IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18801 of 2011 M/S Sasamusa Sugar Works Limited, Sasamusa, Police Station- Kuchaikote, District - Gopalganj, through its Cane Manager Md. Kamran son of Late Mushtaque Ahmad, resident of Sasamusa Sugar Works Ltd, Police Station - Kochaikote, District – Gopalganj. ……Petitioner. Versus 1. The State of Bihar. 2. The Cane Commissioner, Bihar. 3. The M/S Bharat Sugar Mills Sidhwalia through its Executive Vice President At, P.O. And P.S. Sidhwalia, District – Gopalganj. Respondents. ----------- For the petitioner : Mr. Raghib Ahsan, Senior advocate with M/s S. M. Shabbir Alam, Sanjay Sinha & Deepak Kumar Singh, Advocates. For respondent no.1 &2: Mr. Krishna Kant Singh, A. C. to G.P. 4. For respondent no.3 : Mr. Ashish Giri, Advocate. --------- P R E S E N T Hon’ble Mr. Justice S. N. Hussain O R D E R 06/ 24.11.2011 This writ petition has been filed by the petitioner challenging order dated 22.09.2011 (Annexure-1) by which the Cane Commissioner, Bihar (respondent no.2) declared (1) Harpur, Thana No.11 (2) Barwa Kanth Chapra Thana No.14, (3) Chintamanpur Thana No.105, (4) Bangri Thana No.12, (5) Dumari Thana No.13, (6) Phulwaria Parsurampur Thana No.15, (7), (8), (9) Ashok Pakari Thana No.61, 62 and 63, (10) Pakari Dumri Nankar Thana No.65, (11) Chintamanpur Thana No.4, (12) Ramgarhwa Thana No.5, (13) Naujami Thana No.6 (14) Chitaha Thana No.220 & (15) Hasanpur Thana No.150 as the reserved area for respondent- M/s Bharat Sugar Mill Sidhwalia, Gopalganj (respondent no.3) purportedly 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 - 2 - brevity) ignoring the recommendation of the Zonal Development Commissioner, Chakia and also for a direction to the Cane Commissioner to include the aforesaid villages in the list of reserved area of the petitioner‟s factory. 2. Although several points with respect to the factual aspects of the matter have been raised by the petitioner, but the main point of contention raised by the petitioner is the legal aspect thereof, on which point learned counsel for the petitioner, the State of Bihar and the respondent-Mill have been heard. 3. Learned counsel for the petitioner claimed that such declaration of reserved area has to be made by notification in the official Gazette for the purpose of supply of cane to the factory during the particular crushing year under the provision of Section 31 of the Act, but in the instant case admittedly no such notification has been published in the official Gazette. Learned counsel for the petitioner also referred to Rule 25 of the Bihar Sugarcane (Regulation of Supply and Purchase) Rules, 1978 (hereinafter referred to as „the Rules‟ for the sake of brevity) which provided that the order of the Cane Commissioner reserving any area shall normally be issued by 31st July in each crushing year and only in exceptional circumstances, to be recorded in writing, such order can be issued between 31st of July and 30th of September next following. Learned counsel for the petitioner thus argued that the respondents having violated the aforesaid specific provisions of law while passing the impugned order dated 22.09.2011, it is not sustainable in law and has to be quashed. 4. On the other hand, learned counsel for respondent no.3 contested the claim of the petitioner and submitted that Section 31(2) of the Act provided an appeal before the prescribed authority against any order passed by the Cane Commissioner under Section 31(1) of the Act, whereas Rule 41 (3) of the Rules provided that such an appeal would lie to the Secretary or the Principal Secretary to the State Government in the department concerned. He thus averred that this writ petition is not maintainable as appropriate alternative remedy is available to - 3 - the petitioner. In this connection, he relied upon two decisions of the Apex Court, namely in case of State Bank of India Vs. Allied Chemical Laboratories and another reported in (2006) 9 SCC 252 and in case of Assistant Collector of Central Excise, Chandan Nagar West Bengal Vs. Dunlop India Ltd. And others reported in A.I.R. 1985 Supreme Court 330. 5. The next point raised by learned counsel for respondent no.3 was that the impugned order is the discretion of the Cane Commissioner in his administrative capacity and hence it cannot be interfered with by this Court under Article 226 of the Constitution, especially when an appeal is provided in the Statute. In this connection, learned counsel for respondent no.3 relied upon three decisions of the Supreme Court, namely in case of Haryana Financial Corporation and another Versus Jagdamba Oil Mills and another reported in (2002) 3 SCC 496; in case of Karnataka State Industrial Investment & Development Corporation Ltd. Versus Cavalet India Ltd. and others reported in 2005(4) SCC 456; and in case of V. Ramana Versus A.P.SRTC and others reported in (2005) 7 S.C.C. 338. 6. The third point raised by learned counsel for respondent no.3 was that the petitioner has not come with clean hands as the impugned order dated 22.09.2011 attached to the writ petition as Annexure-1 thereto and also attached to the counter affidavit of respondent no.3 as Annexure-R/1, but the last portion of the said order is missing in Annexure-1 to the writ petition regarding the fact that the Cane Commissioner had sent his order to the Government Printing Press, Gulzarbagh for publication in the official Gazette. He also averred that the petitioner had made false statement in the writ petition by stating that the respondent-factory had not made proposal for the aforesaid villages, although respondent no.3 had sent its first proposal on 15.07.2011 requesting to allocate among others the villages in question, except 4 of them, which is apparent from Annexure-R/2. Hence, he claimed that on this ground also the writ petition is fit to - 4 - be dismissed. In this connection, he relied upon a decision of the Apex Court in case of Amar Singh Vs. Union of India and others reported in (2011) 9 S.C.C 69. 