1 WP 5508.98 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5508 OF 1998 Vasantada Shetkari Sahakari Sakhar Karkhana Ltd. ... Petitioner Versus The State of Maharashtra and others. ... Respondents ­­­­­ Mr. S.G.Surana for the Petitioner. Mr. S.D.Rayrikar, AGP for Respondent Nos.1 to 4. Mr. T.S.Ingale for Respondent No.5. ­­­­­ CORAM : A.S.OKA, J. DATE : 24 th August, 2011. ORAL JUDGMENT: 1 The submissions of the learned counsel appearing for the parties were heard on 22 nd August, 2011. 2 The Petitioner is a Co­operative Sugar Factory duly registered under the Maharashtra Co­operative Societies Act, 1960 (hereinafter referred to as “the said Act”). The case of the Petitioner is 2 WP 5508.98 that there were several Irrigation Schemes established by the Irrigation Development Corporation of Maharashtra Limited. The said Irrigation Schemes were running in losses. In the year 1985, the Petitioner entered into an agreement with the Irrigation Development Corporation of Maharashtra Limited for acquiring 25 Lift Irrigation Schemes falling within the area of the operation of the Petitioner – Sugar Factory for total consideration of Rs.6,50,00,000/­. On 17 th June, 1985, a sale­ deed was executed by the said Irrigation Development Corporation of Maharashtra Limited in favour of the Petitioner as regards the properties of the said 25 Lift Irrigation Schemes 3 The Petitioner – Society resolved that the agriculturists, who were supplying sugarcane to the Petitioner would be eligible to pay water charges for using the Irrigation Schemes at subsidised rates and the agriculturists, who were not supplying the sugarcane to the Petitioner – Society would be required to pay water charges at 1 and ½ times of usual rates. 3 WP 5508.98 4 Writ Petition No.29 of 1991 was filed by some of the agriculturists in which the challenge was to the aforesaid resolution passed by the Petitioner on the ground that the resolution was discriminatory. A Division Bench of this Court by the order dated 12 th June, 1991 dismissed the petition on merits. The Respondent No.5 who was the then member of the Maharashtra State Legislative Assembly, made an application to the Director of Sugar by contending that injustice has been done by the Petitioner by recovering water charges at higher rate from those agriculturists, who were not supplying sugarcane to the Petitioner – Society. The Petitioner filed a reply to the said application on 9 th October, 1997 by pointing out the order of this Court. 5 It appears that some of the agriculturists, who were taking benefit of the Lift Irrigation Schemes of the Petitioner filed complaints before the District Consumer Redressal Forum making a grievance about the recovery of excessive water charges from those who were 4 WP 5508.98 not supplying sugarcane to the Petitioner – Society. By the judgment and order dated 30 th July, 1998, the complaints were dismissed. 6 In the meanwhile, on 28 th November, 1997, an order was passed by the Director of Sugar (the Respondent No.4 herein) restraining the Petitioner from lifting the sugarcane. On 11 th December, 1997, an order was passed by the Respondent No.4 by which the agriculturists were allowed to supply sugarcane to other sugar factories subject to payment of water charges. On 3 rd June, 1998, the impugned order was passed by the Director of Sugar by holding that the levy of water charges by the Petitioner was not legal. 7 On 11 th September, 2001, this Court issued rule and granted interim relief of stay of execution and operation of the impugned judgment and order. The learned counsel appearing for the Petitioner invited attention of the Court to the order passed by the Division Bench of this Court. He invited attention of the Court to the operative part of the impugned order. He submitted that the Director of 5 WP 5508.98 Sugar had no power and jurisdiction to pass the impugned order. He submitted that the impugned order is without jurisdiction. The learned AGP appearing for the Respondent Nos.1 to 4 supported the impugned order. The learned counsel appearing for the Respondent No.5 supported the impugned order. 