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Mahabir Sugar Mills Pvt. Ltd. Vs. the Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeals Nos. 953 of 1968, 219 and 254 of 1971 and Civil Misc. Writ Petns. Nos. 832, 3387 and
Judge
Reported inAIR1975All239
ActsEssential Commodities Act, 1955 - Sections 3; Sugarcane (Control) Order, 1955; Sugarcane Control (Additional Powers) Act, 1962 - Sections 2; Sugarcane (Control) Amendment Order, 1962; Constitution of India - Article 14; General Clauses Act, 1897 - Sections 6
AppellantMahabir Sugar Mills Pvt. Ltd.
RespondentThe Union of India (Uoi) and anr.
Appellant AdvocateShanti Bhushan, ;S.N. Kacher and ;Vijaya K. Mehrotra, Advs.
Respondent AdvocateB.N. Sapru, Standing Counsel
Excerpt:
civil - amendment - clause a of section 3 of essential commodities act, 1955 and section 2 of sugarcane control (additional powers) act, 1962 - order of paying the additional price to the minimum fixed was passed under section 3a of essential commodities act, 1955 - order was amended in 1962 under section 2 of sugarcane control (additional powers) act, 1962 - order was again amended in 1966 - held, order for payment of additional price retrospectively when the 1955 order was in force were valid but order passed after 1955 order was repealed were ultra vires and illegal. - - --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.....k.b. asthana, j. 1. 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......
Judgment:

K.B. Asthana, J.

1. 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 sugar-cane. 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 sugar-cane 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 Sugarcana 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 Susarcane purchased

(1) Where a producer of sugar or his agent purchases any sugarcane from a grower of sugarcane or a grower's Cooperative Society during each of the four successive years beginning on the 1st day o! November, 1958, the producer shall, in addition to the minimum price of sugarcane fixed under sub-clause (1) of Clause 3. pay to the grower or the cooperative society as the case may be an additional price if found due, in accordance with the provisions of the Schedule hereto annexed.'

5. The formula mentioned in the new Schedule was ,a modified version of the old formula of 1958 and the additional price was payable for the four successive years beginning from 1st day of November, 1958, which period ended on 31st October, 1962. With effect from 16-7-1966 the Central Government promulgated the Sugarcane (Control) Order, 1966, hereinafter called the '1966 Order' replacing and repealing the 1955 Order. Clause 3 of 1966 Order provided for fixing of minimum price of sugarcane. Clause 5 provides for payment of the additional price of sugarcane purchased during each of the four successive years beginning on November 1, 1958. By Sub-clause (2) of this clause a provision was made for exemption and for appointing a person for determining the additional price and for an appeal against the order of such determination. By various Press notifications issued from time to time the Central Government fixed the minimum price for purchase of sugarcane by the sugarcane producers. Over and above the minimum price, an additional price was payable on the basis of the formula devised by the Schedule subject to the exemptions or concessions permissible under the rules. The scheme appears to be that while the minimum price was payable at the time when sugarcane was delivered, the payment of additional price was deferable and its payment could be made in instalments, if so permitted.

6. In three cases, (1) Mahabir Sugar Mills (Special Appeal No. 953 of 1968) (2) Jaswant Sugar Mills (Writ Petition No. 832 of 1968) and (3) Messrs. Raza Buland Sugar Co. Ltd. (Writ Petition No. 3387 of 196'8) the orders determining the payment of additional price were passed by the Additional Price Fixation Authority on 28-12-1964 before the coming into force of the 1966 Order but the appellate orders in first two cases were passed in the month of November and December, 1967, and orders on representation in the third case were passed in July 1968, after the coming into force of the 1966 Order. In the remaining six cases the order determining the payment of additional price by the Additional Price Fixation Authority were passed on various dates after the coming into force of 1956 Order, that is to say, when the 1955 Order stood repealed.

