JUDGMENT Rajiv Sharma, J.
1. Heard Mr. S.K. Srivastava and Mr. Sudip Kumar, learned Counsel for M/s Kumbhi Chini Mills, Mr. Rajesh Tewari, learned Counsel for M/s Bajaj Hindustan Limited, M/s. K.S. Pawar for Sahkari Ganna Vikas Samiti Ltd., Mr. Pushkar Baghel, learned Counsel for Cooperative Cane Development Union Limited and Mr. Rakesh Srivastava, Standing Counsel.
2. In writ petition No. 1340[MS] of 2008; M/s Kumbhi Chini Mill has inter-alia challenged the order dated 26th February, 2008 passed by the Appellate Authority rejecting their appeal. Further they have also challenged the cane reservation order dated 27th October, 2007 passed by the Cane Commissioner so far as it relates to reserving the Cane purchase Centers, namely, Parsehra, Sikandarabad and Kasimpur in favour of M/s Bajaj Hindustan Limited. In the second writ petition preferred by M/s Bajaj Hindustan Limited the same order dated 26.2.2008 has been challenged so far as it relates to rejection of appeal No. 128 of 2007 preferred by the petitioner against the reservation order dated 27.12.2007 assigning certain cane centers in favour of M/s Kumbhi Chini Mill.
3. Since in both the writ petitions the order dated 26.2.2008 passed by the Appellate Authority is under challenged, both the writ petitions are decided by a common judgment.
4. Undisputed facts are that the Cane Commissioner passed the reservation order dated 27.10.2007, assigning cane centers, namely, Parsehra, Sikandarabad and Kasimpur in favour of M/s. Bajaj Hindustan Ltd. by the Cane Commissioner under Section 15 (1) of the U.P. Sugarcane (Regulation of Supply & Purchase) Act, 1953 [hereinafter referred to as the ''Act' for the sake of brevity] read with Rule 22 of the U.P. Sugarcane (Regulation of Supply and Purchase) Rules, 1954 [hereinafter referred to as the ''Rules' for the sake of brevity] with Clause 6 (1) of U.P. Sugar (Control) Order, 1966 inter alia on the ground that the aforesaid three centers, the proposals sent by the respective co-operative societies were in favour of Kumbhi Chini Mill. Further, the distance from their unit is less as compared to Bajaj Hindustan Limited. It has also been urged that in the area which has been reserved by the Cane Commissioner, there are two big and three small Khandsari units and 97 power Kolhus on account of which most of the sugarcane is being utilized by them for crushing purpose. The drawl capacity of the mill for the last three years is 51.74%, 38.56% and 53.96%. The Cane Commissioner while passing the reservation and allocation order, has enhanced the drawl capacity from 53.96% to 82.09%, whereas in respect of Bajaj Hindustan Limited, the drawl capacity has been enhanced from 69% to 79.26%. Further, the requirement was determined at 144 lakh quintals of sugarcane against which only 115.20 lakh quintals were made available.
5. M/s. Bajaj Hindustan Limited has also filed an appeal alleging therein that the Cane Commissioner allocated the area on the basis of drawl capacity after enhancing the same from 66.26% to 79.26% and while doing so he has lost sight of the fact that there are 207 Kolhus and six Khandsari units and as such, 15.51% sugarcane is being utilized by these small units, whereas in the area of M/s. Khumbi Chini Mills sugarcane utilized is only 3.54% by such units. Further, twelve sugarcane centers, namely, Pipariya, Kaptan, Senpur, Waiwaha, Odhara, Bhupatpur, Vyaspur, Gargatia, Majigawan, Pardhan Road, Pardhan Rail and Mohammadi ''A' have been reserved/assigned to M/s. Khumbi Chini Mills although these Cane Purchase Centers in question were developed and being operated by the petitioner's mill since past several years. For these reasons, there is an acute shortage of sugarcane to the sugar unit in the present crushing season.
6. A perusal of the order passed by the appellate authority shows that a finding has been recorded to the effect that the orders passed under Section 12 (2) of the Act were not challenged and as such, it is not open for them in the appeal to challenge the estimate orders as they have attained its finality. For the crushing season 2007-08, the sugar which has been allotted to Khumbi Chini Mills is to the tune of 235.80 lakh quintals on the basis of 82.09% drawl capacity. Another finding is that the Cane Commissioner has taken into consideration the entire facts and circumstances and made available the requisite sugarcane and as such, it is not open for them to challenge the three cane centers, which have been reserved/assigned, namely, Parsehra, Sikandarabad and Kasimpur in favour of M/s. Bajaj Hindustan Limited. Similarly, a finding has been recorded in respect of twelve centres, which have been assigned to the M/s Kumbhi Sugar unit.
