Guman Mal Lodha, J.
1. 'Price Control' with 'Cheers' or 'tears' is the real question though it has been camouflaged in legal constitutional debate.
2. These 324 writ petitions have been filed by the Sugar Dealers of Rajasthan challenging the validity of the Levy Sugar Supply (Control) Order, 1979 (hereinafter to be called as 'Levy Sugar Order') Sugar Retention and Sale (By Recognised Dealers) Order, 1979 (hereinafter to be called as 'Retention Order'), Sugar Price (Determination of 1978-79) Order 1979 (hereinafter to be called as 'the Price Determination Order'), and the various directions issued therein, including the orders issued by the Collectors of the various places and other administrative orders demanding sale of 65% of Sugar stock, to the State Government. Earlier 231 such writ petitions were heard by the Jaipur Bench of this Court and on March 14, 1980 by a composite order, this court dismissed those writ petitions and while doing so, adjudicated the controversies raised therein, summary of which contained in that judgment (Civil Writ Petn, No. 6 of 1980 and other 231 writs M/s. Chand Behari Lal Heeralal v. Union of India decided on 14-3-1980) is reproduced below for ready reference:--
(1) the 'sine qua non' for invoking the jurisdiction under Article 226 of the Constitution, in a case of the present nature is that the petitioners should be able tothow, that they have been adversely affected by impugned orders, because grave injustice or substantial injustice, harm damage or loss of any kind have been caused to them. The deletion of 'substantial injury' from Article 226, which was introduced by the 42nd Amendment of the Constitution earlier, has not dispensed with, this important constitutional requirement, which has been insisted upon both in English Courts and the Indian Courts in equitable writ jurisdiction even earlier.
(2) the petitioners have failed to show that the impugned orders have caused them any injustice, much less, grave injustice or substantial injustice, damage injury or harm. In fact howsoever unwittingly it may be, the Sugar (Retention and Sale by Recognised Dealers) Order, 1979 and Levy Sugar Supply (Control) Order, J979 coupled with de-control of sugar price has resulted in a 'dealers paradise' as on each quintal of sugar effected by these orders, each one of them would earn additional profit of Rs. 16.50/- to Rs. 41/-per quintal. The preliminary objections of the respondents is liable to be accepted and the writs deserve to be dismissed on this ground alone;
(3) the fixation of the 'controlled price' at Rs. 280/- per quintal under C1ause 4 of the 'Retention Order' is legal as it has been done under Section 3(2)(c) of the Act;
(4) the 'Retention and Levy Orders' fully comply with the requirements of Section 3(3) of the Essential Commodities Act and full effect has been given to Clause (a), (b) and Clause (c) of it;
(5) the prices to be paid to the dealer for levy has been governed by Section 3(3) of the Act and Section 3(3A) has got no relevancy to it, nor it is applicable in the present case.
(6) the market price admittedly being much more than Rs. 280/- per quintal, the respondents were justified in applying Clause (a) and Clause (b) of Sub-section (3) of Section 3 of the Act;
(7) since the market price prevailing in the area was much more than to Rupees 280/- per quintal having shooted up like a 'gas balloon' to Rs. 450/- to 600/- per quintal, the functionaries of the State, were justified in not making attempt for any agreement with the dealers, under Section 3(3)(a) of the Act and were further justified in calculating the price under Sub-clause (b) of Section 3(3) of the Act, at the rate of Rs. 280/- per quintal.
(8) the Food Commissioner other State functionaries and the Collectors were duly authorised to take levy from the dealers, under the Retention and Levy Orders;
(9) the explanation of Clause (3) of the Retention Order, for including the sugar in 'pipe line' having been delivered or despatched before the date 17-12-79 to the dealers, either in their own name or in the name of the bearer, is valid;
(10) all those despatches which were made before 17-12-79 to the dealers but were received later on, would be treated as covered by explanation;
(11) the inclusion of the sugar in pipe line in the closing stock of the 17th Dec., 1979 would not result in prosecution of any dealer on the ground that the stock if so, taken would increase the limit of the permissible stock for the licence or the licensing order;
(12) the fixation of price at the rate of Rs. 280/- per quintal for the dealer, is not violative of Art. 14 of the Constitution;
(13) taking of the levy at price @ Rs. 280/- per quintal from the dealers of the 65% of the closing Stock of Dec., 1979 is not violative of Art. 19(1) (g) of the Constitution;
(14) Article 300A of the Constitution has not been violated because the Retention & Levy Orders, both have been enacted under the Essential Commodities Act, and are valid, and thus even if the property is being taken away, it is under the authority of law;
(15) Article 301 of the Constitution has not been violated, because there has been no restrictions on any trade or business without authority of law;
(16) the Retention and Levy Orders are socio-economic legislation; and though they are orders issued by the delegated legislative authority; they are for fair distribution, with the object, to provide to the consumer, sugar at a fair price, and therefore, even if some loss is caused to a few with corresponding benefit to larger chunks of people, the same is justified both under the Constitution and the law;
(17) the writ petitions cannot succeed, on any ground and since they are even liable to be dismissed on preliminary, objection, the respondents are entitled to be allowed costs from the petitioners.
3. After the above judgment of Rajasthan High Court, Delhi High Court in Kasturi Lal Rakesh Kumar v. Union of India (Civil Writ Petal. No. 25/80) dismissed the similar writ petitions on Mar, 21, 1980 and declared that the Levy and Retention Orders are valid.
4. Hon'ble Justices Mr. Harish Chandra and Mr. B. N, Kirpal constituting a Division Bench repelled the submissions of the petitioners regarding the validity of the notifications on various grounds, while dismissing the writ petitions. After the judgments of Rajasthan and Delhi High Courts, Calcutta High Court in Gokul Chandra Dey & Sons v. Joint Secretary, Govt. of India (C. R. No. 7397 (W) of 1979) accepted the writ petitions on Apr. 1, 1980 : (Reported in 1981 Cri LJ 401) and held that the fixation of the price by Clause (4) of the retention orders, is bad and if that clause goes then other provisions cannot be given effect to, that is to say, there cannot by any obligation to hand over the detained stock at a particular price fixed on that date by the impugned order.: In this view of the matter, the Court quashed the order dated 17th Dec., 1979 (Annexure-D) before that court;
5. It is precisely in the background of the above divergent views expressed by the Rajasthan and Delhi High Courts on the one side and Calcutta High Court on the other side, that this bunch of 324 writ petitions have come up for consideration. In fact, during the course of hearing of the arguments, only a press cutting was submitted by the petitioners, but on the insistance of the court, the petitioner have availed of the opportunity and filed a copy of the judgment of Calcutta High Court along with written arguments.
6. I had occasion to deal with the manifold submissions of the petitioners and the objections of the respondents, in the judgment referred to above at Jaipur and that judgment was read in the court verbatim during arguments. In view of this, it would be unnecessary to mention the entire history of the levy and retention orders, and the price determination order, accompanied with it, and also the various submissions which were made, considered and adjudicated as per the summary reproduced above. The sole question which is to be considered, is whether either on the basis of the arguments advanced afresh or the reasoning given by the Calcutta High Court, the view taken by this Court at Jaipur, requires reconsideration, warranting a reference to a Division Bench or a larger Bunch of this Court.
7. As would be obvious from the reading of the judgment of this Court in M/s. Chand Behari's case (supra) at Jaipur, narrow compass in which the crucial controversy was considered, depends upon the interpretation put on the various judgments of the Karnataka and Allahabad High Courts on the one hand and Andhra Pradesh High Court on the other hand, i.e., Sitaram Jwala Prasad v. State of U. P., AIR 1975 All 272, K. B, Jinaraja Hegde v. State of Mysore, AIR 1971 Mys 12, Joe Pereira v. Union of India, AIR 1979 Kant 12, Sri Venkateswara Rice Mill v. State of Andh, Pra., AIR 1975 Andh Pra 84, the decision of Diwan Sugar & General Mills (Private) Ltd. v. Union of India, AIR 1959 SC 626, provided a general guidance. I would first deal with the case of Allahabad High Court. Mysore and Karnataka High Court's judgment would be dealt with jointly later on and thereafter I would examine the Andhra Pradesh's view and the guidance provided by the Supreme Court in Diwan Sugar & General Mills's case (supra).
