# M/s Triveni Engineering & Industries Ltd v. State of U.P. & others

- **Citation:** (2000) 2 ILRA 8
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-12-18
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-triveni-engineering-industries-ltd-v-state-of-u-p-others-39456
- **Pages:** 6

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
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By the Court

1. Both the writ petitions are directed
against the same orders passed by Special
Secretary, Government of U.P. and Cane
Commissioner, U.P., therefore they are being
disposed of by a common order. Writ petition
No. 54711 of 1999 shall be treated as the
leading case.

2. M/S Triveni Engineering & Industries
Limited (Petitioner of Writ petition No.54711
of 1999) has a Sugar Mill at Mawana in the
district Meerut. M/S Tikaula Sugar Mills Ltd.,
respondent no.4 has set up a new Sugar Mill
in Tikaula in the district of Muzaffarnagar,
which started production in the year 1998-99.
U.P. Sugarcane (Regulation of Supply And
Purchase) Act. 1953 (here in after referred to
as the Act) has been enacted to regulate the
supply of sugarcane required for use in sugar
factories. The Cane Commissioner, U.P.
exercising powers under section 15 of the Act
passed an order on 25.10.1999 assigning
purchase centers to various Sugar Mills
including the petitioners of the two writ
petitions
and
respondent
no.4.
Feeling
aggrieved by the aforesaid order of the Cane
Commissioner, the two petitioners as well as
respondent no.4 preferred separate appeals
before the State Government under subsection (4) of section 15 of the Act. The
appeal preferred by respondent no.4 was
allowed by the order dated 18.12. 1999 and
the order dated 25.10.1999 of the Cane
Commissioner was set aside. The Cane
Commissioner was directed to reconsider the
matter and pass a fresh reservation order with
regard to certain purchase centers originally
assigned to Mawana and Khatauli Sugar Mills
in the light of the discussion and facts
mentioned in the Appellate order. Thereafter,
the Cane Commissioner passed a fresh order
on 20.11.1999 whereby the purchase centers
mentioned in the operative part of the order
passed by the State Government and which
had earlier been assigned in favour of
Mawana and Khatuli Sugar Mills were
assigned in favour of Tikaula Sugar Mills Ltd.
(respondent no.4.)

3. M/s. Triveni Engineering & Industries
Limited filed writ petition no.54711 of 1999
2All] M/s Triveni Engineering & Industries Ltd. V. State of U.P. & others
9
impleading (1) State of U.P., (2) Special
Secretary, Government of U.P., Chini Udyog
Anubagh , (3) Cane Commissioner , U.P. and
(4) M/S Tikula Sugar Mills Ltd. as
respondents. The prayer clause of the writ
petition has some bearing on the controversy
raised and therefore in is being reproduced
below:-

a) issue a writ, order or direction in the
nature of certiorari calling for the records of
the case and to quash the impugned order
dated 18.12.1999 passed by the Appellate
Authority
(Respondent
no.2.)
filed
as
Annexure-8 to the writ petition;

b) Issue a writ, order or direction in the
nature of certiorari calling for the records of
the case and to quash the impugned order
dated 20.12.1999 passed by the respondent
no.3 filed as Annexure-9 to the writ petition;

c) Issue a writ, Order or direction in the
nature of mandamus directing the Cane
Commissioner to modify the reservation
order for the year 1999- 2000 and thereafter
so that the cane area reserved for each
factory is proportionate to their individual
requirements of Sugarcane;

 d) Pass such other or further suitable orders
as this Hon'ble Court may deem fit and
proper in the facts and circumstances of the
case;

e) award costs in favour of the petitioners.

4. Feeling aggrieved by the order of the
Cane Commissioner, the petitioners preferred
the present writ petitions in which the
following order was the passed by the
Division Bench:-

"Hon'ble A.A. Desai-J.
Hon'ble Bhagwan Din-J.

Heard Sri S.C. Maheshwari assisted by Sri
Vineet Saran, Counsel for the Petitioner,
learned Chief Standing Counsel appearing for
respondents no.1, 2, & 3 and Sri Rakesh
Dwivedi appearing for respondent no.4 and
perused the papers.

Learned
Counsel
appearing
for
the
petitioner made a statement that he is
confining to relief no.2 and giving up relief
no.1.

The respondent no.4 is granted 10 days
time to file counter affidavit. The Chief
Standing Counsel may file counter affidavit
on behalf of respondent no.3 within the same
time.

