Dismissed

Sadashivrao Mandlik Kagal Taluka Sahakari Sakhar Karkhana Ltd. v. the Commissioner of Sugar, Govt of Maharashtra and Ors.

Bombay HC5 Dec 2014WP/1481/2013

Case brief

AI extract

What is this about?

The Bombay High Court examined a writ petition challenging an aerial distance certificate granted under the Sugarcane (Control) Order, 1966. The court distinguished the facts from Ojas Industries, held the subsequent 2011 amendment increasing distance from 15km to 25km did not apply retrospectively, and dismissed the petition on grounds of delay and laches.

What did the court decide?

Ad-interim order granted earlier, if any, shall stand vacated forthwith. Writ petition dismissed with costs of Rs.1,00,000/- to be paid to Respondent no.5 within four weeks.

Sadashivrao Mandlik Kagal Taluka Sahakari… — Pension and Retirement Benefits | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1481 OF 2013

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Sadashivrao Mandalik Kagal Taluka Sahakari Sakhar Karkhana Limited Petitioner

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versus The Commissioner of Sugar and others Respondents

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Mr.R.V.Pai with Mr.P.D.Dalvi for Petitioner. Mr.V.B.Thadani, AGP for Respondents-State. Ms.Lata Patne with Mr.Vinod Joshi for Respondent no.4.

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Mr.Y.S.Jahagirdar, Sr.Advocate with Mr.S.S.Patwardhan for Respondent no.5.

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Mr.B.M.Chatterjee, Sr.Advocate for Respondent no.4.

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CORAM : MOHIT S. SHAH, C.J. AND B.P.COLABAWALLA, J.

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Date of Reserving the Judgment : 3 December 2014

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Date of Pronouncing the Judgment : 5 December 2014

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CAV JUDGMENT : (Per - Chief Justice) :-

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The Petitioner herein is a company registered under the Companies Act, 1956 running a sugar factory at Sadashivnagar, Hamidwada-Koulage, Taluka Kagal, District Kolhapur.

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In this petition under Article 226 of the Constitution of India, the Petitioner has challenged the order dated 2 July 2011 of the Commissioner of Sugar, Maharashtra State for granting the Aerial Distance Certificate under Clause 6-B of Sugarcane (Control) Order, 1966 in favour of Respondent no.5 for the purpose of setting up a new sugar factory between village Dhamane and Village Belewadi Kalamma in Kagal Taluka of Kolhapur District. The Petitioner has also challenged the consequential aerial distance certificate issued by the Commissioner of Sugar, Maharashtra State, in favour of Respondent no.5. On 2 July 2011, Clause 6-A of the above Order of 1966, prohibited any new sugar factory being set up within a radius of 15 kilometers from an existing sugar factory. The distance between the sugar factory of Respondent no.5 from the Petitioner's factory is 17.2 kilometers.

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The only ground on which the impugned certificate dated 2 July 2011 is challenged is that by a Notification dated 3 December 2011, the Government of Maharashtra has increased the aerial distance between an existing sugar factory and a proposed new sugar factory from 15 kilometers to 25 kilometers, and that the said Notification dated 3 December 2011 applies retrospectively so as to make the order dated 2 July 2011 vulnerable to challenge. The Petitioner has further contended that while passing the impugned order, the Commissioner of Sugar should not have merely looked at the aerial distance between the existing sugar factory of the Petitioner and the proposed sugar factory of Respondent no.5, but the Commissioner ought to have considered other relevant factors like availability of sugar cane as sufficient raw material for the sugar

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factory, demand for the sugar cane for the existing sugar factory, availability of water resources, demand of bagasse for co-generation project etc.

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When the petition was filed on 10 December 2012, the only interim relief prayed for by the Petitioner was to restrain Respondent no.5 from carrying out any sort of construction on Gat No.466, Village Belewadi Kalamma or any other adjacent land for setting up the new sugar factory.

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At the preliminary hearing of the writ petition on 14 March 2014, another Division Bench of this Court issued notice to the Respondents and made it returnable on 18 April 2013 but no adinterim relief was granted. Thereafter, the matter was listed before the Court from time to time but no ad-interim or interim relief was granted in favour of the Petitioner or against Respondent no.5 till October, 2014. On 16 January 2014, however, the Petitioner had filed Civil Application No.178 of 2014 praying for an interim injunction to restrain the Respondent no.5 from "carrying out any construction activities on Gat No.466, Belewadi Kalamma, Taluka Kagal, District Kolhapur".

