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SUGAR UNDERTAKINGS (TAKING OVER OF MANAGEMENT) ACT, 1978
49 of 1978
Sugar production during 1977-78 season had reached a record level of about 65 lakh tonnes. Taking Into account the record sugar production and the high level of sugar stock in the system, the need to further maximise domestic consumption of sugar and other factors, the Government had removed controls on prices, distribution, etc of sugar from the 16th August. 1978. The open market prices of sugar throughout the country have come down and are ruling at reasonable levels. There had however, been a disquieting increase In the arrears due to sugarcane growers, despite the efforts of the Government to liberalise the availability and terms of bank credit. The arrears of cane price for 1977-78 sugar season, as at the beginning of the cur- rent 1978-79 season, that Is. on the 1st October. 1978, amounted to over Rs. 53 crores. There was also an apprehension that on one pretext or the other a considerable number of sugar undertakings might not commence production during the current 1978-79 season on time. In the interests of the consuming .public and sugarcane growers and to maintain production and availability of sugar, which is an essential commodity, it agement of the defaulting sugar undertakings for a specified period. In view of the urgency, and as Parliament was not in session, the Sugar Undertakings (Taking Over of Management) Ordinance. 1978 (5 of 1978) was promulgated on the 9th November. 1978 to achieve the above objects. The Bill seeks to replace the provisions of the Ordinance.-Gaz. Of Ind., 27-11-1978. Pt. II. S. 2. Ext" p. 1390. Amending Act 18 of 1979.- For maintaining the continuity of production of sugar, for avoiding undue hardship to cane producing farmers who were not getting prompt payments for cane supplied by them to the sugar factories and to best sub-serve the Interests of all sections of the people the Sugar Undertakings (Taking Over of Management) Ordinance. 1978 was promulgated on the 9th November. 1978. The Ordinance was replaced by the Sugar Undertakings (Taking Over of Management) Ordinance, 1978 (49 of 1978). Under section 3 (1) (b) of the Ordinance, where the Central Government Is satisfied that on any date in any sugar year any cane purchased before that date for the purposes of the undertaking, arrears of cane dues to the extent of more than ten per cent of the total price of the cane so purchased during the immediately preceding year, the Central Government may issue a notice to the owner of such sugar undertaking calling upon him, among other things, to show cause as to why the management of such undertaking should not be taken over by the Central Government. A view has been put forth that arrears of cane dues referred to in this provision refer only to the arrears of cane dues which will accrue in the current sugar year. It was always the intention of the Government that the arrears of cane dues for which action can be taken should relate to cane purchased not only in the current year but also in the previous years. If this interpretation is not accepted, then the very objective of the legislation to ensure prompt clearance of the accumulated cane arrears and thus avoid undue hardship to the cane-producing farmers would not be met. It was considered desirable to amend section 3(1) (b) of the Act to bring out Government's intention more specifically and beyond doubt, and to validate action already taken. As Parliament was not in session and immediate action was necessary, the Sugar Undertakings (Taking Over of Management) Amendment Ordinance, 1979 was promulgated by the President on the 31st January, 1979, to achieve the above objects. The Bill seeks to replace the Ordinance. Gaz. of Ind.. 19-2-1979, Pt. II. S. 2, Ext., p. 3. Amending Act 44 of 1981.-
The Sugar Undertakings (Taking Over of Management) Act, 1978 was enacted for enabling the Central Government to take over the management of sugar undertakings for a period not exceeding three years with the object of ensuring the reduction of cane prices arrears and the continued operation of the units. Under the Act. at present eight sugar undertakings are under the management of the Central Government. 2. For achieving the objectives of the Act. Government had to advance loans towards working capital, including payment of cane price dues. to the undertakings taken over under the Act. This has produced good results both in terms of cane crushing and recovery percentage. However, the period of three years for which the management of the undertakings can be retained with the Central Government under the Act has been found to be too short to put the taken over undertakings on a sound footing and to achieve fully the objectives of the Act. In the light of the experience gained in the working of the Act, it is felt that for achieving fully the objectives of the Act it would be necessary to have power to retain fie management of the undertakings for a total period of six years. It is. therefore, proposed to amend the Act to provide that the total period for which the management of an undertaking which has been taken over under the Act may remain vested with the Central Government, may extend up to six years. 