8 I have given careful consideration to the submissions. The true English translation of the operative part of the impugned order reads thus: “O r d e r Since the Supreme Court of India have declared the Order issued on 30/4/1997 by the Government of Maharashtra in respect of modification of Maharashtra State Reservation of Area and Sugar Cane Supply Order 1984, is valid; the Beneficiary of Area of any Sugar Factory, is according to the Bye Laws of the said Karkhana, is bound to supply his Sugar Cane to the said Karkhana. Accordingly, under the Bye­law No.18­A(2) of the Opponent Karkhana it is binding on the member to Supply Sugar Cane Grown on the area of at least 20 Gunthas, to the said Karkhana and the member should supply the Sugar Cane equivalent to his one share. The Benefitiary of the Lift Irrigation Scheme is growing Sugar cane by taking benefit of the opponent Karkhana sponcered Lift Irrigation Scheme and if he does not wish to supply his Sugar Cane to the Opponent­Karkhana, he is free to do so. However, as per the decision of the 6 WP 5508.98 Annual General Meeting of the Karkhana, he will have to pay at double the usual rate of Water Supply Charges before cutting his Sugar­Cane. While charging Double the rate of Water supply charges, the calculation made on the basis of the average of all the Lift Irrigation water supply schemes rates is erroneous, because it is necessary to determine the rate of expenses incurred for the concerned particular scheme and the rate based on that and accordingly the charges should be levied at double the rate. After the concerned farmers pay such water charges, the Karkhana cannot stop the Sugar Cane Supply by the farmers and the Karkhana cannot stop the Water Supply to the farmers.” 9 A resolution was passed by the Petitioner on 6 th December, 1996. By the said resolution, it was resolved that those agriculturists, who were taking benefits of the irrigation schemes of the Petitioner, but were not selling the sugarcane to the Petitioner will have to pay water charges at 1 and ½ times usual rate atleast levied of water charges is made. 10 The resolution passed by the Petitioner was challenged by certain agriculturists by filing the Writ Petition No.29 of 1991. The Division Bench of this Court expressly held that the distinction made 7 WP 5508.98 between the members, who supplied sugarcane to the factory of the Petitioner and those who do not supply the sugarcane to the Petitioner is on a valid basis and there was no discrimination. A complaint making a similar grievance has been dismissed by the District Consumer Redressal Forum. 11 Perusal of the impugned order shows that the Director of Sugar has not purported to exercise any particular statutory powers. The order is silent as regards the nature of the power exercised by the Director of Sugar. The learned AGP appearing for Respondent Nos.1 to 4 could not point out any provision of law under which the impugned order has been passed. Perusal of the judgment of the Division Bench of this Court dated 12 th March, 1991 shows that the legality of the resolution of the Petitioner passed on 6 th December, 1996 was upheld. Paragraph No.2 of the judgment of the Division Bench of this Court reads thus: “2. The petitioners do not supplysugar cane to the respondent No.4 Karkhana. As per the resolution of respondent No.4 those members of respondent No.4 who 8 WP 5508.98 supply sugar cane to their Karkhana are required to pay a lower or subsidised rate for supply of water under the scheme. The petitioners who do not supply their sugar cane to respondent No.4 Karkhana are required to pay 1­1/2 times the amount that the members who supply sugar cane to the Karkhana are required to pay. The rate fixed at present is at Rs.1600/­ per acre per year for members who supply sugar cane to the Karkhana of respondent No.4 and Rs.2400/­ per acre per year for others. There is no material before us to show that the amounts so fixed are unreasonable. We have seen the affidavit in reply. In paragraph 6 of this affidavit respondent No.4 has set out that the income received by each agriculturist for every acre of sugar cane works out to Rs.19600/­ per. In these circumstances, the water charges do not appear to be unreasonably high. The distinction made between the members who supply sugar cane to the factory of respondent No.4 and others is on a valid basis. We donot see any reason for intervention under Article 226.” (underline supplied) 12 Hence, the view taken by the Respondent No.4 is completely contrary to what is held by the Division Bench of this Court. Moreover, there was no power vesting in the Respondent No.4 to pass the impugned order. It must be also noted here that the Respondent No.5 was not affected by the action of the Petitioner. Therefore, the impugned order will have to be quashed and set aside. 9 WP 5508.98 13 Hence, I pass the following order: i. The rule is made absolute in terms of prayer clause (a) ; and ii. There will be no order as to costs. [ A.S.OKA, J ]