WP No. 1289/11 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 1289 OF 2011 Sangmeshwar Sugar Limited (Gut No. 151) Sonegaon (Yamainagar) Taluka Jamkhed, District Ahmednagar Through its Chairman Suresh s/o. Mahadev Bhosale, Age 58 years, Occu. Agri. & Business, R/o. Venkatesh Traders, Beed Road, Jamkhed, Taluka Jamkhed, District Ahmednagar. ....Petitioner. Versus 1. The State of Maharashtra Through Principal Secretary Co-operation and Textile Department, Mantralaya, Maharashtra State, Mumbai. 2. The Commissioner of Sugar, Maharashtra State, Sahakar Sankul, Shivajinagar, Pune. 3. Shri. Rajendra Chavan, The Commissioner of Sugar, Maharashtra State, Sahakar Sankul, Shivajinagar, Pune. 4. The Union of India, Through Ministry of Industries, Government of India, New Delhi. 5. The Ministry of Consumer Affairs, Food and Public Distribution, Government of India, Krishi Bhavan, New Delhi. WP No. 1289/11 2 6. The Additional Surveyor General,/ Director Office of additional Surveyor General,/ Maharashtra and Goa, G.D.C. Survey of India Phule Nagar, Alandi Road, Pune. 7. Pearl Sugar Limited, Chinchpur, Tq. Paranda, District Osmanabad. Through its Director, Jaisingh Shivajirao Pandit, Age 40 years, Occu. Agri., R/o. C/o. Rajgad Subhash Road, Beed, District Beed. ....Respondents. Mr. N.L. Jadhav, Advocate for petitioner. Mr. S.K. Kadam, A.G.P. for respondent Nos. 1 to 3. Mr. Alok Sharma, A.S.G. for respondent Nos. 4 to 6. Mr. R.N. Dhorde, Advocate for respondent No. 7. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. DATED : 14th December, 2011. JUDGMENT : [ PER T. V. NALAWADE, J. ] 1. Rule. Rule made returnable forthwith. Heard for final disposal by consent of parties. 2. The writ petition is filed under Article 226 of Constitution of India to challenge the orders made by Sugar Commissioner in matters of grant of Aerial Distance Certificate for WP No. 1289/11 3 starting private sugar factories. Copies of relevant record are produced by both the sides. Advocates of both the sides are heard. 3. The petitioner is a Sugar Factory registered under the Companies Act, 1956. For starting another sugar factory at Sonegaon, Yamainagar, Tahsil Jamkhed, District Ahmednagar, Maharashtra, the petitioner obtained Aerial Distance Certificate from Survey Office of Government of India on 10.6.2008 and on 21.6.2008 it applied for getting Aerial Distance Certificate from Commissioner of Sugar, Pune. As per Sugarcane Control Order, 1966 the aerial distance between two sugar factories is prescribed as 15 k.m. On 12.7.2008 respondent No. 2 Sugar Commissioner issued proclamation in “Daily Lokmat” newspaper to call for the objections. It is contended that no objections were filed by anybody, but the matter remained pending till the year 2010. One P.I.L. [Public Interest Litigation] No. 20/2006 was filed in Bombay High Court, Principal Seat and the High Court had granted stay to granting of permission by the State Government for new sugar factories in the State of Maharashtra. Subsequently, it was made clear that stay was not applicable to the matters in which the applications were made for starting private sugar factories. In P.I.L. No. 20/2006 three Civil WP No. 1289/11 4 Applications were filed (Civil Application Nos. 128/2009, 130/2009 and 137/2009) for giving direction to Sugar Commissioner to process and consider the applications made by the applicants for granting Aerial Distance Certificate to start private sugar factories. Order was made to issue such direction as similar order was made in Civil Application No. 81/2007 on 27.2.2008. The three Civil Applications came to be allowed on 21.1.2010. Writ Petition No. 3222/2010 was also pending at the Principal Seat and it was in respect of starting of private sugar factories. The previous P.I.L. Was in respect of co-operative sugar factories. This petition (WP No. 3222/2010) came to be disposed of on 16.4.2010 in following terms:- "3. In our opinion, the direction sought by the Petitioner is a benign relief which the Authority is obliged to observe while deciding the concerned application for Aerial Distance Certificate under statutory power under Sugarcane (Control) Order. 4. Notably, learned A.G.P. on behalf of the Respondents, in all fairness, submits that the Authorities are bound to follow the regime specified in Sugarcane (Control) Order and cannot give preference to some other Applicant not in order of chronology. In the circumstances, Petition is made absolute in terms of prayer WP No. 1289/11 5 clause (A)." 4. After the aforesaid order made in Writ Petition No. 3222/2010 the Sugar Commissioner started processing the applications received by him. It is the case of Sugar Commissioner that by letter dated 20.4.2010 a direction was given to the petitioner and similar applicants (applications of 2008 and 2009) to produce fresh Aerial Distance Certificate issued by Survey Department of Government of India for updating the information. It is the case of the petitioner that this letter was not received by it, but it received letter dated 24.4.2010, in which it was informed that Serial No. 35 was given to the petitioner in priority list prepared on the basis of directions given by this Court in Writ Petition No. 3222/2010 and it was further informed that the Sugar Commissioner had called meeting of all the applicants