7. Before the learned Single judge in the writ petition of Mahabir Sugar Mills a number of points were raised assailing the validity of the order of determination of additional price. The first point canvassed was that the sugarcana not being an essential commodity in the 1955 Order was ultra vires Section 3 of the 1955 Act and the sugarcane purchase price could not be fixed by the Central Government under the said Order. This contention, in our opinion was rightly rejected by the learned Single Judge. Sugarcane is a food-stuff within the meaning of 1955 Act. This contention has not been reiterated in any of the cases before us.

8. The second contention raised before the learned Single Judge and reiterated before us in all the cases was that the 1962 Order providing for payment of additional cane price retrospectively was ultra vires Section 3 of the 1955 Act inasmuch as by its very terms Section 3 of the 1955 Act permitted only prospective legislation and though the Central Government was armed with the power of making a retrospective amendment in the 1955 Order by the 1962 Act yet the amendment itself being an order under Section 3 of the said Act and there being nothing to show that the amendment was necessary or expedient for maintaining or increasing the supplies of sugar or sugarcane or securing their equitable distribution of availability at fair price and that the Central Government formed such opinion before making the amendment, the 1962 Order will fall. We do not find any force in this contention. The vires of the 1962 Act have not been challenged. It is a duly enacted law, It operated during the subsistence of the 1955 Act. Section 2 of the 1962 Act empowered the Central Government if satisfied that public interest so required by order notified in the official Gazette to amend either prospectively or retrospectively the Sugarcane (Control) Order, that is the 1955 Order, in respect of any matter for which the provision had been made in Clause 3-A and the Schedule of that Order. The 1962 Order shows that it was promulgated by the Central Government in exercise of its power under Section 2 of the 1962 Act though a reference has also been made in the preamble of Section 3 of the 1955 Act. In our opinion it was not necessary for the Central Government to justify the promulgation of 1962 Order on the basis of Section 3 of the 1955 Act. It will be sufficient to give validity to the 1962 Order if the Central Government was satisfied that public interest so required. It is the settled law that any order promulgated need not ex facie show that the conditions precedent for its promulgation had been satisfied if otherwise it can be shown by the authority making the order that it satisfied itself that the conditions existed. In the counter-affidavit filed on behalf of the Central Government it has been asserted that after the Central Government was fully satisfied that the public interest required so. it amended the 1962 Order substituting Clause 3-A by a fresh Clause 3-A containing also supplemental, incidental and consequentional provisions. The learned Single Judge in his elaborate judgment has referred to the history of the legislation, which need not be reiterated in this judgment and which fully supports the averments made in the counter-affidavit. We entirely agree with the learned Single Judge that no constitutional infirmity or invalidity attaches to the 1962 Order for the reasons given by him.

9. It was next urged by the learned counsel appearing for the parties in all the cases before us that the power conferred by Section 3 of the 1955 Act is to fix price of the essential commodities. The minimum price having been fixed in exercise of that power, it was not open to the Central Government in the garb of fixing price to ask the cane producers to part with their profits to cane growers or cane growers' society thus making them sharers in the profits as that would not amount to fixing of the price but would be a colourable exercise of power liable to be struck down. In support of this contention the learned counsel referred to the various statements made by the Minister of the Central Government, Press reports and the report of the various committees. All these have been given in great detail and dealt with by the learned Single Judge in his judgment in the writ petition of Mahabir Sugar Mills and we think it unnecessary to repeat the same here. No doubt the formula devised for determining the additional price in the Schedule to the Order is linked with the sale price of the sugar produced and with the margin of profit accruing to the producers of sugar depending on various factors including the recovery of sugar. It cannot be denied that the quality of sugarcane crushed will be the most important contributory factor towards the quality of sugarcane produced and in taking such factors into consideration in fixing the additional price it cannot be said that the cane growers and cane growers' society from whom the sugar producers purchased the sugarcane share in the profits earned by or accruing to the sugar producers. We find no objection based on any recognized commercial principle or trade practice in taking into consideration the market price of the finished product for fixing the price of the raw material from which such product is ultimately manufactured. We are not impressed with this contention and in agreement with the learned Single Judge reject it.