8. U. P. Coarse Foodgrains (Levy) Order, 1974 was under challenge in the Allahabad case. According to Section 3 of it, every licence dealer was required to sell 50% of the Coarse Foodgrains' in stock. The price was fixed in a Schedule, which was known as Sch. 1 at '74/- per quintal'. The submission made before the court was that in view of the mandatory provisions, contained in Sub-section (3-B), the State Government was bound to pay to the petitioners, the prize of the foodgrains, which they have been required to sell to it in the manner contained in the aforesaid two, Sub-clause. Sub-section 3 (3-B) in the unamended form at that time was as under;--
'(3-B) Where any person is required by an order made with reference to Clause (i) of Sub-section (2) to sell any grade or variety of foodgrains, edible oilseeds or edible oils to the Central Government or a State Government or to an officer or agent of such Government and either no notification in respect of such foodgrains edible oilseeds or edible oils has been issued under Sub-section (3-A) or any such notification have been issued has ceased to remain in force by efflux of time; then notwithstanding anything contained in Sub-section (3), there shall be paid as the price for the foodgrains, edible oilseeds or edible oils--
(i) The controlled price, if any, fixed under this section or by or under any other law for the time being in force for such grade or variety of foodgrains, edible oilseeds or edible oils; or
(ii) Where no such price is fixed the price for such grade or variety of food-grains, edible oilseeds or edible oils prevailing or likely to prevail during the post-harvest period in the area to which that order applied.'
Clause (i) of this Section 3(3-B) mentioned that the 'Controlled price,' if any, fixed under this section or by or under any other law, for the time being in force, be for such grade or variety of foodgrains, edible oilseeds or edible oils. Admittedly, in that case, no 'controlled price' under Section 3(2)(c) was fixed or even was purported to have been fixed, under the relevant Levy order or some other order, issued at that time. It was further contended, that the petitioners were entitled to get price fixed as contemplated by Clause (2) of Section 3 (3-B).
9. The contention of the State was that the price mentioned in the schedule was the 'controlled price' fixed by the Government, in exercise of the powers conferred on it, by Section 3(1) in general and Section 3(2)(c) in particular. The fixation of the price in the schedule for the purpose of the levy was sought to be justified as the 'controlled price'. This justification sought to be made by the State, was held to be unjustified in view of the scheme of the Act. The Court held that the controlled price, contemplated by Clause (i) of Section 3(3-B) has to be with reference to either the grade of foodgrain or its variety, and whatever the price State fixed in the schedule of the order as the price to be paid to the dealer cannot be considered as the 'controlled price'. The reason given was that, the Sub-clauses (i) and (ii) of Section 3(3-B) would become redundant, if it is accepted that the price automatically becomes controlled price. The court directed that it must fix price as contemplated by Sub-section (3-B) of Section 3 of the Act after the same is fixed.
10. It would thus be seen, that in this case, the controlled price was never fixed, but all that was fixed was that the price, at which levy sugar, was to be purchased, and that too was done by mentioning, it in the schedule. It is further to be seen, that Sub-section (3-B) was held to be applicable and therefore, the price under Sub-section (3-B) and Sub-clauses (i) and (ii) could be fixed only. At first the 'controlled price' was required to be fixed under Sub-section (3-B) read with Clauses (i) and (ii), of Section 3 of the Act That having not been done, the price fixation for levy simply by making mention in the schedule was held to be invalid.
11. However, while doing so, it is important to note, that on principle, the Advocate General's submission that it is open to the Government to fix the 'controlled price' and to require a certain percentage of foodgrains to be sold to the State Government, at that price, in one and the same order was accepted. The relevant observations made in para 7 are as under:--
'We are in agreement with the learned Advocate General that it is open to the Government to fix the controlled price and to require a certain percentage of foodgrains to be sold to the State Government at that price in one and the same order.'
12. Now in order to see whether the principles enunciated in this case can apply to the present case, it will have to be appreciated, that the scheme of the levy order, and Retention order, by which the prices are to be fixed, in the instant cases shows that controlled price is not imaginary or illusory. As already pointed out above the 'controlled price', has been fixed under Clause (4) in terms, specifically and categorically, as it has been mentioned as the 'controlled price'. Not only that, but by virtue of Clause (2) of the Levy Order, Sub-clause (3) of Section 3 has been taken note of, and it has been mentioned that the dealer would supply levy sugar at a price, not exceeding the price determined under Sub-section (3C) of Section 3 of the Act. The maximum limit or ceiling limit of Section 3(3) was thus specified in this order and then came Retention Order, in which, Sub-section (3), again mentions, the very phraseology or Clauses (a) and (b) of Sub-section (3) of Section 3 of the Act. Clause 4 of this Retention Order fixed the 'controlled price' as Rs. 280/- and was meant to precede the fixation of the ultimate price under Sub-clause (3).
13. It would, thus be seen that all the three Clauses (a), (b) and (c) of Sub-section (3) were not only taken note of, in these two orders, but acted upon, and it was in order to arrive at the price under Sub-clause (3) of Section 3 that alternative choice was given of either adopting method contained in Clause (a) or (b) Sub-section 3 of the Act. The controlled price under Clause (4) was to provide foundation for working out the figures under Sub-clause (3) by either method of Clauses (a) and (b).
14. That being so, so far as the Allahabad's case is concerned, I am of the opinion that, it has got no application on the facts of the present cases.
15. Admittedly, so far the present case is concerned, there is no application of Section 3(3-B) of the Act, as it is nobody's case that the price was to be fixed under Section 3(3-B) of the Act. Moreover, Section 3(3-B) as is stood in 1975 has undergone a radical change by an amendment.
16. Then come three cases of Mysore and Karnataka High Courts which require serious consideration.
17. The levy order of Mysore Paddy Procurement (Levy) Order, 1966 was challenged in K. B. Jinaraja Hegde's case (AIR 1971 Mys 12) (supra). The price for purpose of sale of levy to the State was contained in Schedule-II of that order. This was struck down and the Mysore High Court held as under:--
'The Levy Order does not mention how the purchase price mentioned in Sch.-II to that order has been fixed, nor does it prescribe the manner in which it has to be fixed. The fixation of this price is based on Section 3(3-B) of the Essential Commodities Act. 1955. The first factor which the State Government has to consider in fixing, purchase price is the controlled price, if any, fixed under the section or under any other law for the time being in force for any grade or variety of foodgrains, edible oilseeds or edible oils. The second factor is the price for the same or likely to prevail during the post-harvest period in the area to which that order applies. It would, therefore, be clear from this subsection that the price to be paid is neither the controlled price nor the market price, but the price which the State Govt. fixes while promulgating the relevant order after having regard to both of them.
Section 3(3B)(ii) gives considerable guidance to the State Government in taking into account the price prevailing at a time and required by law to be taken into consideration. This clause has reference to two factors viz; (a) the point of time and (b) the area. So far as the point of time is concerned, it refers to the price prevailing during the harvest period. The explanation to this sub-section clarifies as to how the post-harvest period should be determined. The State Government should consider whether the harvest period in all the areas of the State in regard to paddy would be the same or would differ materially. The post-harvest period is the period of four months beginning from the last day of the fortnight during which harvesting operations normally commence. If the post-harvest periods differ in a manner so as to create fluctuation in prices, the State Government would be required to take the time factors into consideration in determining the prices prevailing or likely to prevail during the post-harvest period.'
18. It would thus be seen that the entire decision depends upon the interpretation of Section 3(3-B) of the Essential Commodities Act, 1955 as it was in existence in unamended form at that time.
19. As pointed out above, in the Allahabad case Section 3(3-B) at that time required that the State Government should take into consideration the price prevailing at the time and in that area for the time and the price prevalent during the harvest period was relevant and the explanation was added to clarify as to how the post-harvest period should be determined. This shows that the harvest period can be 'different for different purpose in the State and so also the price can be different. That being so, before a price was to be fixed for taking the levy of the paddy, the State Govt. was required to consider two factors contained in Sub-clauses (1) and (2) of Sub-section (3-B) of Section 3.