7. It is contended by the Counsel appearing for M/s Kumbhi Chini Mill that the petitioner mill had demanded the cane centres, namely, Parsehara, Sikandarabad and Kasimpur, being closer to the petitioner mill and having regard to the fact that the sugar unit is a new unit as such it would be assigned/reserved the cane centers which situate closer to the Mill. On the basis of the assessment of the trial cane crushing by the petitioner mill, the cane requirement of the petitioner mill was determined at 15.20 lac quintals [LQ] for the cane crushing year 2007-08, under Section 12 (2) of the Act although the actual cane requirement of the petitioner was 144 lac quintals taking into its capacity of 8000 TCD and 180 working days as per norms. The cane allotment made in favour of the petitioner mill was inadequate because in the cane reservation proposal, the petitioner mill had specifically pointed out that the cane centers, which were demanded in the said proposal were having only 52.69 drawl percentage in the previous year when these centers were assigned/reserved in favour of the respective sugar mill and thus on the basis of same drawl percentage for the current crushing season 2007-08 requirement of 144 lac quintals of the petitioner company would be satisfied from the total cane production of 255.58 lac quintals, but the Khumbhi Unit of the petitioner company was allotted only the area of 140.34 lac quintals of cane production. Further, the Cane Commissioner ought to have ensured that the area allocation to the petitioner mill is compact and contiguous rather than disjoined, so that the same would have been in the interest of both the mills, as well as cane-growers. As regard the filing of appeal by M/s. Bajaj Hindustan Limited was nothing but a counterblast to the appeal filed by M/s. Kumbhi Chini Mill.
8. During the course of arguments, Mr. Rajesh Tewari appearing for M/s Bajaj Hindustan Limited has vehemently argued that M/s. Khumbi Chini Mills has concealed material facts that Phardhan Rail and Phardhan Road centers have been allotted to the sister concern, namely, Guleria by means of the order dated 25.1.2008, but the said fact has neither been brought to the notice of the appellate authority nor in the instant writ petition. On account of the diversion of the aforesaid sugarcane centers, he submits that there was surplus sugarcane available to the factory and as such, twelve cane centers, which have been nourished and developed by them has wrongly been reserved/assigned by the Cane Commissioner and the same has been confirmed by the appellate authority. He further submits that in case these facts would have been brought to the notice of the appellate authority, then the appellate authority after taking into consideration the availability of the sugarcane from these centers, the order passed by the appellate authority may be different.
9. The idea of the Act and Rules framed there under as well as the orders issued is to ensure the maintenance of reasonable supply of sugarcane required by the Sugar Factories from the sugarcane growers and in turn to ensure a fair return to the cane growers. The competitive interest of the sugarcane growers and sugarcane manufacturers have to be protected. At the same time it is also obligatory on the part of the authorities to watch inter se interest of sugar factories in the area.
10. For achieving the said purpose chapter 3 of the Act provides for determination of estimated quantity of sugarcane, the procedure to be adopted for reservation of the cane area and regulate the purchase and supply of the cane in the reserved and assigned areas.
11. In the instant case petitioner has established a new sugar factory, namely, Kumbi Chini Mills at village Kumbhi, Tehsil Gola Gokarannath, District Lakhimpur Kheri and it was obligatory for the Cane Commissioner to re-allocate/re-reserve by a balancing order, the reserved/assigned areas of various sugar factories of the previous years so as to provide sugarcane to the new sugar unit and to balance in a reasonable way competitive claims of all the sugar factories operating in the area. On account of re-zoning of the areas, it was necessary for the Cane Commissioner to have passed an order distributing the loss of cane areas amongst the competitive sugar factory in an equitable and fair manner so that the loss caused to the sugar factories, because of sugarcane having provided to the newly established sugar factory is equally distributed and equally shared by all the sugar factories. In such circumstances, if the Cane Commissioner, having regard to the requirements of newly established sugar factory, has withdrawn/assigned area of M/s. Bajaj Hindustan Limited and assigned to M/s. Kumbhi Chini Mills and simultaneously compassionate the M/s. Bajaj Hindustan Limited by assignment of Cane purchase areas of other sugar factories so as to strike at balance, it cannot be said that any illegality or infirmity has been committed by the Cane Commissioner.
12. As far as the issue of reduction of sugarcane available to M/s. Bajaj Hindustan Limited on account of subsequent orders of modifications/cancellations etc. having been passed by the Cane Commissioner or by the State Government is concerned, it is always open to M/s. Bajaj Hindustan Limited to approach the Cane Commissioner for recouping the loss which has been so caused as held in Govind Nagar Sugar Limited v. State of U.P. 2000 (1) AWC 65.
13. As regard the concealment of fact as alleged by M/s Bajaj Hindustan Limited regarding allocation of cane purchase centers, namely, Phardhan Rail and Phardhan Road centers have been to the sister concern, i.e., Guleria Sugar Unit by the order dated 25.1.2008, it is a fresh cause of action and further there is no concealment of fact as for these cane centers consent has been given by the petitioner's unit on the basis of which the aforesaid centers were transferred. Moreover, a finding of fact has been recorded by the appellate authority that in case, if any of the centers is being transferred or allocated to any other unit, then there would be no shortfall of sugarcane in respect of either of the unit.
14. It would be relevant to add that Hon'ble Apex Court in several decisions has held in explicit words that there should be judicial restraint while interfering with the finding of facts. The duty of the court is (a) to confine itself to the question of legality; (b) to decide whether the decision-making authority exceeded its powers; (c) committed an error of law; (d) committed breach of the rules of natural justice; and (e) reached a decision which no reasonable tribunal would have reached; or (f) abused its powers. In both the writ petitions no such foundation has been laid by the petitioners.
15. The petitioners of both the writ petitions have failed to show any good ground to warrant interference by the Court in the finding of fact recorded by the Appellate Authority.
16. In view of the above discussions, the writ petitions fail and are hereby dismissed.
There is no order as to costs.