List on 12th January, 2000.

Till then the operation of the order dated
20.12.1999 passed by the Cane Commissioner
shall remain stayed.

23.12. 1999"

 Exactly similar order was passed in writ
petition no.54853 of 1999.

5. We have heard Sri Shanti Bhushan
learned Senior Counsel for the petitioners,
Sri S.P. Gupta, learned Senior Counsel for the
respondent no.4 and have perused the record.

Learned counsel for the petitioners has
challenged the order passed by the State
Government
on
18.12.1999
on
several
grounds and has urged that looking to the
production capacity of the petitioners and
their requirement of sugarcane, the impugned
order allowing the appeal preferred by
respondent no.4 and remitting the matter to
the Cane Commissioner for passing a fresh
order with regard to certain purchase centers
which had earlier been reserved in favour of
the
petitioners
is
wholly
illegal.
The
submission made by the learned counsel
relates to relief (a) claimed in the writ
petition. The order dated 23.12.1999 passed
by this Court shows that the learned counsel
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
10
for the petitioner had made a statement that he
was giving up the aforesaid relief and he was
confining to the second relief at that time
when the petition was heard. In view of the
aforesaid statement made by the counsel, we
are of the opinion that it is not open to the
petitioner to assail the validity of the order
dated
18.12.1999
passed
by
Appellate
Authority (respondent no.2)

6. Sri Shanti Bhushan next urged that the
Cane Commissioner passed the impugned
order dated 20.12.1999 without giving any
opportunity of hearing to the petitioner and,
as such, the same was passed without
complying with the provisions of the Act/ and
was also contrary to principles of natural
justice. It is urged that the order of the
Appellate
Authority
was
passed
on
18.12.1999 which was a Saturday and the file
reached
the
Cane
Commissioner
on
20.12.1999 (Monday) and on the same day he
passed the impugned order. The validity of
the order has also been assailed on merits and
it has been urged that the factors relevant for
assigning an area in favour of a sugar factory
as enumerated in rule 22 of U.P. Sugar Cane
(Regulation of Supply And Purchase) Rules,
1954 (hereinafter referred to as the rules)
have not been taken into consideration and
consequently the same is liable to be quashed.

Paragraph-37 of the writ petition reads as
follows:-

"That
the
impugned
order
dated
20.12.1999 passed by the Respondent no.3 is
an ex-party order without any notice or
opportunity of hearing to the petitioner. The
said order has been passed mechanically,
without any application of mind by the
respondent no.3 and is wholly against the
provisions of the Act and the Rules besides
being against the principles of natural justice."

7. The reply to paragraph-37 of writ
petition has been given in paragraph-89 of
the counter affidavit filed on behalf of M/S
Tikaula Sugar Mills Ltd. (respondent no.4)
and it reads as follows:--
"That contents of para -37 of the said writ
petition are not admitted and specifically
denied. The order of respondent no.2 is self-
contained, which was to be complied with by
respondent no.3 and the same have been
complied with. Question of hearing or
opportunity at the level of respondent no.2
does not arise. However, no prejudice could
be, or has been caused to the petitioner in
view of the fact that appellate order is no
more under challenge."

8. The reading of paragraph-89 of the
counter affidavit does not show that any
opportunity of hearing was given to the
petitioners of the two writ petitions as a plea
has been raised that the question of giving
opportunity of hearing did not arise and that
no prejudice had been caused to the
petitioner. The date of the order as well as
sequence of events themselves show that the
Cane Commissioner passed the impugned
order without giving opportunity of hearing to
any party. The State Government (Appellate
Authority) passed the order on Saturday and
the Cane Commissioner passed the impugned
order on the very next working day i.e. on
Monday.
In
fact,
the
learned
counsel
appearing for respondent no.4 did not dispute
the assertion of the petitioner that the Cane
Commissioner had passed the impugned order
without giving any opportunity of hearing to
the two writ petitioners.