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Affidavit-in-reply on behalf of Respondent no.5 sugar factory was filed on 3 July 2014 pointing out with photographs that the construction of the sugar factory building at site started on 14 November 2011 and the construction of the sugar factory was completed in right earnest. It was also pointed out that the

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Respondent no.5 had applied for registration under the provisions of various Central and State Enactments and that the Petitioner was already granted registration certificates under Central Excise Act, Central Sales Tax Act, Maharashtra Value Added Tax Act and that the Maharashtra Pollution Control Board (`MPCB') by an order dated 10 December 2013 issued consent to Respondent no.5 to establish a sugar factory at the site at Belewadi Kalamma, Taluka Kagal, District Kolhapur. Respondent no.5 also stated that it had obtained various other necessary permissions required for setting up of the sugar factory and that Respondent no.5 had also entered into an energy purchase agreement with Maharashtra State Electricity Distribution Company on 9 April 2013. Respondent no.5 also relied upon the certificate dated 14 June 2014 of their Chartered Accountant (Exhibit-A to the reply affidavit) certifying that Respondent no.5 had raised finances of Rs.259 crores from various sources including banks for setting up the factory.

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It appears that the petition was listed on board on 11 July 2014 and 8 October 2014 but no ad-interim or interim relief was granted. But on 10 October 2014, another Division Bench (Coram: A.V.Mohta and and A.A.Sayed, JJ.) passed the following order :

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"The statement is made by the learned counsel appearing for the Applicant-Petitioner that pending the petition, Respondent No.5 has completed the basic construction of Respondent no.5 factory. The main challenge in the petition is with regard to the construction based upon the permission granted to Respondent no.5.

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2. Stand over to 12 November 2014.

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3. Meanwhile, they will not commence the production of sugar. However, liberty is granted to the concerned Respondents to file Application for appropriate orders."

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In view of the above, Respondent no.5 filed Civil Application No.2366 of 2014 on 14 October 2014 praying for recalling the aforesaid order dated 10 October 2014, inter alia, on the grounds that the Advocate for the Applicant (Respondent no.5 in the writ petition) was not well on 10 October 2014 and he had, therefore, applied for and was granted leave by this Court and that this fact was also displayed on the web site of this Court and on the cause list of 10 October 2014. When Civil Application No.178 of 2014 was called out, another Advocate for the Applicant appeared before the Court and mentioned about the illness of the counsel for the Applicant (Respondent no.5) on 10 October 2014. In spite of the above facts, the Court had passed the order dated 10 October 2014 of ad-interim injunction, which may, therefore, be treated as an ex-parte order and be vacated.

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On the basis of the averments made in the above Civil Application, learned counsel for the Applicants (Respondent no.5 in writ petition) has submitted as under :

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(i) The impugned order was passed on 2 July 2011 by the Commissioner of Sugar, but the writ petition was filed belatedly on 12 December 2012, i.e. after a lapse of about 1½ years. The petition, therefore, suffers from delay, laches and acquiescence;

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(ii) Even after filing the petition, the writ petitioner did not press for any ad-interim or interim relief at any time until 10 October 2014. The writ petition was listed on admission board on various dates in February, July and October 2014 but neither adinterim nor interim relief was ever pressed till 9 October 2014;

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(iii) Respondent no.5 had already entered into an arrangement with a co-operative society of about 26,000 farmers who have invested their hard earned monies in the setting up of the Fifth Respondent's sugar factory where the said farmers will supply their sugar cane produce to crush the same;

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(iv) The total project cost of the factory of Respondent no.5 is Rs.259 crores which is fully incurred. The Respondent no.5 has raised loan of Rs.186.34 crores from various banks and financial institutions and has also raised equity from the farmers. Respondent no.5 has entered into contracts with various persons for harvesting of sugar cane of the cane growers. Advances have been paid by borrowing from nationalized bank. The details are given in Exhibit-F to the Civil Application;

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(v) The sugar factory of the Applicant (Respondent no.5) was already inaugurated on 25 September 2014 at a huge public function which was attended by nearly about 50,000 people. A copy of the invitation card and the news paper reports/photographs covering the inauguration ceremony are produced at Exhibit-E collectively;