3. The Bill seeks to achieve the above object.-Gaz. of Ind., 23-11-1981, Pt. II, S. 2 Ext.. p. 754. An Act to provide for the temporary taking over, in the public interest, of the management of certain sugar undertakings in certain circumstances. WHEREAS for maintaining the continuity of production of sugar, for avoiding undue hardship to cane producing farmers and to best sub-serve the interests of all sections of the people, it is expedient in the public interest to provide for the taking over for a limited period the management of every sugar undertaking which fails or ceases to manufacture sugar or which fails to pay promptly amounts due for the cane acquired for the purposes of the undertaking; BE it enacted by Parliament in the Twenty-ninth Year of the Republic of India as follows :-
CHAPTER 01 PRELIMINARY
SECTION 01: SHORT TITLE, EXTENT AND COMMENCEMENT
(1) This Act may be called THE SUGAR UNDERTAKINGS (TAKING OVER OF
MANAGEMENT) ACT, 1978.
(2) It extends to the whole of India.
(3) It shall be deemed to have come into force on the 9th day of November, 1978.
SECTION 02: DEFINITIONS
In this Act, unless the context otherwise requires,-
(a) "appointed day", in relation to any sugar year, means such day in the year as the Central Government may, by notification, specify having regard to the agro-climatic conditions prevailing or likely to prevail, the quantity of cane available or likely to be available for crushing and other relevant factors: Provided that for the sugar year 1978-79 the appointed day shall be the day of November, 1978;
(b) "cane" means sugarcane ;
(c) "date of vesting", in relation to a sugar undertaking, means the date on which the management of the undertaking vests in the Central Government under section 3-;
(d) "notification" means a notification published in the Official Gazette;
(e) "prescribed" means prescribed by rules made under this Act;
(f) "sugar undertaking" means-, an undertaking engaged in the manufacture or production of sugar by means of vacuum pans and with the aid of mechanical power and "notified sugar undertaking" means a sugar under- taking in respect of which a notification has been issued under S. 3;
(g) "sugar year" means the period of twelve months commencing on the 1st day of October and ending with the 30th day of September -next following;
(h) words and expressions used but not defined in this Act and defined in the Industries (Development and Regulation) Act, 1951-shall have the meanings respectively assigned to them in that Act and for this purpose a sugar undertaking shall be deemed to he an industrial under- taking within the meaning of that Act;
(i) words and expressions used but not defined in this Act or in the Industries (Development and Regulation) Act, 1951-but defined in the Companies Act, 1956-shall have the meanings respectively assigned to them in the Companies Act, 1956-.
CHAPTER 02 TAKING OVER OF MANAGEMENT
SECTION 03: VESTING OF MANAGEMENT OF A SUGAR UNDERTAKING IN CENTRAL GOVERN GOVERNMENT
(1) Where the Central Government is satisfied.-
(a) that any sugar, undertaking has in any sugar year failed to commence the manufacture of sugar on or before the appointed day in respect of that year, or having started the manufacture of sugar on or before that day ceased to manufacture sugar before the expiry of the average period of manufacture of sugar in relation to that undertaking; or
(b) that on any date in any sugar year any sugar undertaking has, in relation to the cane 1[purchased at any time (whether in that sugar year or in any earlier sugar year or sugar years and whether before or after the commencement of this Act), before that date] for the purposes of the undertaking, arrears of cane dues to the extent of more than ten per cent of the total price of the cane purchased for the purposes of the undertaking during the immediately preceding sugar year; and
(c) that in either case the effective functioning of the undertaking is necessary for the purposes of this Act, the Central Government may issue a notice in such form and in such manner as may be prescribed to the owner or the manager of such sugar under- taking calling upon such owner or manager to report in writing within such time, not being less than five days, as may be specified in the notice, the circumstances under which such undertaking has so failed to commence or ceased to manufacture sugar or as the case may be, clear the said arrears of cane dues and to show cause as to why the management of such undertaking should not be taken over by the Central Government under this Act.