7. Learned counsel for respondent no.3 further argued that earlier also similar orders had been passed by the Cane Commissioner without being notified in the official Gazette which were never challenged, whereas in the instant case the Cane Commissioner had taken step and sent the matter for Gazette notification. Hence, he had followed the provisions of law and the conditions prescribed in an earlier order of this Court dated 28.02.2005 (Annexure-2) passed in CWJC No.15586 o 2004 (M/s Vishnu Sugar Mill Limited Vs. State of Bihar and others) and other analogous case, but publication being outside his jurisdiction, he was helpless and for that reason his order cannot be adversely affected. Hence, he claimed that the writ petition is absolutely frivolous and is not sustainable in the eye of law. 8. Learned counsel for the State of Bihar and its Cane Commissioner (respondent nos.1 & 2) adopted the arguments of learned counsel for respondent no.3 and added that the petitioner had filed objection dated 17.10.2011 (Annexure-6) before the Cane Commissioner for revising his impugned order dated 22.09.2011, but in that application plea regarding Section 31 of the Act and Rule 25 of the Rules were not taken, nor the said objection application has been decided by the said authority, hence the petitioner was not justified in rushing to this court by filing this writ petition under Article 226 of the Constitution of India. He also averred that the crushing season each year starts from 1st week of December and proceeds thereafter and hence the Cane Commissioner had sufficient time to consider the objection of the petitioner which was delayed due to the petitioner filing this writ petition. 9. Considering the arguments of learned counsel for the parties and the materials on record it is quite apparent that the entire claim and counter claims - 5 - raised by the parties revolves around Section 31 of the Act which reads as follows:- “31. Declaration of reserved area.- (1) The Cane Commissioner may, having regard to the crushing capacity of the factory, the availability of sugarcane in such area and the need for production of sugar and after consulting the council concerned and the occupier of the factory or the occupiers of other affected factories and after considering any objection that may be raised, issue an order, by notification in the official Gazette, declaring any area to be the reserved area for the purpose of supply of cane to the factory during a particular crushing year or years and may likewise cancel any such order or alter the extent of the area so reserved: Provided that, in the case of a factory situated outside the State of Bihar, such declaration may be made only on receipt, by the Cane Commissioner, of an application in the prescribed form from the occupier of such factory requesting that an area in Bihar may be reserved for the supply of cane to such factory and on condition that such occupier establishes a branch office in the State of Bihar and deposits a security of five thousand rupees with a Collector in the State of Bihar and gives an undertaking in the prescribed form to purchase cane grown in the reserved area solely through a co-operative society of such area. (2) Any person aggrieved by an order of the Cane Commissioner under sub-section (1) may, within thirty days of the receipt of such order or within the same period from its publication in the official Gazette, appeal to the prescribed authority.” 10. The second point of law raised by learned counsel for the petitioner is with respect to Rule 25 (1) of the Rules providing procedure of reservation of the areas which reads as follows:- “25. Reservation of areas to factories and procedure for purchasing cane grown in such areas.- (1) The order of the Cane Commissioner, reserving any area to any external or internal factory shall normally be issued on or before the 31st day of July in each crushing year for which the area is proposed to be reserved. Provided that, in exceptional circumstances to be recorded in writing such may be issued any time between the 31st July and 30th September, next following.” 11. From a bare perusal of the aforesaid provisions, it becomes quite clear that the Cane Commissioner was authorized to issue an order by notification - 6 - in the official Gazette declaring any area to be reserved area for the purpose of supply of cane to the factory during a particular crushing year and hence the said order has to be issued by notification in the official Gazette and without any notification such an order cannot be held to be legal and valid. Furthermore, such an order has to be passed by 31st day of July in each crushing year and if any order is passed after that date but by 30th September reasons for delay in exceptional circumstances have to be recorded in writing, without which such an order of the Cane Commissioner cannot be held to be legal and valid. In the instant case, admittedly the impugned order dated 22.09.2011 has not been published in the official Gazette nor any reason or any exceptional circumstances have been recorded in writing in the said order. Hence, the impugned order is clearly violative of the said provisions of law. 12. This matter had earlier also come before a bench of this Court in CWJC No.15586 of 2004 and other analogous cases (M/s Vishnu Sugar Mills Limited Vs. The State of Bihar & others) which were decided by a common order dated 28.02.2005 (Annexure-2) in which it was held as