9. At this stage, it will be convenient to
refer to certain provisions of the Act and
Rules
which
have
a
bearing
on
the
controversy in issue. Under sub-section (1) of
section 15 the Cane Commissioner may, after
consulting the Factory and Cane- growers Cooperative Society in the manner to be
prescribed, reserve and assign any area for the
purposes of cane to a factory in accordance
with the provisions of section 16 and may
likewise at any time cancel such order or alter
the boundaries of an area so reserved or
2All] M/s Triveni Engineering & Industries Ltd. V. State of U.P. & others
11
assigned. Section 16 confers power upon the
State Government to regulate the sale or
purchase of cane in any reserved or assigned
area. It also confers power to regulate the
manner in which cane grown in the reserved
area or the assigned area shall be purchased
by the factory for which the area has been so
reserved or assigned. Section 17 provides that
the occupier of a factory shall make provision
for speedy payment of the price of cane
purchased by him and upon the delivery of
cane he shall be liable to pay immediately the
price there of . Section 5 of the Act lays
down the manner in which Development
Council will be constituted and section 6 lays
own the functions thereof basically for
improving the quality and yield of sugarcane.
In exercise of powers conferred by section 28
of the Act, the State Government has framed
U.P. Sugarcane (Regulation of Supply And
Purchase) Rules, 1954 . Rule 2 (f) defines
`Purchase Centre' and it means any place at
which cane is purchased, supplied, delivered,
weighed, or paid for and includes such portion
of the premises of a factory as is used for any
of these purpose. Rule 22 of the Rules reads
as follows:-

" 22. In reserving an area for or assigning
an area to a factory or determining the
quantity of cane to be purchased from an
area by a factory, under section 15, the Cane
Commissioner

may
take

into
consideration-

a) the distance of the area from the factory,
b) facilities for transport of cane from the
area,
c) the quantity of cane supplied from the area
to factory in previous year,
d) previous reservation and assignment
order,
e) the quantity of cane to be crushed in the
factory,
f) the arrangements made by the factory in
previous years for payment of purchase tax,
cane price and commission,
g) the views of the Cane-growers Cooperative Society of the area,
h) efforts made by the factory in developing
the reserved or assigned area."

Chapter IX of the rules give in detail the
procedure for payment of price of cane
supplied to a sugar factory.

10. A perusal of section 15 of the Act
would show that the order assigning or
reserving any area has to be made after
consulting the factory and Cane-growers' Cooperative Society. The ownership of the cane
vests with the producer and normally he is
entitled to sell the same to any one he likes.
Naturally, he would like to sell the sugarcane
to the person who offers him the best price
without any delay, The Act, however, imposes
a restriction upon him and by virtue of an
order issued under sub-section (1) of section
15, the cane -grower is compelled to sell his
sugarcane to the factory to whom his area has
been assigned or reserved. The legislature has
enacted Section17 which makes provision for
immediate payment of price to the seller of
sugarcane. Therefore, the promptness with
which the price is paid is a very important
factor which has to be kept in mind at the time
of passing of an order assigning or reserving
any area in favour of a sugar factory. The
Cane-growers
Co-operative
Society
is
expected to watch the interest of the producers
and it is for this reason that it is obligatory
upon the Cane Commissioner to consult the
Society
before
passing
any
order
of
assignment or reservation.

11. Rule 22 gives some guidelines as to
how the power of assigning or reserving any
area has to be exercised by the Cane
Commissioner. It mentions several factors
which have to be taken into consideration.
Apart from the distance of the area from the
factory, of transport, previous reservation and
assignment orders, quantity of cane to be
crushed in the factory, views of the Canegrower's Co-operative Society, arrangements
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
12
made by the factory for payment of price etc.
in previous years and efforts made by the
factory in developing the area also to be
taken into consideration . Sub-rule (b) lays
emphasis upon facilities for transport which is
also important inasmuch as in a given case an
area may be at short distance from one factory
than another but on account of better facility
of transport it may be more convenient for the
cane-growers to supply sugarcane to the
factory which is at a greater distance.
Similarly, sub-rule (f), which makes the
payment of price in earlier years relevant, is
very important from the point of view of
cane- growers. If the factory has defaulted in
payment of price and the dues of the cane-
growers are not paid for a long time, they
would not be willing to supply their produce
to such a factory. Prompt payment of price is
of primary importance to the cane-growers as
it takes almost a year before sugarcane crop is
ready for harvesting. The cane-growers who
have nurtured their crop for about a year
would not like to wait for further period if
they have made the supply to the sugarfactory. Under sub-rule (h) effort made by the
factory in developing the area for producing
more and better quality of cane also becomes
relevant. If a factory has invested heavy
amount in developing an area as a result
where of the quality of sugarcane has
improved, naturally it would like the said
cane to be supplied to its factory . The
provisions of the Act and Rules show in
unmistakable
terms
that
the
order for
assignment or reservation of an area has to be
passed after taking into consideration various
factors and it cannot be based upon one
solitary consideration. May be in a given case
one single factor may far out weigh the effect
of all other remaining factors. For example, an
area may be right at the gate of the Sugar Mill
and in such a situation distance alone can be
taken into consideration for assigning or
reserving that area in favour of that sugar
factory . It is for the authorities., who are
experts in the field, to take into
consideration all the factors and after
balancing them pass appropriate orders which
best sub serve the interest of the sugar
factory and the cane-growers.

