ORDER :

With the consent of all the learned counsel both these Writ Petitions were taken up for hearing since the issues of fact and law are common.

2. Sri Vedula Venkata Ramana, learned senior counsel appearing for the petitioner advanced the arguments in W.P.No.22804 of 2013, to which a reply was given by the learned Government Pleader for Industries and Commerce appearing for the 3rd respondent, the learned Deputy Solicitor General appearing for the 1st respondent, Sri K. Harinarayana, learned counsel appearing for the 4th respondent.

3. Learned senior counsel for the petitioner submits that the prayer in the writ petition is as follows :

“….to issue a Writ of Mandamus or any other appropriate writ declaring that the action of the respondents 1 and 2 in not returning the bank guarantee that was submitted by the petitioner along with the industrial entrepreneur memorandum relating to the proposed establishment of new sugar factory at Mundlamuru Village and Mandal, Prakasham District is arbitrary and illegal and consequently direct the respondents 1 and 2 to forbear from encashment of the bank guarantee and further direct them to return the said bank guarantee i.e., BG.No.8654IPEBG09007, duly accepting the representation of the petitioner dated 21.03.2012 and the report of the 3rd respondent dated 20.02.2013 and grant such other relief as it deems fit and proper in the circumstances of the case.”

4. It is his contention that despite the best efforts made by the petitioner for establishment of sugar factory they could not do so because of causes far beyond their control. Learned senior counsel submits that the petitioner had acquired the land and established the IEM (Industrial Entrepreneur Memorandum) for the proposal of establishment of new sugar factory. They also furnished the bank guarantee for a sum of Rs.1,00,00,000/- issued by the 4th respondent in favour of the 1st respondent. It is submitted that despite the best efforts and for causes far beyond the petitioner’s control the factory could not be established. Learned senior counsel submits that the contention of the petitioner that the factory could not be established for the reasons beyond their control is borne out by the letter dated 20.02.2013, addressed by the Commissioner of Sugar and Cane Commissioner to the Union of India and also by the counter affidavit filed by the 3rd respondent. Learned senior counsel initially advanced his arguments by arguing that the word “shall” has to be interpreted as “may” in Clause 6D of the Sugarcane (Control) (Amendment) Order, 2006 (in short “the Control Order”). It is his contention that since rule in question provides an opportunity to the industry of being heard, the word “shall” in Clause 6D shall have to be interpreted as “may”. He contends that if the word is given a mandatory meaning the purpose of issuing of notice and a reasonable opportunity of being heard is defeated. For this he relies upon C. Bright v. District Collector and Others, (2021) 2 SCC 392 and other judgments. He also relies upon the leading judgments of the Hon’ble Supreme Court of India in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 and in State of Bihar and Others v. Dr. Sanjay Kumar Sinha and Others, (1990) 4 SCC 624 in support of his contentions that the impugned order did not contain adequate reasons and that a reasonable opportunity was not given. Later, during the course of the submissions learned senior counsel submits (relying upon the judgment of the Hon’ble Supreme Court of India reported in Swami Samarth Sugars and Agro Industries Ltd. v Loknete Maruttrao Ghule Patil Dnyaneshwar Sahakari Sakhar karkhana Ltd., and others, 2022 SCC OnLine SC 871) that an the amended Clause 6D is in place. He points out that in this judgment the Hon’ble Supreme Court of India held that the Clauses are retrospective in operation and that Clause 6D has been amended to give a period of seven years for starting commercial production. It now states that the perform