(2) As soon as may be, after the receipt of the report under sub-sec. (1) from the sugar undertaking, or where the sugar undertaking has failed to make such report within the time specified in the notice to that undertaking under sub-section (I), after the expiry of such time, the Central Government may make such further inquiry (if any) as it may deem fit, and-
(a) it the Central Government is satisfied that having regard to all the circumstances of the case and the purposes of this Act that it would be expedient to give further time to the under taking to enable it to commence or resume production of sugar or, as the case may be, clear the arrears of cane dues, it may, by order in writing, specify the date on or before which and the manner in which such undertaking shall commence or resume production of sugar or, as the case may be, clear the said arrears of cane dues; or
(b) if the Central Government is not satisfied as provided in clause (a), declare by notification that the management of such undertaking shall vest in the Central Government on and from such date as may be specified in such notification.
(3) If a sugar undertaking has failed to comply with an order made under clause (a) of sub-section (2), or having commenced or resumed the production of -sugar on or before the date specified in such order, ceased to manufacture sugar before the expiry of the average period of manufacture of sugar in relation to that undertaking, and the Central Government is satisfied that it is necessary so to do for the purposes of this Act, it may, by notification declare that the management of such sugar undertaking shall vest in the Central Government on and from such date as may be specified in such notification.
(4) Any failure on the part of the owner or manager of the sugar under- taking to utilise the undertaking for the manufacture of sugar during any period shall not be taken into account for the purpose of issuing a notification in respect of that undertaking under clause (b) of sub-section (2) or sub- section (3) where such failure is attributable to any circumstances (other than financial difficulties) beyond his control.
(5) Every notification issued under sub-section (2) or sub-section (3) for vesting the management of a sugar undertaking in the Central Government shall be in force for such period not exceeding three years from the date of vesting as may be specified in the notification but if2[* * * * *] the Central Government is of opinion that it is expedient in the public interest that the management of the sugar undertaking should continue to vest in the Central Government after the expiry of the period so specified, it may, from time, issue, by notification, directions for such continuance for such further period as may be specified in the directions: Provided that the total period for which the management of the under- taking may remain vested in the Central Government shall in no case exceed34[seven years] from the date of vesting.
(6) For the purposes of this section-
(a) "cane dues", in relation to any cane purchased by a sugar undertaking, means the price payable in accordance with the agreement (whether ex- press or implied) or arrangement relating to such purchase and where there is no such agreement or arrangement, the price as determined in accordance with the law applicable to such purchase;
(b) any cane dues being the price payable for any cane acquired for the purposes of a sugar undertaking shall not be deemed to be in arrears at any time before the expiry of fourteen days from the date of deli- very of such cane to the undertaking;
(c) the average period of manufacture of sugar in relation to any sugar undertaking with respect to any sugar year (hereafter in this clause referred to as the current sugar year) shall be calculated by dividing the total number of calendar days during which the undertaking manufactured sugar during the period of three sugar years immediate- ly preceding the current sugar year by the number of sugar years in which the undertaking manufactured sugar during the said period of three years.
SECTION 04: ASSETS, ETC., OF NOTIFIED SUGAR UNDERTAKING
(1) The notified sugar undertaking shall be deemed to include all assets, rights, powers, authorities and privileges, in relation to the said undertaking and all property, movable and immovable, including lands, buildings, workshops, stores, instruments, machinery, automobiles and other vehicles and goods under production or in transit, cash balances, reserve funds, investments and all other rights and interests in, or arising out of, such property as were, immediately before the date of vesting, in the ownership, possession, power or control of that under- taking, whether within or outside India, and all books of account, registers and all other documents of whatever nature relating thereto.