12. The impugned order dated 20.12.1999
of the Cane Commissioner shows that he
merely made reference to the findings
recorded by the Appellate Authority in the
order dated 18.12.1999 and thereafter passed
the operative portion of the order assigning all
the purchase centres in favour of respondent
no.4 No doubt, the Cane Commissioner had to
take into consideration the observations made
in the order of the Appellate authority but he
was
also
legally
bound
to
take
into
consideration the observations made in the
order of the Appellate Authority but he was
also legally bound to take into consideration
the factors mentioned in rule 22 of the Rules.
Once the matter had been remanded to him,
he could not base his order entirely upon the
order of the Appellate Authority as if it was a
direction to him to assign, the purchase
centers in favour of a particular Sugar Mill
and to ignore the statutory provision.

13. In Hindustan Steel Ltd. Versus A. K.
Rai, AIR 1970 SC 1401, the Apex Court has
ruled that if a statutory tribunal exercises its
discretion
on
the
basis
of
irrelevant
considerations or without regard to relevant
considerations, certiorari may be issued to
quash its order. As mentioned earlier, the
impugned order has been passed without
giving any opportunity of hearing to the
petitioners. Sub-section (1) of section 15 of
the Act, enjoins a duty upon the Cane
Commissioner to pass a reservation order
after consulting the Factory and Cane-growers
Co-operative Society. The manner in which
the impugned order has been passed clearly
shows that neither any notice was issued to
Cane-growers Co-operative Society nor any
opportunity of hearing was given to them. For
these reasons, the impugned order is clearly
illegal and has to be set aside.
2All] Shiv Sahain Mishra alias Raju V. State of U.P. and others
13
14. At the fag end of the arguments, an
application was filed where in a prayer has
been made to (a) permit the petitioner for
pursuing relief no.1 in a separate writ petition
before the Single Judge, (b) Clarify that relief
nos. (c), (d) and (e) have not been given up
and continue in the present writ petition.

15. We are of the opinion that in view of
the statement made by the counsel for the
petitioner and liberty having not been granted
to them to file a separate writ petition for
seeking relief no.1{in fact relief no.(a)} such
a prayer cannot be granted. We are fortified
in our view by a decision of the Apex Court in
Sarguja Transport Service Versus State
Transport Tribunal, A.I.R. 1987 SC 88. The
other prayer regarding clarification of the
order can only be granted by the same Bench
which heard the matter on 23.12.1999.

16. In the result, both the petitions
succeed and are hereby allowed. The
impugned order dated 20.12.1999 of Cane
Commissioner
(Annexure-8
to
the
writ
petition) is quashed. The Cane Commissioner
is directed to pass a fresh order after giving
opportunity of hearing to all the parties
concerned and in accordance with law.

17. The petitioner and respondent no.4
are directed to appear before the Cane
Commissioner, U.P. on 18.1.2000. The Cane
Commissioner shall make endeavour to pass
final
order
expeditiously
preferably
by
31.1.2000. Learned counsel for respondent
no.4 has under taken that his client will
personally serve all the parties as may be
directed by the Cane Commissioner.

18. It is being made clear that it should
not be understood that this Court is expressing
any opinion regarding merits of the claim of
any party. The Cane Commissioner shall
exercise his independent judgment after
taking into consideration all the relevant
factors and shall pass orders in accordance
with law.

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By the Court

1. The above two application under
Section 482 Cr.P.C. have been preferred for
quashing of proceeding against the applicants
on the basis of order dated 4.4.1997 passed in
Criminal Case No. 512 of 1994. State Vs.
Krishna Kumar and others. Under Section
323, 325, 504 and 506 I.P.C. P.S. Bakewar,
district Fatehpur pending in the Court of
Additional
Chief
Judicial
Magistrate
Fatehpur.