IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2479 of 2007 (M/S) M/s Kashipur Sugar Mills Ltd., (A Limited Company under the Companies Act 1956), having its Registered Office at 13, Civil Lines, Bareilly and its Sugar Mill Kashipur Sugar Mills Ltd., Kashipur, Uttarakhand (formerly known as Uttaranchal) through Shri S.K.Bhatnagar, Vice-President of the Company. …… Petitioner. Versus Union of India through its Secretary, Ministry of Consumer Affairs & Public Distribution, Krishi Bhavan, New Delhi and seven others. … Respondents. Sri Paresh Tripathi, learned counsel for the petitioner. Sri Arvind Vashist, learned Assistant Solicitor General of India for the respondent no.1. Smt. Bina Pande, learned Standing Counsel (U.P.Govt.) for the respondent nos. 2, 5 and 6. Sri K.P.Upadhyay, learned Additional C.S.C. for the respondent no.3& 4. Dr. R.K.Srivastava with Sri C.K.Sharma, learned counsel for the respondent no. 7. None is present for the respondent no. 8. Date August 27, 2008. Hon’ble B.S.Verma, J. Respondent no.1- Union of India files counter affidavit and the petitioner files rejoinder affidavit. They are taken on record. Heard learned counsel for the parties and perused the record. This writ petition has been filed for the following reliefs:- i) Issue a writ, order or direction or writ in the nature of mandamus issuing appropriate direction to the Central Government to exercise the power under clause 6 of the Sugarcane (Control) Order 1966 by itself and reserve an area for the petitioner factory having regard to the crushing capacity of the petitioner factory by itself after revoking the delegation, which may have been made to the Cane Commissioner, U.P., as also to the Cane Commissioner, Uttarakhand, so that the petitioner factory is able to get adequate supply of sugarcane for its factory. 2 ii) Issue a writ, order or direction or writ in the nature of mandamus commanding the Central Government to direct the Cane Commissioners, both of the State of Uttar Pradesh, as also the State of Uttarakhand to ensure the can supply as per the requirement of the petitioner factory for the cane crushing season 2007-08 and also to ensure permanent arrangement for allotment of adequate cane to the petitioner factory in subsequent can crushing seasons, so that the petitioner factory may not be starved of sugarcane. iii) Issue a writ, order or direction or writ in the nature of mandamus commanding the Cane Commissioner, both of the State of Uttarakhand, as also the State of Uttar Pradesh to maintain status quo as it existed prior to creation of State of Uttarakhand in respect of the cane area of the petitioner factory, which have been reserved for them by the respective Cane Commissioners under the provisions of the Sugarcane (Control) Order 1966. iv) Issue an ad-interim mandamus to the above effect. v) Issue any other appropriate writ, order or direction in favour of the petitioner as the Hon’ble Court may deem fit in the circumstances of the case. (vi) Award the costs of the petitioner to the petitioner. Briefly stated, the facts giving rise to the present writ petition according to the petitioner, are that the petitioner factory is situated at a distance of only about 9 kms. and the substantial cane area of the petitioner factory is situated in the State of Uttar Pradesh and most of the sugar mills in Uttarakhand are situated on newly created border of Uttarakhand and Uttar Pradesh. It has been stated in paragraph 6 of the writ petition that on the reorganization of the erstwhile State of Uttar Pradesh and creation of the Uttarakhand State, a Memorandum of Understanding was entered into by both the States, namely reorganized State of Uttar Pradesh and the newly created State of Uttarakhand, in which it was decided that the area allotment and supply of sugarcane existing immediately prior to the 3 reorganization of the State of Uttar Pradesh and creation of the State of Uttarakhand shall be made permanent. It has been contended that the area of sugarcane was reduced by Cane Commissioner U.P. by reservation order, therefore, mandamus be issued directing the Central Government to exercise the power under clause 6 of the Sugarcane (Control) Order 1966 by itself and reserve an area for the petitioner factory having regard to the crushing capacity of the petitioner factory by itself after revoking the delegation, which may have been made to the Cane Commissioner, U.P. as also to the Cane Commissioner Uttarakhand so that the petitioner factory is able to get adequate supply of sugarcane for its factory. Memorandum of Understanding (MOU for short) has been annexed as Annexure No. 4 to the writ petition, which was formulated on the consent of both the State of Uttarakhand and the State of Uttar Pradesh and the relevant extract thereof reads as under:- “All the villages which are situated within the limits of State of Uttar Pradesh but falling in the working area of Sugar Mills situated in the State of Uttaranchal and are supplying their sugarcane to the Sugar Mills situated within the limits of State of Uttaranchal and all the villages which are situated within the limits of State of Uttaranchal but falling in the working area of Sugar Mills situated in the State of Uttar Pradesh and are supplying their sugarcane to the sugar mills suituated within the limits of State of Uttar Pradesh, it is necessary to establish Centre for the sugarcane supply centre for the benefit of cane growers at the sugarmills situated nearest to them. It is necessary to ensure availability of sugarcane in sufficient quantity for the sugar mills so as to make the financial position of the sugar mills strong. 