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(vi) The boilers of Respondent no.5 company had become operational on 25 September 2014 and the manufacturing unit for sugar was already fired for crushing of the sugar cane of the members of Respondent no.5 and the formality of crushing was scheduled on 25 October 2014, which was a very auspicious day being Bali Pratipada. The ad-interim injunction of status-quo was thus obtained for an oblique purpose;

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(vii) Co-generation unit is fully functional and is generating electricity to be used to energize the sugar unit for crushing of sugar cane, as certified by the Chartered Engineer and Respondent no.5 has also entered into energy purchase agreement with Maharashtra State Electricity Distribution Company;

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(viii) The crushing season is only for about 180 days in a year. Therefore, precious time is being lost on account of the adinterim injunction;

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Learned counsel for the writ petitioner has submitted that the writ petitioner has a very strong prima facie case and, therefore, the Petition may be admitted and notwithstanding the above facts, the status-quo order dated 10 October 2014 may be continued. Reliance is placed on the Notification dated 3 December 2011 by which the minimum aerial distance was increased from 15 kilometers to 25 kilometers. It is submitted that the said Notification dated 3 December 2011 would apply retrospectively. In support of this

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contention, strong reliance is placed on the decision of Supreme Court in Ojas Industries (P) Limited Vs. Oudh Sugar Mills Limited and others¹ .

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This is the main ground of challenge. Other contentions are also raised, which will be dealt with hereafter.

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Learned counsel for Respondent no.5 submitted that the writ petition suffers from gross delay, laches and acquiescence as the impugned order was passed as far back as on 2 July 2011 but the petition was filed only on 12 December 2012. But in the mean time, several equities were created in favour of Respondent no.5, as stated hereinabove.

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The office bearers of the writ petitioner had been agitating against setting up of the sugar factory of Respondent no.5 and during the public hearings for statutory compliances, the office bearers of the writ petitioner had vehemently opposed grant of statutory permissions and commissioning of the sugar factory of Respondent no.5. Hence, it was not that the office bearers of the writ petitioner did not have any knowledge about the issuance of the impugned aerial distance certificate or of the construction of the Respondent no.5 sugar factory which had commenced on 14 November 2011. However, the present Writ Petition was filed on 12 December 2012.

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1 (2007) 4 SCC 723

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On merits, learned counsel for Respondent no.5 has submitted that :

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(a) The impugned order dated 2 July 2011 was passed by the Commissioner of Sugar granting aerial distance certificate, as required under the Sugarcane (Control) Order, 1966 as applicable on the date of order i.e. 2 July 2011, when the relevant statutory order provided for aerial distance of minimum 15 kilometers between an existing sugar factory and a proposed new sugar factory. The actual distance between the factory of Petitioner and Respondent no.5 is 17.2 kilometers. Hence, there was nothing illegal about the impugned certificate granted by the Commissioner of Sugar. On the basis thereof, Respondent no.5 applied for Industrial Entrepreneur Memorandum (`IEM') on the same day. Respondent no.5 was accordingly granted the IEM and Respondent no.5 started construction of the sugar factory on 14 November 2011;

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(b) The writ petitioner is relying on a subsequent Notification dated 3 December 2011 issued by the Government of Maharashtra providing that aerial distance between an existing sugar factory and a proposed new sugar factory has to be at least 25 kilometers. However, the said Notification applies prospectively and can not be applied retrospectively;

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(c) Respondent no.5 has obtained various necessary permissions required for setting up of a sugar factory including Maharashtra Pollution Control Board's consent order dated 10

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December 2013 permitting establishment of the sugar factory and further consent order dated 24 October 2014 for commencement of production;

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(d) The writ petition is not filed bona fide, but the writ petitioner is interested only in obstructing the running of the sugar factory of Respondent no.5 for their selfish motives as they are running a rival sugar factory.

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(e) Two Directors of the writ petitioner sugar factory have also filed Public Interest Litigation Nos.128 of 2013 for challenging the same impugned order dated 2 July 2011 and this shows the complete mala fides of the writ petitioner to strangulate the sugar factory of Respondent no.5.

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(f) In view of the above glaring facts, the writ petition may be dismissed or at least the ad-interim injunction dated 10 October 2014 may be vacated forth with as the oblique motives of the writ petitioner are evident.

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We find considerable substance in the submissions made on behalf of Respondent no.5.

