Surat Jilla Dakshin Purva Vibhag Sahakari Khand Udyog vs State of Gujarat and 4

Honourable Mr. Justice R.M. Chhaya

Heard Mr. Mehul Vakharia, learned counsel for the petitioner and Mr. Janak Raval, learned AGP for respondent Nos.1 and 2. The other respondents are served, but no one appears.

By way of this petition under Article 226 of the Constitution of India, the petitioner proposed society has challenged the order dated 3.12.2004 passed by respondent No.2 pursuant to show cause notice dated 1.5.2002 issued by the said authority. The aforesaid order is challenged in this petition on various grounds. However, Mr. Vakharia, learned counsel appearing for the petitioner submitted that the respondent authority has not taken into consideration the aspects which were necessary to be considered by it while considering the application of the petitioner society as the petitioner society intends to be registered under the Gujarat Cooperative Societies Act and desires to establish a sugar factory. Mr. Vakharia further submitted that the order impugned is based only on non-germane grounds and there is total non-application of mind on the part of the respondent authority. Mr. Vakharia, learned counsel appearing for the petitioner also invited attention of this Court to the further affidavit filed by the Chief Promoter of the petitioner proposed society pursuant to the order passed by this Court dated 14.11.2011. Mr. Vakharia further submitted that the facts which are stated in the affidavit are very much on record before the authority, still however, these details have not been considered at all by the respondent authority. Mr. Vakharia further submitted that there is a change in policy, both of the Central Government as well as the State Government, in relation to establishment of Cooperative Society for establishment of a Sugar factory. Mr. Vakharia further submitted that the authority, without there being any material on record, has come to a conclusion that the planning of the project is improper and sufficient sugarcane will not be available. Mr. Vakharia, therefore, submitted that the order impugned in the present petition is bad, illegal and deserves to be quashed and set aside.

Per contra, Mr. Janak Raval, learned AGP supported the order impugned in the present petition. Mr. Raval invited attention of this Court to the affidavit in reply filed by respondent No.2, in particular, additional affidavit in reply filed by respondent No.2. Mr. Raval, therefore, submitted that the authority below has not committed any error and therefore, the petition deserves to be dismissed.

Short controversy involved in the present petition is that the petitioner proposed society intends to establish a sugar factory as a Cooperative Society in Village Padamdungri situated in District Surat. Taking into consideration the facts stated in the petition as well as in the additional affidavit in reply referred to hereinabove, 14 societies are inter-alia engaged in the manufacturing activities of sugar at a distance of more than 15 kms. as required under the regulations, whereas the respondent authority has not examined this vital aspect and has merely come to the conclusion that the said condition is not fulfilled. Similarly, from the other details given in the additional affidavit, more particularly, Annexures-II, III and IV if compared with the figures relied upon by the respondent authority while passing the impugned order, it indicates that the authority below has not considered the same and there is non-application of mind on the part of the respondent authority.

In addition to this, the application of the petitioner society was made on 5.10.1998 i.e. before 13 years. It has come on record that in between there is change in policy as aforesaid and therefore, the conditions and criteria for establishment of sugar factory have also undergone a change. It is an admitted position that because of pendency of this litigation, the petitioner proposed society is not able to establish sugar factory till date. Therefore, even on the ground of equity, it would be appropriate for the authority to re-examine the whole issue again.

In view of the above, the petition is allowed. The order impugned dated 3.12.2004 passed by respondent No.2 at Annexure-E to the petition is hereby quashed and set aside and the matter is remanded back to respondent No.2 for its reconsideration. The petitioner shall be at liberty to produce any further documents before the authority and respondent No.2 authority shall consider the same in accordance with law without being influenced by the earlier order. Respondent No.2 shall re-examine the matter in accordance with law and as per the policy prevailing today. It is expected that the authority shall given an opportunity of being heard to the petitioner and respondent No.2 shall take a decision as expeditiously as possible.

Rule is made absolute only to the aforesaid extent. No costs.