10. It was then contended on behalf of the appellants and the petitioners that the formula devised for determining the additional price in the Schedule to Clause 3-A will result in fixing different prices depending upon the exigencies in the manufacturing process of sugar from the sugarcane and thus brings about discrimination and inequality inasmuch as one sugar producer will have to pay more additional price than another and in his turn a cane grower or a cane growers' society will receive some time more or some time less for the same kind of sugarcane supplied to different cane producers and this defect being inherent in the formula devised the vice of discrimination and inequality arises violating Article 14 of the Constitution. This appears to us to be an ingenious argument. The formula devised is equally applicable to all the cane producers who are subjected to it. The factors which are to be taken into consideration in working out the formula, no doubt, will be peculiar to each sugar producer depending upon the conditions prevailing in his Factory and the quality of sugar produced by him, thus resulting in different prices but that by itself will not bring about any discrimination or inequality in the sense that the conditions being the same one cane producer has to pay more and the other less. The elements which count in working out the formula will be equally applicable to all the cane producers. The formula is not such that it leaves any discretion with the Additional Price Fixation Authority to take into consideration the one or the other element in working out the formula when applying it to determine the additional price payable by a cane producer. Whether a cane grower or a cane growers' society will receive more on sale of the same to a cane producer and less on sale of the cane to another cane producer is not a circumstance relevant for attacking the constitutionality of the formula by the cane producers. It is for the cane growers or the cane growers' society to raise such an objection. Perhaps under the scheme of supply of sugarcane such a question may not arise at all as under the law the supply of cane to the cane producers is regulated and all the cane growers or the cane growers' society in the assigned area of a particular Sugar Factory are under compulsion to supply the cane to it and not to any other Factory to which they are not assigned. Neither we find any element of unequal classification nor any discrimination inherent in the formula. We need not further dilate upon this aspect of the case as we think that the learned Single Judge has given very valid reasons and has ably summarised the result. He observed that:--

'the additional price is determined on pre-determined factors. The difference in the rates of additional price payable by different Factories appears to be on account of the quality of the cane supplied and the length of season. There is nothing discriminatory in this. No material has been placed before me to show that two factories which are similarly situated for the same percentage of recovery and for the same length of season, have to pay additional cane price at substantially different rates. In my opinion, there has been no violation of Article 14 of the Constitution in the determination of additional price for sugarcane.'

We fully endorse this conclusion,

11. It has been observed above that the 1955 Order was further amended by 1962 Order by which the formula for determining the additional cane price was modified and was limited in its application to the determination of additional price payable by the cane producers to cane growers or the cane growers' society during the period beginning from 1st of November, 1958 to 30th of October, 1962, that is for four years. By this formula some further concession was given to the cane producers and a factor 'R' was introduced representing the reasonable expenses for rehabilitation by way of replacement of the machinery which was to be deducted for each year from the total income accruing to the cane producers by sale of the sugar manufactured. It will be seen that this amendment in Clause 3-A of the 1955 Order was made by the Central Government giving it retrospective effect as the Central Government had been empowered to amend Clause 3-A and the .Schedule of 1955 Order retrospectively by Section 2 of the 1962 Act. The said Section 2 limited the giving of retrospective effect from 1st day of November, 1958 and by its Explanation confined it to the 1955 Order. Since the attack on the vires of Clause 3-A introduced by the 1958 Order as amended by the 1962 Order has failed on the score of lack of power or being violative of Article 14 of the Constitution any additional price determined by the Additional Price Fixation Authority payable by the cane producers to the cane growers or the cane growers' society during the subsistence or continuity of the 1955 Order would be unexceptionable and in the case of an appellant or a petitioner against whom such determination was made before the repeal of the 1955 Order the relief cannot be given on any of the contention so far noticed. Mahabir Sugar Mills private limited, who is appellant in Special Appeal No. 953 of 1960, Jas-want Sugar Mills, who is petitioner in writ petition No. 832 of 1968 and Messrs, Raza Buland Sugar Company Limited who is petitioner in writ petition 'No, 3387 of 1968 fall in this group. The determination of the additional price was made in these three cases in December, 1964. All of them filed appeals. But Raz Bu-lend Sugar Company Limited withdrew its appeal and filed a representation to the Central Government. No doubt the orders were passed by the Central Government in their cases after the 1955 Order stood repealed by the 1966 Order, none of them stand to gain by attacking the said orders as all of them were granted substantial relief, if it were said that the Central Government had no power after the repeal of the 1955 Order, then the original order passed by the Additional Price Fixation Authority would remain binding on them. The learned counsel appearing for them have rightly not questioned the validity of the said orders passed in their respective cases,