(2) Any contract, whether express or implied, or other arrangement (whether under any statute or otherwise) in so far as it relates to the management of the business and affairs of the notified sugar undertaking, and in force immediately before the date of vesting, or any order made by any Court in so far as it relates to the management of the business and affairs of that undertaking and in force immediately before the said date, shall be deemed to have terminated on that date.
(3) All persons in whom the management of the business and affairs of the notified sugar undertaking vests immediately before the date of vesting shall, as from that date, cease to be so vested.
(4) Notwithstanding any judgment, decree or order of any Court, tribunal or other authority or anything contained in any law (other than this Act) for the time being in force, every Receiver, Official Liquidator or other per- son in whose possession or custody or under whose control the notified sugar undertaking or any part thereof may be immediately before the date of vesting, shall, on that date, deliver the possession of the said undertaking or such part thereof as the case may be, to the Custodian, appointed under section 5, or, where no Custodian has been appointed, to such other person as the Central Government may direct.
(5) The Central Government may take, or cause to be taken, all necessary steps for securing the possession of the notified sugar undertaking.
SECTION 05: APPOINTMENT OF CUSTODIAN
(1) The Central Government may, as soon as it is convenient administratively so to do, appoint an individual or a body of individuals or a Government company as the Custodian of a notified sugar undertaking or a group of notified sugar undertakings for the purpose of taking over the management of such undertaking or undertakings and the Custodian so appointed shall carry on the management of such undertaking or undertakings for and on behalf of the Central Government.
(2) The Central Government may also appoint an individual or a Government company as the Custodian General for exercising supervision and control over all the notified sugar undertakings, and on such appointment, every Custodian appointed under sub-section (1) shall act under the guidance, control and supervision of the Custodian-General.
(3) On the appointment of a Custodian under sub-section (1), the charge of management of the notified sugar undertaking or group of notified sugar undertakings, as the case may be, shall vest in such Custodian and all per- sons in charge of the management of such undertaking or undertakings immediately before such appointment shall cease to be in charge of such management and shall be bound to deliver to the Custodian all assets, books of account, registers or other documents in their custody relating to such under- taking or group of undertakings.
(4) The Central Government may issue such directions (including directions as to initiating, defending or continuing any legal proceedings before any Court, tribunal or other authority) to the Custodian or Custodian-General as to his or its powers and duties as the Central Government deems desirable and the Custodian-General or, if there is no Custodian General, the Custodian may apply to the Central Government at any time for instructions as to the manner in which the Custodian or the Custodian-General shall conduct the management of the notified sugar undertaking or in relation to any matter arising in the course of such management.
(5) Any person, who, on the appointed day, has in his possession or under his control any books, papers, or other documents relating to the notified sugar undertaking, shall, notwithstanding anything contained in any other law for the time being in force, be liable, to account for the books, papers and other documents, to the Custodian and shall deliver them up to the Custodian or to such other person as may be authorised by the Central Government or the Custodian in this behalf.
(6) Every person in charge of the management of the notified sugar undertaking, immediately before the date of vesting, shall, within ten days from that date or within such further period as the Central Government may allow in this behalf, furnish to the Custodian a complete inventory of all the properties and assets (including particulars of book debts, investments and belongings) forming part of the undertaking immediately before the date of vesting and of all liabilities and obligations of the undertaking subsisting immediately before that date and also of all agreements entered into by the owner or manager of the undertaking, in relation to the said undertaking, and in force immediately before that date.
(7) The Custodian-General shall hold office during the pleasure of the Central Government and shall receive such remuneration as may be fixed by the Central Government.
(8) Every Custodian or where a body of individuals has been appointed as the Custodian, each such individual shall hold office during the pleasure of the Central Government and shall receive from the funds of the sugar undertaking or group of sugar undertakings concerned, such remuneration as may be fixed by the Central Government. Explanation-- The remuneration payable to the Custodian of two or more notified undertakings shall be allocated among the funds of the under- takings in such proportion as the Central Government may, having regard to the quantum of work in respect of such undertakings and other relevant circumstances, by order determine.