20. On the facts of that case the court was of the opinion that this was not done. Not only it was not done, but even the levy order, did not prescribe manner in which it was to be done. It was not in dispute that the 'control price' was not fixed at all, either under this section or under any law for the time being in force, for any grade or variety of food grains, edible oilseeds or edible oils. On the basis of these findings, the court came to the conclusion that the price fixed in the paddy order, can neither be treated as 'controlled price' nor the market price. Since Sub-section (3-B) of Section 3 was not complied with, Mysore High Court, quashed the price fixation by way of mentioning the same in a schedule only. When justification was being made, by the State, of the price mentioned in the Schedule, as 'control price', the court did observe that a control price should have necessarily reference to the object of the State for fixing up a maximum price, beyond which sale cannot be legally made by the grower or dealer and since paddy was sold at much higher price in the open market, this cannot be said to be 'control price' as contemplated by Clause (1) of Sub-section (3-B) of Section 3 of the Act, and therefore, what was fixed in Schedule-II was a purchase price and not the 'control price.'
21. These observations of the Mysore High Court that 'control price' is the maximum price beyond which sale cannot be legally made by the grower or dealer, certainly helps the case of the petitioner, inasmuch as when the State allows a dealer to sell the sugar at any price so far as 35% quota is concerned, then this requirement is not fulfilled and on that count it cannot be said to be 'control price' in terms of the judgment of the Mysore High Court. This observation of the Mysore High Court will be examined by me a little later.
22. This judgment of Mysore High Court was later on followed by another judgment of M/s. A. S. Kasarkod & Sons v. State of Karnataka, W. P. No. 2126 of 1974, decided on 2-7-1974. relevant portion of which has been extracted in Joe Pereira v. Union of India (AIR 1979 Kant 12) (supra), which reads as under:--
'......The price fixed under Clause (c) of Section 3(2) of the Act in respect of an essential commodity, in my opinion, governs both sales and purchases of that commodity. The price fixed under Clause (c) of Section 3(2) in respect of an essential commodity is, in my opinion, intended to control all sales and purchases generally of that commodity. If Clause (c) of Section 3(2) is intended to control the price of a particular category of sales only or a particular category of purchases only, then the very object of controlling the price namely, making that commodity available at fair prices, will be frustrated I am unable to accept the contention that under Clause (c) of Sub-section (2) of Section 3 of the Act the Government can control only the price at which an essential commodity should be sold under Clause (f) of that sub-section, without controlling the price at which all other sales or purchases of that commodity can take place.'
23. The Karnataka High Court in the above case relying upon the above observations of Chandra Shekhar Justice, as he then was, observed as under :--
'From these observations, it becomes clear that the controlled price is a price which is required to be determined by taking into consideration all the circumstances like interest of the grower, the consumer and the general public. It must be fair from the point of view of the producer and also from the point of view of the consumer. It has to be determined in such a way that the producer does not perish and the consumer is not crippled. The controlled price once fixed must be applicable to all sales and purchases. It should not be intended to control the price of a particular type of transaction. The price which the State Govt, fixed in the Levy Order or paid to the petitioner was evidently intended to govern the particular type of transaction i.e., compulsory sale by the grower to the State. Such a price, in oar opinion cannot automatically become the price as contended for the State Government.'
24. It would, thus, be seen that the three judgments of Mysore High Court which was later on named as Karnataka High Court enunciates the principle that 'control price' is a price which is not restricted in its application to a particular transaction of sale to the Government of a part of the stock, permitting the dealer to sell the other part at any prire. According to this view the controlled price should be a price at which essential commodity should be treated for all sales and purchases generally of that commodity.
25. It will have to be seen, whether this view that the controlled price once fixed must be applicable to all sales and purchases and the price fixed only for the purposes of levy, cannot be termed as controlled price, should be followed or not.
26. A different view was expressed by the Andhra Pradesh High Court in Shri Venkateswara Rice Mill v. State of Andh. Pra. (AIR 1975 Andh Pra 84). A procurement order was issued by the State in order to restrict sale and movement of rice within the State of Andhra Pradesh, the underlying idea being to maintain a price level and to make the essential commodity viz: rice available at a reasonable price to the consumer. It was contended that there was no compliance of Section 3(3). It was also contended that the procurement order has been made in excess of the powers under the Act. The relevant observations of this judgment are as under : --
'What Mr. Babulu Reddy contends is that while it is open to the Government to control the price line and fix a price for any essential commodity, it is not open to it to ask for sale of rice at a notified price which means a sale for purchase price. In other words according to him Section 3(2)(c) only provides for control of price and does not speak of fixing any sale price or purchase price. In support of his contention the learned counsel relied upon an unreported decision of the Mysore High Court W. P. Nos. 2126 to 2161 of 1974 and batch dated 2-7-1974 (Mys). Justice Chandra Shekhar relied upon an earlier decision of the same Court reported in Jinaraja Hegde v. State of Mysore, (3970) 2 Mys LJ 224 at p. 227: (AIR 1071 Mys 12 at p. J.4). The contention of the Government pleader in Jinaraja Hegde's case was that the prices specified in the Schedule to the Levy Order should themselves be regarded as the controlled prices referred to in Clause (i) of Sub-section (3-B) of Section 3 of the Essential Commodities Act. That, was repelled by the Division Bench. The learned Judges were of the view that the price fixed under Schedule II is not the controlled price. According to thorn, it was common knowledge that paddy was sold at much higher price in the open market both by the growers and the dealers than the price mentioned in the Schedule.'
The learned Judges were of the view that
'We cannot, therefore call this price as the controlled price, as contemplated by Clause (i) of Sub-section (3-B) of Section 3 of the Act. The wording of the Levy Order leaves no doubt in our mind that the price that has been fixed in Schedule II is the 'purchase price', and not the controlled price. Chandra Shekhar J., expressed his agreement with that learned counsel Mr. Babulu Reddy here.'
27. After extracting the above, the Andhra Pradesh High Court disagreed with the view of Mysore High Court and observed as under:--
''We are unable to subscribe to the view expressed by the Mysore High Court in the two cases referred to above. The expression 'control' in Section 3(2)(c) takes within its ambit restrictions, regulations curbs, restraints. To control a thing is to have the right to exercise a directing or governing influence over it. (Black's Law Dictionary page 399). The object of procuring from millers or dealers by the Government is to make rice available at reasonable price to the consumers. A dealer or miller is called upon only to sell a portion of the total quantity of each variety of rice at a notified price. It is not the case of the petitioners that the Government while fixing the notified price has not taken into consideration the rate at which a dealer or miller purchased paddy, conversion charges, transport charges and other incidental expenses and also the marginal profit. So, as notified price is fixed only alter taking the relevant factors into consideration, that is to say, to see that no dealer or miller suffers loss by his having to sell a portion of the total quantity of the rice which he produces or manufactures. The fixation of the price has not been questioned before us. What Mr. Babulu Reddy contends is that the notified price is not the controlled price and Sub-section (c) of Section 3(2) only empowers the Government to control prices and not to notify prices. We are unable to see any force in this contention. The word. 'Control' as has already been observed by us, takes in regulation of the prices also by notifying a particular PRICE. To the extent of Sub-clause (1) of Clause (3) the price at which levy price should be sold is contracted. It is not open to a miller or dealer to sell at a rate above the notified price. In other words, that price at which a miller or dealer is to sell is controlled. The expression 'control' is of very wide amplitude. Clause (f) of Section 3(2) as already seen empowers the Government to require any person holding in stock any essential commodity to sell the whole or a specified part of the stock to the Central Government or to the State Government The procurement order is issued in exercise of the powers conferred upon the Government under Sub-clause (f). We see absolutely no merit in the attack on the procurement order.'
28. It would, thus, be seen that the Mysore view which was followed by the same High Court as Karnataka High Court and the view of Andhra Pradesh High Court are divergently different on this point. Whereas the Andhra Pradesh High Court has taken the view that the word 'control' is of very wide import and it means regulation of the price by notifying a particular price for purchase or levy. The expression control being of very wide amplitude, it covers the price fixed for Clause (f) of Section 3(2) also. It is not necessary, that a price can be termed as a 'controlled price' only when it covers the entire range of all transactions of sale and purchase by a dealer or even of all transactions of sale by a dealer to all and sundry.