on 30.4.2010. It is the case of the petitioner that on 30.4.2010, it was first time informed by the Sugar Commissioner that fresh Aerial Distance Certificate needs to be obtained from Survey Department of Government of India. It is contended that such application was made by the petitioner and the certificate was issued by Survey Department of Government of India on 31.5.2010. It is contended that the certificate was submitted before the Sugar Commissioner on 2.6.2010. It is the case of WP No. 1289/11 6 respondent No. 2 – Sugar Commissioner that in the letter dated 20.4.2010 time of four weeks was given for production of such new certificate and it was made clear that in case of default, the application would be filed. It is the case of the respondents that on 21.5.2010 the Sugar Commissioner passed order and filed the application of petitioner as no recent certificate issued by Survey Department of Government of India was produced by the petitioner. It is also contended that in the past petitioner was at Serial No. 35 in priority list prepared by respondent No. 2 and after filing of the fresh certificate by the petitioner,the petitioner came to be placed at Serial No. 96. 5. The respondent No. 7 made application to Sugar Commissioner on 19.5.2010 for certificate in respect of area covered by proposal of petitioner and it produced Aerial Distance Certificate issued by Survey Department of Government of India dated 8/15.2.2010. On 1.10.2010 public notice came to be issued by the Office of Sugar Commissioner to invite objections in respect of applications of petitioner and respondent No. 7. Objections were raised to the application of respondent No. 7 by the petitioner and one more sugar factory viz. Jai Shriram Sugar and Agro Product Limited, Halgaon, Tahsil Jamkhed, District Ahmedndagar. Objection was raised to the application of present WP No. 1289/11 7 petitioner by present respondent No. 7. It was submitted for respondent, Sugar Commissioner that in view of the observations made by this Court [ Coram : P. V. HARDAS & N.D. DESHPANDE, JJ.] in Writ Petition No. 5240/2010 the applications of petitioner and respondents were considered together as they were in respect of the same region. Orders came to be passed on 21.1.2011 on both the applications. The application of respondent No. 7 came to be allowed and the application of petitioner came to be rejected. Reasoning is given that the application of respondent No. 7 was filed prior in time, it was at Serial No. 93 and the application of the petitioner was filed subsequently and it was at Serial No. 96. It is observed that petitioner should obtain new certificate from Survey Office of Government of India as the application of respondent No. 7 is allowed. 6. It was submitted for petitioner that its application was filed on 21.6.2008, the objections were called on 12.7.2008 and as no objections were received in respect of the application of petitioner, the certificate could have been granted by Sugar Commissioner in the year 2008 itself. It was submitted that only due to the aforesaid stay order, the certificate was not issued. It was submitted that as per the directions given by this Court WP No. 1289/11 8 [Principal Seat in Writ Petition No. 3222/2010] the applications were arranged in chronological order and the Sugar Commissioner ought not to have kept the application of 2008 pending after receipt of aforesaid order of this Court [made in Writ Petition No. 3222/2010]. It was also submitted that there was no reason for the petitioner to know that there was respondent No. 7, making claim in respect of the same region and it came to know first time about such claim when it came across the public notice published by respondent No. 2 on 1.10.2010. It was also submitted that there was no uniformity adopted by the Sugar Commissioner in fixing the time in respect of production of fresh Aerial Distance Certificates issued by Survey Department of Government of India and the actions of Sugar Commissioner are not reasonable. It was submitted that the actions were malafied and there was intention to deprive the petitioner from its genuine claim. It was also submitted that in any case, the Sugar Commissioner could not have changed the priority number given to the petitioner. 7. It was submitted for respondent Nos. 2 and 7 that similar directions were given to other applicants also. It was submitted that if at all, there was the grievance of the petitioner in respect of such direction, the petitioner ought to have challenge the correspondence made with it on 20.4.2010 and also WP No. 1289/11 9 the order made by Sugar Commissioner on 21.5.2010. It was submitted that as the previous application was filed on 21.5.2010 due to non compliance of directions given by the Sugar Commissioner, after receipt of the new certificate, new Serial No. viz. 96 was given to the application of the petitioner. 8. This Court has gone through the record and various orders made by this Court and by the Principal Seat. This Court has also gone through the reported cases cited for both the sides. 