LETTERS PATENT APPEAL No.882 of 2005 Against judgment and order dated 28.2.2005, passed by a learned Single Judge of this Court in CWJC No.15586 of 2004. ******** 1. THE STATE OF BIHAR through the Secretary, Sugarcane Development Department, Government of Bihar, Patna 2. The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna 3. Assistant Cane Commissioner, Bihar, Patna …….Respondents -Appellants Versus 1. M/S VISHNU SUGAR MILLS LIMITED, Harakhua, PO Vishnu Sugar Mills, District Gopalganj through its General Manager, P R S Panicker …Petitioner-Respondent 2. M/s Sasamusa Sugar Works Limited, having its office and works at and PO Sasamusa, District Gopalganj through its Factory Manager Md. Rizwanullah….Respondent-Respondents with LPA No.874 of 2005 1. THE STATE OF BIHAR through the Secretary, Sugar Cane Development Department, Govt. of Bihar, Patna 2. The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna……..Respondents -Appellants Versus 1. M/S SASAMUSA SUGAR WORKS LTD. having its office and factory at Sasamusa, PS Kuchaikot, District Gopalganj, through K A Farooqui, Manager of the Factory 2. M/s Bharat Sugar Mills Limited, at PO & PS Sidhwalia, District Gopalganj, through its Executive Vice President B K Surekha ………Respondents-Respondents with LPA No.873 of 2005 1. THE STATE OF BIHAR through the Secretary, Sugar Cane Development Department, Govt. of Bihar, Patna 2. The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna……Respondents -Appellants Versus 1. M/S SASAMUSA SUGAR WORKS LTD. Having its office and factory at Sasamusa, PS Kuchaikot, District Gopalganj, through K A Farooqui, Manager of the Factory……Petitioner-Respondent 2. . M/S VISHNU SUGAR MILLS LIMITED, harakhua, PO Vishnu Sugar Mills, District Gopalganj through its General Manager …..Respondent-Respondents with LPA No.875 of 2005 1. THE STATE OF BIHAR through the Secretary, Sugar Cane Development Department, Govt. of Bihar, Patna 2. The Cane Commissioner, Sugarcane Development Department, Government of Bihar, Patna ..Respondents - Appellants Versus 1. M/S SASAMUSA SUGAR WORKS LTD having its office and factory at Sasamusa, PS Kuchaikot, District Gopalganj, through K A Farooqui, Manager of the Factory …Petitioner-Respondent 2 2. M/S VISHNU SUGAR MILLS LIMITED, Harakhua, PO Vishnu Sugar Mills, District Gopalganj through its General Manager, P R S Panicker 3. M/s Bharat Sugar Mills Limited, at PO & PS Sidhwalia, District Gopalganj, through its Executive Vice President B K Surekha.. ……..Respondents -Respondents ********* For the Appellants : Mr. Purnendu Singh, Advocate For the Respondents : Mr. Y V Giri, Senior Advocate M/s Vikas Ratan Bharti, Mrigender Singh, Advocates ******** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR.KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA S K Katriar, J. The State of Bihar has preferred these four appeals under clause 10 of the Letters Patent of the High Court of Judicature at Patna, and are aggrieved by a common judgment dated 28.2.2005, passed by a learned single Judge of this Court, whereby the following writ petitions have been disposed of with certain directions to the Cane Commissioner, Bihar, Patna :- (i) CWJC No.15586 of 2004, giving rise to LPA No.882 of 2005 (ii) CWJC No.174 of 2005, giving rise to LPA No.874 of 2005 (iii)CWJC No.16311 of 2004, giving rise to LPA No.873 of 2005; and (iv) CWJC No.343 of 2005, giving rise to LPA No.875 of 2005 1.1 The learned single Judge has issued the following directions:- “On hearing counsel for the parties and the State Counsel and the Cane Commissioner, the Court deems it fit and proper to issue the following directions to be strictly adhered to in future for making reservations under Section 31 of the Act : (1) The Cane Commissioner must follow the statutory calendar strictly and must ask for and receive 3 the reservation proposals as provided under the statutory calendar. (2) After holding meeting (s) and after hearing the parties on their respective proposals and after consulting the Zonal Development Council, the Cane Commissioner must pass a speaking order of reservation taking into account the proposals of the respective sugar factories, his reasons for accepting or not accepting or partly accepting the proposals of any of the sugar factories sand finally his direction regarding reservation of villages in favour of different sugar factories. (3) Reservation of traditional villages in favour of different sugar factories must be made at least for five years. In case during the period of five years, any of the sugar factories is closed down, it will be open to the Cane Commissioner to pass a supplementary