4 Thus, both the States give their consents hereto as under: Cane Area / Purchase Centre reserved for sugar mills by the Cane Commissioner, Uttar Pradesh vide its Preservation Order No. 1711/C/Purchase Control dated 25.10.2000, 28.10.2000 and 09.11.2000 for the Crushing Season 2000-2001, will kept reserved for the sugar mills situated in the both the states as it is. In case, sugarcane is available in surplus or less quantity than the required quantity of sugar mills in either of the States and it becomes necessary to meet the difference from the sugar mill situated in other State, then the same shall be done with the prior consent of both the States. Other State will not make interference in regard to the allotment of sugarcane etc. to the areas of another State.” One of the grievances of the petitioner is that despite the MOU, the Cane Commissioner of the State of Uttar Pradesh is not providing cane area as per MOU in accordance with the crushing capacity of the factory. Learned counsel for the respondent no. 7 has submitted that paragraph no. 22 of the counter affidavit is relevant and he has urged that inadvertently in paragraph no. 22 of the counter affidavit in place of “8.67 lac quintals” only 8.67 quintals have been written. In the counter affidavit filed by 7th respondent it has been stated as under:- “22. That the answering respondent further respectfully submits that the petitioner was allotted 8.67 quintals (to be read 8.67 lac quintals) of sugarcane by the Cane Commissioner of Uttar Pradesh for the crushing season 2007-2008. The petitioner has also filed statutory appeals before the State Government/Appellate Authority at Lucknow. The petitioner’s appeals in respect of the sugarcane centre in the area of the 5 answering respondent, sugar factories which are also the subject matter of the present writ petition, are pending before the appropriate statutory Appellate Authority at Lucknow, U.P. A true copy of the notice dated 10.07.2008 issued by the Special Secretary, Government of Uttar Pradesh, Lucknow, theAppellate Authority is enclosed herewith as Annexure No. SCA-2. The next date in the Appeals has been fixed on 21.07.2008. It may thus be seen that the entire action on the part of the petitioner is nothing but an abuse of the process of law and that of this Hon’ble Court. The petitioner who has not approached this Hon’ble Court with clean hands and where petitioner also suffers from material concealments, is not entitled for any relief from this Hon’ble Court in exercise of its power and jurisdiction under Article 226 of the Constitution of India. The Hon’ble Court may be graciously pleased to dismiss the writ petition with Special costs to the answering respondent.” As per averment made in paragraph 22, statutory appeal filed by the petitioner is pending for disposal before the State Government/Appellate Authority at Lucknow. The appeal is pending before the Special Secretary, Government of Uttar Pradesh. The petitioner has filed rejoinder affidavit. In paragraph no. 23 thereof, the following averment has been made:- “23) That the contents of paragraph 22 of the short counter affidavit are misconceived, wrong, hence denied, so far alleging the subject matter of the present writ petition has to be subject matter of the appeal before the Appellate Authority at Lucknow, because in the present writ petition, the petitioner sugar factory has also sought the direction to the Central Government to ensure adequate sugarcane allotment as the Cane Commissioner, U.P., Lucknow, while issuing the reservation order under section 15 of the U.P. Sugarcane (Regulation of Supply & Purchase) Act 1953, also exercises his power under clause 6(1) of the Sugarcane (Control) Order 1966 and it is the Central Government, which has inherent control of the allotment of sugarcane being an essential commodity under the Essential Commodities Act 1955. 6 Therefore, the paragraph under reply is absolutely incorrect, misleading and vehemently denied for the reasons stated in the preceding paragraphs of this affidavit, read with the contents of paragraphs of the writ petition and in view of the emergent situation in question, in view of the on-set of next cane crushing season, the petitioner is entitled for the appropriate directions from this Hon’ble Court, so as to protect its survival, in the interest of justice.” So far as the prayer of the petitioner for direction to the Central Government is concerned, Clause 11 of the Sugarcane (Control) Order, 1966 deals with delegation of powers, which reads as under:- “11. Delegation of powers.