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In the first place we find that there has been an unexplained delay in approaching this Court to challenge the order dated 2 July 2011. From the time the impugned order (2 July 2011)

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was passed till 12 December 2012 (date of filing of the writ petition), i.e. for 1½ Years, several equities were created in favour of Respondent no.5 as set out earlier. Loans of Rs.186 crores were taken from banks, investments were done by farmers of their hard earned monies in setting up the sugar factory, construction of the sugar factory was well under way and several other statutory permissions were obtained. It is not the case of the Petitioner that they were unaware of the impugned order dated 2 July 2011. It is now too wellsettled a principle of law that “delay defeats equity”. Where the writ petitioner approaches the Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches. The discretionary writ jurisdiction may not be exercised in favour of those who sleep over their rights and approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. This being the case, we find that there has been a considerable delay in approaching this Court asking us to exercise our extraordinary equitable jurisdiction under Article 226 of the Constitution of India and on this ground alone, the Petitioner would not be entitled to any reliefs.

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Be that as it may, even on merits also we do not find any substance in the challenge to the impugned order 2 July 2011.

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On merits, the question is whether the Sugarcane (Control) Order, 1966 as amended, applies prospectively or retrospectively.

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On 10^th November, 2006 the Central Government exercising powers under section 3 of the Essential Commodities Act, 1955 passed an Order [called the Sugarcane (Control) (Amendment) Order, 2006] by virtue of which Clauses 6-A to 6-E were inserted in the Sugarcane (Control) Order, 1966. Clauses 6-A and 6-B which deal with aerial distance between 2 sugar factories read thus:-

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"6 -A. Restriction on setting up of two sugar factories within the radius of 15 km. - Notwithstanding anything contained in clause 6, no new sugar factory shall be set up within the radius of 15 km of any existing sugar factory or another new sugar factory in a State or two or more States :

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Provided that the State Government may with the prior approval of the Central Government, where it considers necessary and expedient in public interest, notify such minimum distance higher than 15 km or different minimum distances not less than 15 km for different regions in their respective States.

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Explanation 1 : An existing sugar factory shall mean a sugar factory in operation and shall also include a sugar factory that has taken all effective steps as specified in Explanation 4 to set up a sugar factory but excludes a sugar factory that has not carried out its crushing operations for last five sugar seasons.

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Explanation 2 : A new sugar factory shall mean a sugar factory, which is not an existing sugar factory, but has filed the Industrial Entrepreneur Memorandum as prescribed by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry in the Central Government and has submitted a performance guarantee of rupees one crore to the Chief Director (Sugar), Department of Food and Public Distribution, Ministry of Consumer Affairs, Food and

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Public Distribution for implementation of the Industrial Entrepreneur Memorandum within the stipulated time or extended time as specified in clause 6-C.

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Explanation 3 : The minimum distance shall be determined as measured by the Survey of India.

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Explanation 4 : The effective steps shall mean the following steps taken by the person concerned to implement the Industrial Entrepreneur Memorandum for setting up of sugar factory -

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(a) purchase of required land in the name of the factory;

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(b) placement of firm order for purchase of plant and machinery for the factory and payment of requisite advance or opening of irrevocable letter of credit with suppliers;

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(c) commencement of civil work and construction of building for the factory;

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(d) sanction of requisite term loans from banks or financial institutions;

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(e) any other step prescribed by the Central Government, in this regard through a notification.

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6-B. Requirements for filing the Industrial Entrepreneur Memorandum - (1) Before filing the Industrial Entrepreneur Memorandum with the Central Government, the person concerned shall obtain a certificate from the Cane Commissioner or Director (Sugar) or specified authority of the State Government concerned that the distance between the site where he proposes to set up sugar factory and adjacent existing sugar factories and new sugar factories is not less than the minimum distance prescribed by the Central Government or the State Government, as the case may

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be, and the person concerned shall file the Industrial Entrepreneur Memorandum with the Central Government within one month of issue of such certificate failing which validity of the certificate shall expire."

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Thereafter, on 3^rd December, 2011 the State of Maharashtra, with the prior approval of the Central Government came out with a Notification that directed that no new sugar factory could be set up within a radius of 25 Kms of any existing or another new sugar factory. The relevant portion of the said Notification reads thus:-

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“ Now, therefore, in exercise of the powers conferred by the proviso to the said clause 6A, the Government of Maharashtra, after prior approval of the Central Government hereby directs that no new sugar factory shall be set up within a radium of 25 kms of any existing sugar factory or another new factory.”

