1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No.3063 Of 2009. Dnyaneshwar Sahakari Sakhar Karkhana Ltd. Dnyaneshwar Nagar, Post Bhende, Taluka Newasa District Ahmednagar And Another. ... Petitioners. Versus The Union of India And Others. ... Respondents. -------- Shri.R.N. Dhorde, Advocate holding for Shri. R.L. Kute, Advocate for the petitioners. Shri.R.P. Phatke, Standing Counsel for respondent Nos.1 and 2. Smt. A.V. Gondhalekar, Assistant Government Pleader for respondent Nos.3 and 4. Shri. P.R. Patil, Advocate for respondent No.5. -------- CORAM: NARESH H PATIL & K.U. CHANDIWAL, JJ. Order reserved on : 09th November 2009 Order pronounced on :16th November 2009 2 ORDER : (Per Naresh H Patil, J.): 1) The petitioner is a cooperative sugar factory. The petitioner’s main contention is that the application filed by respondent No.5 for establishing and starting a sugar factory pending before respondent No.4 shall not be processed any further. The petitioner is further seeking a declaration that Sugarcane (Control) (Amendment) Order 2006 published in Gazette dated 10th November 2006 is not applicable to the petitioner – sugar factory more particularly clause 6A of the Sugar (Control) (Amendment) Order 2006 fixing a condition of 15 km radius distance for establishing a new sugar factory from existing sugar factory. 2) The learned counsel Shri. R.N. Dhorde submitted that from the year 1981 the capacity of the petitioner sugar factory got increased from 2000 MT to 6000 MT till the year 2004. The petitioner’s area of operation covers 214 3 villages. The petitioner is successfully running the factory along with other plants like distillery, electricity generation, ethanol plant etc in which the petitioner – factory has invested crores of rupees. In substance, the submission of the counsel is that respondent No.5 is not a cooperative Unit but a private company and in case respondent No.5 is permitted to establish and start sugar factory at the location asked for then the petitioner – factory would suffer huge monetary loss and its existence would be in danger. The learned counsel has referred to the orders passed from time to time by the Bombay High Court in PIL No.20 of 2006. Reliance was placed on the annual reports demonstrating that the petitioner sugar factory is successfully running and it has a sound financial base. The learned counsel in support of his submissions has placed reliance on the following reported judgments. (1) Smt. Damyanti Naranga v. Union of India, 1971 (1) SCC 678. 4 (2) J. Pandurangarao v. The Andhra Pradesh Public Service Commission, Hyderabad, AIR 1963 SC 268. (3) Ojas Industries Ltd. vs. Oudh Sugar Mills Ltd. (2007) 4 SCC 723. 3) The learned counsel Shri. P.R. Patil appearing for respondent No.5 submitted that the application of respondent No.5 is filed with respondent No.4 in accordance with the Sugarcane (Control) (Amendment) Order 2006 and processed in accordance with the said Sugarcane (Control) (Amendment) Order 2006 which was issued by the Ministry of Consumer Affairs, Food and Public Distribution (Department of Food and Public Distribution) on 10th November 2006 in exercise of powers conferred by Section 3 of the Essential Commodities Act 1955. Considering the provisions of Clause 6A of the Sugarcane (Control) (Amendment) Order 2006 and other provisions of law it was submitted by the learned counsel that respondent No.5 has every right to establish a sugar factory. The place where respondent No.5 is to establish sugar factory is 5 at a distance of 27 kms away from the petitioner factory. The respondent No.5 had already received Aerial Distance Certificate which has to be confirmed by respondent No.4 authority and, therefore, the application was filed with respondent No.4 which is pending since last several months due to this litigation. The counsel submits that the orders passed in PIL No. 20 of 2006 by the Bombay High Court do not affect merits of this case as the PIL pertains to establishment of new cooperative sugar factories in the State wherein Government money is involved. It was submitted that it is not that for the first time such an application is filed in the State of Maharashtra for starting sugar factory by private companies or firms. The counsel has submitted a list of 33 private sugar factories to whom Aerial Distance Certificates were issued by the Commissioner of Sugar out of which 2 are located in Ahmednagar district. As regards to the challenge made to the Sugarcane (Control)(Amendment) Order 2006 the learned 6 counsel submits that the Apex Court had observed that the clause 6A to E which was introduced in Clause 6 