' Briefly stated the facts relevant for the disposal of this constitution petition are that Cane Commissioner, Punjab in exercise of powers vesting in him under subsection (1) of section 10 of the Sugar Factories Control Act, 1950 vide Notification No, CC (Cane) Z (14)/82, dated the 30th October, 1982 allocated various chaks in Tehsil Mianwali and Tehsil Leiah declaring the same to be reserved area for the purposes of supply of cane to the petitioner company for the crushing seasons 1982- 83, 1983-84 and 1984-85. In this notification the petitioner company was directed under section 13(1) of the same Act to enter into agreements with the cane-grower of the Cane Growers' Co- operative Societies in the reserved area for the purchase of cane offered by them and the cane growers or their Co-operative Societies were also directed to offer and supply 80% of the cane grown by them to the said Mills at the factory gate or at the cane purchasing centres set up by the petitioner company. It is the case of the petitioner company that purchase centres with the provision of weigh bridges etc. Were established within the reserved area and agreements for the purchase of sugarcane were entered into with the cane-growers etc., after making advance payments to them. The amount paid in advance according to the averments in the petition is to be adjusted by receiving sugarcane during the present crushing season i.e. 1984-85. It was maintained that the Commissioner, Dera Ghazi Khan Division, respondent No,1 addressed a letter, dated 2-10-1983 to the Cane Commissioner, Punjab assigning the following zone-area to the Leiah Sugar Mills, respondent No,3.--
(i) Entire District of Leiah.
(ii) 145 villages of Tehsil Kot Adu District Muzaffargarh.
' This direction had the effect of withdrawing 79 villages of Leiah District from the reserved area of the petitioner company as notified vide notification, dated 30-10-1982. On receipt of this communication the Cane Commissioner, respondent No,2 after hearing the petitioner company and the respondent company declined to withdraw the said 79 chaks from the Zone area of the petitioner company as suggested by the learned Commissioner. This decision was conveyed vide memo., dated 17-12-1983. In this memo. The Cane Commissioner observed that 79 Chaks in question were included in the zone of the petitioner company for three crushing seasons after consulting the Sugarcane Control Board and that this location was based on the compromise mutually arrived at between the managements of both the companies and hence no valid ground existed to change the existing arrangement. The respondent company thereafter filed an appeal under section 10(2) of the aforesaid Act against the order conveyed vide memo., dated 17-12-1983 and the notification of reservation, dated 30-10-1982 of the Cane Commissioner. This appeal was accepted by the Commissioner, Dera Ghazi Khan, vide order datged 22-8-1984 whereunder 79 Chaks in question have been declared to be non-assigned area with the consequence that both the Mills are free to set up their purchase centres for purchase of cane from the cane-growers. This order of learned Commissioner was then assailed in the present constitution petition on the grounds (i) that no appeal lies against an order refusing to withdraw any area from the reserved area already notified and that the appeal filed on 13-9-1984 to challenge the notification dated 30- 10-82 whereby the area was reserved was barred by time; (ii) that the learned Commissioner was neither conscious that the appeal filed before him was barred by time nor the delay was condoned by him and that the delay could not be condoned as the appeal was not accompanied with an application for condonation of delay; (iii) that the learned Commissioner having earlier directed to the Cane Commissioner to withdraw the said 79 Chaks from the reserved area could not hear the appeal himself against the order of refusal passed by the Cane Commissioner. It was added that an authority which had already expressed its view in a matter in another capacity cannot sit in judgment of the same matter as an appellate authority in views of the principle of natural justice;
(iv) that the impugned order is illegal as it was based on extraneous considerations; and (v) that the propriety demanded that the arrangements entered into by the parties be not disturbed towards the end of the period fixed as any such disturbance at that late stage would cause immense financial loss to the petitioner company.
2. Learned counsel for the respondent company in reply submitted (i) that no period is provided for filing an appeal under section 10(2) of the said Act and as such the appeal was not barred by time;
(ii) that the Chaks in question which have been declared free area under the impugned order were earlier assigned to the respondent company and no justification existed for including the said Chaks in the area reserved for the petitioner company; (iii) that the respondent company never agreed to the inclusion of the said Chaks in the zone of the petitioner company; and (iv) that as the said Chaks have been declared as non-assigned area, both the mills will be free to procure cane so the cane growers will be benefited due to the healthy competition resulting therefrom.