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The Petitioner has placed heavy reliance on this Notification dated 3^rd December, 2011 read with the following observations made in paragraph 28 of the Supreme Court judgment in Ojas Industries (P) Limited¹

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"28. Suffice it to state, that the Sugarcane (Control) (Amendment) Order, 2006 shall apply retrospectively to all cases, including the present cases in which IEMs are pending."

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1 (2007)4-SCC-723

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Now, it needs to be noted that the aforesaid decision of Supreme Court was concerned with the provisions of 2006 amendment and not 2011 amendment to the Sugarcane (Control) Order, 1966. The controversy therein centered around the definition of an existing sugar factory and a new sugar factory, as explained in Explanations 1 to 4 inserted by Amended Order of 2006, and the question formulated by the Court in paragraph 29 of the judgment reads as under :

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"29. In this connection, the question which arises for determination is : firstly, whether the Sugarcane (Control) (Amendment) Order, 2006 operates retrospectively and if so whether the effective steps enumerated in Explanation 4 to clause 6-A are adequate. In this connection, we have to keep in mind the conceptual difference between the distance certificate, the concept of effective steps to be taken by an IEM-holder and the question of bona fides."

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The facts of the case before Supreme Court were that by Press Note 12 dated 31.8.1998 the Government of India (GOI') decided to delete the sugar industry from compulsory licensing under the Industries (Development and Regulation) Act, 1951 (the 1951 Act). In Press Note 12, GOI clarified that in order to avoid unhealthy competition among sugar factories to procure sugarcane, a minimum distance of 15 km had to be observed between an existing sugar mill and a new mill (factory). Further, the entrepreneur who desired to avail of the delicensing of sugar industry was required to file an Industrial Entrepreneur Memorandum (`IEM') with the Ministry of

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Industry. Notification dated 11.9.1998 was issued under Section 29B(1) of the 1951 Act. It was to be read with the above Press Note 12.

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On 13 May 2004, the appellant Ojas filed its IEM for setting up a sugar mill. After four days the respondent Oudh also filed its IEM for setting up a sugar mill (factory). This led to a dispute between the two companies as to the meaning and applicability of Press Note 12 read with the accompanying notification since the proposed factories were within 15 km of each other. Deciding the opposing writ petitions filed by Ojas and Oudh, a Division Bench of the High Court held that Press Note 12 read with the accompanying notification prescribing 15 km distance between an existing sugar mill and a new sugar mill applied only to cases where a new mill (factory) was proposed to be set up within 15 km of an existing sugar mill. Therefore, in the absence of an existing sugar mill the said Press Note 12 had no application. On facts, it was, therefore, held that Ojas could not derive any benefit from Press Note 12. Ojas and other parties aggrieved were before the Supreme Court.

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Thus, in the case before the Supreme Court, there were two new sugar factories within a distance of 15 kilometers and, therefore, it was necessary to decide which sugar factory should be considered as an existing sugar factory for the purpose of applying the substantive portion of Clause 6-A. Thus, when there are two proposed new sugar factories, the question would be which of the two proposed new sugar factories should be considered as an existing factory so as to deny the other party permission of setting up a new

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sugar factory within a radius of 15 kilometers. Prior to the Sugarcane (Control) (Amendment) Order, 2006, there was no definition of an existing sugar factory or a new sugar factory. Similarly, the competent authority to determine the minimum distance of 15 kilometers was also not specified. Therefore, the amended order of 2006 added four explanations set out hereinabove.

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Explanation-1 defined "an existing sugar factory" as including a sugar factory that has taken all effective steps to set up a sugar factory subject to an exception with which we are not concerned. Explanation-4 defined the expression "effective steps." The Supreme Court held that explanations added by Amended Order of 2006 explained the effective steps such as purchase of required land in the name of the factory, placement of a firm order for purchase of plant and machinery for the factory, payment of advance or opening of letter of credit with suppliers, commencement certificate of civil work and construction of building, sanction of requisite term loans from the banks or financial institutions and any other step prescribed by the Central Government in this regard.