12. However, the cases of those appellants and petitioners against whom the orders were passed by the Additional Price Fixation Authority after the repeal of the 1955 Order will stand on a different footing. Such orders passed against them could be justified either on the basis that under the provisions of 1966 Order the Central Government had such a power or that the saving clause in the 1963 Order kept in force the 1955 Order for determining the additional price under Clause 3-A of the repealed Order.

13. The contention raised in this connection was that the 1955 Order having stood repealed with effect from 16-7-1966 on the coming into effect of the 1966 Order, Clause 3-A of the 1955 Order to-gather with the Schedule lapsed and the Additional Price Fixation Authority was divested of its power to determine the additional price and direct its payment by the cane producer, there being nothing in the 1966 Order to sustain the continuity of the 1955 Order. Reliance was placed in this connection on Clause 12 of the 1966 Order. It was submitted that it was a self contained provision and indicative of the intention to exclude the operation of Section 6 of the General Clauses Act. In support of this contention two decisions of the Supreme Court--Indra Sohan Lal v. Custodian of Evacuee Property, AIR 1956 SC 77 and Kalawati Devi v. I.-T. Commissioner, AIR 1968 SC 162 and a Division Bench decision of our High Court in the case of Allahabad Theatres v. Kusum, AIR 1974 All 73 were cited. Sri B.N. Sapru, appearing for the Central Government in reply submitted that for the purpose of levying additional price by virtue of Section 6 of the General Clauses Act the 1955 Order would sustain the power of the Additional Price Fixation Authority. Sri Sapru further contended that the 1966 Order proprio vigore confers a power and the determination of the additional price was competently done in exercise of the powers conferred on the Additional Price Fixation Authority by Clause 5 of the said Order.

14. Thus on the above arguments of the parties two questions fall for decision; (1) whether Clause 5 with its Schedule 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.

15. Taking the first question for examination, it is to be noted that the learned counsel for the parties are agreed that Section 3 of the 1955 Act does not empower the Central Government to make any order giving it retrospective effect. That section empowers the Central Government to promulgate an order prospectively only. It is clear, therefore, that any provision in the 1966 Order which affects the rights of any person retrospectively would be invalid. There is no doubt in our mind that Clause 5 of 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. Sri Sapru for the Central Government submitted that the 1962 Act having empowered the Central Government to make orders under Section 3 retrospectively any provision in the 1966 Order having retrospective application would be valid. This argument of Sri Sapru, in our opinion, is fallacious and proceeds on an incorrect appreciation of the provisions of Section 2 of the 1962 Act and its true effect. We have mentioned the material text of Section 2 of the 1962 Act above. It will be seen that on its terms it empowers the Central Government to amend either prospectively or retrospectively the 1955 Order in respect of any matter for which provision has been made in Clause 3-A and the Schedule of that order. The language used limits the amending power to any matter for which provision has been made in Clause 3-A and the Schedule of 1955 Order. This is clearly borne out by the object of the said Act which says that 'the object of the Act is to empower the Central Government to amend the Sugarcane (Control) Order, 1955 issued under the Essential Commodities Act, 1955 retrospectively in matters of detail and for the laying down of such orders before both the Houses of Parliament. Then the Explanation to Section 2 of the said Act is as follows:--

'In this section 'Sugarcane (Control) Order' means the Sugarcane (Control) Order, 1955 made under Section 3 of the Essential Commodities Act, 1955 (10 of 1955) by notification of the Government of India in the Ministry of Food and Agriculture, S. R. O. No. 1863 dated the 27th August, 1955 and as amended from time to time,'