order for one crushing season of for the remaining period of the reservation dealing with reallocation of the traditional villages of the closed sugar factory(ies) to other sugar factories after observing the requirements of notice and hearing as provided under Section 31 of the Act. (4) The reservation of villages other than the traditional villages shall be for a period of not less than three years. The provision for making a supplementary order in case the sugar factory closes down shall apply also in the case of these villages. (5) The order must be sent to Gulzarbagh Printing Press will in advance so that it is duly published at least a fortnight before the start of the crushing operations.” 2. The facts are substantially common and may be briefly indicated. The four writ petitioners are Companies incorporated under the Companies Act and are, inter alia, engaged in the manufacture and sale of sugar. Vishnu Sugar Mills preferred CWJC No. 15586 of 2004, challenging the communication dated 30.9.2004, enclosing thereto a copy of the order of the Cane Commissioner of 28.9.2004, whereby 23 villages ( a list of which is appended to the order), of East Champaran district, were reserved in favour of Sasamusa Sugar Works Limited (for the crushing season 2004-05). 4 2.1 According to the petitioner, for the purpose of reservation of villages in terms of Section 31 of the Bihar Sugarcane (Regulation of Supply and Purchase) Act 1981 (hereinafter referred to as `the Act’), a meeting was convened by the Cane Commissioner on 24.9.2004, in which the representatives of the concerned sugar mills took part and in which the proposals submitted by the different sugar mills for reservation of villages in their favour were considered. It was alleged by the petitioner that neither in the proposal made by Sasamusa Sugar, nor in course of the meeting held on 24.9.2004, there was any suggestion to reserve 23 villages in question in favour of Sasamusa Sugar. It was further the case of the petitioner that after the meeting was over, a supplementary proposal (for which there is no provision in the Act) was submitted on behalf of Sasamusa Sugar for reservation of 36 additional villages of East Champaran in their favour. On the supplementary proposal, the Cane Commissioner asked for a report from the Cane Officer, Motihari. From the record, it appears that the report was submitted on 29.9.2004, but the impugned order showed that the reservation of the disputed 23 villages was made in favour of Sasamusa Sugar a day earlier, without waiting for the report from the Cane Officer though the order purports to refer to the report by the Cane Officer. 2.2 It was a brief crushing season which was coming to a close, and may have rendered the writ petition infructuous. However, the learned single Judge dealt with the matter in detail because larger issues came up for consideration and had to be spelt out clearly. The 5 learned single Judge noted the grievances of the writ petitioners that the Cane Commissioner was not considering the materials placed before him by different sugar factories to reserve the cane growing areas in favour of one or the other. Secondly, the reservation of cane growing areas was being done on yearly basis and that too not punctually, the calendar as per the prescribed procedure was not followed, as a result of which sugar factories as well as the cane growers learnt of allotment of the areas belatedly, causing problems to all concerned. It was also contended on behalf of the petitioners that the notifications allotting cane growing areas were not being published in the Official Gazette inspite of the statutory requirement, causing great inconvenience to all concerned. In that view of the matter, the learned single Judge proceeded to record the requisite directions which in substance and effect enforce the statutory provisions of law. 3. Learned counsel for the appellants raises a grievance that the directions amount to interference with the discretion vested in the Cane Commissioner and impermissible in law. He relies on the judgment of the Supreme Court in U.P.State Road Transport Corporation vs. Mohd. Ismail [AIR 1991 SC 1099] (Para 11). He also submits that the learned writ court has erred in issuing the direction that allocation of tradtional cane-growing areas would be for five years, and non-traditional areas would be for three years. 4. Learned counsel for the writ petitioners (respondents herein) has supported the impugned order. 