follows:- “ From a plain reading of this Section, it is evident that the reservation(s) made in favour of a cane factory can be legally made and it can become effective only by notification in the official Gazette. The first thing that appeared highly curious to the Court was that though the different sugar mills were fighting over the issue of reservation of villages, there was no Gazette notification under which the disputed reservations might have been made. In order to clarify the issue, the Court asked the State Counsel (J. C. to AAG I) to ask the Cane Commissioner to appear personally with copies of the Gazette notifications for reservations made under Section 31 of the Act for the past five crushing seasons. The Cane Commissioner came empty handed and stated that though the notifications were sent to the Government Press, Gulzarbagh, those were never published and accordingly, he was not in a position to produce the Gazette notifications of the reservations either for the past five years or for the current year 2004-05. In the absence of Gazette notification, the legal position is that no reservation is made in favour of any sugar mills in the eyes of law and any right claimed by any sugar mill on the basis of the - 7 - order of reservations or any action taken by the authorities for any alleged contravention of the reservation order would be non-est and void. This is a very serious lacuna that goes to the roots of the reservation order not only for this year but orders passed for the past years and the Court is quite distressed over the fact that no appropriate action is being taken by the statutory authorities to avoid this irregularity. 13. Apart from the aforesaid finding, the said Bench of this Court issued further directions to the Cane Commissioner to be strictly adhered to in future for making reservation under Section 31 of the Act. The said directions were as follows:- (1) The Cane Commissioner must follow the statutory calendar strictly and must ask for and receive the reservation proposals as provided under the statutory calendar. (2) After holding meeting (s) and after hearing the parties on their respective proposals and after consulting the Zonal Development Council, the Cane Commissioner must pass a speaking order of reservation taking into account the proposals of the respective sugar factories, his reasons for accepting or not accepting or partly accepting the proposals of any of the sugar factories and finally his direction regarding reservation of villages in favour of different sugar factories. (3) Reservation of traditional villages in favour of different sugar factories must be made at least for five years. In case during the period of five years, any of the sugar factories is closed down it will be open to the Cane Commissioner to pass a supplementary order for one crushing season or for the remaining period of the reservation dealing with reallocation of the traditional villages of the closed sugar factory(ies) to other sugar factories after observing the requirements of notice and hearing as provided under Section 31 of the Act. (4) The reservation of villages other than the traditional villages shall be for a period of not less than three years. The provision for making a supplementary order in case the sugar factory closes down shall apply also in the case of these villages. (5) The order must be sent to the Gulzarbagh Printing Press well in advance so that it is duly published at least a fortnight before the start of the crushing operations.” - 8 - 14. From a bare perusal of the impugned order dated 22.09.2011 it is quite apparent that the Cane Commissioner had not at all adhered, much less strictly, to the earlier directions of this Court in the decision detailed above while passing orders of reservation under Section 31 of the Act. To add to this, it is the respondent themselves, who had claimed that earlier orders similar to the impugned order had been passed by the authorities without being notified in the official Gazette. This appears to be a very serious matter by which the specific direction of a Court has been continuously violated, although it has the force of law and its non-compliance may attract a proceeding for disobedience and contempt of the order of this Court. 15. So far the question of alternative remedy raised by the respondents is concerned, in view of the aforesaid provisions of law clearly dealt with by Court of law also, its blatant violation is shocking to the conscience and clearly proves deficiency of the authority concerned in the decision making process and hence it is a fit case where the High Court must exercise its jurisdiction of judicial review under Article 226 of the Constitution of India. The case laws relied by learned counsel for respondent no.3 in case of State Bank of India (supra) and in case of Assistant Collector of Central Excise, Chandan Nagar West Bengal (supra) are not at all applicable to the instant case as the facts are completely different. 