9. The order made by Principal Seat of this High Court in Writ Petition No. 3222/2010 dated 16.4.2010, which is already quoted, shows that a specific direction was given by the Principal Seat that the applications received for issuance of Aerial Distance Certificate were to be decided strictly in accordance with the chronological order in which the applications were received and without breaking the chronological order. It was further observed that the authority was bound to observe such procedure while deciding the concern applications. In affidavit in reply filed for respondent No. 2, following contention is made :- "I say and submit that, as per the orders of Hon'ble High Court, in Civil Application No. 128/2009, 130/2009, 137/2009 the aerial distance certificates were issued to some WP No. 1289/11 10 applicants. It was necessary to know the aerial distance of these new sugar factories from the proposed sugar factories of pending application. Hence, it was necessary for applicants to submit fresh aerial distances certificate after considering the aerial distance from these new sugar factories. Hence, the Commissioner of Sugar directed all applicants who has submitted application in the year 2007-08 and 2008-09 to submit fresh aerial distance certificate for processing the pending applications." 10. The common order dated 21.1.2010 made in aforesaid three Civil Applications shows that in these three civil applications and in one Civil Application No. 81/2007 directions were given to Sugar Commissioner to consider the applications. As there was stay granted in P.I.L.No. 20/2006 by order dated 12.7.2006, the authority was prevented from giving permission for new sugar factories in the State of Maharashtra and this stay continued till 21.1.2010. It can be said that there was the probability that the authority had issued the permission only to applicant of Civil Application No. 81/2007. From the record it is not difficult to infer that only after receipt of order dated 21.1.2010 the applications of three applicants from aforesaid three Civil Applications could have been processed by the authority, Sugar Commissioner. The process involves public notice and WP No. 1289/11 11 consideration of objections. The application of the petitioner was pending since 2008 and even public notice was issued in respect of its application in the year 2008. In view of these circumstances, it is not possible to believe that due to the grant of permission by the Principal Seat of this High Court in aforesaid four cases, it had become necessary for the Sugar Commissioner to issue a direction to petitioner for production of fresh Aerial Distance Certificate issued by the Survey Department of Government of India. From the office record itself the Sugar Commissioner could have ascertained as to whether certificate was issued by him in respect of the region where the petitioner wanted to start sugar factory. In any case, in view of the directions given by the Principal Seat in Writ Petition No. 3222/2010, it was not open for the Sugar Commissioner to change the chronological order, priority order, fixed already. 11. With the affidavit filed by way of rejoinder by the petitioner, some record is produced. There is a copy of letter given to Asmita Infra Developers Private Limited by Sugar Commissioner dated 22.6.2011 In this letter time of two months was given to the said applicant in that case for production of fresh certificate. Submissions were made for respondents that it was open to the petitioner to take objection to such procedure and WP No. 1289/11 12 challenge the directions given by the Sugar Commissioner. A copy of judgment delivered by this Court in Writ Petition No. 5240/2010 is produced in this regard. This proceeding was filed by Devrajan Laxman Sugars Limited, Tahsil Udgir, District Latur. The application of this applicant was given Serial No. 41 in the aforesaid priority list. This applicant had also contended that letter dated 20.6.2010 was not received and it was represented before the Sugar Commissioner that other claimant was influential person and the other claimant was likely to get orders due to political pressure. This applicant did not attend the meeting dated 30.4.2010. In that case, the other claimant had submitted application for issuance of Aerial Distance Certificate on 9.12.2009, later in time, and in that case also the certificate was issued in favour of respondent No. 7 of that case. In that matter, this Court referred to the aforesaid order made in Writ petition No. 3222/2010 on 16.4.2010. This Court considered the facts of the case and held that the Sugar Commissioner was not justified in giving preferential treatment to the application of respondent No. 7 of that proceeding. It is observed that if Sugar Commissioner wanted to consider the application of respondent No. 7, in that case also the Sugar Commissioner could have considered the application of the petitioner, which was pending and the petitioner could have been asked to remove deficiencies or WP No. 1289/11 13 shortcomings, if any, from his application. A direction was given to decide the applications atleast in order of chronology, in which they were received in the Office of Sugar Commissioner or to decide the applications of the petitioner and respondent No. 7 of that case in accordance with law preferably together. 