29. Contrary to it, the Mysore and Karnataka view is that a price can be termed as a 'controlled price' only, if it controls the price line for all transactions of sale and the entire stock. Whenever a price is fixed only for a particular transaction or a particular purpose of sale to the Government for levy, it cannot be termed as a controlled price.
30. It would be necessary at this stage to take guidance from the view expressed by the Hon'ble Supreme Court in Diwan Sugar & General Mills (Private) Ltd. v. Union of India, (AIR 1959 SC 626) (supra). The Amritsar Sugar Mills Co. Ltd., challenged the Sugar (Control) Order, 1955 fixing ex-factory price per maund of sugar produced in Punjab, Uttar Pradesh and North Bihar. One of the grounds of the challenge was that the controlled price has not been fixed for the sugar to be bought and sold generally, but it has been fixed only for the sale from the factory i.e. producers. It was contended that the principal object of the Essential Commodities Act, as mentioned in Section 3 is to make available the essential commodities to the consumers at a fair price and, therefore, if the controlled price is to be fixed, it must be fixed to cover all transactions of buying and selling and an isolated act of sale by a factory only, cannot be covered under Section 3(2)(c) of the Act. Repelling this argument, the Supreme Court observed:--
'The contention that Section 3 of the Act only authorises the Central Government to fix the retail price i.e. price for the consumer is not tenable. There is no doubt, that the object of the Act is to secure essential commodities, for the consumers, i.e. the general public, at fair prices; but it does not follow from this that this object can only be achieved if retail prices are fixed and that there is no other way of achieving it. In any case, Clause (c) of Section 3(2) which speaks specifically of control of price is very general in terms. It provides for fixation of price at which any essential commodity may be bought or sold; it does not specify the stage at which the price should be fixed. Therefore, the control provided under Clause (c) of Section 3(2) is control at any of three stages mentioned above. There is no reason to cut down the generality of the words used in Clause (c) so as to make them applicable only to the last stage, namely, the retail price.
In law, there is no warrant for holding that under Section 3(1 and Section 3(2)(c)ESSENTIAL COMMODITIES ACT, 1955~^ of the Act, the Government must not only fix ex-factory prices but also wholesale and retail prices. What prices the Government will fix depend upon their estimate of the situation, which would serve the object of the Act.
Consequently, the impugned notification is not bad on the ground that the Act and the order do not authorise the Central Government to fix ex-factory prices and secondly because it fails to fix prices for the ultimate consumer.'
31. It would thus be seen that the Supreme Court has emphatically held that the Clause (c) of Section 3(2) giving the Government authority and power to control the price is very general in terms and there is no reason to cut down the generality of the words used in Clause (c). It has further held that at what stage and what price the Government will fix, depend upon their estimate of the situation, which would serve the object of the Act.
32. In my opinion, the above decision of the Hon'ble Supreme Court expressly, clearly and categorically repells the objection of the learned counsel for the petitioners, that the State has got no powers to fix prices or Control Prices, for limited purposes only. Since the pronouncement of the Supreme Court is very clear, that the generality of the powers given in Section 3(2)(c) cannot be curtailed and it is for the State to decide what should be done in view of the object of the Act and the situation which warrants it, it cannot be said that the respondent No. 1 had no authority to fix a price under Section 3(2)(c) of the Sugar Control Order for the purposes of Sub-clause (3) of the Retention order as has been done in the instant case.
33. It is beyond dispute that so far as the instant case is concerned, the Union of India has not; either by mentioning the word purchase price in the Schedule or by mentioning of the purchase price in Clause (4); fixed the purchase price, under the name of the controlled price. The reason is that under Clause (3) of the Retention Order what has been directed to be purchase price is as under :--
'(3) Where a recognised dealer sells sugar under the Provisions of this order, there shall be paid to him the price therefor as hereinafter provided;
(a) Where the price can, consistently with the controlled price fixed under Clause 4, be agreed upon the agreed price;
(b) Where no such agreement can be reached, the price calculated with reference to such controlled price.'
34. This would show that the purchase price need not be the 'controlled price' as Retention Order gave a mandate that it can be the agreed price also. Undoubtedly the controlled price would play a very important and major role for this agreement under Clause (a) of Sub-section (3) of Retention Order as agreed price is to be consistent with the controlled price.
35. But nonetheless it cannot be said that the Union of India fixed the levy price itself under Section 3(2)(c) where it could fix only the controlled price.
36. It is not to be forgotten that under the Levy Order, under Clause (b) of Sub-clause (1) of Clause (2), the Central Government was authorised to issue directions to supply levy sugar to the State Govt. at a price not exceeding the price of Sub-section (3) (c) of Section 3 of the Essential Commodities Act, 1955. As is well known Sub-clause (3) (3) (c) is prevalent market price and, therefore, the mandate was that Central Government should never issue a direction to a dealer to supply levy at a price higher than even the market price and obviously the same could not have been done in view of the express language of Section 3 (c) and also the scheme of the Act, the principal purpose being to control the price which at a particular point of time shows an increasing trend.
37. Thus the Levy Orders, Sub-clause (b) of Sub-clause (1) of Clause (2) read with Sub-clause (3) of Retention Order, would show that what the Central Government has done in these Orders is to give effect to Subsection (3) of Section 3 and its three Clauses (a), (b) and (c) which in the ultimate analysis, determines the price to be paid for the purposes of a levy under Sub-clause (f) of Section 3 of the Act. Since Sub-clauses (a) & (b) of Sub-section (3) of Section 3 expressly has got relation to the controlled price, it was necessary for the Central Government to further fix the controlled price which has been done by Sub-clause (4).
38. Even on the basis of a comparative study of different clauses of the various 'Levy or Procurement Orders' which were subject matter of challenge under the Allahabad case, the first case of 1971 Mysore, the second case of 1974 Mysore and the third case of 1979 Karnataka, it will have to be noted, that those provisions are absolutely different from the provisions under attack in the instant case. In all those cases straightway the Central Government or the State Govern- ment has fixed the purchase price simpliciter by mentioning it in a schedule and there was absolutely no provision like Sub-section (3) (a) (b) of the Retention Order which is equivalent to Sub-section (3) (a) (b) of Section 3 of the Essential Commodities Act. Again there was no provision like Sub-clause (b) of Clause (i) of Clause (2) of the Levy Order wherein effect has been given to Sub-section (3) (c) of Section 3 of the Act.
39. In my considered opinion, firstly the orders covered by the various levy and Procurement orders of the Mysore, Karnataka and Allahabad cases referred to above are absolutely different, though observations mentioned therein may cover a very wide field so as to cover the objection raised in the instant case also. The Andhra Pradesh case referred to above emphasises the same theme of the wide amplitude and scope of the powers under Section 3(2)(c) as has been held by the Hon'ble Supreme Court in the above case, where again and again, it has been emphasised, that the generality of the powers cannot be curtailed.
40. With all respect, I am constrained to observe that what has been said in the judgments of Mysore and Karnataka High Courts tends to curtail generality of the powers of Section 3(2)(c) of the Act of 1955; for which the Supreme Court was very zealous to provide protection and safeguard. The judgment of the Supreme Court mentioned above, was not brought to the notice of the Hon'ble Judges of those Courts, as it finds no reference, in the judgment and therefore, it is difficult to forecast what would have been the effect of it, in case the same would have been referred before them.
41. I am inclined to agree with the view taken by the Andhra Pradesh High Court, which as mentioned above, is consistent with the view expressed by the Hon'ble Supreme Court, that under Section 3(2)(c) of the Act, the power is general and cannot be restricted in its application by putting a rider that control must be done for all purposes and cannot be done for a partial or a limited purpose. Even on the general principles of Interpretation of Statutes, if power has been given in unrestricted, unfettered language or words by the legislature then within the wide and general amplitude of the powers, the authority can exercise it partially or for a part. To illustrate even though the power is for controlling the prices for both being bought or sold, yet the State can do it only for buying and not for selling or vice-versa. Similarly State can introduce control for the purposes of sale only and not for purchase. It would not be open to anyone to challenge such an order on the ground that the power is given for both and, therefore, it cannot be utilised partially.