16. 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. The power for retrospective amendment was conferred for 1955 Order only. No plenary power to make orders with retrospective effect was conferred on the Central Government in exercise of its power under Section 3 of the 1955 Act, As a matter of fact the 1962 Act itself recognized that there was no provision in Section 3 of the 1955 Act for making an order under that section with retrospective effect and it is conceded on behalf of the Central Government that no order can be made by the Central Government under the said section giving it retrospective effect. This being the position in law 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. The validity of Clause 5 of the 1966 Order is to be examined in this light. Sub-clause (1) of the said Clause lays down:--

'(1) Where a producer of sugar or his agent purchase any sugarcane from a grower of sugarcane or & growers' cooperative society during each of the four successive years beginning on the 1st day of November, 1958, the producer shall, in addition to the minimum price of sugarcane fixed under Sub-clause (1) of Clause 3 pay to the grower or the cooperative society, as the case may be, an additional price, if found due, in accordance with the provisions of the Schedule hereto annexed.'

17. It cannot be disputed that the liability on the sugar producer to pay an additional price to a sugarcane grower or a growers' co-operative society is fixed from a back date, that is 1st day of November, 1958 and upto 31st October, 1962. It is retrospective in its operation. Sri Sapru for the Central Government indeed could not find support for sustaining the retrospective levy of additional price for sugarcane on the basis of Section 3 of the 1955 Act but fell back upon the 1962 Act and tried to justify such retrospective levy. Reliance was placed by the learned counsel on a decision of the Delhi High Court in Upper Ganges Sugar Mills v. Sugarcane Price Fixation Authority, AIR 1971 Delhi 285. The observations of the Division Bench of the Delhi High Court made in para. 13 of the reported judgment at page 289 were cited. We are unable to find in the said observations of the learned Judges of the Delhi High Court anything in support of Sri Sapru's contention. It appears that no point was raised before the Delhi High, Court that 1962 Act conferred only limited power on the Central Government for amending the 1955 Order. With great respect to the learned Judges of the Delhi High Court it seems to us that it was assumed by them that the 1962 Act conferred a plenary power on the Central Government for all time to come to make retrospective orders under Section 3 of the 1955 Act regarding the payment of the minimum price and the additional price for sugarcane purchased by the sugar producers.

18. Sri Sapru then contended that even if Section 3 of the 1955 Act did not permit the making of the order with retrospective effect, the 1955 Order as amended in 1958 and 1962 would remain unrepealed and valid inasmuch as the amendment in 1962 was expressly made both under Section 3 of the 1955 Act and Section 2 of the 1962 Act. Reliance was placed in this connection on the above cited decision of the Delhi High Court In our judgment this contention of Sri Sapru is as fallacious as the other. Since Section 3 of the 1955 Act admittedly did not confer any power on the Central Government to make any order with retrospective effect a reference to that section in the 1962 Order will simply be innocuous and of no legal consequence. The validity of the amendment made in 1962 of the 1955 Order could only be sustained on the basis of Section 2 of the 1962 Act. The 1962 amendment of the 1955 Order had nothing to do with the exercise of power by the Central Government under Section 3 of the 1955 Act. The question whether the 1955 Order as amended in 1958 and 1962 continued to be effective even after the passing of the 1966 Order will depend upon the saving clause in the 1966 Order or on Section 6 of the General Clauses Act, if found applicable. This brings us to the examination of the second question posed by us above.

19. The first contention on this part of the case on behalf of the appellants and the petitioners against whom the orders for payment of additional price have been made after coming into force of the 1966 Order, that is after 16-7-1966, was that the impugned orders were passed under the 1966 Order and it is not open to the respondent to justify the said orders as if they have been passed under the 1955 Order. This contention need not detain us as there is nothing to show ex facie that those orders were passed under Clause 5 of the 1966 Order. The impugned orders could be only justified and sustained in law if otherwise it were found that the 1955 Order as amended from time to time remained effective and continued for the purposes of determining the additional price for eugarcane purchased by the sugarcane producers from 1st November, 1958 to 31st October, 1962.