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Since in the absence of the above explanations, there was no criteria to determine an existing sugar factory which can claim the benefit of Clause 6-A, and explanations were added to give definitions of an existing sugar factory as well as definition of a new sugar factory, the criteria introduced by the explanations were held to be merely explanatory or clarificatory. Therefore, the Supreme Court made the observation that Sugarcane (Control) (Amendment)

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Order, 2006 shall apply retrospectively to all cases including the case before the Supreme Court, in which IEM was pending.

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On the other hand, the Sugarcane (Control) (Amendment) Order, 2011 which came into force on 3 December 2011 makes a substantive amendment raising the distance from 15 kilometers to 25 kilometers and, therefore, operation of such an amendment substantially changing the distance required to be maintained between two sugar factories, cannot be held to be retrospective.

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In the present case, the facts are completely different from those in Ojas Industries (supra) . The dispute here is between an existing sugar factory being run by the writ petitioner for several years on the one hand and the new factory set up by Respondent no.5. Since the question of distance was considered by the Commissioner of Sugar on 2 July 2011 (when the Respondent no.5 was a proposed new sugar factory), for the purposes of granting aerial distance certificate, the Commissioner of Sugar was only required to apply the law applicable on 2 July 2011 requiring that the distance between the existing sugar factory of the writ petitioner and the proposed new factory of Respondent no.5 should not be less than 15 kilometers.

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The writ petitioner has not challenged the findings of the Commissioner of Sugar based on the certificate issued by the Executive Engineer (Irrigation) and letter of Survey of India dated 11 April 2011 that aerial distance between the two sites is 17.2

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kilometers. There is no dispute between the parties on this count. The order dated 2 July 2011 of the Commissioner of Sugar, therefore, did not suffer from any infirmity and the subsequent amendment dated 3 December 2011 to the Sugarcane (Control) Order, 1966 increasing the distance from 15 kilometers to 25 kilometers would obviously not apply in the facts of the present case. The decision of Supreme Court in Ojas Industries (P) Limited (supra) is thus clearly distinguishable.

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It is now too well settled a proposition that the ratio of any decision must be understood in the background of the facts of that case. It has been said a long time ago that a case is only an authority for what it actually decides and not what logically follows from it. If one must refer to any authority on this subject, the Supreme Court in the case of Sarva Shramik Sanghatana (KV) v/s State of Maharashtra² , has very succinctly and eloquently reiterated the said proposition. Paragraphs 14 to 18 of the said judgment read thus :-

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“ 14. On the subject of precedents Lord Halsbury, L.C., said in Quinn v. Leathem[1901 AC 495 : (1900-1903) All ER Rep 1 (HL)] : (All ER p. 7 G-I)

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“Before discussing Allen v. Flood [1898 AC 1 : (18951899) All ER Rep 52 (HL)] and what was decided therein, there are two observations of a general character which I wish to make; and one is to repeat what I have very often said before—that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that

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2 (2008) 1 SCC 494

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the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”

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(emphasis supplied)

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We entirely agree with the above observations.

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15. In Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] (vide SCC p. 221, para 18) this Court observed:

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“18. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.”

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16. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. [(2003) 2 SCC 111] (vide SCC p. 130, para 59) this Court observed:

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“59. … It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision .”

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(emphasis supplied)

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17. As held in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani [(2004) 8 SCC 579 : AIR 2004 SC 4778] a decision cannot be relied on without disclosing the factual situation. In the same judgment this Court also observed: (SCC pp. 584-85, paras 9-12)

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“9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

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And, in British Railways Board v. Herrington [1972 AC 877 : (1972) 2 WLR 537 : (1972) 1 All ER 749 (HL)] Lord Morris

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said: (All ER p. 761c)

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‘There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.’

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11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases . Disposal of cases by blindly placing reliance on a decision is not proper.

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12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:

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‘Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect , in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.

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***

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Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches . My plea is to keep the path to justice clear of obstructions which could impede it.’ ”

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(emphasis supplied)

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18. We have referred to the aforesaid decisions and the principles laid down therein, because often decisions are cited for a proposition without reading the entire decision and the reasoning contained therein. In our opinion, the decision of this Court in Sarguja Transport case [(1987) 1 SCC 5 : 1987 SCC (Cri) 19 : AIR 1987 SC 88] cannot be treated as a Euclid's formula.”

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In view of the discussion in paragraphs 18 to 24, we are clearly of the view that the writ petitioner has not made out any case on the basis of the judgment in Ojas Industries case (supra) .

