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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 ..... t 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. - WP (C) No.1394 of 1983 - - - Dated:- 19-10-2012 - MR. SANJAY KISHAN KAUL MR. VIPIN SANGHI JJ. Petitioners Through: Mr. Jayant Bhushan, Sr. Adv. with Mr. Atul Shanker Mathur, Mr. R.K. Aggarwal, Mr. D.N. Chhagar, Ms. Smita Rajmohan Mr. Aseem Chaturvedi, Advs. Respondents Through: Mr. Rajeeve Mehra, ASG with Mr. Ruchir Mishra, Mr. Sanjiv Kumar Saxena, Mr. Ashish Virmani Mr. Mukesh Kr. Tiwari, Advs. 1. Hari Nagar Sugar Mills Limited, petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies could recover at the rates in force at the relevant time but included transport charges from factory godown and loading into Railway wagons or buyer s carts, lorries, etc. The price of levy sugar so fixed has been challenged on the ground that it is wholly arbitrary, unreasonable, unfair and ultra vires under Section 3 (3C) of the said Act for the following reasons: i. The average minimum cane price fixed by the Central Government as well as the one fixed by the State Government, which was higher, forms part of the cost of sugarcane paid by the sugar manufacturers and this was only reduced at the end of the season i.e. by 4.05.1983 which, in turn could not impact or alter the cost of production of sugar. The higher cane price had to be paid by the sugar factories as a result of the pressure and direction of the State Government. ii. No sugar factory could go against the directions of the State Government in the matter of payment of cane price even though the minimum cane price fixed by the Central Government is much lower. iii. The price for levy sugar fixed by the Central Government only took into consideration the minimum cane prices fixed by it and the consequences of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present petition. 6. It appears that while other writ petitions were decided, this writ petition somehow remained pending and was ultimately dismissed for non-prosecution on 10.2.2005. The application for restoration was filed in the year 2009, which was dismissed by the Division Bench on 12.1.2010. However, this order was set aside by the Supreme Court by an Order dated 30.04.2010 observing that in the facts of the case the application ought to have been allowed. That is how the writ petition has come up for final disposal. 7. We may notice that there are various pronouncements rendered from time to time qua different years in question. 8. It was the say of learned senior counsel for the petitioners that in view of the judgement of the Supreme Court in Mahalakshmi Sugar Mills Vs. Union of India Ors. (2009) 16 SCC 569, the present writ petition was liable to be allowed. However, he conceded that the said position does not prevail now in view of Essential Commodities (Amendment Validation) Act, 2009 (hereinafter referred to as the Amending Act ) which in effect changed the law retrospectively and sought to deny the benefit which would ensue to the petitioner and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g made by the sugar industries from the sale of free sugar resulting in mopping up of profit from the sale of free sugar. This plea is stated to have been raised in the additional affidavit filed by the Union of India in Modi Industries Ltd. case (supra). The rational for non-interference in the levy price of sugar for 1982-83 is stated to be this reason. 12. We may notice that during the oral submissions no such plea was at all advanced but is now sought to be slipped in through the additional written submissions. On a perusal of the counter affidavit also we do not find a specific plea in this behalf though there is an averment in para 25 that the realization made by sugar mills on the sale of non-levy sugar should also have been taken into account to determine whether sugar industry has earned a reasonable return or not. Not only that, it appears that the respondents merely on the basis of the averments contained in their additional affidavit seem to suggest that there is an imprimatur of the Supreme Court on this aspect while coming to the conclusion that the said case was not covered by the decision of the Supreme Court in Shri Malaprabha Coop. Sugar Factory Vs. Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. All contentions of the Central Government were specifically rejected. 57. The decision in Malaprabha (2) [(1997) 10 SCC 216] that while taking into consideration the unfavourable factor, the Central Government cannot refuse to consider the factor which is favourable to the mill owner assumes significance. We say so for two reasons (1) it is possible that while confining mopping up to the extent of 50%, the fact of additional price paid in terms of Clause 5-A of the Order would be neutralised or adjusted but the same would not mean that the exercise shall not be carried into effect; and (2) the effect of payment of an extra amount in terms of State advisory price cannot be refused to be taken into consideration. 58. We are not unmindful of the fact that the learned counsel for the appellant inMahalakshmi before the High Court confined its case only to SAP but then in Hari Nagar Sugar Mills the Delhi High Court accepted the contentions which have been raised before us. 59. When the legislative policy is reflected in a statutory provision, the court, while being called upon to determine as to whether the same has been complied with or not, must apply the rule of purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not raised the issue of non-consideration of SAP, as is obvious from the adjudication qua matters of that year and the petitioners cannot be deprived of the benefits of this plea for the default of other petitioners not having raised this plea. 15. It is not in dispute before us that while upholding the price for 1982-83 the issue of non-consideration of SAP does not form part of any adjudication at least of the Supreme Court as shown to us. We have even examined the records of WP (C) No.2452/2001 decided on 29.01.2007 and have found that the ground regarding non-consideration of higher SAP has not been raised in the writ petition. 16. The question which, thus, arises for consideration is whether the petitioners should be deprived the benefit of the consequences which flow from Mahalakshmi Sugar Mills case (supra) qua non-consideration of the effect of the SAP. 17. Learned senior counsel for the petitioners has relied upon judgements of the Supreme Court in Munical Corporation of Delhi Vs. Gurnam Kaur (1989) 1 SCC 101 and State of UP Anr. Vs. Synthetics Chemicals Ltd. Anr. (1991) 4 SCC 139 to contend that the principles of sub silentio would come into play. The rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. 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. (Salmond on Jurisprudence 12th Edn., p. 153). In Lancaster Motor Company (London) Ltd. v. Bremith Ltd. [(1941) 1 KB 675, 677: (1941) 2 All ER 11] the Court did not feel bound by earlier decision as it was rendered without any argument, without reference to the crucial words of the rule and without any citation of the authority . It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur. [(1989) 1 SCC 101] The bench held that, precedents sub-silentio and without argument are of no moment . The courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. Uniformity and consistency ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular point of law involved in a decision is not perceived by a court or present to its mind. The abovementioned principles have been discussed and explained in the Gurnam Kaur case (supra) at para 11. In the present case the impact of SAP was not even urged when the issue of pricing was decided for the year 1982-83 as possibly that was not a plea taken in the pleadings. However, 1983-84 such a plea was taken and found favour in Mahalakshmi Sugar Mills case (supra). The petitioners in the present case have taken a specific plea as distinct from the other cases where the plea of SAP was not taken and, thus, cannot be bound by a judgement where the plea which the petitioner seeks to advance has never been examined. 21. We are of the view 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 case (supra), the petitioners cannot be precluded from raising this plea merely on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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