20. The next contention on behalf of the appellants and the petitioners was that Sub-clause (1) of Clause 12 of the 1966 Order having repealed the 1955 Order with effect from 16-7-1966 the only power which remained with the Central Government to order payment of an additional price as determined would be by virtue of Clause 5 of the 1966 Order, sub-clause (1) of which being ultra vires the power conferred to make retrospective order vanished and could not be legally exercised by falling back upon Clause 3-A of the repealed 1955 Order. This contention was countered on behalf of the respondent by a two fold argument. The first argument was that Clause 12 of the 1966 Order saved the power for determining and directing the payment of additional price under Clause 3-A of the 1955 Order as in the cases of the appellants and the petitioners it had been omitted to be done under the 1955 Order before the commencement of the 1966 Order. The second argument was that notwithstanding the repeal of 1966 Order it would continue to remain in force and a direction could be issued and that would be deemed to be made under the 1966 Order. In our judgment these two arguments advanced on behalf of the respondent proceed on an incorrect reading of Clause 12 with its two sub-clauses and the true effect thereof. Clause 12 of the 1966 Order for convenience is reproduced below :

'12. Repeal and Saving.-- (1) The Sugarcane (Control) Order, 1955 and any order made thereunder regulating or prohibiting the production, supply and distribution of sugarcane trade or commerce therein are hereby repealed, except as respect things done or omitted to be done under any such order before the commencement of this Order.

(2) Notwithstanding such repeal, an order made by any authority which is in force immediately before the commencement of this Order and which is consistent with this Order shall continue in force and all appointments made, prices fixed, licences and permits granted, and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, fixed, granted or issued in pursuance of this Order.'

21. A plain reading of Clause 12 reproduced above shows that the 1955 Order is repealed and so are repealed all orders made under the 1955 Order regulating or prohibiting production, supply and distribution of sugarcane and trade or commerce therein except as respect things done or omitted to be done under any such order before the commencement of the 1966 Order. So what has been saved are the orders passed under the 1955 Order before the commencement of 1966 Order, that is prior to 16-7-1966. It was pointed out by the learned counsel for the appellants and the petitioners that the saving does not expressly extend to the determination and payment of additional price but assuming that determination and payment of additional price is covered by the phrase 'regulation of supply and distribution of sugarcane,' no order having been passed against them before 16-7-1966 in this respect the question of anything done or omitted to be done under any such order will not arise end Sub-clause (1) will not help the respondent. The submission was that Sub-clause (1) 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. There appears to be force in this submission. Sub-clause (1) of 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. If during the period the 1955 Order was subsisting and continuing in force, no order was passed against the appellants and the petitioners under Clause 3-A thereof, it will not amount to an omission to do something under any order passed under Clause 3-A as no such order was ever passed. Sub-clause (1) of Clause 12 of the 1966 Order cannot, therefore be relied upon to sustain the validity of the impugned orders for payment of additional price for sugarcane purchased by the petitioners and the appellants during the four years commencing from the 1st day of November 1958 and ending the 31st of October 1962 as those orders were not passed prior to 16-7-1966. For the same reason 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. Thus the argument advanced on behalf of the respondents that Clause 12 of 1966 Order had the effect of keeping in force Clause 3-A of the 1955 Order cannot be accepted.