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Learned counsel for the Petitioner next contended that the Commissioner of Sugar erred in observing that once aerial distance between the two sites is certified by Survey of India, issuance of the order under Clause 6B of Sugarcane (Control) Order, 1966 is merely a ministerial act. It is submitted that such a view taken by a Division Bench of this court has not been approved by the Supreme Court in the case of Dnyaneshwar Sahakari Sakhar Karkhana Limited (Order dated 21 April 2010 in SLP (C) No.1089 of 2010) .

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Apart from the fact that ultimately the Supreme Court dismissed the above SLP (C) No.1089 of 2010, the Petitioner does not seem to have invited the attention of the Commissioner of Sugar to the observations made in the said order dated 21 April 2010.

¶136

Even if the question sought to be raised by the writ petitioner is required to be examined any further, the facts highlighted in the affidavit dated 14 October 2014 filed on behalf of Respondent no.5 (Applicant in Civil Application No.2366 of 2014), (as set out in paragraph 8 above), speak for themselves. Not only was there delay of one year and four months in filing the writ petition, but the writ petitioner also allowed Respondent no.5 to commence the construction from November 2011 and complete it by September 2014. The factory was even inaugurated on 25 September 2014 and co-generation unit for generating electricity had already commenced. Even then the writ petitioner obtained ad-interim injunction on 10

¶137

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¶138

October 2014 when the leave note of the Advocate for Respondent no.5 was already granted by this Court on account of illness of the Advocate for Respondent no.5, and when the Advocate for the writ petitioner himself had stated in so many words that the construction of the factory was completed.

¶139

Learned counsel for writ petitioner submitted that the IEM granted in favour of Respondent no.5 in the year 2011 was with reference to only one parcel of land bearing Gat No.466. Respondent no.5 has been permitted to set up its factory of land bearing Gat No.466 but Respondent no.5 is not the owner of the said land. Therefore, the Commissioner of Sugar ought not to have granted the impugned certificate dated 2 July 2011 to Respondent no.5.

¶140

Learned counsel for Respondent no.5 points out that a suit has been filed in respect of a small portion of 1/21 share in 48 Ares of land in one corner of Gat No.466, which is 4 Hectares and 39 Ares of area. The said portion of land in dispute is presently kept out of use. The rest of the land in Gat No.466 belongs to Respondent no.5. It is also submitted that the writ petitioner has no locus standi to raise such a contention.

¶141

We find considerable substance in the submissions made on behalf of Respondent no.5 that writ petitioner has no locus standi to raise such contention with reference to the dispute about a miniscule portion of land on which the Respondent no.5 has set up a new sugar factory and which portion Respondent no.5 has not been using.

¶142

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¶143

Learned counsel for the writ petitioner also sought to raise a contention regarding some other adjoining lands on which manufacturing unit and co-generation plant have been set up. It is contended that since original IEM was with reference to land Gat No.466, Respondent no.5 has moved the authorities for adding other Gat numbers to the existing IEM. Hence, the amended clause 6A of Sugarcane (Control) Order, 1966 providing a minimum distance of 25 kilimeters would apply to such adjoining lands and the said adjoining lands are within a distance of 25 kilometers. Reliance is placed on letter dated 30 August 2013 of Under Secretary of Government of India in the Department of Industrial Policy and Promotion addressed to the Directorate of Sugar.

¶144

We are not impressed by this argument also. The aforesaid letter dated 30 October 2013 is an inter departmental communication seeking a clarification which seems to have remained unreplied. Moreover, for the reasons indicated in paragraph 29 hereinabove, we are not inclined to grant any relief to the writ petitioner on the basis of the above contention.

¶145

Learned counsel for the Petitioner further contended that Respondent no.5 has not obtained building permission from the Gram Panchayat. Learned counsel for Respondent no.5 has submitted, without prejudice to the objection of Petitioner's counsel to raise such a contention, that in view of the provisions of Section 44A of the Maharashtra Land Revenue Code, which apply to sugar factories, necessary sanction has been issued in favour of Respondent no.5 and

¶146

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¶147

the Regional Planning Authorities have granted the necessary permission. Dhamane Village Panchayat had also granted its NOC which was submitted by Respondent no.5 along with its application to the concerned Regional Planning Authority.

¶148

In view of the above factual aspects, we do not find any substance in this contention as well.