42. Similarly the control of price need not necessarily be for sale of an essential commodity at all stages and by all i.e. a producer, a dealer and a consumer It can be only for one of them or two of them. Again logical and legal coroilory of this is that the regulation, prohibition or restriction by way of control can be for a particular period also and a part of the stocks also and that, too for a particular purpose also. The argument that for one single transaction 'controlled price' cannot be fixed, is not borne out by the wording of Sub-clause (c), which as observed above, is too general.
43. Of course, for the purposes of fixing price for Clause (f) which includes levy, the order will have to specify and give effect to Sub-section (3) of Section 3 and if that is not done and if the Central Government stops only by fixation of the price, ignoring Sub-section (3) of Section 3, a citizen can have the grievance that Section 3(3) has been violated. Therefore, Sub-clause (c) read with Section 3(3) would certainly require the Central Government to further give directions under Sub-clause 3 (3) but those directions will have certainly great bearing, to the controlled price in case (a) and (b) of Sub-section (3) are to be applied.
44. The above would show that the power of the Central Government to fix 'controlled price' under Sub-section (c) is not fettered, being of general nature and the restriction, regulation, prohibition under Section 3 of the Act can be of very wide amplitude. This scope of restriction, regulation and prohibition came up for consideration before the Hon'ble Supreme Court in Narendra Kumar v. Union of India, (AIR 1960 SC 430). It was observed that: 'it is clear therefore that when Section 3 confers power to provide for regulation or prohibition of the production, supply and distribution of any essential commodity, it gives such power to make any regulation or prohibition, in so far as, such regulations and prohibition do not violate, any fundamental rights granted by the Constitution of India.'
45. The submission that in one particular transaction, that is stocks which were in existence on the closing of 17th Dec. 1979 the Central Government was not competent to issue directions for levy of 65% of the stocks at a price which can be spelled out from the provisions of Sub-clauses (3) and (4) of the Retention Order, cannot be accepted and is consequently rejected
46. It may be observed here that for the purposes of these cases, it is also not necessary to consider whether the Andhra Pradesh view has gone too far because in our cases, as observed above, the Retention Order and levy order read, as a whole and particularly Sub-clauses (3) and (4) of the Retention order and Clause (2) (1) (b) of the Levy Order show that the Central Government has fully complied with the requirement of Sub-section (3) of Section 3 of the Act and it has not stopped only after mentioning the controlled price in Clause (4). That being so, I have got no hesitation in holding that so far as the instant 'levy order' and 'Retention Order' are concerned, not only letter of the law but also spirit of the law, as contemplated by Section 3 including Sub-section (3) and Sub-section (2) (c) have been complied with. The 'controlled price' @ 280/- fixed in Cl. 4 is valid, as it is covered by Section 3(2)(c) of the Act of 1955.
47. The Calcutta High Court has placed reliance upon the judgments of the Allahabad and Karnataka High Courts. It appears that the view of the Andhra Pradesh High Court was not placed before the Calcutta High Court. It further appears that judgment of this Court, referred to above, and the judgment of the Division Bench of the Delhi High Court were not placed before the Calcutta High Court. Still more surprising is that even the judgment in Diwan Sugar & General Mills's case of Supreme Court (AIR 1959 SC 626) (supra) was not placed before the Calcutta High Court for consideration. I have given detailed reasons above for agreeing with and adopting view of the Andhra Pradesh High Court and expressing disagreement with the views of the Allahabad and Karnataka High Courts. Though, in fact, the disagreement is more based on distinguishing features of the cases rather than basic difference in interpretation of law. However, in view of this, I for one, do not feel persuaded to take a different view from what I have taken earlier at Jaipur. With all due respect to Hon'ble Judges of Calcutta High Court, I have got no hesitation in recording my disagreement from that judgment.
48. In the decision of Kasturi Lal Rakesh Kumar's case ILR (1980) 1 Delhi 308 (supra), a Division Bench of the Delhi High Court made a comprehensive study of history of regulation of production, distribution and prices of sugar from May, 1942 onwards. Sugar and Sugar products Control Order, 1942 was the first shot fired in war of controlling the prices. The various orders for control and decontrol were passed from time to time as the control imposed in the year 1942 was removed in 1947 and again imposed in 1949. It was de-controlled in 1952-53 and again controlled in 1958. The partial control at least became the order of the day, except for the period between 25-5-1971 to 30-6-1972. In 1979 Sugar Price Control Order was issued and when it did not have the desired effect, policy was reviewed and partial control was adopted, effective from 17th Dec., 1979 requiring sugar producers to make 65% of the production of sugar by the sugar producers, called 'levy sugar', available to the Government and at the same time lifting the then existing control of price in respect of the balance of 35% of the Sugar produced and to enable them to sell the 35% at such prices as it may command in the free-market.
49. The Delhi High Court after making the above survey and analysing the provisions of the Essential Commodities Act, has held as under: --
'It appears to us, therefore, that whereas the Central Government has the power to fix a price to be called as 'Controlled Price' at which the entire stock of an essential commodity would be bought or sold throughout the country, it also has the power to fix a price to be equally called 'controlled price' which is to serve only as the basis of calculating a price payable either under Clauses (a) and (b) of Sub-section (3) of Section 3 or under Clauses (a) and (b) of Section 3(iii) or under Section 3 (c).'
50. The Panipat Co-operative Sugar Mill's case (AIR 1973 SC 537) and Shree Meenakshi Mill's case (AIR 1974 SC 366) were discussed at length. Delhi High Court then took note of the view of the Allahabad High Court taken in Sitaram Jwala Prasad's case (AIR 1975 All 272) (supra) and expressed disagreement at the reasoning by observing as under:--
'In our respectful opinion, the learned Judge seems to have laid undue emphasis on the absence of the use of the phrase 'controlled price' in the impugned order in coming to the conclusion that the price determined as payable cannot for the purposes of Clause (i) be the controlled price fixed under the section because undoubtedly such a price is a price with reference to either the grade or variety of the foodgrains in question.'
51. The decision of Punjab & Harayana High Court in Bhagwan Singh v. State of Punjab ((1975) 77 Pun LR 585), was also considered. The Court then held that 'like in the Allahabad case, the facts of this case before us are different from the Punjab case, in so far as what is fixed here is the 'controlled price' and not the sale price or the price payable though we venture to repeat, nothing much should turn on the nomenclature given or employed'. In the ultimate analysis, Delhi High Court has held as under:--
'We, therefore, reiterate our view that a price fixed and described as controlled Price on the occasion of making an order to subserve the purposes set out in Section 3(1) is a price, within the meaning of 'controlled price' occurring in Section 3(3)(a) and 3(3)(b) just as much as a controlled price fixed before. We, therefore, hold that the price fixed as controlled price in Clause (4) of the impugned order is the Controlled Price for the purposes of calculating the price payable under Clause (3) of the impugned order and Clauses (3) and (4) of the order do not suffer from any lack of legal authority as the same have been made in exercise of the authority conferred by Section 3(1) of the Act.'
52. I have extracted above some of the portions of the judgment of Delhi High Court as the study of the above would show that the view taken by this Court in M/s. Chand Behari's case (supra) at Jaipur has been precisely the view which the Delhi High Court had taken, a little later on 21st Mar., 1980.
53. While dealing with the arguments that the price fixed is confiscators in nature and not fair as required by the Essential Commodities Act the Delhi High Court, after examining the principles of reasonableness of restrictions in relation to the violation of fundamental rights as discussed in State of Madras v. V. G. Row (AIR 1952 SC 196); Virendra v. State of Punjab (AIR 1957 SC 896) and Lord Krishna Sugar Mills Ltd. v. Union of India (AIR 1959 SC 1124), held as under :
'From the figures of the prevailing prices given by the Government of India, we have no hesitation in holding that the petitioners did not, by and large, suffer any loss. This would be equally true if the prices taken above need to be marginally varied.'