6 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. A perusal of the materials on record including the order of the learned single Judge creates very poor impression about the working in the office of the Cane Commissioner, shows not only ignorance of the provisions of laws governing the issues, but also arbitrariness. In fact, in view of the nature of the order of the learned single Judge, we do not see any justification for these appeals at the instance of the Cane Commissioner. We shall deal with the directions one by one. 6. Before we proceed further, we would like to notice that the learned single Judge observed that the crushing season for the period 2004-05 was very brief and was coming to an end. However, he chose to consider the larger issues and clarified the law governing exercise of powers by the Cane Commissioner. Law is well settled that issues involving fixed tenures, for example grant of yearly licence, should in public interest be examined and decided by the court even if no relief can be granted to the petitioner, provided the issues are likely to recur. One of us (S K Katriar,J.) had the occasion to recapitulate the law in the judgment disposing of Sri Madhuban Virat Pashu Mela Akorhi vs. State of Bihar 2002(1) PLJR 264. The law in this behalf has been enunciated in the Constitutional Law of India by H.M.Seervai (4th Edition), Volume 2, the relevant portion of which occurring at page 1117 is set out hereinbelow for the facility of quick reference: “Petitions challenging the grant of Govt. contracts for 1 year, and the grant of licences and permits for one year or less are not dismissed as infructuous if they are heard after the period of one year. If 7 important questions of law or principle are involved, those questions are decided even if no relief can be granted to the petitioner.3 This is all the more so in public interest litigation. As a standard text book puts in : “But in exceptional circumstances, the Courts taking a large view of public interest, have ordered the performance of a public duty when the time for performance had expired. In such cases, they have either treated the statutory time-limit as a merely directory provision 4 or regarded the application for mandamus as an appropriate occasion for making a public declaration of legal rights. 5 & 6 Chandrachud C.J. observed that the Union Govt. had promulgated about 200 Ordinances between 1960 and 1980 of which 19 had been passed in 1980. Having regard to the frequent use by the executive of a power to make a law of limited duration, it is submitted that for a court to allow a large section of our people’s rights to be affected by what may turn out to be illegal executive action without redress can only be described as an unjustified abdication of judicial power, and all the more so because the Ordinance before the Court affected the liberty of the subject under a law of preventive detention.” ---------------------------------------------------------------- 3. [See for example, Ghaio Mal & Sons v. Delhi (1959) SCR 1424, (59) A.SC.65:Sudhir Kumar v. S.T.A. (63) A.Ass. 1; Rashbihari v. Orissa (69) A.Sc.1081, (1969) c SCR 374.] 4. (R.v. Norwich (Mayor) (1830) 1 B & Ad. 310; Rochester (Mayor) v R. (1858) E.B. & E. 1024; R.v. Hanley Revising Barrister (1912) 3 K.B. 518; R. v. Woodbury Licencing JJ. Ex p. Rouse (1960) 1 W.L.R. 461 (Mandamus to convene licensing meeting refused after expiry of a statutory date, justices had refused licence after inadvertently fixing the date for holding the meeting too late) 5&6. [(Vice Restaurant Inc. v Montreal (1959) SCR 58.(Canada) (See de Smith, Judicial Review of Administrative Action, 4th ed. P.560.)] “8. The following exposition of law occurs at page 1678 of the same volume. “It is submitted that a writ petition should not be dismissed as futile in respect of an order passed from time to time (which has expired when the petition is heard) when the power to pass that kind of order is challenged. Thus, if the Police Commr. bans a procession each year during a particular religious festival, and the persons aggrieved dispute his right in law to do so, by a petition promptly filed, the court ought to determine the right on the merits, even 8 if the order imposing the ban has expired when the petition is heard, for to dismiss the petition would be to deprive citizens of their fundamental rights under circumstances where they would have no other remedy at all 94 and to give a charter to a public authority to violate fundamental rights with impunity. In Ghaio Mal & Sons v. Delhi 95 the Sup. Ct. held that in view of the undisputed practice that a licence once granted by the Chief Commr. Was almost automatically renewed by the Collector from year to year, it could not be said that the writ application