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Judgment
Rajiv Sharma, J.—Heard Sri Virendra Bhatia, Senior Advocate assisted by Sri Akhilesh Kalra for the petitioner, Sri Raghuvendra Singh for opposite party No.6, Mr. K.S. Pawar for opposite party No.7 and learned State Counsel appearing for the State and peruse the records produced by the Standing Counsel.
Briefly stated facts of the case are that D.S.M. Sugar Millpetitioner is a company registered under the Companies Act and is engaged in the business of manufacturing sugar by Vacuum Pan Process having capacity of 8500 TCD. For the crushing season 20072008, the petitioner submitted their estimated requirement of cane under Section 12 of the U.P. Sugar Cane (Regulation of Supply & Purchase) Act 1953 (in short referred to as the ''Act'') to the Cane Commissioner, who notified the estimate of the petitioner as 106.20 lacs quintals. In order to meet the requirement of cane, the Cane Commissioner passed the reservation order dated 6.10.2007 reserving the area for the petitioner mill.
Being not satisfied with the reservation order, petitioner filed an appeal inter alia on the ground that the Cane Purchase Centres reserved for the factory and which were developed by the factory cannot be assigned to any other sugar factory. Further the assignment of Cane Purchase Centres has been made in utter disregard of the provisions of Rule 22 of the U.P. Sugarcane (Regulation of Supply & Purchase) Rules, 1954.
As the hearing of the Appeal was not being expedited by the Appellate Authority, the petitioner approached this Court and this Court vide order dated 27.10.2007 directed the Appellate Authority to decide the same within ten days. The Appellate Authority by the order dated 4th December, 2007 rejected the appeal preferred by the petitioner.
Hence the order dated 4th December, 2007 passed by the Appellate Authority (Special Secretary, Sugar Industries & Cane Development) passed in appeal No.5(42) of 2007 has been impugned in the present writ petition.
Appearance has been put in by the Chief Standing Counsel on behalf of opposite parties Nos. 1 to 5 whereas Sri Raghuvendra Singh has put in appearance on behalf of opposite party No.6Triveni Engineering & Industries Limited.
A preliminary objection has been raised by Sri Raghuvendra Singh appearing for the opposite party No.6 that Cane Development Union, Amroha, District J.P. Nagar, who is a proper and necessary party has not been arrayed as respondent in the writ petition though the same has been arrayed as one of the opposite parties in the appeal, therefore, this writ petition deserves to be dismissed for nonjoinder of necessary party. Therefore, the Counsel for the petitioner made an application for impleadment impleading ''Sadhan Ganna Vikas Samiti Amroha, J.P. Nagar'' as respondent No.7 on whose behalf Sri K.S. Pawar has put in appearance and also filed counter affidavit.
It has been argued by Sri Virendra Bhatia that findings recorded by the Appellate Authority are contrary to the records in so far as the Cane Purchasing Centres, namely, Raipur Shahzadadpur, Sallarpur Khalsha and EinthKaRarha which have been assigned to the sugar unit of opposite party No.6 were in fact nourished and developed by the petitioner and were the reserved area since 199495 till the crushing season 200607. Not only this, these Cane Purchsing Centres are situated closer to the petitioner sugar unit whereas these are more than 45 Kms. Away from the respondent No.6 sugar unit. Thus the Cane Commissioner while passing the reservation order and assigning these Cane Purchasing Centres to respondent No.6 has not considered the necessary ingredients as laid down in Rule 22 of the U.P. Sugarcane (Regulation of Supply & Purchase) Rules 1954. Apart from the above, views of the cane growers of the centers in questions are in favour of the petitioner''s sugar unit.
Mr. Bhatia next argued that the production of cane which has been determined from the area reserved for the petitioner mill is 550 quintals per hectare. Further, the Appellate Authority erred in not considering the fact that while passing the reservation order the Cane Commissioner has not considered the fact that there are 100 Kohlus and 20 Crushers in the reserved area, which has been earmarked for the petitioner. He also informed that drawl percentage of the petitioenrs'' unit has been fixed as 71%, which is contrary to the policy dated 17th April, 2007.