'In view of this, we need not go into other economic factors and principles laid down to determine the fairness of a price and relying on the one accepted principle that loss has to be seen on an overall basis, in this case, on the entire sale, we find that the second challenge is also without merit'
54. The Delhi High Court further repelled the submissions which provided challenge to the efficacy of the impugned order to achieve the stated purpose. It held as under :--
'The argument is based on a misconception that the purpose is to make 100% of the stock of sugar available at a low price whereas the purpose is to make 65% of the stock available at low prices, a common feature of a dual policy of price control much in vogue these days. This stock i.e. 65% of the total stock is made available at a lower price and the purpose is fully achieved. The argument has thus no force.'
55. Now coming to the latest judgment of Calcutta High Court, which is relied upon by the petitioners, it will have to be noticed that in substance, principle laid down is that no control price can be fixed for single transaction under Section 3(2)(c) of the Essential Commodities Act, 1955 as has been done in the present case by Clause (4) of the impugned order. In other words, controlled price could have been fixed for all transactions for buying and selling of sugar and since this has not been done, the control price fixed by Clause (4) of the impugned order is bad. Secondly it was held that the control price cannot be indicated in the order itself.
56. Primarily the above view is based on the premises of the principles alleged to have been laid down in Allahabad and Karnataka cases. In my earlier part of the judgment, I have dealt in details, with the views of Allahabad and Karnataka High Courts and it would be unnecessary to repeat all these arguments, which have found favour with me for adopting the view of Andhra Pradesh High Court, in comparison to the views of Allahabad and Karnataka High Court. For those reasons, I find, myself unable, with greatest respect, to agree with the view expressed by the Calcutta High Court It is to be noted that in Allahabad's case, Section 3(2)(c) of the Act was not at all under debate. It was concerned with Section 3(3-B) of the Act
57. In Meenakshi Mills case (AIR 1974 SC 366) (supra) the Supreme Court has reiterated and categorically observed at p. 382 that the controlled price fixed under Section 3(2)(c) was different from the price as contemplated under Sub-sections (3-A), (3B) and (3C). It would, thus, be seen that the unwitting and unintentional fusion of Section 3(2)(c) with Sub-sections (3A), (3B) & (3C) in the Calcutta, Allahabad & Karnataka judgments have resulted in the logical fusion of the deductions and findings.
58. The Karnataka High Court's judgment (AIR 1979 Kant 12) also deals with the provisions of Sub-section (3B) of Section 3 of the Act and not with the provisions of Section 3(2)(c). Thus none of the Karnataka and Allahabad High Courts' judgments is an authority on the scope, ambit and interpretation of Section 3(2)(c) of the Act.
59. Before the Calcutta High Court even the judgment of Diwan Sugar Mills' case (AIR 1959 SC 626) (supra) was not placed. The Supreme Court as already discussed by me, in my earlier part of the judgment, has specifically held in this case, that Section 3(2)(c) of the Act does not specify the stage at which price should be fixed and it can be at any of the three stages. The most significant observation of the Supreme Court contained in this decision is as under:--
'There is no reason to cut down the generality of the words used in Clause (c) so as to make them applicable only to the last stage, namely; the retail price.'
60. The term, 'generality' used above by the Supreme Court is of great significance and the entire submission of the learned counsel for the petitioners, which finds favour in Calcutta High Court'3 Judgment that price cannot be fixed for one single transaction, is if I venture to say, so with due respect, 'knocked down', by the above dictum of the Supreme Court.
61. So far as the second proposition of Calcutta High Court is concerned, there appears to be no basis in the scheme of the Essential Commodities Act to hold that the prices cannot be fixed in the same order. Section 3(1) need not provide for only one of the Sub-clauses of Sub-section (2) at a time. A provision in the order can be made for any one or more than one clauses of Sub-section (2) of Section 3. In fact, as would be clear from the judgment of the Allahabad High Court in AIR 1975 All 272 in Para No. 7, it was categorically and clearly conceded by the Advocate General that it was open to the Government to fix the controlled price and to require a certain percentage of foodgrains to be sold to the State Government at that price, in one and the same order.' The Allahabad High Court expressed its agreement with the view of the Advocate General and these observations of the Allahabad High Court were even relied upon by the Karnataka High Court in Para No. 7 of its judgment (AIR 1979 Kant 12).
62. The Calcutta High Court's view has not taken note of the relevant facts and circumstances forming the background in which the said order was issued and more particularly the amplitude or extent of the powers of the Central Government conferred by the Parliament for public interest by the provisions of Section 3 of the Essential Commodities Act, which is now Item No. 126 in the ninth Schedule of the Constitution of India. It would be useful to point out that in Subsection (1) of Section 3 of the Act and Clauses (c) and (f) of Sub-section (2) of Section 3 of the Act there being absence of any provision in the said Act regarding any other mode for determination of 'controlled price' envisaged in Sub-section (3) of Section 3, similar to the provisions contained in Sub-sections (3A), (3B) and (3C), Central Government had plenary powers to fix or determine the 'Controlled Price' as described in the manner it had fixed in Clause 4 of the Retention Order.
63. This order carries out the purpose and intent of the said Act and therefore, the said Order, has on well settled provisions, statutory force and validity of it is contained in the parent Act itself. The Calcutta High Court's judgment further fails to take notice of 'Dual Pricing Mechanism' for Sugar and the benefit which was given to the dealers by permitting them free sale for part of the sugar in stock. With all respect, it is difficult to appreciate the view of the Calcutta High Court that the benefit given to the dealers by free sale of part of the sugar in stock, has got no relevancy for determining the controversy raised in these writ petitions. Since it has come on record that the sugar dealers made huge profit by free sale on the part of the sugar in stock, as held by me, in the decision of M/s. Chand Behari's case at Jaipur referred to above, it would be ignoring the basic proved facts, which are well established. The Court cannot shut its eyes to determine implications and effect of legislative measure by ignoring part of it and concentrating only on the other part which is under challenge. In the judgment referred to above, at Jaipur, I have, on a detailed discussion, held that these impugned orders brought 'cheers' to the dealers and it became 'dealers' or traders' paradise'. This factual aspect, though not admitted here in the present cases, is equally true as the rates at Jodhpur and Jaipur in Rajasthan cannot have any such variance. Even Delhi High Court has taken note of it, and that being so, neither the impugned orders, can be called confiscatory in nature nor they can be termed as violative of any other provisions of the Constitution.
64. Mr. M. M. Singhvi, learned counsel for the petitioners argued that the formation of the opinion by the Central Government that it is necessary or expedient to issue an order under Section 3 of -the Essential Commodities Act, 1955, is a condition precedent for the passing of an order. In the Levy Order, there is no mention that the Central Government is so satisfied or is of the opinion that it was necessary for maintaining or increasing the supply of the essential commodity to pass the said Order. In view of this, the Levy Order is invalid. In reply to it, the Counsel for the respondents pointed out that in none of the petitions, any such allegation of fact has been made that the Central Government had not formed any such opinion before passing an order. In some of the cases, this was taken as legal ground of challenge and not as a question of fact. The said legal ground of challenge has been denied on affidavit by the State in its reply to the writ petitions.
65. The two orders, Levy Order and Retention Order are 'twins' and the Levy Order is consequential order of the Retention Order. The opinion of the Central Government and its satisfaction for such a need, has already been mentioned in the Retention Order and, therefore, omission from the Levy Order is not of much significance. Even otherwise, the respondents have shown that such an opinion was formed by it before passing the Levy Order as would be obvious from the reply of the Central Govt. As held in Swadeshi Cotton Mills's Case (AIR 1961 SC 1381), the respondents can always show it independently. In fact, the entire history of the various measures taken by the Central Government, to regulate and control the prices of sugar including partial control and de-control, sometimes, and re-control again goes to show that the Central Government was seized of this issue throughout and every time passed such an order, it did show bona fide being of the opinion that it was necessary and expedient to issue an order under Section 3 of the Essential Commodities Act for maintaining or increasing the supply of essential commodity of sugar. In fact, this cannot be seriously challenged in the facts and circumstances, in which the impugned orders were passed and therefore, I have got no hesitation in rejecting the submission of Mr. Singhvi on this count.