SECTION 06: PAYMENT OF AMOUNT
(1) The owner of every notified sugar under- taking shall be given by the Central Government an amount in cash for vesting in it under section 3-the management of such undertaking.
(2) For every month during which the management of the notified sugar undertaking remains vested in the Central Government under this Act, the amount, referred to in sub-section (1), shall be,-
(a) where the daily cane crushing capacity of the undertaking is five hundred tonnes or less, an amount of five hundred rupees; and
(b) where the daily cane crushing capacity of the undertaking is more than five hundred tonnes, an amount computed at the rate of one rupee for each tonne of such capacity or an amount of one thousand two hundred and fifty rupees, whichever is less.
CHAPTER 03 RELIEF TO SUGAR UNDERTAKINGS AND CANE PRODUCING FARMERS
SECTION 07: POWER OF CENTRAL GOVERNMENT TO MAKE CERTAIN DECLARATIONS
(1) The Central Government may, if it is satisfied, in relation to a notified sugar undertaking that it is necessary so to do in the interests of the general puh- lic will a view to preventing the fall in the volume of production of the sugar industry, it may, by notification, declare that-
(a) all or any of the enactments specified in the Schedule shall not apply or shall apply with such adaptations, whether by way of modification, addition or omission (which does not, however, affect the policy of the said enactments) to such sugar undertaking, as may be specified in such notification, or
(b) the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force (to which such sugar undertaking or the person owning such undertaking is a party or which may be applicable to such sugar under- taking or person) immediately before the date of issue of the notification shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising there under before the said date, shall remain suspended or shall be enforceable with such adaptations and in such manner as may be specified in the notification.
(2) The notification made under sub-section (1) in relation to a notified sugar undertaking shall remain in force, in the first instance, for such period not exceeding one year as may be specified in the notification but the duration of such notification may be extended from time to time by a further notification by a period not exceeding one year at a time.
(3) Any notification made under sub-section (1) shall have effect not with- standing anything to the contrary contained in any other law, agreement, or instrument or any decree or order of a Court, tribunal, officer or other authority or of any submission, settlement or standing order.
(4) Any remedy for the enforcement of any right, privilege, obligation or liability referred to in clause (b) of sub-section (1) and suspended or modified by a notification made under that subsection shall, in accordance with the terms of the notification, remain suspended or modified and all proceedings relating thereto pending before any Court, tribunal, officer or other authority shall accordingly remain stayed or be continued subject to such adaptations, so, however, that on the notification ceasing to have effect-
SECTION 08: ASSISTANCE TO NOTIFIED SUGAR UNDERTAKINGS TO CLEAR ARREARS OF CANE DUES
(1) The Central Government may issue such directions as it deems fit to the Custodian-General and the Custodians to facilitate the speedy clearance of arrears of cane dues so as to avoid undue hardship to cane producing farmers.
(2) Without prejudice to the provisions of sub-section (1), the Central Government may render such assistance in such manner as it may deem fit to any notified sugar undertaking to enable the undertaking to clear the whole or any part of its arrears of cane dues so as to avoid undue hardship to cane producing farmers. Explanation.- For the purposes of this section, the expression "arrears of cane dues" shall be construed in accordance with the provisions of Cls. (a) and (b) of sub-section (6) of section 3.
CHAPTER 04 MISCELLANEOUS
SECTION 09: NOTIFIED SUGAR UNDERTAKING, IF A COMPANY, NOT TO BE WOUND UP
(1) No proceedings for the winding up of a notified sugar undertaking, being a company, shall lie in any Court or be continued whether by or under the super- vision of any Court or voluntarily, except with the consent of the Central Government.
(2) In computing the period of limitation prescribed by any law for the time being in force for any application which may be made in the course of winding up of any such notified sugar undertaking in respect of any matter arising out of any transaction in relation to such undertaking, the time during which the making of such application was barred by this Act shall be excluded.