Lastly, it has been contended by Sri Bhatia that a resolution of the Society is mandatory and only then the proposal can be made to the authority concerned on the basis of the said resolution. In the event there is no proposal of the Society, it would be in violation of Rule 105 and Rule 123K of the U.P. Cooperative Societies Rules, 1968, which provides that a decision of Society can only be through a resolution. Thus the view of the sugarcane Society can be expressed through a resolution of Society as required under Rule 22 of the U.P. Sugarcane (Regulation of Supply & Purchase) Rules, 1954.
Refuting the arguments advanced by the Counsel for the petitioner, Sri Raghuvendra Singh submitted that drawl capacity of the respondent unit has also been determined at 77.44% and in order to fulfil the requirement of sugarcane for crushing in the current season, the said cane centers have been made available to his unit by assigning the same in his favour. He also informed that the Cane Commissioner by the order dated 22.11.2007 has cancelled the assignment of three Cane Purchasing Centres, namely, Haibatpur, Hakampur and Chakmadipur made in favour of the respondents No.6 and same have been reassigned to the petitioner''s unit and as such the petitioner''s grievance has been redressed by the Cane Commissioner without considering the fact that on account of high drawl capacity of the respondents'' unit there is infact shortage of cane.
As regard the contention of the petitioner that the Cane Centres were not proposed by the answering opposite party for supply of cane, it has been submitted that there is a proposal in the requisite format of the Cane Society in favour of the answering respondent''s unit and the Cane Commissioner after considering the said proposal has assigned these Cane Centres in favour of the repsondent''s unit. As regard the criteria, which have been laid down in Rule 22, it has been submitted that respondent''s sugar unit is a newly established sugar unit and as such the guidelines mentioned in Rule 22 cannot be applied while assigning centers in favour of the respondent''s unit. Moreover, on the request of D.S.M. Sugar Mill, Dhampur, a sister concern of the petitioner''s unit, three more cane centers, namely, Rampur Junardar Sirsajat, Barkhera Sadat and Yusulpur have also been assigned to petitioner''s sugar unit, therefore, in real sense there is no shortage of cane for the petitioner''s unit. He further submits that while passing the reservation order, distance may be one of the criteria but cannot be the sole criteria for assigning a cane center and there are other aspects also which are taken into consideration by the authority concerned.
Mr. Raghuvendra Singh also submitted that under Section 15 of the Act there should only be a consultation with the Society and resolution is not required.
Sri K.S. Pawar appearing for the opposite party No.7 admits that there was no resolution passed by the cane Society but the Chairman and Secretary of the Society have submitted a proposal for assigning/reserving the aforesaid cane centers in favour of Chandanpur Unit Opposite party No.6 in the requisite format. He has also submitted that there is no procedure for passing of any resolution by the Society but the only requirement is of submission of a proposal.
Sri K.S. Pawar next contended that a resolution is necessary where the new cane purchase center is created or the name of a center is changed or there is a demand by the members of the Society. Further, no such plea was ever raised either before the Cane Commissioner or the Appellate Authority as such the petitioner is estopped from raising this plea for the first time in the writ petition. According to him, the petitioner cannot deviate from the pleadings taken in the appeal and the new facts, which were never agitated either before the Cane Commissioner or the Appellate Authority cannot be raised now.
In order to appreciate the arguments advanced by the Counsel for the parties that as to whether consultation is required under SectIon 15 of the U.P. Sugarcane (Regulation of Supply & Purchase) Act, 1953 is to be effective consultation or only a proposal on the format signed by the Chairman/Secretary is to be given, therefore the relevant provision as also Rule 105 and Rule 123K of the Cooperative Societies Rules, 1968 are being reproduced hereinunder:
�Section 15: Declaration of reserved area and assigned area:
(1) Without prejudice to any order made under clause (d) of subsection (2) of Section 16 of Cane Commissioner may, after consulting the Factory and Cane Grower''s Cooperative Society in the manner to be prescribed:
(a) reserve any area [hereinafter called the reserved area] and
(b) assign any area [hereinafter called an assigned area]
for the purposes of the supply of cane to a factory in accordance with the provisions of Section 16 during [one or more crushing seasons as may specified] and may likewise at any time cancel such order or alter the boundaries of an area so reserved or assigned.
