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Allahbad High Court
K.B.ASTHANA,K.N.SRIVASTAVA
Mahabir Sugar Mills Pvt. Ltd. - Appellant
Versus
The Union of India - Respondent
Decided On : 04/16/1974
SUGARCANE CONTROL ORDER - Validity - Additional price for sugarcane purchased by sugar producers - Retrospective effect - Power of Central Government - Essential Commodities Act, 1955 (10 of 1955), S. 3 - Sugarcane (Control) Order, 1955, Cl. 3-A - Sugarcane (Control) (Additional Powers) Act, 1962 (19 of 1962), S. 2 - Sugarcane (Control) Order, 1966, Cl. 5, 12 - General Clauses Act, 1897 (10 of 1897), S. 6.
Fact of the Case:
The appellants and the petitioners in the writ petitions are all manufacturers of sugar in their respective Sugar Factories, situate in different areas of Uttar Pradesh. They have challenged the orders of payment of additional price of sugarcane purchased by them.
Finding of the Court:
1. Clause 5 of the 1966 Order, giving power for determination and payment of additional price for cane purchased by the cane producers between November 1, 1958 and October 31, 1962 would be nothing but retrospective in its operation. 2. The 1962 Act, therefore, does not confer a power on the Central Government to make with retrospective effect an order in exercise of powers under Section 3 of the 1955 Act in respect of any matter for which provision has been made in clause 3-A and the Schedule of the 1955 Order, for all time to come. 3. The 1966 Order having been made by the Central Government in exercise of the powers conferred by Section 3 of the 1955 Act no provision in 1966 Order could be made giving it retrospective effect and if there is any such provision in 1966 Order it is clearly ultra vires Section 3 of the 1955 Act. 4. Clause 12 of the 1966 Order does not save the 1955 Order as such and repeals it. Clause 3-A of the 1955 Order regulating or prohibiting production and supply of sugarcane or trade or commerce therein, with its Schedule was an integral part of the 1955 Order. 5. Sub-clause (1) of clause 12 of the 1966 Order does not save anything omitted to be done under the 1955 Order but it only saves anything which has been omitted to be done or has been done in pursuance of an order passed by any authority in exercise of powers conferred upon it under the 1955 Order. 6. Sub-clause (2) of clause 12 of the 1966 Order cannot be resorted to as no order against the appellants and the petitioners having been passed under clause 3-A of the 1955 Order during the period that order was in force there would be no order against them which would continue to be in force and would be deemed to have been made under the 1966 Order. 7. Section 6 of the General Clauses Act would be inapplicable as the new Legislation, that is, the 1966 Order expresses a manifest intention incompatible with or contrary to the provisions of that section.
Issues: 1. Whether clause 5 of the 1966 Order is valid and empowers the Additional Price Fixation Authority to determine the additional price and direct its payment by the cane producers? 2. Whether clause 3-A with its Schedule of the 1955 Order is saved and would continue to apply to sustain the validity of the determination of the additional price and the order for its payment by the cane producers.
Ratio Decidendi: 1. The 1962 Act empowered the Central Government to amend either prospectively or retrospectively the Sugarcane (Control) Order in respect of any matter for which provision has been made in clause 3-A and the Schedule of that order, and any such amendment may contain such supplemental, incidental and consequential provisions as the Central Government may deem necessary. 2. The 1966 Order having been made by the Central Government in exercise of the powers conferred by Section 3 of the 1955 Act no provision in 1966 Order could be made giving it retrospective effect and if there is any such provision in 1966 Order it is clearly ultra vires Section 3 of the 1955 Act. 3. Clause 12 of the 1966 Order does not save the 1955 Order as such and repeals it. Clause 3-A of the 1955 Order regulating or prohibiting production and supply of sugarcane or trade or commerce therein, with its Schedule was an integral part of the 1955 Order. 4. Sub-clause (1) of clause 12 of the 1966 Order does not save anything omitted to be done under the 1955 Order but it only saves anything which has been omitted to be done or has been done in pursuance of an order passed by any authority in exercise of powers conferred upon it under the 1955 Order. 5. Sub-clause (2) of clause 12 of the 1966 Order cannot be resorted to as no order against the appellants and the petitioners having been passed under clause 3-A of the 1955 Order during the period that order was in force there would be no order against them which would continue to be in force and would be deemed to have been made under the 1966 Order. 6. Section 6 of the General Clauses Act would be inapplicable as the new Legislation, that is, the 1966 Order expresses a manifest intention incompatible with or contrary to the provisions of that section.
