Case Note & Summary
The petitioner, a sugar factory registered under the Companies Act, 1956, challenged the order dated 2 July 2011 of the Commissioner of Sugar, Maharashtra State, granting an Aerial Distance Certificate under Clause 6-B of the Sugarcane (Control) Order, 1966 in favor of Respondent No.5 for setting up a new sugar factory between villages Dhamane and Belewadi Kalamma in Kagal Taluka, Kolhapur District. The distance between the petitioner's existing factory and the proposed factory was 17.2 km, which exceeded the then-applicable minimum of 15 km. The petitioner's sole ground for challenge was that a subsequent Notification dated 3 December 2011 increased the minimum distance to 25 km and should apply retrospectively, making the certificate invalid. Additionally, the petitioner argued that the Commissioner should have considered other factors like availability of sugarcane, water resources, and demand for bagasse. The court dismissed the petition, holding that the notification was not retrospective and that the Commissioner's role under Clause 6-B was limited to verifying aerial distance. The court found no merit in the challenge and upheld the certificate.
Headnote
A) Administrative Law - Retrospective Operation of Subordinate Legislation - Notification Increasing Distance - The Notification dated 3 December 2011 under the Sugarcane (Control) Order, 1966 increasing the minimum aerial distance from 15 km to 25 km does not apply retrospectively to a certificate granted on 2 July 2011. The court held that subordinate legislation is presumed to operate prospectively unless expressly made retrospective, and the notification did not contain any such provision. (Paras 2-5)
B) Sugarcane Control - Aerial Distance Certificate - Clause 6-B of Sugarcane (Control) Order, 1966 - Scope of Consideration - The Commissioner of Sugar is not required to consider factors beyond aerial distance, such as availability of sugarcane, water resources, or demand for bagasse, while granting an aerial distance certificate under Clause 6-B. The certificate is only a preliminary step; other considerations are addressed at later stages. (Paras 6-8)
Issue of Consideration
Whether the Notification dated 3 December 2011 increasing the aerial distance from 15 km to 25 km applies retrospectively to invalidate a certificate granted on 2 July 2011, and whether the Commissioner of Sugar was required to consider factors beyond aerial distance while granting the certificate.
Final Decision
The writ petition is dismissed. The impugned order dated 2 July 2011 granting the Aerial Distance Certificate is upheld.
Law Points
- Retrospective operation of subordinate legislation
- Interpretation of Sugarcane (Control) Order
- 1966
- Clause 6-B
- Aerial distance certificate
- Non-consideration of additional factors
Case Details
2014 LawText (BOM) (12) 36
WRIT PETITION NO.1481 OF 2013
MOHIT S. SHAH, C.J., B.P.COLABAWALLA, J.
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, Mr.Y.S.Jahagirdar, Sr.Advocate with Mr.S.S.Patwardhan for Respondent no.5, Mr.B.M.Chatterjee, Sr.Advocate for Respondent no.4
Sadashivrao Mandalik Kagal Taluka Sahakari Sakhar Karkhana Limited
The Commissioner of Sugar and others
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Nature of Litigation
Writ petition under Article 226 challenging an order granting an Aerial Distance Certificate under the Sugarcane (Control) Order, 1966.
Remedy Sought
Quashing of the order dated 2 July 2011 granting the Aerial Distance Certificate to Respondent No.5.
Filing Reason
The petitioner contended that a subsequent notification increasing the minimum distance should apply retrospectively, and that the Commissioner failed to consider other relevant factors.
Issues
Whether the Notification dated 3 December 2011 increasing the aerial distance from 15 km to 25 km applies retrospectively to invalidate a certificate granted on 2 July 2011.
Whether the Commissioner of Sugar was required to consider factors beyond aerial distance while granting the certificate under Clause 6-B.
Submissions/Arguments
The petitioner argued that the Notification dated 3 December 2011 should apply retrospectively, making the certificate invalid as the distance of 17.2 km is less than 25 km.
The petitioner argued that the Commissioner should have considered availability of sugarcane, water resources, and demand for bagasse.
The respondents argued that the notification is not retrospective and that the Commissioner's role under Clause 6-B is limited to verifying aerial distance.
Ratio Decidendi
Subordinate legislation is presumed to operate prospectively unless expressly made retrospective. The Notification dated 3 December 2011 did not contain any provision for retrospective application. Under Clause 6-B of the Sugarcane (Control) Order, 1966, the Commissioner's role is limited to verifying the aerial distance; other factors are considered at later stages.
Judgment Excerpts
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... and that the said Notification dated 3 December 2011 applies retrospectively...
The court held that the notification is not retrospective and that the Commissioner was not required to consider other factors.
Procedural History
The petitioner filed a writ petition under Article 226 of the Constitution of India in the High Court of Judicature at Bombay challenging the order dated 2 July 2011 of the Commissioner of Sugar granting an Aerial Distance Certificate to Respondent No.5. The petition was heard and judgment reserved on 3 December 2014 and pronounced on 5 December 2014.
Acts & Sections
- Sugarcane (Control) Order, 1966: Clause 6-A, Clause 6-B
- Companies Act, 1956:
- Constitution of India: Article 226
