2012 (10) TMI 920 - HC - Indian Laws

Levy sugar price - non-consideration of higher SAP - writ of prohibition against the respondents for acting on the basis of 1983 Order being contrary to Section 3 (3C) of U.P. Sugarcane Cess Act, 1956 - Held that - Since the petitioners have raised a specific plea qua the importance of SAP being higher than the price fixed by the Central Government for procurement of sugarcane and that is an aspect which has been held to have a material bearing on the price fixation by the Central Government in view of the judgement of the Supreme Court in Mahalakshmi Sugar Mills Company Versus Commissioner of Income-Tax, Delhi (1980 (4) TMI 1 - SUPREME COURT), the petitioners cannot be precluded from raising this plea merely on the ground that other petitioners while challenging the pricing of 1982-83 had not raised this plea and the challenge having been repelled by the Hon‟ble Supreme Court, it is not open to the petitioners to raise such a plea. We are of the view that clearly all principles of sub silentio would apply (term used in the technical sense, when a particular point of law involved in a decision is not perceived by a court or present to its mind) No reason for the apprehension expressed on behalf of the respondents that such a course of action would open a Pandora s Box as others would follow. However, if others have not raised this plea and apparently there are no other matters pending the benefit would only go to a party who has chosen to take such a plea from the beginning and whose petition is still pending. This is what was done in Mahalakshmi Sugar Mills case (supra) while granting relief only to petitioners therein. Thus, the effect of SAP would have to be examined by the Central Government in re-fixing the levy sugar price for the year 1982-83 at least qua the petitioners.

Issues Involved:
1. Fixation of the price of Levy Sugar for the 1982-83 season.
2. Non-consideration of the State Advised Price (SAP) in determining the Levy Sugar price.
3. Impact of the Essential Commodities (Amendment & Validation) Act, 2009 on the petitioners' claims.
4. Consequences of the Supreme Court's pending decision on the validity of the Amending Act.
5. The principle of sub silentio and its applicability to the case.

Detailed Analysis:

1. Fixation of the price of Levy Sugar for the 1982-83 season:
The petitioners challenged the price of Levy Sugar for the 1982-83 season fixed by the Central Government under Section 3(3C) of the Essential Commodities Act, 1955. They argued that the price was arbitrary, unreasonable, and ultra vires. The petitioners listed several factors that were allegedly ignored by the government, including the higher cane price mandated by the State Government, manufacturing costs, taxes, transport charges, and wages. The petitioners sought a writ of prohibition against the respondents from acting on the basis of the 1983 Order and a direction for re-fixation of the Levy sugar price.

2. Non-consideration of the State Advised Price (SAP) in determining the Levy Sugar price:
The petitioners argued that the Central Government only considered the minimum cane prices fixed by it and ignored the higher SAP set by the State Government. They contended that the SAP significantly impacted the cost of production and should have been factored into the Levy sugar price. The petitioners relied on the Supreme Court's judgment in Mahalakshmi Sugar Mills Vs. Union of India, which held that SAP must be considered in price fixation. The respondents, however, argued that the issue of pricing for 1982-83 had become final based on previous Supreme Court judgments.

3. Impact of the Essential Commodities (Amendment & Validation) Act, 2009 on the petitioners' claims:
The petitioners acknowledged that the Mahalakshmi Sugar Mills judgment initially supported their case but conceded that the position had changed due to the Essential Commodities (Amendment & Validation) Act, 2009. This Act retrospectively altered the law, potentially denying the petitioners the benefits of the Mahalakshmi judgment. The validity of this Amending Act was under challenge before the Supreme Court, and the petitioners' relief depended on the outcome of that challenge.

4. Consequences of the Supreme Court's pending decision on the validity of the Amending Act:
The court considered whether the petition could be disposed of with a direction that its fate would depend on the Supreme Court's decision regarding the Amending Act. The petitioners conceded that if the challenge to the Amending Act failed, they would receive no relief, but if it succeeded, they would be entitled to the benefits of the Mahalakshmi judgment. The respondents contested this, citing previous Supreme Court judgments that upheld the pricing for 1982-83 and arguing that the petitioners were not entitled to the benefits of the Mahalakshmi judgment, which pertained to the year 1983-84.

5. The principle of sub silentio and its applicability to the case:
The petitioners argued that the principle of sub silentio applied because the issue of non-consideration of SAP was not raised in previous cases challenging the 1982-83 pricing. They contended that since this specific plea was not examined in earlier judgments, they should not be precluded from raising it. The court agreed, noting that the impact of SAP was not considered in previous adjudications for 1982-83. The court held that the petitioners were entitled to raise this plea and that the Central Government must re-examine the Levy sugar price for 1982-83, considering the SAP, if the challenge to the Amending Act succeeded.

Conclusion:
The court concluded that the petitioners had raised a valid issue regarding the non-consideration of SAP in the Levy sugar price for 1982-83. The court directed that the fate of the petition would depend on the Supreme Court's decision on the validity of the Essential Commodities (Amendment & Validation) Act, 2009. If the challenge to the Amending Act succeeded, the Central Government would need to re-fix the Levy sugar price for 1982-83, taking into account the higher SAP. The writ petition was disposed of, with the interim arrangement continuing until the Supreme Court's decision.

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