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TMI Blog2012 (10) TMI 920X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of sugar has, thus, been subject to statutory control which even pre-dates the said Act by the Sugar and Sugar Products (Control) Order, 1942. The history of the sugar industry has seen periods of de-control and control. Under Section 3 (2) (f) of the said Act, the Central Government has the power to direct any manufacturer of sugar to sell sugar in whole or specified part of the stock to the Central Government or a State Government or to an officer or agent of such Government or to such other person or class of persons for purposes of making available sugar at a fair and remunerative price. This is called Levy sugar. The price payable for such Levy sugar is fixed by the Central Government by an order made under Section 3 (3C) of the said Act. Such Levy sugar price is fixed from year to year. 3. The petition goes on to state that for the season in question of 1982-83, the percentage of sugar specified as Levy sugar was fixed by the Central Government at 65 per cent and the remaining 35 per cent was allowed to be sold as free sugar in the open market. Qua the Levy sugar price under Section 3 (3C) of the said Act, the price had to be fixed keeping in mind the minimum sugarcane p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o take its effect into account. vi. Bihar Agricultural Produce Market Act, 1960, requires all sugar factories to pay 1 per cent by way of market fee on sugarcane purchased which was also not taken into account by the Central Government. vii. Increase in transport charges including Railway freight, cost of diesel and petrol, spare parts for vehicles, wages of the workers engaged in loading and unloading the cane, transportation cost from the cane purchasing centre to the factory has been ignored and the maximum rebate of 32 Paise per quintal has remained constant despite this tremendous increase in transport costs. viii. Salaries and wages of the workmen employed in sugar mills impact the cost of production of sugar and statutory provisions qua fixing these were ignored. ix. Power, fuel, stores, repairs, maintenance, etc. have been ignored while determining the manufacturing cost of sugar. x. Interest on Loans and advances obtained by the manufacturers of sugar from Banks are factors which ought to have been taken into account. xi. A reasonable return on capital employed should have been calculated taking into consideration the SAP. 4. The petitioners have sought a writ of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that if the challenge to the Amending Act failed, he could get no relief in the present petition while if the challenge succeeded the petitioner was entitled to the benefit of the directions contained in Mahalakshmi Sugar Mills case (supra). 10. However, the aforesaid position was contested by the learned ASG appearing for the respondents. The principal reason for the same was that according to the respondents so far as the issue of pricing of levy sugar qua 1982-83 is concerned, the same had become final in view of the judgements of the Supreme Court in Union of India Vs. Triveni Engineering Works Ltd. & Ors. (1999) 9 SCC 244; Modi Industries Limited Vs. Union of India (connected matter) and Bharat Sugar Mills Vs. Union of India & Ors. (also a connected matter). It was, thus, the submission that the petitioner was not entitled to the benefit of the judgement in Mahalakshmi Sugar Mills case (supra) which pertained to the year 1983-84. In this behalf reliance was also placed on the judgement of the learned Single Judge of this Court in WP (C) No.2452/2001 titled M/s. Saraswati Industrial Syndicate Ltd. & Anr. Vs. Union of India decided on 29.1.2007 pertaining to the year 1982-83 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the levy price for sugar by the Central Government on account of the SAP being higher than the minimum price fixed for sugarcane by the Central Government, which aspect has not been examined in any of the matters pertaining to determination of price for 1982-83. This aspect had been examined only in Mahalakshmi Sugar Mills case (supra) albeit for the year 1983-84 where it was held that this is a factor to be taken into account while determining levy sugar price. The relevant observations are as under: "55.Modi [Modi Industries Ltd. v. Union of India, (1999) 9 SCC 245], Bharat Mills (2) [(1999) 9 SCC 246] and Triveni [(1999) 9 SCC 244] dealt with sugar year 1982-1983 only. It proceeded on the basis that in that year, the mopping up having not been done and levy in terms of Clause 5-A had not been applied, the factors laid down under Section 3(3-C) stood complied with. It is for the aforementioned limited extent, Malaprabha (1) [(1994) 1 SCC 648] was distinguished. No reason has been assigned in support of its decision. Rival contentions had not been noticed. The effect of payment of additional price as also SAP effect in determining the price did not fall for consideration therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) 1 SCC 648]. It is interesting to note that the Constitution Bench of this Court in U.P. Coop. Cane Unions Federations [U.P. Coop. Cane Unions Federations v. West U.P. Sugar Mills Assn., (2004) 5 SCC 430] rejected a contention raised by the parties that in the event the State is held to have the legislative competence to impose the same, it will have an adverse effect on the price of levy sugar required to be determined under Section 3(3-C) of the Act as noticed supra. ... 66. Reliance placed by the learned Additional Solicitor General on Malaprabha-III[(2002) 9 SCC 716] is not apposite. This Court therein found the action of the Central Government to be not an act of contempt presumably because the directions were held to have been substantially complied with. We are not exercising any contempt jurisdiction. Contempt is a matter between the court and the contemnor. We are herein called upon to determine as to which view of the Delhi High Court in Hari Nagaror Mahalakshmi is correct. We cannot refuse to lay down the law having been called upon to do so. We must lay down a law for the future. We, therefore, while directing the Central Government to refix the price of levy sugar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom any public place like pavements or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Professor P.J. Fitzgerald, editor of the Salmond on Jurisprudence, 12th Edn. explains the concept of sub silentio at p. 153 in these words: A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law." 18. In effect the plea is that since this is a ground never raised earlier in the other petitions, and those other petitions not being filed by the petitioners herein, the petitioners are not precluded from raising this plea. This is more so since the plea is not sought to be raised by even amending the writ petition on account of the subsequent development of law but forms a part of the original challenge laid to the order fixing the levy price of sugar. 19. Once again, though no submissions in this behalf were made during the course of hearing on behalf of the respondent on the aforesaid aspect, some arguments are sought to be slipped in through the written submissions. A reference has been made to the judgement of the Supreme Court in Asst. Commissioner of Central Excise Vs. Dunlop India Ltd. & Ors. AIR 1985 SC 330 where the observations in Cassel & Co. Ltd. Vs. Broome (1972) AC 1027 were cited with the approval. The Court of Appeal found that label of per incuriam is relevant only to the right of an appellate court to decline to follow one of its own previous dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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. 23. We are conscious of the fact that such an occasion would only arise, an aspect conceded by learned senior counsel for the petitioners, if the challenge to the Amending Act succeeds as otherwise no relief whatsoever would flow to the petitioners. Thus, the two parties would have to await the judgement of the Supreme Court qua the challenge laid to the Amending Act and to that extent the interim arrangement envisaged in this petition would continue to enure for the benefit of the parties till such time as the Hon'ble Supreme Court renders its opinion on the challenge to the Amending Act. 24. It is in case the petitioners and other sugar mills succeeds in their challenge to the Amending Act would the question arise of giving effect to the directions contained as aforesaid for re-fixing the price of levy sugar for 1982-83 qua the petitioners by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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