¶149

Learned counsel for the writ petitioner next contended that though the MPCB had issued consent letter dated 10 December 2013 for operating the sugar factory of Respondent no.5, the said consent was granted subject to various terms and conditions including the following "

¶150

"This consent to 1st Operate is issued without prejudice to various orders passed and being passed by Hon'ble High Court, Mumbai."

¶151

It is submitted that Respondent no.5 did not supply all the required information while applying to MPCB for consent order and that Respondent no.5 has not complied with all the terms and conditions of the said consent order.

¶152

As far as this ground of challenge is concerned, we are not inclined to entertain the same because the Petitioner has no locus to raise such a dispute. The only contention which the Petitioner can raise is whether the aerial distance certificate granted by the Commissioner of Sugar on 2 July 2011 suffered from any infirmity on

¶153

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¶154

account of subsequent amendment dated 3 December 2011 to Sugarcane (Control) Order, 1966 raising minimum distance from 15 kilometers to 25 kilometers. The said contention has already been examined and negated by us.

¶155

Moreover, as regards the alleged non compliance with the consent order dated 10 December 2013 of MPCB, the writ petitioner has not filed any pleadings. Therefore also, the writ petitioner cannot now be permitted to raise this contention. As regards the said contention, two Public Interest Litigations being PIL Nos.128 of 2013 and 118 of 2014 have already been filed wherein the PIL petitioners have raised contentions with regard to environmental issues. In fact, one of the PILs (PIL No.128 of 2013) has been filed by two directors of the writ petitioner. Therefore, it is not necessary to entertain this writ petition on the question of environmental and other issues, which are being separately examined in the above PILs.

¶156

Learned counsel for the writ petitioner also sought to raise other environmental issues in respect of the factory of Respondent no.5. In our view, the writ petitioner has no locus standi to raise such contentions for the purpose of challenging the aerial distance certificate issued under Clause-6B of the Sugarcane (Control) Order, 1966 and all the environmental issues are being examined in two other Public Interest Litigations, one of which is filed by two Directors of the Petitioner company.

¶157

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¶158

For the reasons aforesaid, we find no merit in this petition. The petition is, therefore, dismissed with costs quantified at Rs.1,00,000/- (Rs.One lakh only) which shall be paid by the writ petitioner to Respondent no.5 within four weeks from today. Adinterim order granted earlier, if any, shall stand vacated forthwith.

¶159

It is clarified that this judgment is rendered without prejudice to the rights and contentions of the parties in Public Interest Litigation Nos.128 of 2013 and 118 of 2014.

¶160

(CHIEF JUSTICE)

¶161

After the judgment is pronounced, the learned counsel for the Petitioner prays for extension of the ad-interim order dated 10 October 2014 restraining the Respondent no.5 from commencing the production of sugar.

¶162

Learned counsel for Respondent no.5 opposes the prayer and submits that 26,000 farmers have invested their hard earned monies for setting up of the factory, construction of which had commenced in November 2011 and the sugar factory was even inaugurated on 25 September 2014. No stay was operating in favour of the writ Petitioner from the date of filing of the petition in

¶163

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December 2012 till October 2014 and only on 10 October 2014 when the Advocate for Respondent no.5 had filed a leave note on the ground of his sickness, which was granted by this Court, the writ Petitioner had obtained the ad-interim relief against Respondent no.5 which has borrowed Rs.259 crores from nationalized banks for setting up the factory, besides taking investments from 26,000 farmers.

¶165

The learned counsel for Respondent no.5 further states that crushing season for a sugar factory is for only 180 days and that about 30 days have already been lost on account of the ad-interim stay obtained by the writ Petitioner and any further extension will cause serious prejudice to Respondent no.5.

¶166

In view of the aforestated facts highlighted by learned counsel for Respondent no.5, we do not find any merit in the prayer for extension of the ad-interim order dated 10 October 2014 restraining the Respondent no.5 from commencing the production of sugar. The prayer for extension of the ad-interim stay operating from 10 October 2014 till today is, therefore, rejected.

¶167

(CHIEF JUSTICE)

¶168

MST

Sadashivrao Mandlik Kagal Taluka Sahakari Sakhar Karkhana Ltd. v. the Commissioner of Sugar, Govt of Maharashtra and Ors.

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Sadashivrao Mandlik Kagal Taluka Sahakari Sakhar Karkhana Ltd. v. the Commissioner of Sugar, Govt of Maharashtra and Ors.

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