and the appeal had become infructuous on the expiry of the period of the licence in dispute, and it was only proper that the appeal should be heard on its merits. Again in Sudhir Kumar v S.T.A. 96 where the validity of a temporary permit was challenged, the court went into the question even though on the day when the petition was heard the permit had expired and no mandamus could be granted. But the court held that the temporary permit granted in the case was not legal. It is submitted that the course adopted by the Sup. Ct. and the High Court was correct. However, it has been held that a petition challenging an order of reversion is not futile because the petitioner retired before the petition was heard, for if the reversion order was quashed, he would be entitled to relief in respect of arrears of pay and pension as though he had never been reverted.” 97 --------------------------------------------------------------------------------------------------- 94. (No action for damages would lie against the Police Commr., nor would it be the desire of the Court that people should defy the order and invite a criminal prosecution in order to dispute the power of the Police Commr.) 95. [(1959) SCR 1424 (59) A.SC. 65; Ratilal Bhogilal v Gujarat (1956) Guj. 571, (66) A. Guj.244, 248 (Where an order suspending and cancelling a licence for arms was without jurisdiction and void a writ quashing the order would not be infructuous because “Firstly, there is ignominy of the charge that the petitioner is guilty of something which is prejudicial to the security of public peace, and secondly, his chances of procuring a fresh licence are greatly prejudiced if the cancellation of his licence is allowed to remain”) 96. [(63) A. ASS. 1, Ratilal Bhogilal v. Gujarat (1956) Guj. 571] 97. [Ram Chandra vs. West Bengal (64) A. Cal. 265] 7. We are, therefore, of the view that the learned single Judge was perfectly justified in dealing with the issues including those of larger public interest governing the powers, duties and functions of the Cane Commissioner, the interest of the cane growers, as well as the sugar factories. Even though the crushing season may be over, the Court 9 would in appropriate cases be entitled to deal with the matter and expound the law in larger public interest if the issues are likely to recur in the following years. The present batch of cases is undoubtedly one such. 8. We shall now deal with the directions of the learned single Judge one by one. The issues are governed by the Act, read with the Bihar Sugarcane (Regulation of Supply and Purchase) Rules 1978 (hereinafter referred to as `the Rules’). The first direction is that – “(1) The Cane Commissioner must follow the statutory calendar strictly and must ask for and receive the reservation proposals as provided under the statutory calendar.” Rule 25 provides as follows:- “25. Reservation of areas to factories and procedure for purchasing cane grown in such areas.- The order of the Cane Commissioner, reserving any area to any extent or internal factory shall normally be issued on or before the 31st day of July in each crushing year for which the area is proposed to be reserved. Provided that, in exceptional circumstances to be recorded in writing such order may be issued any time between the 31st July and the 30th September next following. (2) The occupier of an external factory shall make an application, in Form XI, for an area within the State to be reserved for the purposes of his factory and shall give an undertaking, in Form XII, to purchase cane solely through the co-operative society specified in the undertaking. (3) The offer for supply of cane envisaged in sub-section (3) of Section 32 shall be made, in Form XIII, on or before the 31st day of August in the relevant crushing year or within fifteen days of the date of the Cane Commissioner’s order of reservation whichever is later. The offer made by a cane grower shall be deemed to be an offer made by the co-operative society concerned if such cane grower becomes a member of co-operative society any time before the date of agreement specified in suh- rule (4), or he is required to supply cane through a co- operative society in pursuance of an order of the cane 10 commissioner referred to in clause (iii) of the provision of sub-section (4) of section 32. Acknowledgement of receipt of any offer made under this rule shall be made by the occupier or manager of the factory, in Form XIII-A immediately after receipt of such offer. (4) The agreement for purchase of cane by occupier of any factory, envisaged in sub-section (4) of section 32, shall be entered into in Form