:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.7423 OF 2008 CIVIL WRIT PETITION NO.7423 OF 2008 CIVIL WRIT PETITION NO.7423 OF 2008 Shri Shyamrao Gopala Nangre-Patil and anr. .. Petitioners Vs Udaysingraogaikwad Sahakari Sakhar Karkhana Ltd, .. Respondents. Mr A.V.Anturkar a/w Ms Manisha Jagtap i/b M/s J.Shekhar & Co, for the petitioners. Mr V.A.Thorat, Sr.Advocate, i/b Mr V.A.Sugdare, for respondent no.1. Mr S.P.Thorat, for respondent no.2. Mr Vinay Sonpal, AGP, for respondent nos 3 to 5. Mr Prasad Dani i/b Pratap Patil, for applicant in CA No.2851-08. WITH CIVIL WRIT PETITION NO.8386 OF 2008 CIVIL WRIT PETITION NO.8386 OF 2008 CIVIL WRIT PETITION NO.8386 OF 2008 Udaysingraogaikwad Sahakari Sakhar Karkhana Ltd, .. Petitioners Vs The State of Maharashtra & Ors. .. Respondents. Mr S.U.Kamdar, Sr.Advocate i/b Mr V.A.Sugdare, for the petitioners. Mr Vinay Sonpal, AGP, for the respondent-State. Along with CIVIL APPLICATION NO.2851 OF 2008 CIVIL APPLICATION NO.2851 OF 2008 CIVIL APPLICATION NO.2851 OF 2008 IN IN IN CIVIL WRIT PETITION NO.7423 OF 2008 CIVIL WRIT PETITION NO.7423 OF 2008 CIVIL WRIT PETITION NO.7423 OF 2008 1.Shri Shyamrao Gopala Nangre-Patil and ors. .. Petitioners Vs 1.Udaysingraogaikwad Sahakari Sakhar Karkhana Ltd, and ors .. Respondents And Managing Director, Vishwasrao Naik S.S.Karkhana :2: :2: :2: Ltd. .. Applicant (Intervenor) Mr Prasad Dani i/b Pratap Patil, for applicant. CORAM : S.B.MHASE & CORAM : S.B.MHASE & CORAM : S.B.MHASE & D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. D.B.BHOSALE, JJ. DATE : 17.01.2009. DATE : 17.01.2009. DATE : 17.01.2009. P.C. P.C. P.C. 1. Heard learned counsel for the parties. 2. The petitioners have approached this Court making a grievance that respondent no.1-Karkhana has leased out the Karkhana to respondent no.2 without following the due procedure as provided in Government Resolution No.29.11.2008. It is further the grievance of the petitioners that the crushing licence has not been issued in favour of the respondents under the Maharashtra Sugar Factory (Reservation of Areas and Regulation of Crushing and Sugar Cane Supply) Order 1984, popularly known as "zonal order". It is further brought to our notice that since there is no crushing licence issued, the Regional Joint Director of Sugar has passed an order directing the respondents to close down the sugar factory. Under these circumstances, the petitioners have prayed that stay should be granted to the functioning of the respondent-sugar factory. :3: :3: :3: 3. After going through the documents in question, we find that respondent no.2 is carrying out manufacturing process accepting the liabilities of payment of the sugar-cane price, salaries of the employees, payment of taxation and other liabilities. They have assured respondent no.1 Sugar factory that after paying the outgoings as stated above, respondent no.2 will pay eighty rupees per matric ton to respondent no.1. In short, after the completion of the manufacturing process and payments of the agriculturists and labourers and taxation, respondent no.1 is going to get only eighty rupees per matric ton. The crushing capacity of respondent no.1 is 25000 matric ton per day and, therefore, in season of 160 days, as declared by the Commissioner of Sugar, the approximate total crushing will be about four lacs matric tons, thereby, if the total crushing is 4 lacs matric tons respondent no.1 will approximately get 3,20,00000/-. There is an intervenor before us represented by Mr Dani. Mr Dani states that on the same terms and conditions the intervenor’s factory is also ready to run respondent no.1 and instead of Rs.80/- per matric ton they are ready to give 100 rupees per matric ton to respondent no.1. :4: :4: :4: 4. Under the due process which has been provided by the Government, it was expected that the tender process in respect of leasing out sugar factory -respondent no.1 should have been followed and thereafter the factory-respondent no.1, which is a sick unit, can be given to other factory for running. However, the tender process has not been followed by the respondents when they entered into the impugned agreement. 5. The learned counsel Mr Thorat, who appears for respondent no.1, submits that the document in question is not a lease document but it is simply a document to provide machinery of the Karkhana for the purpose of manufacture of sugar wherein the liability of the payment of the labours has been undertaken by respondent no.2. In short, his submission is that the process as provided by the Government is required to be followed when respondent no.1 is leased out. However, he says that the document is not a lease but it is otherwise than the lease so that lease out procedure is not applicable. He further submitted that the minimum lease rent, which is expected under the Government G.R.dated 29.11.2005 in respect of the factory having capacity of 2500 matric ton per day, is three crores and,therefore, he submitted that :5: :5: :5: under the document which is not a lease, the factory is getting 3,20,00000/- which is more than minimum leasehold price expected under the government policy and,therefore, he submitted that viewed from any angle the agreement is just and proper and the petition cannot be entertained. Mr S.P.Thorat, who appears for respondent no.2 supported the arguments of Mr Vijay Thorat for respondent no.1. Therefore, we asked him, " are you ready to pay Rs.20/- per matric ton more as per the offer given by the intervenor". However, he submitted that on instructions he will make a statement. 