An executive order is not a law and is not enforceable in Court.

DIXIT, J.

1. This is an application under Art. 226 of the Constitution of India for the issue of a writ or a direction in the nature of mandamus, directing the State of Madhya Bharat not to levy any cess on the petitioner Company on the sugar-cane purchased by it and not to realise any cess from the said company, and to refund the amount already recovered as cess. The petition arises in the following circumstances.

2. On 1-5-1940 an agreement was entered into between the Government of the former Gwalior State and Sir Homi Mehta and others for the establishment of a sugar factory in Dabra. In pursuance of the agreement the petitioner-company was floated, sugar factory was established at Dabra and in due course it went into production. On 20-6-1946. His Highness the Maharaja Scindia, the Ruler of the Gwalior State, constituted a committee

"to consider the desirability of imposing a cane cess on the lines of the U.P. or Bihar and to recommend the procedure of fixation of sugar prices within the terms of the agreement subsisting between the Government and the factory."

One Minister and three officials of the State were appointed by name as members of this committee. The committee submitted its report to the Gwalior Darbar on 23-7-1946 together with a "Guzarish" (Submission) from Sardar M.R. Phalke who was a member of the committee and who presided over the deliberation of the committee. Sardar Phalke was at that time also a Revenue Minister in the Government of His Highness the Maharaja Scindia. The Gujarish presented by Sardar Phalke contained the following submissions to the Darbar :

"1. that "following U.P. policy it is essential to levy on the factory a cane cess of one anna per maund on all sugar-cane purchased by the factory."

2. that "the proceeds of the cess will primarily be used for cane development work and the utilization and administration of the fund will be under the Cane Development Board." A recommendation was also made as to how the Board should be constituted.

3. that "sugar prices will be fixed on the recommendation of this Board on the basis unanimously recommended in this report."

3. On this Gujarish His Highness the Maharaja Scindia passed on 27-7-1946 the order "Guzarish sanctioned".

On the basis of this order the Economic Adviser of the Gwalior Government wrote a letter to the petitioner-company which stated inter alia :

"With a view to expand cane area and cane yield in the Harsi commanded area so that the Gwalior Sugar Company Limited be put on a sound and stable basis, the Gwalior Government have decided to impose a cane cess of one anna per maund on all sugar-cane purchased by your factory. The operation of this cess will start from the coming sugar-cane crushing season. The proceeds of the cess have been earmarked for cane development work in Harsf region that will be undertaken by a Cane Development Board constituted for the purpose."

4. In reply the petitioner-company made several unsuccessful representations protesting against the levy of the cess. After the formation of Madhya Bharat the petitioner again made a representation to the Madhya Bharat Government against the levy of the cess. This time also the petitioner company was unsuccessful and was informed that the imposition and recovery of the cess having been imposed in the past under "competent authority of His Highness the Maharaja of Gwalior was valid." Some time after the coming into force of the Constitution of India the company again appealed to the Government for the withdrawal of the cess.

According to the petitioner, on this appeal a meeting of the officers concerned was called by the Adviser to the Government, and that as a result, the Adviser decided to recommend to the Government that the cane purchased by the petitioner company from the Gwalior Agriculture Company should be exempted from cess, and that since the levy of a cess on the petitioner company alone was not equitable, the Industries and Agricultural Departments and the Econ