16. So far the other point raised by learned counsel for respondent no.3 that discretion of the Cane Commissioner in administrative matter cannot be interfered with under Article 226 of the Constitution as the appeal is provided under Section 31(2) of the Act and Rule 41 of the Rules is concerned it is similarly frivolous and misconceived as the discretion exercised by the Cane Commissioner is clearly violative of the specific provisions of law and hence it can be legally struck down as it clearly amounted to deficiency in exercising the discretion in decision making process. - 9 - 17. Furthermore, the provision of Section 31(1) and (2) of the Act specifically provides that order has to be passed by the Cane Commissioner by notification in the official Gazette and hence an appeal can lie only against such an order which has been notified in the official Gazette before the authority prescribed under Rule 41 of the Rules and only for the purposes of calculating limitation, the words „order‟ and „publication‟ have been used separately in sub- section (2) to Section 31. In this connection, learned counsel for respondent no.3 has relied upon three decisions of the Supreme Court in case of Haryana Financial Corporation and another(supra); in case of Karnataka State Industrial Investment & Development Corporation Ltd. (supra); and in case of V. Ramana (supra), but the said case laws are with respect to completely different situations, none of which are similar to the situation of this case and the provisions of law applicable to this case. 18. So far the allegation of respondent no.3 that petitioner has not come with clean hands by not including that part of impugned order dated 22.09.2011 (Annexure-1) by which the Cane Commissioner had sent the order of the Government Printing Press, Gulzarbagh for publication is concerned, it is quite apparent from Annexure-1 to the writ petition compared to Annexure-R/1 to the counter affidavit of respondent no.3 that the contents of the order and the signature of the authority are not in dispute, the only point in dispute is that after the signature of the Cane Commissioner it had been shown in Annexure-R/1 to the counter affidavit of respondent no.3 that copies of the said order had been sent to the Superintendent of Government Printing Press, Gulzarbagh for publication which was not included in Annexure-1 to the writ petition. This fact does not at all amount to concealment as the petitioner had never claimed that the Cane Commissioner had not sent it for publication, rather his claim had throughout been that it was not published in the official Gazette which is admitted fact. Hence, this allegation of respondent no.3 against the petitioner is absolutely - 10 - unfounded and the case law relied upon by learned counsel respondent no.3, namely in case of Amar Singh (supra) is not applicable to the facts and circumstances of this case. 19. Furthermore, respondent no.3 had alleged that in paragraphs 20 and 25 of the writ petition the petitioner had made false statement by saying that respondent-factory had not made any proposal for the aforesaid villages although it had made its proposal dated 15.07.2011 for allocation of the villages in question leaving only 4 villages out of them. This allegation has been completely falsified by the petitioner who has specifically claimed that respondent no.3 had made proposal for 261 villages, but by forgery they had added four more villages, namely Chaur Mangurha, Jahingra, Barawa Kanth Chapra and Harpur in the list, which would be apparent from the comparison of Annexure-R/2 with Annexure- 7, namely the letter of respondent no.3, which was obtained from the office of the Cane Commissioner before the filing of the writ petition, but now the respondents are trying to justify the reservations of the said villages, although in the said villages the petitioner had established cane purchase centres and had been operating the said purchasing cane centres for the last six years. Hence, it is respondent no.3 who had made forgery in their application by adding four villages by handwriting. 20. So far the objection of the respondents with respect to petitioner‟s application dated 17.10.2011 filed before the Cane Commissioner without making any plea with respect to Section 31 of the Act and Rule 25 of the Rules is concerned, the provisions of law and its applicability can be legally raised at any stage of the case and if the petitioner had not raised any such claim before the Cane Commissioner he cannot be debarred from taking such plea before this Court. Furthermore, it has been claimed by the respondents that the authorities are taking steps for Gazette notification, but although the impugned order had been passed as far back as on 22.09.2011, no such notification has been published till - 11 - date, although more than a month has lapsed since the filing of the writ petition also. 21. All these pleas taken by the respondents are completely in the teeth of the well considered order of a bench of this Court dated 28.02.2005 (Anneuxre- 2) passed in CWJC No.15586 of 2004 and other analogous cases in which the petitioner of this case was also one of the petitioners and in which the same provisions had been discussed and decided and specific directions had been given to the authorities concerned which have been very conveniently ignored by the authorities concerned. 22. In the aforesaid facts and circumstances and in view of the specific provisions of law and the case laws, the impugned order of the Cane Commissioner dated 22.09.2011 (Annexure-1) is not sustainable in law and is accordingly quashed and this writ petition is allowed with a direction to the Cane Commissioner, Bihar (respondent no.2) to pass a composite order deciding applications/representations of all the objectors after considering the recommendations of the authorities concerned under Sections 7 and 8 of the Act keeping in view the specific provisions of law and the directions given in the aforesaid case laws. The said order has to be issued by Gazette notification as per the requirement of law without any further delay as according to the respondents themselves the crushing season has not yet arrived. 23. Let a copy of this order be handed over to learned counsel for the State namely Government Pleader No.4 for immediate steps. The petitioner and respondent no.3 must approach the Cane Commissioner within a week so that the matter can be expedited. ( S. N. Hussain, J.) Sunil