Case Note & Summary
The appellant, Bhavna Agro Products and Services Private Limited, sought to establish a sugar mill and applied for an Aerial Distance Certificate under Clause 6A of the Sugarcane (Control) Order, 1966. The Commissioner of Sugar rejected the application on the ground that the aerial distance between the proposed factory's chimney and the chimney of an existing sugar factory (Respondent No. 2) was less than 25 kilometers. The appellant challenged this in Writ Petition No. 858 of 2012, which was dismissed by a learned Single Judge on 30.04.2012, holding that the appellant must first obtain the certificate and then raise the contention about the factory not being in existence. In the Letters Patent Appeal, the appellant argued that Respondent No. 2's sugar factory had ceased operations since 2001 and was defunct, and therefore could not be considered an 'existing sugar factory' under Clause 6A. The court, after hearing counsel for both sides, admitted the appeal and heard it finally. The court noted that the requirement of aerial distance applies only to factories that are both existing and operating. Since Respondent No. 2's factory was defunct, the Commissioner's reliance on its chimney was erroneous. The court allowed the appeal, set aside the order of the learned Single Judge, and directed the Commissioner of Sugar to reconsider the appellant's application for the Aerial Distance Certificate without reference to the defunct factory.
Headnote
A) Sugarcane Control - Aerial Distance Certificate - Interpretation of Clause 6A - The requirement of aerial distance between chimneys of sugar factories under Clause 6A of the Sugarcane (Control) Order, 1966 applies only to factories that are both existing and operating. A factory that has ceased operations and is defunct cannot be considered for calculating the minimum distance. (Paras 2-4)
B) Sugarcane Control - Defunct Factory - Relevance - Clause 6B - The court considered that the respondent sugar factory had not been in operation since 2001 and was defunct. Therefore, the Commissioner of Sugar erred in relying on its chimney for denying the aerial distance certificate to the appellant. (Paras 3-4)
Issue of Consideration
Whether a sugar factory that has ceased operations and is defunct can be considered an 'existing sugar factory' for the purpose of calculating aerial distance under Clause 6A of the Sugarcane (Control) Order, 1966.
Final Decision
Appeal allowed. Order of learned Single Judge dated 30.04.2012 set aside. Commissioner of Sugar directed to reconsider appellant's application for Aerial Distance Certificate without reference to the defunct factory (Respondent No. 2).
Law Points
- Interpretation of Clause 6A and 6B of Sugarcane (Control) Order
- 1966
- Aerial distance requirement for sugar factories
- Defunct factory not considered existing factory
Case Details
2016 LawText (BOM) (08) 200
Letters Patent Appeal No. 238 of 2012 in Writ Petition No. 858 of 2012
B.P. Dharmadhikari, Kum. Indira Jain
Shri Firdos Mirza for appellant; Shri S.B. Bissa, AGP for respondent Nos. 1 & 2; Shri R.L. Khapre for respondent No. 3; Shri S.R. Deshpande for intervenor No. 1; Shri M.V. Samarth for intervenor No. 2
Bhavna Agro Products and Services Private Limited
The Commissioner of Sugar, State of Maharashtra; Shri Balaji Cooperative Sugar Factory Limited; Shri Pandurang s/o Tukaram Thakre
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Nature of Litigation
Appeal against dismissal of writ petition seeking Aerial Distance Certificate for setting up a sugar mill.
Remedy Sought
Appellant sought setting aside of the order of the learned Single Judge and direction to the Commissioner of Sugar to issue Aerial Distance Certificate without considering the defunct factory.
Filing Reason
Commissioner of Sugar refused Aerial Distance Certificate on ground that distance between chimneys of proposed factory and existing factory was less than 25 kms, but the existing factory was defunct since 2001.
Previous Decisions
Learned Single Judge dismissed Writ Petition No. 858 of 2012 on 30.04.2012, holding that appellant must first obtain certificate and then raise contention about factory not being in existence.
Issues
Whether a defunct sugar factory can be considered an 'existing sugar factory' under Clause 6A of the Sugarcane (Control) Order, 1966 for calculating aerial distance.
Submissions/Arguments
Appellant argued that the sugar factory in the vicinity must be not only in existence but also operative, and since Respondent No. 2's factory was defunct since 2001, its chimney should not be considered for aerial distance.
Ratio Decidendi
Clause 6A of the Sugarcane (Control) Order, 1966 requires the sugar factory in the vicinity to be both existing and operating. A factory that has ceased operations and is defunct cannot be considered for calculating the minimum aerial distance between chimneys.
Judgment Excerpts
Appellant is a Private Limited Company, which desires to set up a Sugar Mill and for that purpose needs Aerial Distance Certificate as contemplated by Clause 6A of the Sugarcane (Control) Order, 1966.
He submits that Sugar factory i.e. Respondent No. 2 in present LPA has seized to be in operation and is defunct since 2001 and hence, there was no question of its chimney being looked into for finding out Aerial Distance of chimney.
Procedural History
Appellant applied for Aerial Distance Certificate; Commissioner of Sugar rejected application. Appellant filed Writ Petition No. 858 of 2012, which was dismissed by learned Single Judge on 30.04.2012. Appellant then filed Letters Patent Appeal No. 238 of 2012, which was admitted and heard finally on 11.08.2016.
Acts & Sections
- Sugarcane (Control) Order, 1966: Clause 6A, Clause 6B