in the Sugarcane (Control) Order 1966 are clarificatory in nature. By inviting our attention to the provisions of the Maharashtra Cooperative Societies Act it was submitted that only the members of the Karkhana were bound to supply sugarcane to the petitioner factory to the extent of their share capital and it was not mandatory for other sugarcane growers residing in 214 villages to supply sugarcane to the petitioner factory. In substance, the counsel, therefore, submitted that establishment of sugar factory by respondent No.5 would be in the interests of sugarcane growers. The counsel in support of his submissions has placed reliance on the following reported judgments : (1) Simbhaoli Sugar Mills Ltd. v. Union of India, ILR (1992) II Delhi 1092. (2) The Nagar Rice & Flour Mills v. N. Teekappa Gowda, 1970 (1) SCC 575. (3) Ojas Industries P. Ltd. vs. Union of India, 2005-ILRDLH-14-871. 7 (4) Dharam Dutt v. Union of India, (2004) 1 SCC 712. (5) Dhampur Sugar (Kashipur) Ltd. vs. State of Uttaranchal, (2007)8 SCC 418. 4) We have considered the submissions advanced by the learned counsel appearing for the parties. Perused the judgments cited before us. Prima facie we find that PIL No.20 of 2006 pending before the Bombay High Court raises questions regarding establishing of cooperative sugar factories in the State of Maharashtra. The Commissioner of Sugar had already granted aerial distance certificate to 33 private sugar units, therefore, the case of the respondent No.5 cannot be termed as an isolated case. The Commissioner of Sugar, Maharashtra State, Pune had issued certificates in favour of other private firms in view of clause 6A dated 10-11-2006 and as per Aerial Distance Certificate issued by the Superintending Surveyor, Additional Surveyor General. The Commissioner has issued such certificate certifying that areal distance 8 between 2 sugar factories mentioned in the certificates is more than 15 kms. Respondent No.5 is waiting for such certificate which the Commissioner of Sugar is to grant in favour of respondent No.5 as respondent No.5 had already complied with all other formalities. In view of the judgments cited above, we find that the petitioner’s challenge to the Clause 6A of the Sugarcane (Control) (Amendment) Order 2006 on the touchstone of Article 14,19(1)(c), 19(1)(g) of the Constitution of India is not sustainable. Respondent No.5 is processing his application in accordance with law. We do not find any legal infirmity in filing application by respondent No. 5 with respondent No.4. In the competitive market of todays’ more particularly in matters of commercial nature and in view of the exiting provisions of the Sugarcane Control Order the petitioner’s grievance could not be taken into consideration to prevent respondent No.5 from starting a sugar factory. 9 5) In the light of the fact that various other private sugar factories were given aerial distance certificates itself shows that the State had already implemented the policy in letter and spirit of the Sugarcane Control Order issued by Government of India. The case of the respondent No.5, therefore, cannot be isolated. Doing so would cause serious prejudice to respondent No.5. 6) The respondent Nos.3 and 4 have filed affidavit-in-reply through the Joint Director (Sugar) Aurangabad. The deponent states that the petitioner had raised objection to the application filed by respondent No.5. After consideration of all objections raised, appropriate decision for issuing Aerial Distance Certificate would be taken. 7) The issue is pending before this Court since May 2009. The learned Assistant Government Pleader submitted that within a period of two weeks time, respondent No.4 would pass appropriate orders on the application filed by 10 respondent No.5 and take necessary steps in accordance with law in the light of the Sugarcane (Control) (Amendment) Order 2006. We direct respondent No.4 to act in accordance with the statement made by the learned Assistant Government Pleader. 8) We do not find any merit in this writ petition. The writ petition fails and it is accordingly dismissed (K.U. CHANDIWAL, J.) (NARESH H PATIL, J.) rsl/ wp.3063.09 P.T.O. 11 The learned counsel appearing for the petitioners, after pronouncement of the order, makes a request to stay the operation of this order for 15 days. Mr. P.R. Patil, learned counsel for respondent No.5 objects the request made by the petitioners stating that no interim relief was operating in past in favour of the petitioners. We do not find any good ground to accept the request made by the petitioners. The prayer stands rejected. (K.U. CHANDIWAL, J.) (NARESH H PATIL, J.)