XIV in respect of supplies by cane growers and in Form XV in respect of supplies by co-operative societies. Such agreement shall be entered into or before the 31st day of October in every crushing year or within six weeks after the date of Cane Commissioner’s order of reservation whichever is later. (5) Any dispute arising out of the agreement signed under sub-rule (4) shall be referred to the Cane Officer concerned by either of the parties, who after giving both the parties a reasonable opportunity of being heard, shall give his decision. (6) An appeal against the decision of the Cane Officer shall lie with the Collector within fifteen days and the decision of the Collector shall be final. (7) The order of the Cane Commissioner for purchaser of cane grown in any village in a reserved area solely through the co-operative society of the village shall be issued on or before the 15th day of September in the crushing year or within three weeks of Cane Commissioner’s order for the reservation, whichever is later. (8) The Cane Commissioner shall issue the order referred to in sub-rule (5) after consulting the occupier of the factory and the co-operative society concerned and taking into consideration any objection that may be raised by any of them. (9) Copies of every order of reservation and every order referred to in sub-rule (5) shall be sent to the occupier of the factory and the co-operative society concerned.” “Crushing year” is defined in section 2(i) of the Act, which means the year commencing on the 1st day of July in any year and ending on the 30th June in the year next following. It is common knowledge that sugarcane is actually crushed in a sugar factory from November to 11 March with some variations. It is, therefore, imperative that the time table indicated in rule 25 must be followed, otherwise it will not be possible for the cane growers to supply sugarcane, and equally would not be possible for the factory to purchase sugarcane. It is evident from a perusal of the order of the learned writ court that the learned Cane Commissioner does not very often follow the calendar causing great hardships to the cane growers and the sugar factories. The Supreme Court had the occasion to deal with the question and the importance of following the prescribed procedure in the case of Ranjit Thakur vs. Union of India [AIR 1987 SC 2386], the relevant portion of which is reproduced hereinbelow for the facility of quick reference:- “ The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the Court-Martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the Statute. The oft quoted words of Frankfurter, J. in Vitarelli v Seaton, 359 US 535 are again worth recalling : “….if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed …………. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.” “The history of liberty” said the same learned Judge “has largely been the history of observance of procedural safeguards.” (1942) 318 US 332. 12 We, therefore, fail to understand as to how and why the Cane Commissioner can have a grievance with this direction which is only to ensure that the time table as per rule 25 must be followed. The grievance is rejected. 9. The second direction issued by the learned single Judge is as follows:- “(2) After holding meeting(s) and after hearing the parties on their respective proposals and after consulting the Zonal Development Council, the Cane Commissioner must pass a speaking order of reservation taking into account the proposals of the respective sugar factories, his reasons for accepting or not accepting or partly accepting the proposals of any of the sugar factories and finally his direction regarding reservation of villages in favour of different sugar factories.” Section 31 of the Act reads as follows :- “31. Declaration of reserved area.- (1) The Cane Commissioner may, having regard to the crushing capacity of the factory, the availability of sugarcane in such area and the need for production of sugar and after consulting the council concerned and the occupier of the factory or the occupiers of other affected factories and after considering any objection that may be raised, issue an order, by notification in the official gazette, declaring any area to be the reserved area for the purpose of supply of cane to the factory during a particular crushing year or years and may likewise cancel any such order or alter the extent of the area so reserved: Provided that, in the case of a factory situated outside the State of Bihar, such declaration may be made only on receipt, by the Cane Commissioner, of an application in the prescribed form from the occupier