(2) Where any area has been declared as reserved area for a factory, the occupies of such factory shall, if so directed by the Cane Commissioner, purchase all the cane grown in that area, which is offered for sale to the factory.
(3) Where any area has been declared as assigned area for a factory, the occupier of such factory shall purchase such quantity of cane grown in that area and offered for sale to the factory as may be determined by the Cane Commissioner.�
Rule 105 of the U.P. Cooperative Societies Rules, 1968 reads as under;
�Rule 105. All matter before a meeting shall be decided in the form of resolution passed by a majority of notes of the members present unless a specific majority is required under the provisions of the Act, rules or the byelaws of the Society. In case of equality of votes, the person presiding over the meeting shall have a second or casting vote.�
Rule 123K of which reference has also been given by the petitioner''s Counsel has infact been omitted by the notification dated 15.7.1994.
On perusal of the aforesaid rules, it is abundantly clear that the decision of the Society shall be in the form of a resolution. Admittedly, in the instant case there was no resolution of the Society and further while passing the reservation order, it is only the proposal signed by the Chairman/Secretary was available with the Cane Commissioner.
The word �consult� does not only mean only an information from a person but it requires meeting of minds between the parties involved in the process of consultation on the material facts. In common parlance whenever the expression �consultation� is used in connection with lawyers, or with the physician or with the engineer etc. it would mean as seeking opinion or advice or aid or information or instruction [See: Supreme Court AdvocatesonRecord Assn. v. Union of India, (1993) 4 SCC 441]. Consultation is a process, which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or at least satisfactory solution. There should be meeting of minds between the proposer and the person to be consulted on the subject of consultation. There must be definite facts, which constitute the foundation and source for final decision. The object of the consultation is to render consultation meaningful to serve the intended purpose.
The Hon''ble Apex Court while defining the word �consultation� in State of J & K v. A.R. Zakkir, 1992 Supp. (1) SCC 548 has held as under:
�Though consultation does not mean ''concurrence'', it postulates an effective consultation which involves exchange of mutual viewpoints of each other and examination of the relative merits of the other point of view. Consultation or deliberation is not complete or effective before the parties thereto make their respect points of view known to the other or others and discuss and examine the relative merits of their views.�
It may be added that this Court while sitting in writ jurisdiction cannot and should not decide the disputed question of facts, which should be left for the authority concerned. The questions which centers are closer to which mill, what are the views of the Society, which centers were developed and nourished by one sugar unit and what should be the reserved area of the sugar unit of the petitioner or the opposite party No.6, all these are disputed questions of fact and cannot be looked into by this Court. However, I find force in the submission made by Sri Virendra Bhatia, appearing for the petitioner that the cane growers'' Society should have been consulted and thereafter a resolution in proper format should have been sent to the Cane Commissioner/competent Authority, as there was no effective consultation of the members of the Society before sending the proposal by the Chairman/Secretary of the Society. Mr. Bhatia has also produced certain copies of the resolutions passed by the Society for supply of cane to a particular unit.
Having heard the submissions made by the rival parties, I am of he view that pleas raised by them are disputed question of facts which cannot be adjudicated by this Court under Article 226 of the Constitution of India. It is settled law and has recently been reiterated in Sanjay Sitaram Khemka v. State of Maharashtra, (2006) 5 SCC 255, that matter involving disputed questions of facts cannot be dealt with by the High Court in exercise of its power of judicial review. Thus, it would be appropriate if the matter is remitted to the authority concerned for a fresh decision in light of the observations made hereinabove after affording due opportunity of hearing to the parties concerned including the cane Society.
Accordingly, the writ petition is allowed, the order dated 4th December, 2007 passed by the respondent No.2 in appeal No.5 (42) of 2007 and the reservation order passed by the Cane Commissioner so far as it relates to assigning of three centers, namely, Raipur Shazadpur, Sallapur Khalsha and EinthKaRarha in favour of opposite party No.6 are hereby quashed. The matter is remitted to the Cane Commissioner with the direction to decide the matter afresh by 31st January, 2008 after giving due opportunity of hearing to the parties concerned expeditiously.
(Petition allowed)