Heard Dr. R.K. Srivastava for the petitioners and Sri Akhilesh Kalra for the respondents. With the consent of the parties counsel both the writ petitions are disposed by a common order as they raise similar controversy.
It appears that the petitioner sugar mills which was established in the year 2006, has approached the BIFR where a scheme has been framed under section 18/19 of the Sick Industries and Rehabilitation Act, 1985 for rehabilitation of the company.
For the current crushing season, the Cane Commissioner has issued reservation order on 05.11.2009 with respect to petitioner sugar mills wherein allegedly certain sugarcane area, which was allotted to the respondent sugar mill, earlier was shown as reserved area of the petitioner sugar mills, and therefore, the respondent sugar mill filed an appeal under section 15(4) of the Act on 20.11.2009 before the State Government, which is still pending.
Thereafter a reservation order with respect to respondent sugar mill, which is situated in the State of Uttarakhand, was passed by the Cane Commissioner on 16.12.2009, after holding meeting with the Cane Commissioner, Uttarakhand. According to the respondent sugar mill, though some reservation order was passed in favour of it by the Cane Commissioner on 16.12.2009 but as a matter of fact, the benefit of the aforesaid scheme as provided by the BIFR was not given.
Counsel for the petitioners, Dr. R.K. Srivastava, however, says that the aforesaid scheme was not applicable nor could have been given effect to, against the interest of the petitioner sugar mills.
Sri Akhilesh Kalra appearing for the respondent sugar mill says that in fact the respondent sugar mill had been making approaches to BIFR for implementation of the scheme and consequently the allocation of the sugarcane, for which hearings/meetings were held by the Board. Thus vide order dated 6.08.2009 while fixing 17.11.2009 the FIFR required the Secretaries of the Government of Uttar Pradesh and Government of Uttarakhand to give their reports. As a result of the order passed by the BIFR, the Cane Commissioner of U.P. has issued two impugned notice on 2.1.2010 fixing 12.1.2010 for a meeting. The Cane Commissioner in the impugned notice has quoted the observations made by the Board, as under :-
" in view of the sugar season which has already started, the next hearing will be held on 06.01.2010 when the Principal Secretary(Sugar), Govt. of U.P., Cane Commissioner, Govt. of U.P. and the Govt. of Uttrakhand should also be present to explain the position of the respective State Govts., on compliance of the provisions of SS-8 and order passed by FIFR cited in (II) above."
In pursuance of the aforesaid directive issued by the Board, the Cane Commissioner has issued notices, requiring the petitioner sugar mill also to participate therein while considering the matter of allocation of sugarcane area to the respondent sugar mill.
Dr. R.K. Srivastava, appearing for the petitioner sugar mills has submitted that the Cane Commissioner, does not have any authority to issue such a notice or to review the order of cane reservation on the behest of the respondent sugar mill nor the Board would have any authority to issue any order even under the rehabilitation package so as to affect the petitioner sugar mills and that too without giving any opportunity of hearing to the petitioner sugar mills.
Further submission is that no such direction can be issued as it runs contrary to the provisions of the U.P. Sugarcane ( Regulation of Supply and Purchase) Act, 1953 and the U.P. Sugarcane (Control) Order 1966. His further submission is that once, against the order of reservation passed in favour of the petitioners' sugar mill on 5.11.2009, the respondent sugar mill has filed an appeal wherein also, in substance, the meaning and effect of the same order passed by BIFR has to be considered by the appellate authority, the Cane Commissioner cannot, in the meantime, pass any order which not only amounts to review of his own order passed earlier but it is also against the provisions of the relevant Act and the Control Order.
Further submission of the learned counsel for the petitioner is that the order passed by BIFR is not binding upon the respondent sugar mills as they were not a party before the BIFR and also under Section 18(8) of the Act, the said scheme would be binding upon the persons mentioned therein and not upon the sugar mills.
Sri Akhilesh Kalra, in response submitted that the appeal which has been filed, does not raise the similar controversy as has been raised in the present writ petition and that the order passed by the BIFR is binding upon all the persons and the sugar mill cannot challenge the directive issued under the scheme in the writ petition. Further submission is that the scheme provided by the BIFR is binding and without there being no challenge to the order passed by the BIFR, no relief can be granted to the petitioners.
Further submission of the learned counsel for the respondent sugar mill is that the BIFR, with a view to rehabilitate sugar mill has issued a direction after consulting the two Secretaries of the Government and other concerned authorities. From the impugned notice, it clearly transpires that a report has to be submitted to the BIFR for consideration after the order passed by the Cane Commissioner.
It has further been submitted by the learned counsel for the petitioner that it is incorrect to say, that the appeal already filed by the respondent sugar mill, does not raise the same issues regarding the scheme framed by the BIFR.
We have considered the arguments raised by the learned counsel for the respective parties .
We are of the view that the petitions at this stage, are pre-mature. The petitioners have been issued notice by the Cane Commissioner.
Issuance of notice, cannot mean that any decision has been taken by the Cane Commissioner with respect to issues which have been mentioned in the notice and that, if in view of the directive issued by the Board, wherein a report has been asked for, the Cane Commissioner has issued notice, it cannot be said that the notice is prima-facie without jurisdiction. It may be a different matter that the Cane Commissioner, may or may not have an authority to pass an order as mentioned therein but interference at this stage by the High Court is not required.
The consequent pleas, of the counsel for the petitioners that notice itself is invalid or that the Cane Commissioner does not have any right to review the order passed by him earlier with respect to allocation of cane center or that in view of the appeal filed by the respondent, no order can be passed on the basis of impugned notice or on the basis of the scheme provided by the Board itself, are open to be raised before before the Cane Commissioner by the petitioners.
We, therefore, do not find any reason for the petitioners to be apprehensive that in case such or any other objections including the plea of the competence of issuing the notice by the Cane Commissioner, and also the plea that the scheme framed or the directives issued by the BIFR, will not be binding upon the sugar mills, that in the presence of the appeal already filed, the matter can not be reopened by the Cane Commissioner etc. are raised before the Cane Commissioner they would not be considered by him while passing any order or so to say before passing any order on merit as given in the notice itself.
We do not intend to enter into the aforesaid questions and pleas raised by the counsel appearing for respective parties as we have already observed that the petition, at this stage, is pre-mature.
However, we clarify that if any objection is raised by either of the parties including the petitioners regarding competence of issuing the notice impugned, etc. the same shall be considered or disposed of by the Cane Commissioner before passing any order on merits of the claim of the parties.
We may further clarify that we have not addressed ourselves on the merit of the claim of either parties, therefore, the Cane Commissioner, shall not be swayed with any observation made by us, while considering the objections and the pleas raised before him and shall pass a reasoned and speaking order.
Subject to aforesaid directions, the petitions are disposed of accordingly.
11.01.2010.
Vks.