Final Decision: 1. Special Appeal No. 953 of 1968 is dismissed with costs. 2. Civil Misc. Writ No. 832 of 1968 is partly allowed. The order for determination of interest is quashed. There will be no order as to costs. 3. Civil Misc. Writ No. 3387 of 1968 is partly allowed. The order for determination of interest is quashed. There will be no order as to costs. 4. Special Appeal No. 219 of 1971 is allowed with costs. 5. Special Appeal No. 254 of 1971 is allowed with costs. The judgment and the order of the learned Single Judge in both the above Special Appeals are set aside: the writ petitions stand allowed with costs and the impugned orders are quashed. 6. Civil Misc. Writ No. 4405 of 1968 is allowed with costs. 7. Civil Misc. Writ No. 2108 of 1969 is allowed with costs. 8. Civil Misc. Writ No. 3542 of 1969 is allowed with costs. 9. Civil Misc. Writ No. 3823 of 1969 is allowed with costs. In all the above writ petitions the impugned orders are quashed.
K. B. ASTHANA, J. :- In the above three Special Appeals and six writ petitions which have been consolidated for hearing, the common controversy involved concerns the validity of orders of the Additional Price Fixation Authority and appellate orders of the Central Government determining the additional price for sugarcane purchased by the appellants and the petitioners from the sugarcane growers and the Co-operative Societies of the sugarcane growers. The Special Appeals are directed against the judgment and order passed by learned Single Judges substantially dismissing the writ petitions but striking down the direction for payment of interest. Since in the aforesaid writ petitions similar questions are involved they have also been directed to be heard and decided by the Division Bench.
2. The learned Single Judge in his judgment in Mahabir Sugar Mills (Pvt.) Ltd. v. Union of India and another under appeal has given a detailed history of the developments for linking the price of sugarcane purchased by the Sugar Producers in Uttar Pradesh from the cane growers or from the Co-operative Societies of cane growers with the sale price of the sugar produced. The appellants and the petitioners in the writ petitions are all manufacturers of sugar in their respective Sugar Factories, situate in different areas of Uttar Pradesh. They have challenged the orders of payment of additional price of sugarcane purchased by them.
3. In exercise of its power under Section 3 of the Essential Commodities Act, 1955, hereinafter called the 1955 Act', the Central Government issued an order styled as the Sugarcane (Control) Order, 1955, hereinafter referred to as the 1955 Order', which by its clause 3 fixed the minimum price of sugarcane to be paid by the producers of sugar and authorised the Central Government to fix different prices for different areas for different qualities or varieties of sugarcane. In 1958 a new clause 3-A was introduced in the 1955 Order providing that where a producer of sugar purchases any sugarcane from a grower of sugarcane or a growers' Co-operative Society the producer shall in addition to the minimum price fixed pay to the growers or the Society, as the case may be, an amount if found due in accordance with the provision of the Schedule. By the Schedule a formula was devised for determining by the authority appointed by the Central Government an additional amount payable as price. It appears that the producers of sugar were dissatisfied and various representations were made to the Central Government in this regard. Ultimately the Central Government decided to modify the 1955 Order, but finding that under Section 3 of the 1955 Act it had no power to promulgate an order with retrospective effect the Sugarcane Control (Additional Powers) Act, 1962, (hereinafter called the 1962 Act) was passed, which came into effect from 19-9-1962. Section 2 of the 1962 Act, which was the only operative provision, reads thus:-
"2. Notwithstanding that no provision has been made in Section 3 of the Essential Commodities Act, 1955, for making an order under that section with retrospective effect, the Central Government may, if satisfied that public interest so requires, by order notified in the official Gazette, amend either prospectively or retrospectively the Sugarcane (Control) Order in respect of any matter for which provision has been made in clause 3-A and the Schedule of that order, and any such amendment may contain such supplemental, incidental and consequential provisions as the Central Government may deem necessary :
Provided that no such order shall be made so as to have retrospective effect from a date earlier than the 1st day of November, 1958."
4. The Central Government having been authorised to pass an order with retrospective effect, on 1-1-1962 the Sugarcane (Control) Amendment Order 1962 was made substituting a new clause 3-A for the old clause 3-A in the 1955 Order. The new clause 3-A reads:-
"3-A. Additional Price for Su
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