6. We find at this stage that respondent no.1 is being run by respondent no.2 when there is no crushing licence granted by the Commissioner of Sugar. They are running the factory even though there is a stay order granted by the Regional Joint Director of Sugar and as against those orders. The appeals against those orders are pending. Surprisingly, even though the appeals are pending before the State Government, the State Government has not dealt with that appeal and we are told that the State Government is not dealing with those appeals because the writ petitions are pending before this Court. In fact, when there is no stay order from :6: :6: :6: this court, it was open for the State Government to consider those appeals. By way of an abundant precaution, we direct the State Government to dispose of the said appeals on merits as early as possible within the period of 15 days from today after giving an opportunity to the respective parties and for that purpose communication of the notice can be made by the concerned Ministry by E-mail or telephone or other fastest possible communications available now-a-days which they follow when there is a star question being asked in the assembly. 7. But, we are told across the bar that more than 50-65 percent crushing is over and season is commenced on 15th October and it will come to an end by 10th March, thereby only 42 days out of 160 days have remained to complete the season and, therefore, we are not inclined to grant stay at this stage. However, the Government shall not be influenced by these observations when they decide the appeals filed by the respective parties which we have directed to be decided in the earlier paragraph of this order. 8. We are told by Mr Kamdar across bar that even in this season there are many factories in the State of Maharashtra which are being run without the :7: :7: :7: crushing licence issued by the Commissioner of Sugar. We are also told that in the earlier season at many times crushing licences have been issued by the Commissioner of Sugar to some of the factories even after the completion of season. We have also noted that the orders which are impugned and passed in respect of respondent no.1 have been also passed by the Commissioner of Sugar after commencement of the season , i.e. the season has commenced in October while order is passed in November and communicated in December. In fact, the Co-operative Sugar Factory, when they indulge into manufacturing process, it is a business of the said sugar factory and therefore the sugar factory must know whether it has a permission to run factory or not prior to commencement of the season. But if the factories in the State of Maharashtra are being run under the anomalous situation, as stated by Mr Kamdar, we are surprised to note that whole business of the agriculturists is fate accompli and at the whims of the Commissioner of Sugar and other bureaucrats involved in the said machinery. There should be a rule of law but before we give directions, we direct the petitioners and others to place on record all informations by way of affidavits so that this court can consider to give further directions to regulate the office of the :8: :8: :8: Commissioner of Sugar for the next commencement year and this mess should not continue in his office in future. 9. It is to be noted that Mr Anturkar submitted before this court that under these circumstances allowing respondent nos 1 and 2 to run the sugar factory means to allow them to commit offence under the Essential Commodities Act with superadded seal of this court. We make it clear that we have not allowed respondent nos 1 and 2 to run sugar factory. They, themselves have commenced the activities on 15th october. Only after having found that the appeals in respect of nonissuance of crushing licence and staying the factory are under consideration of the State Government, we have considered the matter and given directions to the State Government to consider those appeals. The fate of the respondent nos 1 and 2 whether they should continue the said activities or not, will depend on the decision of the Government in the said appeals. Whether they have committed offence or not is a matter to be considered by the State Government and we make it clear that our refusal of granting interim stay in this matter will not come in any way if respondent nos 1 and 2 have committed an offence under the Essential Commodities :9: :9: :9: Act and it will be open for the Commissioner of Sugar and/or other competent authorities to prosecute the matter under the Essential Commodities Act. 10. Since we have noted that the tender process has not been followed while giving factory to respondent no.2, however we note atleast one of the intervenor before us who is ready to offer Rs.100/- per matric ton and therefore we direct respondent no.2 to deposit in this court before the closure of the crushing season an amount at the rate of Rs.20/- per matric ton in respect of the total crushing which has been carried out by respondent nos 1 and 2 in this season. 11. In view of the abovereferred circumstances, we grant Rule in these petitions. . Liberty to apply for early hearing and/or interim relief if the matters could not be disposed of before crushing season of 2009-2010. . Civil Application for intervention is allowed. The petitioners are allowed to add the applicant as respondent in the petition. :10: :10: :10: (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (D.B.BHOSALE, J.) (S.B.MHASE, J.) (S.B.MHASE, J.) (S.B.MHASE, J.)