- (1) The Central Government may, by notification in the official Gazette, direct that all or any of the powers conferred upon it by this Order shall, subject to such restrictions, exceptions and conditions, if any, as may be specified in the direction, be exercisable also by: (a) any officer or authority of the Central Government; and (b) a State Government or any officer or authority of a State Government. (2) Where all or any of the powers conferred upon the Central Government by this Order have been delegated in pursuance of sub-clause (1) (b) to any officer or any authority of a State Government, every order or direction issued by such officer or authority in exercise of that power may be amended , varied or rescinded by the State Government to whom the officer or authority is subordinate either suo moto, or on application made within a period of thirty days from the date of the order or direction: Provided that no order revoking a licence or a permit issued to a person shall be made without giving such person an opportunity to make representation.” 7 It is the Central Government as per Clause 11, which can exercise the power through any officer or authority or it can delegate the power to any officer or any authority of the State Government for the purpose to regulate the distribution and movement of sugarcane as has been provided under clause 6 of the Sugarcane (Control) Order, 1966. It is within the legislative competence of the Central Government to exercise the power under clause 11 aforesaid itself or to delegate the power to any officer or authority of the State Government. To my mind, no mandamus can be issued to direct the Central Government to revoke the power, which has been delegated to the State of Uttar Pradesh and to exercise the same itself. It has further been contended by the learned counsel for the petitioner that in the meeting dated 15-2-2007, which was held under the Chairmanship of Joint Secretary, Sugar, Government of India, to discuss the issues relating to allocation of sugarcane/reservation of cane area to the sugar mills of Uttarakhand and in paragraph no.2, it was resolved as under:- “2. Sh Anil Kumar Gupta, Principal Secretary, Govt of UP was also of the view that the sugar mills of Uttarakhand cannot survive without getting cane from UP. He clarified that there is no intention on the part of Government of UP to flout the MOU. He suggested that talks can be held at Government level to work out an arrangement under which sugar factories of neither side are starved off the cane supplies.” Learned counsel for the petitioner also contended that the Central Government has also admitted this fact that the cane 8 area was reduced and no logical explanation to the allotment was made available. In reply, learned counsel for the respondent no. 7 has contended that the petitioner factory has itself annexed Annexure No. 9 to the writ petition, a perusal of which goes to show that the Kashipur Factory has cultivable area to the tune of 52840 Hectares while the developed cane area is 8592 Hectare only. On the other hand, the Laksar factory has cultivable area of 38,614 Hectares and it has developed cane area to the extent of 30,318 Hectares. Learned counsel has vehemently submitted that it is the duty of the petitioner to develop its own sugarcane area. This fact has not been disputed by the petitioner that the statutory appeal is pending before the State Government in respect of the reservation area of the State of U.P., which was allotted to the petitioner for the crushing season 2007-08. The writ petitioner did not disclose this fact in the writ petition that the statutory appeal is pending before the appellate authority at Lucknow. The crushing season 2007-2008 has come to an end. So far as the area, which is to be allotted for the next crushing season is concerned, the same has to be decided by the Cane Commissioner as per Section 15 of the Uttar Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1953 and the Rules framed thereunder. Since the earlier crushing season came to an end, the petitioner may submit his proposal for the next crushing season before the Cane Commissioner, Uttar Pradesh and if the petitioner feels aggrieved by the order passed by the Cane Commissioner, the petitioner may prefer statutory appeal as has been provided under Section 15(4) of the said Act before the State Government. The controversy involved in the present writ petition is whether the petitioner was allotted sufficient cane area by the State 9 of Uttar Pradesh or not. As per pleadings made in the writ petition, this fact was not disclosed that the petitioner was allotted 8.67 lac quintals of sugarcane from the area of Uttar Pradesh for the crushing season 2007-2008. As observed above, if the petitioner feels that the sugarcane area/quantity, which was allotted or to be allotted to it is less, then the remedy lies of statutory appeal under Section 15(4) of the Sugarcane (Regulation of Supply & Purchase) Act, 1953 against the reservation order. In view of the discussion made in the foregoing paragraphs, detailed hereinbefore, no mandamus can be issued to direct the Central Government to revoke the power, which has been delegated to the State of Uttar Pradesh and to exercise the same itself and the first relief of the petitioner falls to the ground and is rejected accordingly and so far as other reliefs are concerned statutory alternate remedy is available to the petitioner for enhancing the sugarcane area or quantity, therefore, I am not inclined to entertain the writ petition. On the ground of alternate statutory remedy, the writ petition deserves to be dismissed outright at the admission stage. The writ petition is dismissed in limine. ( B.S.Verma, J. ) RCP 10 11 12