66. Mr. L. M. Lodha, who argued the case, at length, on behalf of the petitioners, emphasised that 'control price' of essential commodity cannot be fixed in respect of one transaction only as has been done in the present case, by fixing 'control prices' of 65% of the stock of sugar with the recognised dealers on the closing of business hours on 17th Dec., 1979 and in any case, it could not have been fixed by the same order. I have already dealt with the above submission in earlier part of my judgment when I discussed the views expressed by the Allahabad, Karnataka, Mysore and Andhra Pradesh High Courts. The earlier judgment of M/s. Chand Behari's case (supra) given at Jaipur deals with the various facts of the above objection, both extensively and intensively. I have again applied my mind, on the above submissions for the second time while recording my disagreement with the view expressed by Calcutta High Court and agreement with the view expressed by the Delhi High Court. For those very reasons without repeating the same, I have got no hesitation in holding that the view expressed by this Court in M/s. Chand Behari's case at Jaipur, based on the agreement with the view expressed by the Andhra Pradesh High Court and Delhi High Court, calls for no re-thinking or reconsideration so as to warrant a reference to a larger bench. In view of this, contention of Mr. I. M. Lodha and Mr. Singhvi, learned counsel for the petitioners, have failed to carry any conviction with me, so as to persuade me to make a reference to a larger bench.
67. Mr. L. M. Lodha, learned counsel for the petitioners, further submitted that any essential commodity cannot be bifurcated for the purposes of fixing 'control price'. Developing this submission, he argued that the words, 'control price' of sugar implies that it could be fixed at all levels only and not only for the sugar in the possession of the recognised dealers. Since it has not been fixed for the producers, retailers, and consumers also, 'control price' fixed for recognised dealers is invalid and illegal, argued Mr. L. M. Lodha. The great emphasis was given on the theme of bifurcation, both orally and in written arguments submitted by Mr. L. M. Lodha. He pointed out that Clause (c) of Sub-section (2) providing for 'control price' for any essential commodity for being bought or sold, means that it provides for (1) controlling the price, (2) in respect of any essential commodity, (3) commodity to be bought and (4) or to be sold. According to him the crux of these cases is that the order shall provide for controlling the price with respect to any essential commodity under these clauses and that it is 'one' essential commodity and it fails to provide different prices for the 'same one' essential commodity. Since by Clause (4), Rs. 280/- per quintal has been fixed for 65% of the stock of sugar and there is no 'control price' fixed for the rest of 35% stock of sugar, it tantamounts to bifurcation of an essential commodity which is not permissible. According to Mr Lodha, 'control price' fixed should be for all purposes and not for levy of 65% of stock of one single day only,
68. Having given my thoughtful consideration to the above submission of Mr. L. M. Lodha, I, am unable to accept the same for the very reasons, which I have given in earlier part of my judgment, primarily based on the judgment of Hon'ble the Supreme Court in Diwan Sugar & General Mill's case (AIR 1959 SC 626) (supra) wherein the Supreme Court has held in very clear terms that it is open to the Government to fix 'control price' at any stage, if deemed necessary,
69. It was further argued that in any case, this Court should consider all the facts mentioned in Section 3(3C) of the Act for fixing the price of the sugar to be obtained from the producers, namely cost of production, investments and marginal profit. This submission of Mr. L. M. Lodha is fallacious because it presupposes of a fusion of Section 3(2)(c) and Section 3(3C), which is not there. It has to be kept in mind that Section 3(3C) provides for fixation of price, solely of producers or the manufacturers of sugar and in contrast to it, Section 3(2)(c) of the Act provides lor fixing the 'control price' on which an essential commodity may be bought or sold generally or at a particular stage. The two clauses are distinct and enacted for different situations. Section 3(3C) was introduced by an Amendment, later on.
70. The Supreme Court in AIR 1973 SC page 537 and page 734 have clearly held that both the losses incurred by sale of levy sugar and the gains made by sale of free sugar, should be considered, all-together to see, whether the dealers hava actually lost or gained on overall sales. This again is meant for Section 3(3C) only Even otherwise, by deciding other writ petitions at Jaipur, in Chand Behari's case, I have already held that the sugar dealers, in fact, had 'traders' paradise' by selling 35% stock of sugar in free market on account of de-control, which was introduced with these impugned orders of 65% of levy and this has brought 'cheers' and not 'tears' to them. The phenomenal rise in prices of sugar after the judgment in M/s. Chand Behari's case at Jaipur Bench till now, further has shown that the view expressed by this Court, was well reasoned and justified.
70A. In earlier part of my judgment, I have disagreed with the view expressed by the Calcutta High Court, that what gains sugar dealers have made or are likely to make on account of de-control of 35% of stock of sugar, is irrelevant or not germane to the controversy in these cases, and I have held that this view is not acceptable to me. With due respect, I cannot agree with the Calcutta view as the cases cannot be decided in isolation, by closing eyes to the hard realities and the facts established on the record. It is this theoritical, unrealistic suisticism which provokes the allegation that 'judges live in ivory towers'.
71. Thus, I have got no hesitation in holding that the submissions of Mr. L. M. Lodha and Mr. Singhvi have failed to persuade me to take different view than, what I had taken in M/s. Chand Behari's case at Jaipur Bench and which has now been re-enforced and re-affirmed by a Division Bench of the Delhi High Court.
72. Mr. Singhvi pointed out that thera are number of cases, in which the sugar was not in pipe-line at the relevant time and therefore, respondents are not authorised to insist for levy of that sugar from the petitioners. In M/s. Chand Behari's case at Jaipur Bench, I have dealt with the concept of the clause, regarding 'Pipe line', at length and I have held that the Government was competent to apply the levy and Retention Orders to the 'pipe-line' sugar also. Mr. Singhvi's submission that the sugar was not in pipe line, on the crucial day and date is a question, which raises involved questions of facts, which can only be adjudicated upon, on the basis of a detailed investigation, inquiry about the date and time of the Order, supply, despatch and receipt of the sugar by the dealers concerned. It is not permissible while deciding the writ petitions under Article 226 of the Constitution of India to embark upon such a detailed complicated prolonged factual inquiry for adjudicating whether the sugar was in 'pipe-line' or not Mr. Singhvi's clients can very well raise these questions before the authorities concerned and there is no doubt that the authorities would decide each individual case, objectively on a detached, unbiased consideration of the facts and data which would be submitted by Mr. Singhvi, if the same has not been done so far. However, this would not mean any licence or liberty to the petitioners, to avoid the liability under the Retention and Levy Orders, by camouflaging the real transactions.
In view of this, I am not discussing the individual cases, a reference of which has been given by Mr. Singhvi in the written arguments and the dates mentioned therein, as a proper inquiry would be done by the authorities concerned before insisting on the implementation of their earlier notices in those cases.
73. Mr. L. M. Lodha, the learned counsel for most of the petitioners, in the last limb of his submission, pointed out that different interim stay orders had been passed at different stages with minor variations in those cases. By the earlier ad interim order, the operation of the impugned order was stayed by this Hon'ble Court, and by the latter order, the petitioners were directed to intimate the Collector within 10 days from the date of the order, that the levy sugar was available with them to be delivered to the State Government. The Hon'ble Court was pleased to direct the State Government by the same order to take delivery of sugar from the petitioners within 4 weeks from the date of the intimation, failing which the operation of the impugned order was stayed. This order passed in the writ petition of M/s. Ram Buksh Bhikam Das was challenged by way of special leave petition before the Supreme Court Hon'ble the Supreme Court was pleased to modify the interim order dated 11-2-1980 in the following manner:
'The petitioner will not be required to purchase 65% of the sugar in the market and give it to the Government. Instead, he will furnish bank guarantee within a month from to-day for compensating the Government on account of the difference between levy price and the open market price at the relevant time.'
and by this order, the Supreme Court was pleased to allow the appeal of the petitioner in that case, after hearing both the parties.