22. It was then contended on behalf of the respondents that the 1955 Order having been repealed. Section 6 of the General Clauses Act became applicable and Clause 3-A of the 1955 Order with the Schedule as regards the transactions which took place before the repeal of the 1955 Order would still continue in force and the Additional Price Fixation Authority was empowered to determine and direct payment of the additional price for sugarcane purchased by the appellants and the petitioners in the period between 1st of November, 1958 and 31st of October, 1962. In the case of State of Punjab v. Mohar Singh, AIR 1955 SC 84 the Supreme Court held that whenever there was a repeal of an enactment the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says a different intention appears. In the case of a simple repeal there would be scarcely any room for expression of a contrary opinion. But when the repeal was followed by fresh Legislation on the same subject then undoubtedly provisions of the new Act will have to be looked into but only for the purposes of determining whether a different intention was indicated. Here in the instant case the 1955 Order with all its clauses including Clause 3-A and the Schedule was repealed but it was followed by a fresh Legislation on the same subject that is to say by enacting Clause 5 in the 1966 Order substantially the provisions of the repealed Clause 3-A of the 1955 Order were enacted afresh. For this reason alone the applicability of Section 6 of the General Clauses Act cannot necessarily be ruled out but it has to be found out whether by enacting Clauses 5 and 12 in the 1966 Order an intention incompatible with or contrary to the provisions of Section 6 of the General Clauses Act was manifest. Such incompatibility would have to be determined on a consideration of all the relevant provisions of the 1966 Order. In view of the fact that Clause 5 was enacted in the 1966 Order specifically conferring power for determination of additional cane price and for the payment thereof with retrospective effect covering the period of four years from 1st November 1958 to 31st October 1962 on the basis of the formula devised in the Schedule, the intention of the rule makers was manifest that for determination and payment of the additional price for the sugarcane for the abovesaid past four years, it would be the new provisions which would apply and the authority and power for doing so will have its source on the new law and the old repealed law need not be resorted to for conferring such power or authority. Therefore, an intention to continue in force the old Clause 3-A with its schedule of the 1955 Order is to be ruled out as it was not contemplated. Had the intention of the rule makers been that the old Clause 3-A of the 1955 Order would continue despite the repeal of the 1955 Order for determining and directing payment of additional cane price for four years between November 1, 1958 and 31st October, 1962 they would not have enacted Clause 5 in the 1966 Order. The manifestation of such an intention is further reinforced by the language of Clause 12 as whatever was sought to be saved has been fully mentioned therein. In our judgment 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. The ratio of the decision of the Supreme Court in the cases of AIR 1956 SC 77 (supra) and AIR 1968 SC 162 (supra) supports this conclusion. The decision of the Allahabad High Court in the case of AIR 1974 All 73 (supra) is also helpful. The respondents, therefore, cannot rely upon the provisions of Section 6 of the General Clauses Act.

23. The result of the above discussion is that Clause 5 of the 1966 Order will be ultra vires Section 3 of the 1955 Act and Clause 3-A with schedule of 1955 Order having not survived the repealed 1955 Order, no power vested in the Additional Price Fixation Authority or in the Appellate Authority to determine and direct payment of the additional price for cane purchased by the petitioners and the appellants between 1st November 1958 and 31st October 1962. The impugned orders having been passed after the repeal of the 1955 Order would be without authority and, thus, bad in law.

24. In view of what has been held above, it is not necessary to go into the question whether there was an error apparent on the face of the record in the determination of the additional price no proper deductions having been made towards the rehabilitation expenses in the case of those appellants and petitioners against whom the orders were passed after 16-7-1966. However, as observed above, in the case of Mahabir Sugar Mills and Jaswant Sugar Mills, this question needs consideration as the orders in their cases were passed by the additional price fixation authority prior to 16-7-1966, that is to say, prior to the repeal of the 1955 Order. In the petition of Messrs, Raza Buland Sugar Mills no such point has been raised. We do not think any case on merits lias been made out on behalf of Mahabir Sugar Mills and Jas-want Sugar Mills in this respect. A very laconic and vague averment has been made that the rehabilitation expenses were not properly taken into consideration in fixing the additional price. No foundation of fact was laid in the averments in the affidavits regarding the actual expenses incurred in repairing and rehabilitating the machinery of the respective factories. No particulars are detailed. It is, therefore, not possible for want of sufficient material on the record to find in favour of the abovesaid appellant and the petitioner that any error apparent appears in the determination of the additional price payable by them.

25. We affirm the finding of the learned Single Judge that there was no power in the Additional Price Fixation Authority or in the Central Government to charge interest on the amount determined as additional price. Learned counsel for the respondent has not been able to justify the charging of interest either on the basis of some provision of law or any other legal ground. The orders determining interest are, therefore, liable to be quashed.

The result is :

(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 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.


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