SECTION 11: POWER TO TERMINATE THE CONTRACT OF EMPLOYMENT
If the Custodian or Custodian-General is of opinion that any contract of employment entered into by any owner or member of a notified sugar undertaking or its agent in relation to the said undertaking, at any time before the date of vesting, is unduly onerous, he may, by giving to the employee one month's notice in writing or the salary or wages for one month in lieu thereof, terminate such contract of employment.
SECTION 12: MANAGEMENT OF NOTIFIED SUGAR UNDERTAKINGS PENDING TAKING OVER PHYSICAL POSSESSION BY THE CUSTODIAN
(1) Pending the taking over by a Custodian, appointed under section 5-, of the physical possession of any notified sugar undertaking, the person in charge of the management of such under- taking immediately before the date of vesting shall, on and from that date, be in charge of the management of such undertaking for and on behalf of the Central Government; and the management of such undertaking shall be carried on by such person subject to the provisions contained in sub-sec. (2) and such directions, if any, as the Central Government may give to him, and no other person, including the said undertaking shall, so long as such management continues, exercise any powers of management in relation to the said undertaking. (2) No person in charge, under sub-section (1), of a notified sugar under- taking shall, without the previous approval of the Custodian-General appointed under section 5-,-
(i) incur any expenditure from the assets appertaining to the undertaking otherwise than for the purpose of making routine payments of salaries or commissions to employees, agents or for the purpose of meeting the routine day to day expenditure;
(ii) transfer or otherwise dispose of any such assets or create any charge, hypothecation, lien or other in cumbrance thereon;
(iii) invest in any manner any moneys forming part of such assets;
(iv) acquire any immovable property out of the moneys forming part of such assets;
(v) enter into any contract of service or agency, whether expressly or by implication, for purposes connected wholly or partly with the under- taking or vary the terms and conditions of any contract relating to any such transaction subsisting on the date of vesting.
(3) The approval of the Custodian-General may be given either generally in relation to certain classes of transactions relating to the notified sugar undertaking or specially in relation to any of its transactions.
SECTION 13: PROTECTION OF ACTION TAKEN IN GOOD FAITH
(1) No suit, prosecution or other legal proceeding shall lie against the Government, the Custodian General or any other officer of Government or any Custodian in respect of anything which is in good faith done or intended to be done under this Act.
(2) No suit or other legal proceeding shall lie against the Government, the Custodian-General or any other officer of Government or any Custodian for any damage caused or likely to be caused, by anything which is in good faith done or intended to be done under this Act.
SECTION 14: DELEGATION OF POWERS
(1) The Central Government may, by notification, direct that all or any of the powers exercisable by it under this Act, other than those under this section or section 8-orsection 20-may also be exercised by any person or persons as may be specified in the notification.
(2) Whenever any delegation of power is made under sub-section (1), the person to whom such power has been delegated shall act under the direction, control and supervision of the Central Government.
SECTION 15: DEBTS INCURRED FOR THE PURPOSES OF NOTIFIED SUGAR UNDERTAKINGS TO HAVE PRIORITY
Every debt arising out of any loan advanced to a notified sugar undertaking by the Central Government or a State Government for carrying on the management of such undertaking-
(a) shall have priority over all other debts, whether secured or unsecured, incurred before the management of such undertaking was taken over under this Act;
(b) shall be a preferential debt within the meaning of section 530 of the Companies Act, 1956,-and such debts shall rank equally among themselves and be paid in full out of the assets of the undertaking unless such assets are insufficient to meet them, in which case they shall abate in equal proportions.
SECTION 16: PENALTIES
If any person-
(a) fails to deliver to the Custodian any assets, books of account, registers or any other documents in his custody relating to any notified sugar undertaking, or
(b) retains any property of such undertaking or removes or destroys it, or
(c) fails to comply with the provisions of section 5-, or
(d) fails to comply with any direction made under this Act, he shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
SECTION 17: OFFENCES BY COMPANIES
(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly
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