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High Court Appeal No.20 of 1987, decided on 25th March, 1987.

---S.10(1)--Sugarcane Factories Rules, 1950, Rr.6 & 9--Reservation of area for sugar factories--Appropriate time for--Reservation of area for sugar factories for procurement of sugarcane, held, should be made by or before start of crushing season--Reservation made much beyond time of crushing season would not be in accordance with relevant law.

---O.XXXIX, R.4--Interim injunction, vacation of--Discretion, exercise of--Discretion in vacating interim injunction, exercise by Court after considering various aspects of case and after taking law into consideration, held, would not be open to serious exception in appellate jurisdiction of High Court.

R.A. Akhund and A.R. Kazi for Appellant.

Raja Qureshi for Respondent No.1.

Noorul Hasan for Attorney-General on Court Notice.

-This High Court Appeal is directed against the order passed by the Hon'ble Single Judge on 1st February, 1987, recalling the ad interim order, granted earlier to the plaintiff /petitioner in Suit No.764 of 1986 in the application No.5,009.86.

The relevant facts are that the petitioner is a Sugar Factory in Mirpurkhas and the respondent No.1 is another Sugar factory at Ranipur in Khairpur District while respondent No.2 is the sugarcane grower and the respondent No.3 is the Government of Sind.

The dispute in the suit was that the plaintiff wanted that the area reserved by the Cane Commissioner for the plaintiff should be, in fact, reserved for the supply of sugarcane to its factory, but respondent No.1 was purchasing sugarcane from some of the growers in the area reserved for the factory- of the petitioner. The ad interim injunction was issued in the first instance, but after hearing the arguments of the counsel the interim injunction was vacated. The basis of vacating the injunction was that the reservation of the area had been made by the Cane-Commissioner of Sind on 26-11-1986. But the notification in the official Gazette in respect of the same was published only in December, 1986, hence it was not before crushing season.

The Hon'ble Judge took the view that after reading Sugarcane Factories Control Act of 1950 and the Sugar Factories Rules, 1950, he was of the tentative view that the reservation of the area for the Factories should be made by or before the crushing season starts. There is no doubt, the crushing season starts from 1st of October and continued to 30th January next following.

The reliance was placed upon section 10 subsection (1) which requires the issue of the order of reservation for the supply of Sugarcane to a particular factory during a particular crushing season and likewise also provides the cancellation of such order or the alteration of a boundary of an area, which was reserved. This section however, does not contain the timing of the reservation, but rule 6 gives some indication in respect of timing. Rule 6 provides that the Sugarcane Factory should estimate its requirements and submit the same to the Cane Commissioner before May for its crushing season next following the ensuing crushing season. The sub-rule (2) of rule 6 requires the Cane Commissioner to publish the said requirement in official Gazette within one month thereafter and the Provincial Government can modify the same.

Mr. Rasheed Akhund has argued that the crushing season next following the ensuing crushing season in rule 6 (1) stipulates that 1st of May should be regarded as 14 months in advance of the crushing season. We do not agree with the interpretation of the learned counsel because the words 'ensuing crushing season' would mean the current season, which had started from 30th of October of the earlier year and has continued uptil the 1st of May and 1st of June of the year when the requirement by the' Factory has to be estimated and, therefore, this would mean that the Factory has to estimate its requirement for the next season, which is to start from 1st of October i.e. only 5 months ahead. The counsel's argument was that the season next following would make it crushing season after the next crushing season. We are sorry, we cannot subscribe to this view because the basis of the learned counsel for this submission was that the growing time of the sugarcane should be considered. The growing time of the Sugarcane could be relevant for the purposes of the Cane Grower, but here rule 6 wants the estimate from the owner of the Factory of his requirement for the next crushing season and, therefore, the Factory. Owner has to estimate the capacity of his machinery in respect of the sugarcane required for being crushed by the machinery and, therefore, such estimate can easily be made by the Factory Owner without considering the growing time of the sugarcane.

Further submission made by Mr. Rasheed Akhund was that the rule 9 which has been relied upon by the learned Single Judge was in respect of the purchase of sugarcane and, therefore, it has no relevance to the timing of the reservation of an area. It is difficult to accept that submission because rule 9 talks of the purchase of Cane growing in a reserved area and, therefore, it stipulates that there must be a reserved area announced and declared before the occupier of the Factory can estimate the individual cane growing capacity of the Cane Grower in that area. Without the reservation having been made before the 30th September it is not possible for the Factory Owner to make that reservation. In our view, therefore, the view taken by the Hon'ble Single Judge was not, prima facie, incorrect. The reservation of the area having been made only on 26-11-1986 and the same having been published only on 25-12-1986 the same does not appear to be the reservation stipulated in law.

It appears to us that the Hon'ble Single Judge was right in saying that the reservation was actually made on 25th December, 1986 and, therefore, it was much beyond the time, which was required for the reservation of the area. In any case, the discretion in not granting the injunction after having considered the various aspects of the case was of the Hon'ble Single Judge and he has exercised that discretion after taking the law into consideration and, therefore, the same is not open to serious exception. However, we have dealt with the points raised by Mr. Rasheed as the same involve the interpretation of law.

Mr. A . R. Kazi has supported Mr. Akhund and the appeal was opposed by Mr. Raja Qureshi on behalf of respondent No.1.

Mr. Noorul Hasan had appeared on behalf of the Attorney -General on Court notice.

The result is that this High Court Appeal is, therefore, dismissed in limine and the Misc: Application is also dismissed.

H.B.T./M-248/K Appeal dismissed.

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