexure-J to C.A. of R.3), considering the nature of grievances and submissions made by learned counsel for the petitioners dismissed the said writ petition as not pressed with a liberty to the petitioner to raise all the grievances which had been raised in that writ petition before the Cane Commissioner, Govt. of Bihar by way of a representation which was to be disposed of in accordance - 11 - with law by a reasoned order within four weeks. Pursuant to the said order no step was taken by the said Bihar Sugar Mills Association. 12. Learned counsel for respondent nos. 3 and 4 submitted that the Mill Owners of Bihar were also free to approach the authorities of Government of U.P. for allotment of sugarcane, but there is no material at all to show that the petitioners ever sought sugarcane from U.P. or their claim was ever rejected by the authorities of the Government of U.P., hence the entire allegation of the petitioners in this regard is absolutely frivolous and is against the bipartite agreement between the two States. 13. Learned counsel for respondent nos. 3 and 4 also averred that although the petitioners have been crying hoarse that they were starving for sugarcane but the chart (Annexure-J to Suppl. C. A. of R.4) clearly showed that it was a matter of record that during the previous crushing seasons the petitioners had not lifted sugarcanes from the cane centers allotted in their favour as there was vast difference in sugarcane allotted and sugarcane purchased by the petitioners. Thus, the petitioners were unable to crush even the sugarcane of the reserved area allotted to them which resulted in huge and irreparable loss to the cane growers and the petitioners are bound to pay compensation to the cane growers for the said default of the petitioners. He also stated that in these circumstances, the Cane Commissioner, Govt. of Bihar vide his order dated 17.08.2010 (Annexure-7 to the writ petition) rejected the application of the petitioners for allotment of further villages in their favour, but the said order was never challenged by the petitioners before the authority prescribed under Section 31(2) of the Act, although admittedly the said order was passed under Section 31(1) of the Act, nor the petitioners approached the High Court against the said order. 14. Learned counsel for respondent nos. 3 and 4 further submitted that although their factories had huge capacities, but U.P. Government allotted them - 12 - lesser sugarcane for 2010-11 only due to the possibility of respondent nos.3 and 4 getting sugarcane from Bihar, whereafter the said respondents sent request to the Bihar Government which was allowed and they got whatever they asked for vide order dated 16.11.2010 (Annexure-8) which also provided Mill gate and purchased centers in the villages themselves for conveniences of the cane growers and for selling them for long distance supply. 15. Learned counsel for respondent nos. 3 and 4 argued that admittedly the impugned order dated 16.11.2010 (Annexure-9) had been passed under Section 29 of the Act which was with respect to establishment of purchasing center and under the said provision the authority was empowered to shift or establish purchase centre, but under the said provision only the occupier, who was the proposer was to be heard and not the petitioners who were not the occupiers, as per the said provision. 16. Learned counsel for respondent nos. 3 and 4 also argued that the impugned orders dated 16.11.2010 (Annexure-9), 16.11.2010 (Annexure- 10), 16.10.2010 (Annexure-11) etc. being under Section 29 of the Act they could have been challenged by the petitioners under Section 29 (4) of the Act read with Rule 40(3) of the Bihar Sugarcane (Regulation of Supply & Purchase) Rules 1978. The said Rule although notified in Bihar Gazette on 30.12.1978 was not affected by