74. Mr. Lodha's argument is that the order cited above is a final order and has taken shape of law under the provisions of Art. 141 of the Constitution and has a binding force so far as the other writ petitions pending before this Hon'ble Court are concerned. More so, because State Government has failed to realise sugar from the petitioners within a specified period, as granted by this Hon'ble Court, after an intimation had been given to the State Government, the sugar in such cases, should not be ordered to be delivered now at this stage more than after 8 months by this Hon'ble Court. The petitioners, when disposed of their stocks, comprising 65% levy under the guise of the order of this Hon'ble Court, the prices were not high in the market. Now the prices are touching sky and it is impossible for any dealer to have sugar available to be delivered to the Government. Further by an order the State Government has prohibited any amount of sale of sugar by one recognised dealer to the other recognised dealer and in view of the order of the Supreme Court dated 15-4-1980, at best, if the writ petitions fail, the petitioner can be directed to pay the difference in price to the State Government.
75. I have carefully considered the above submission of Mr. L. M. Lodha and have got no hesitation in holding that it is not necessary to interpret the implications of the various stay orders passed by this Hon'ble Court in various cases. Since the writ applications are being rejected, all the stay orders stand discharged, so far as this Court is concerned. The consequences of the various conditions imposed in the stay orders and the alternatives mentioned therein are self-explanatory.
76. So far as the order of the Hon'ble Supreme Court dated 11-2-1980 is concerned it would apply to the writ petition of M/s. Ram Buksh Bhikam Das only. Moreover even in the case of M/s. Ram Buksh Bhikam Das the stay order passed by Hon'ble the Supreme Court was in the nature of an interim order during the pendency of the writ petition only. There again the serious question as is likely to be canvassed would be, what is the relevant time intended by the order of the Hon'ble Supreme Court. The relevant time, can be the time when the authorities wanted to take possession of 65% of the stock of sugar and the petitioner, armed with the stay order, resisted the same and did not give possession of it. The open market price at the relevant time would mean, the price at which the sugar was being sold in the open market, and not in the fair price shop of the State Government, at the time when the officers of the respondents took active steps of taking physical possession. That would certainly be time after passing of the stay order by the High Court and not earlier to it. That would govern the case of M/s. Ram Buksh Bhikam Das's writ petition specifically only and not generally.
77. The interpretation which the learned counsel for the petitioner wants to place on Article 141 in this respect, is not permissible. The stay order of individual case and even the writ or directions issued finally in individual cases, never result in the directions or stay orders, in all other matters which have not been brought before the Hon'ble Supreme Court or the High Court, even though they may be raising similar questions of law or facts. Of course the case is different if law is interpreted by Hon'ble the Supreme Court or if a notification of a rule or provisions of any statute are declared intra vires or ultra vires.
78. In this view of the matter I would refrain from entering into controversy about the interpretation of individual stay order passed in each case. Of course the stay orders passed in all cases are discharged, because the writ petitions are dismissed and the respondents would be at liberty to take appropriate proceedings against the petitioners in pursuance of the levy and retention orders, which have been declared as valid and further in pursuance of the consequential effects of the interim orders passed if any in individual cases.
79. It is further made clear that as observed in Chand Behari's case by this Court, if the respondents come to the conclusion that the petitioners did not act bona fide and any attempt was made to misuse or abuse the interim orders, this judgment would not come in the way of respondents, in taking any legal action including penal action, on that count; but while doing so, the respondents should be cautious enough to safeguard whatever has been done bona fide in pursuance of the written stay orders of this court, and that should normally be not made subject-matter of any prosecution.
80. In Parag Ice and Oil Mills case the Hon'ble Supreme Court observed as under:--
'70. Before closing, we would like to mention that the petitioners rushed to this Court too precipitately on the heals of the price control Order. Thereby they deprived themselves of an opportunity to show that in actual fact, the order causes them irreparable prejudice. Instead, they were driven through their ill thought haste to rely on speculative hypotheses in order to buttress their grievance that their right to property and the right to do trade was gone or was substantially affected. A little more patience, which could have been utilised to observe how the experiment functioned, might have paid better dividends.'
The above observations of the Hon'ble Supreme Court squarely apply in these cases. Though, here later also, they had all 'Cheers' and no 'tears', as per my findings mentioned above.
81. In Chand Beharilal's judgment, I have discussed in great details, considering in depth the various controversies resulting in decisions, deduced in 17 points mentioned above. The various decisions of Supreme Court and High Courts, dealing with the multiple facets of the issues raised have been discussed in about, 100 (exactly 96 foolscap typed pages). These important decisions some of which are land-marks, in constitutional law of interpretations, and ambit and scope of socio economic legislations under Essential Commodities Act, can be enumerated as follows:--
AIR 1979 Raj 98, Manzoor Ahmed v. R. T. A.; AIR 1952 SC 192, G. Veerappa Pillai v. Ramaii; AIR 1955 SC 425, Sangram Singh v. E. Tribunal; AIR 1975 SC 1058, Rani Inder Kumari v. State of Rajasthan, AIR 1953 Mad 279, C.S.S. Motor Service v. Madras State; AIR 1975 All 272, Sitaram v. State of U. P.; AIR 1971 Mys 12, K. B. Jinaraja v. State of Mysore;AIR 1979 Kant 12, Joe Pereira v. Union of India; AIR 1975 Andh Pra 84, Sri Venkate-swara Rice Mills v. State; AIR 1959 SC 626, Diwan Sugar & Gene. Mills v. Union of India; AIR 1960 SC 430, Narendra Kumar v. Union of India; AIR 1976 Orissa 138, Bejoya Kumar v. State of Orissa; AIR 1950 Mad 308 (2), In re Pesala Subrahmanyam; AIR 1975 SC 1146, B. Banerjee v. Anita Pan; AIR 1975 SC 460, Saraswati Industrial Syndicate v. U. O. I.; AIR 1974 SC 366, Shree Meenakshi Mills v. Union of India; AIR 1973 SC 537, Panipat Sugar Mills v. Union of India; AIR 1973 SC 734, Anakappalle Co-op, etc. Socy. v. Union of India, AIR 1972 SC 1690, Premier Automobiles v. Union of India; AIR 1964 SC 1179, State of M. P. v. Bhopal Sugar Ind. Ltd.; AIR 1980 SC 286, Ganga Sugar Corpn. v. State of U. P;. AIR 1957 SC 699, State of Bombay v. R. M. D. Chamarbaugwala, AIR 1958 SC 538; Ramkrishna Dalmia v. S. R. Tendolkar.
82. On a conscientious, thorough and thoughtful consideration of all submissions, schemes of the Act and orders and the above decisions, I have come to a clear and categorical finding that the impugned orders are intra vires, both of the Essential Commodities Act and the Constitution of India. The second findings at Jodhpur, after Delhi and Calcutta decisions, have only reaffirmed the correctness of the Jaipur decision, and I have got no hesitation, in reiterating the Jaipur view taken in M/s. Chand Behari's (232 Writ Petitions) judgment.
83. The observations of Hon. Iyer J. need to be mentioned again here for emphasis. They are as under :--
'Law is social Science and constitutionality tuns not on abstract principles or rigid legal canons but concrete realities and given conditions; for the rule of law stems from the rule of life.'
'Judges act not by hunch but on hard tacts properly brought on record and sufficiently strong to rebuff the initial presumption of constitutionality of legislation.'
84. In view of the above, I have observed in Chand Behari's judgment as under:--
'Further when laws are enacted to provide protection to the weaker sections of the society and to ensure fair and equitable distribution of essential commodities at a fair and reasonable price, by preventing profiteering and hoarding and ensuring supply at fair price, they may result in slight loss to a small section of the society for benefiting a larger section or larger chunks of the community. It may happen sometime, that a legislation which brings 'cheers' to lacs and crores of people, may be at the cost of 'tears' of a few hundred or even thousands. However, that is inevitable in all social legislations and 'cheers' to lacs and crores of people without corresponding 'tears', to a few or even thousands though not impossible, is a 'Utopian' ideal improbable to achieve.'
85. For the reasons mentioned above, and also for the detailed reasons and my findings in Chand Behari Lal Heera Lal, Ajmer v. Union of India decided on March 14, 1980 I have got no hesitation in holding that all these writ petitions deserve to be dismissed. While reiterating all the findings of Chand Behari Lal Heera Lal's decision, summary of which has been extracted in the beginning in the form of 17 points, all the 324 writ petitions (particulars given in Sch. 'A') (Schedule 'A' omitted here. Ed.) are dismissed with costs.