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`SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI, A. VARADARAJAN AND M.P. THAKKAR, JJ.*
M/s. Rathi Khandsari Udyog etc., Petitioners
Versus
State of U.P. and others etc. etc., Respondents.
Writ Petns. Nos.1347-60 of 1981 and 21-23, 174, 3178-3195 & 4527-32 of 1982 etc. etc., D/- 22-2-1985.
Constitution of India, 1950 - Article 32, 19(1)(f), 30, 26, 5, 31, 14 - Sugar Act, 1961 - Section 2(a), 2(f) - U. P. Amendment Act 10 of 1970 - Industrial Disputes Act, 1947 - Employees Provident Funds Act, 1952 - Factories Act, 1948 - Minimum Wages Act, 1948 - Sugar Act, 1959 - S. 2(y) 2(p) 2(a) - Sugarcane Order, 1966 - Section 2(d), 3(4)(a), 2(f) - Manufacture of Khandsari Sugar - Trade Charges - In process of manufacture of khandsari sugar there is not only a physical change of sugarcane used but also a chemical change and white crystalline sugar of 90 per cent sucros purity is obtained after drying, grading and vagging by eliminating all ingredients of sugarcane except sucros - But in case of desi khandsari, gur, jaggery, rab and shakkar which are all manufactured from raw sugarcane juice, pectins, live saps, motal, minerals, nitrogenous compounds, waxes and salts are not removed and there is no chemical change in manufacturing process - Adhiniyam was enacted to reduce multiple trade charges and provide amenities to producers and sellers of agricultural produce, for certification of accurate weights and scales and for establishment of market committees to ensure that agricultural producer has a say in matter of utilisation of market funds - Petitioners/firms which are producers of sugar are not liable to pay market fee provides that market committee shall have power to levy and collect market fee which shall be payable on transactions of sale of specified agricultural produce in market area at such rates being not less than one per cent and not more than one and a half per cent of price of agricultural produce so sold as State Government may specify by notification - Whether wholly or partially manufactured but does not include khandsari sugar, that is to say, sugar in manufacture of which neither a vacuum pan proem nor a vacuum operator is employed - Whether khandsari sugar manufactured by petitioners in their mills by open pan process is an agricultural produce - Whether khandsari sugar manufactured by petitioners in their industrial units employing a large number of workmen to whom Industrial Disputes Act - Whether on account of interpretation of Adhiniyam, khandsari sugar manufactured by petitioners could be said to be subject to levy of market fee under Adhiniyam there is any difference between khandsari sugar produced by petitioners - Whether it is more or less refined than khandsari as such. Mr. Sinha conceded in course of his arguments that protection of agricultural producer was object when original idea of Adhiniyam - Whether levy of market fee under Adhiniyam is at a single point or whether it is a multi-point levy was not elaborated by Mr. Thakur - Whether "khandsari sugar" produced by petitioners, which is not included in schedule or definition of agricultural produce in Adhiniyam – Held, In matter of market regulation also Khandsari and Mill sugar are governed by different regulations - As a matter of fact mill sugar is subject to control and regulation of no mean order under Sugar Order of 1966 whereunder sugar mills are obliged to make available a significant quantity of sugar by way of levy at stipulated prices which are very much lower than prevailing open market prices - Khandsari produced by petitioners was not subject to similar control for all these years - Producers of Khandsari like petitioners, it is obvious, have benefited thereby - It is true that for a short period Khandsari was also subjected to levy under Khandsari Sugar (Levy) Order of 1981 on a relatively small portion of its production - It is not for this Court to question why Khandsari produced by petitioners is included when sugar produced by Mills is not so included - It is not a question to which Court can legitimately address ourselves, for essentially it is a question of legislative wisdom and legislative policy dictated by countless and complex considerations - Court cannot, and will not, substitute its own wisdom in place of legislative wisdom in such matters - Court will not impose on itself this responsibility, if not for any other reason, than for reason that it is beyond its province - Arguments advanced on this wavelength need not, therefore, detain us any longer - Petitions dismissed.
Judgment
VARADARAJAN, J. (Minority view):- Writ Petitions 1347 to 1360 of 1981 and Writ Petition 174 of 1982 are by manufacturers of Khandsari sugar in the open pan process and sellers thereof in Uttar Pradesh. Writ Petitions 21 to 23 of 1982, Writ Petitions 3178 to 3195 of 1982, Writ Petitions 4527 to 4532 of 1982 and Writ. Petition 3890 of 1983 are by traders in that product in U. P. The pleadings in W. Ps. 1347 to 1360 of 1981 were referred to by the learned counsel for the parties when common arguments were advanced in all the writ petitions. Therefore, the pleadings in those writ petitions alone are referred to in this judgment.
2. These W. Ps. 1347 to 1360 of 1981 under Article 32 of the Constitution are for declaring the provisions of U. P. Krishi Utpadan Mandi Adhiniyam, 1964 as ultra vires the Constitution and for restraining the respondents from realising market fee and licence fee from the petitioners under the provisions of that Adhiniyam (hereinafter referred to as the Adhiniyam).
3. The case of the petitioners/firms which manufacture khandsari sugar by the open pan process in the State of Uttar Pradesh and sell the same in that State is this :
In the process of manufacture of khandsari sugar there is not only a physical change of the sugarcane used but also a chemical change and the white crystalline sugar of 90 per cent sucros purity is obtained after drying, grading and vagging by eliminating all the ingredients of sugarcane except sucros. But in the case of desi khandsari, gur, jaggery, rab and shakkar which are all manufactured from raw sugarcane juice, pectins, live saps, motal, minerals, nitrogenous compounds, waxes and salts are not removed and there is no chemical change in the manufacturing process. The Adhiniyam was enacted to reduce multiple trade charges and provide amenities to the producers and sellers of agricultural produce, for certification of accurate weights and scales and for the establishment of market committees to ensure that the agricultural producer has a say in the matter of utilisation of the market funds. The Adhiniyam applies to agricultural products which according to S. 2(a) are such items of produce of agriculture, horticulture, viticulture, sericulture, pisciculture, animal husbandry or forest, as are specified in the schedule, and include an admixture of two or more such items and also include any such item in processed form and further include gur, rab, shakkar, khandsari and jaggery. The Adhiniyam does not define khandsari sugar but it is defined in clause 2 of the U. P. Khandsari Sugar (Levy) Order, 1975 as "whole crystalline sugar containing more than 90 per cent sucrose and manufactured at a sulphitation unit by open pan process including a bel". The khandsari sugar produced by the petitioners who hold licence for operating hydraulic power crushers is not khandsari but crystalline sugar as produced by sugar mills. The sugar produced by the petitioners is physically and chemically different from sugarcane which is one of the items specified in the schedule to the Adhiniyam and also from gur, rab, jaggery and khandsari and cannot be treated as a processed form of sugarcane. Therefore, the Adhiniyam cannot apply to the product manufactured by the petitioners which is plantation white sugar. The petitioners/firms which are producers of sugar are not liable to pay market fee under the Adhiniyam, S. 17 (iii)(b) whereof provides that the market committee shall have power to levy and collect market fee which shall be payable on transactions of sale of specified agricultural produce in the market area at such rates being not less than one per cent and not more than one and a half per cent of the price of the agricultural produce so sold as the State Government may specify by notification.
4. Section 17(iii) is ultra vires the Constitution as it permits excessive delegation of legislative power and does not lay down any guideline for the State Government fixing the market fees and only ma
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