3. I have given anxious consideration to the pleas advanced by the learned counsel for the parties.
Before dealing with these pleas it is pertinent to note that the respondent company did not file a written statement so as to controvert the factual pleas taken by the petitioner in the writ petition and the other documents available on the file. It may also be stated that the Cane Commissioner in his memo., dated 17-12-1983 has observed that the allocation of reserved area through notification dated 30-10-1982 was based on the compromise mutually arrived at between the management of the two Mills. The factum of compromise was not repudiated in the memorandum of appeal filed by the respondent company and the explanation given was that during the season 1981-82 due to favourable weather the cane grown in the zone of respondent company was much above its crushing capacity and, therefore, the cane purchasing centres were surrendered by it to the petitioner company and that the said compromise was not effective for all time to come. As against this the petitioner company in written reply submitted before the learned Commissioner, Dere Ghazi Khan, in para. 5 had stated inter alia that as per the direction of the Cane Commissioner the petitioner sent its zoning proposal including 79 Chaks in question in the reserved/zone area of the petitioner and the respondent company in its counter proposal did not opt to include the said Chaks in their zoning proposals relating to the three crushing zone 1982-83 to 1984-85 and that the Cane Commissioner by his order dated 30-10-1982 accordingly declared 79 Chaks in question as reserved area/Zone of the petitioner and that the respondent company with open eyes has been accepting the said arrangement and delcaration of zone/ area by the Cane Commissioner. It was also stated in this very para. Of the written reply that the quantity of cane then available to respondent company was in surplus of its requirements and so as to release itself from the pressure of the cane-growers the respondent agreed to part away with these Chaks. The question whether the reservation of the zone area of both the mills vide notification dated 30-10-1982 was based on compromise arrangement as asserted by the Cane Commissioner as well as by the petitioner has important bearing on the right of appeal if otherwise available under law. The other significant fact to be noted in this context is that the respondent company had not filed an appeal against the notification dated 30-10-1982 there and then or within reasonable time thereof. The appeal was filed only when the Cane Commissioner on reference from the learned Commissioner D.G. Khan Division had refused to withdraw the Chaks in question from the zone of the petitioner company. The question of compromise assumes important as the respondent company would lose the right to file an appeal against the order dated 2-10-1982 (declaring reserved area) and the order dated 17-12-1983 (refusing to withdraw the disputed Chaks) if the said reservation was made on the basis of mutual agreement or on account of non-inclusion of the said Chaks in the proposals submitted to the Cane Commissioner by the respondent company itself. It is unfortunate that the learned Commissioner without adverting to the question of compromise proceeded to accept the appeal. Anyhow, the averments as regards compromise made in the writ petition and in comments submitted by the learned Cane Commissioner were not controverted by filing written statement by the respondent company.
These averments as such have to be taken to have been accepted. In this view of the matter, the respondent company had lost its right to file an appeal even if the argument that under section 10(2) of the aforesaid Act an appeal against the order refusing to withdraw any area from the declared reserved area lies, is accepted. In view of above it is not necessary to go into the question of availability of appeal against the aforesaid order under section 10(2) of the Act. As regards the question of limitation of filing an appeal under section 10(2) of the aforesaid Act it may be noted that neither the act or the Sugar Factory Control Rules, 1950 provid for any period of limitation. The declaration of reserved area is dealt with section 10 of the aforesaid Act whereas section 14 thereof deal with declaration of assigned area and purchases of cane therein. Rule 10(2) of the aforesaid Rules provides for period of one month for an appeal against an order of the Cane Commissioner passed under section 14 of the Act but there is no similar provision in the rules for a appeal against the declaration of the reserved area under section 10 of the Act. Obviously, the plea that the appeal was barred by time ha" no merit as neither the Act nor the rules provide for any period o limitation.
However, there is force in the plea that the appellate authority should be slow to interfere in the order of reservation if the appeal is filed after much delay as any disturbance made at later stage would result in disturbing the arrangements already made and the contracts executed and obligations incurred. It has also to be kept in mind that such a belated interference is bound to cause financial loss to the parties concerned. The rule of propriety demands that in such a situation, an appellate authority should look for special circumstances and should give reasons for causing disturbance at a belated stage especially in the case like the present one where the reservation period is to expire within a few months. Learned Commissioner while accepting the appeal filed by the respondent had not given any consideration to the aforenoted relevant factors and in these circumstances it is apparent that the impugned order was passed without application of judicial mind. Moreover, learned Commissioner in all fairness should not have heard this appeal as he had earlier directed the Cane Commissioner to withdraw the Chaks in dispute from the reserved area of the petitioner company. As the learned Commissioner had already expressed his view rather in strong terms in the impugned direction, the petitioner company was justified to believe that a fair hearing by application of open mind was not possible because of predetermination of the issue. It cannot b disputed that if an adjudicator manifests open hostility to the cause of a party or has predetermined an issue the only reasonable conclusion may be that a fair hearing according to natural justice has not been granted. It will, therefore, be appropriate for the person who is vested with appellate power to restrain himself from committing himself to one view or the other in respect of a matter which may come up before hi in another capacity as otherwise the remedy of appeal provided by law will be rendered ineffective and resort to such a remedy will be an exercise in futility. The reasons given above are sufficient to declare the impugned order illegal and without lawful authority. In view of the matter above the other submissions of the learned counsel for the petitioner need not be gone into.
4. The upshot of the above discussion is that the impugned order dated 22-8-1984 of the learned Commissioner is hereby declared to be without lawful authority and hence of no legal effect. This petition is, therefore, accepted with costs.