12. It was submitted for respondent No. 2 that the direction given in Writ Petition No. 5240/2010 is not in consonance with the directions given by the Principal Seat in Writ Petition No. 3222/2010 as the Principal Seat had given direction to decide the applications only after arranging them in chronological order and decide the applications in the same order. This submission cannot help respondents in justifying the action of the Sugar Commissioner in the present case. Admittedly, the petitioner from the present case, obtained fresh Aerial Distance Certificate and it came to be produced before the Sugar Commissioner on 2.6.2010. Applications given by petitioner to Sugar Commissioner on 2.6.2010, 4.10.2010 and the objections filed to the application given by respondent No. 7 show that subsequent record including the fresh certificates were produced in the application which was filed in the year 2008.There is record to show that the petitioner had attended the meeting dated 30.4.2010 and the petitioner is admitting the same. In view of this circumstance and also similar WP No. 1289/11 14 contentions which were made in Writ petition No. 5240/2010 by the petitioner of that proceeding, there is no reason to disbelieve the petitioner. In view of these circumstances, this Court holds that there was no need for the petitioner to challenge the direction given to him in the month of April 2010 to produce fresh Aerial Distance Certificate issued by Survey Department of Government of India. This Court has no hesitation to observe that in the past there was no cause of action to the petitioner and so the relief cannot be refused by accepting the contention of other side that the petitioner ought to have challenge the directions given in April 2010 or the order made in May 2010. 13. For respondent No. 7 following cases were cited :- (i) (2010) 8 SCC 313 [Pernod Ricard India Private Ltd. Vs. Commissioner of Customs, ICD Tughlakabad], (ii) (2011) 1 SCC 694 [Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors.], (iii) (2009) 8 SCC 483 [Bihar School Examination Board Vs. Suresh Prasad Sinha], (iv) (2009) 6 SCC 379 [Vishnu Dutt WP No. 1289/11 15 Sharma Vs. Manju Sharma]. In view of the observations made already, this Court holds that these cases are of no help to respondent No. 7. 14. For petitioner one case reported as AIR (SC) 1999 3558 [Chandra Kishor Jha Vs. Mahavir Prasad & Ors] was cited. The Apex Court has observed that, "It is well settled statutory principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner." It was submitted that with reference to Sugar Control Order direction was given by High Court in Writ Petition No. 3222/2010 and so the direction ought to have been followed in letter and spirit. This proposition cannot be disputed and sufficient discussion is made in this regard. One case reported as 1987 AIR (SC) 2195 [Raj Kumar Dey Vs. Tarapada Dey] was cited. In this case, it is observed by the Apex Court that law does not compel a man to do that which he cannot possibly perform. It was submitted that the direction given by the Sugar Commissioner was such that the petitioner could not comply it and only after issuance of the certificate by Survey Department of Government of India, the petitioner could have produced it before the Sugar Commissioner. It was submitted that the application to WP No. 1289/11 16 Survey Department for getting such certificate was made well in time fixed by the Commissioner, but the petitioner could not get the certificate immediately and so it cannot be made to suffer. There is force in this submission made for the petitioner. 15. For respondent No. 7 one case reported (2010) 8 SCC 313 [Pernod Ricard India Private Ltd. Vs. Commissioner of Customs, ICD Tughlakabad], was cited. It is on the principal of estoppal, acquiescence and waiver and it is cited in support of the contention that the petitioner ought to have challenge the directions given to him in April 2010 and further, the order made in 2010. Sufficient discussion in this regard is also made. This case also cannot help the respondent No. 7 in view of the peculiar facts of the case. 16. In view of the discussion made above, this Court holds that the actions of the Sugar Commissioner which are challenged in the proceeding were unreasonable and the orders under challenge cannot sustain in law. In the result, the petition is allowed in following terms. O R D E R 1) The petition is allowed. 2) The order dated 21-1-2011 rejecting the application of WP No. 1289/11 17 the petitioner for issuance of Aerial Distance Certificate by respondent No.2 bearing No. Commissioner of Sugar/desk-15/Ha pra/63/1803/2011 is hereby quashed and set aside. 3) The order dated 21-1-2011 issued by the respondent No.2 allowing the application of respondent No.7 for issuance of Aerial Distance Certificate bearing No. Commissioner of Sugar/desk-15/Ha pra/1798 Jai Tulajabhavani/58/2011 is hereby quashed and set aside. 4) Respondent No.2 is hereby directed to process and decide afresh the applications of petitioner and respondent No.7 by presuming that the application of the petitioner is at Sr.No.35 and the application of respondent No.7 is at Sr.No.93 in the priority list prepared by respondent No.2. 5) Rule made absolute in aforesaid terms. 6) At this stage, the Advocate for respondent No.7 prays for stay of this order for a period of five weeks. For a period of five weeks from today the operation of this oder stands suspended. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/