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TMI Blog2007 (9) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... t Dhampur (Bijnor). The appellant has sugar mill in the State of Uttar Pradesh and has also a distillery. The distillery manufactures ethyl alcohol, used for blending of petrol, manufacture of chemicals and rectified spirit for medicines. It is also having a similar business at Asmouli, District Moradabad, Mansurpur, District Muzaffarnagar and Rozagaon, District Barabanki The writ petitioner approached the High Court by invoking Article 226 of the Constitution against the respondents for issuance of appropriate writ, direction or order quashing certain Government Orders said to have been passed by the Authorities under the Uttar Pradesh Sheera Niyantran Adhiniyam, 1964 [Act XXIV of 1964] (hereinafter referred to as the Act ) directing the writ-petitioner to supply 20% of the molasses produced by the sugar mills for manufacturing country made liquor by distilleries for the financial years 2003-04 and 2004-05. The writ petitioner also challenged consequential action of issuance of show cause notices as to why it should not be prosecuted for committing offences punishable under the Act since it has not complied with the orders issued by the Authorities and has not supplied 20% mola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thus directory in nature and the writ petitioner could not compel the State to constitute Advisory Committee . 8. The High Court, after hearing the parties, held that preliminary objection raised by the respondents was not well-founded. Considering the totality of facts and circumstances and the decisions taken by the respondents, the High Court held that approaching the Appellate Authority would be a futile attempt . The High Court, considering various decisions of this Court on the point, held that it would not be justified in dismissing the petition on the ground of alternative remedy and the said objection was not well-founded. 9. The Court ruled that apart from the fact that Article 47 of the Constitution could not be enforced by a Court of Law, the point no longer survived in the light of decision of the Apex Court in Khoday Distilleries Ltd. Section 3 of the Act, according to the High Court, was only directory and if Advisory Committee was not constituted by the State, the powers under the Act could be exercised by the Controller appointed by the State. 10. On merits, the Court held that the reservation for 20% of molasses and directive issued to the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y liquor. Since the writ petitioner did not have balance stock of molasses and the record clearly revealed that even for captive consumption, it had to import molasses from other States in the country and from foreign countries for which necessary permission was granted by the Government, it could not be compelled to reserve 20% molasses for manufacturing country liquor. It was submitted that even if the directive is held to be legal, lawful and in consonance with law, the writ petitioner could not be asked to supply 20% molasses for manufacturing country liquor. The directive could not be applied to the writ petitioner and notices could not be issued to show cause as to why the Company should not be prosecuted. On that limited ground also, the writ petition ought to have been allowed and the High Court was wrong in dismissing it. 14. The learned counsel for the respondents, on the other hand, submitted that the constitutional validity of the Act has not been challenged by the writ-petitioner. Even otherwise, the validity has been upheld by this Court in SIEL Ltd. Ors. V. Union of India Ors., (1998) 7 SCC 26 : JT 1998 (6) SC 323. It was, therefore, open to the respondents to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the learned counsel for the appellant drew our attention to an order dated June 9, 2004 which was relied upon by the High Court for dismissing the writ petition. Clause (3) of the said order relates to supply of 20% molasses for manufacturing country liquor. The High Court in its order reproduced the said clause which is in Hindi and reads thus; PRATYEK CHINI MILL KE SHEERE KE AWASHESHA STAAK ME SE DESHI MADIRA KE LIYE 20 PRATISHAT SHEERE KA AARKSHAN EISI AASHWANI YO KE LIYE HOGAA JO USKAA UPYOG DESHI MADIRA UTPADAN ME KAREGI. AISI CHINI MILE JINKI SWAYAM KI BHI AASHWANIYA HAI, UKTANUSAR KIYE JA RAHE SHEERE KE AARAKSHAN SE OOS SEEMA TAK BAHAR RAHEGI KI CHINI MILL SAH-AASHWANI DWARA SWAYAM KE VASTAVIK UPBHOG KE ATIRIKT JO SHEERA BACHATA HAI, OOS PER 20 PRATISHAT KA AARAKSHAN LAGOO HOGA . 18. The English translation supplied by the appellant at Annexure P-3 reads thus; From the balance stock of molasses with each sugar mill, 20% of molasses shall be reserved for the distilleries manufacturing country liquor. The sugar mills having their own distilleries shall not be covered with this reservation to the extent that after the actual consumption of molasses in their captive dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preservation, gradation, price, supply and disposal of molasses. (2) The Committee shall consist of such number of persons and shall be constituted on such terms and conditions as may be prescribed. 23. Section 22 is a rule making power and enables the State Government to make rules to carry out the purposes of the Act. Sub-section (2) enacts that in particular and without prejudice to the generality of the power, such rules may provide for (a) the composition of the Advisory Committee, the manner in which its members shall be chosen, the term of office of its members, the allowances, if any, payable to them, the manner in which the Advisory Committee shall tender its advice and the procedure for the conduct of its business; (b) the procedure relating to the removal of members of the Advisory Committee; (c) 24. Rule 14 of 1974 Rules is also relevant and reads thus; 14. Orders regarding sale or supply of molasses.A consolidated statement of the estimated availability of molasses will be drawn up and placed before the Advisory Committee, constituted under Section 3(1) of the Act, by the Controller who may make orders regarding the sale or supply of molasses in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation dated November 24, 1965, such Committee had been constituted. The Notification was also published in U.P. Government Gazette, Extraordinary and reads thus: Notification No.5586-E/XIII-251-65, dated 24th November, 1965, published in U.P. Gazette, Extra., dated November 24, 1965. In exercise of the powers under Section 3 of Uttar Pradesh Sheera Niyantran Adhiniyam, 1964 (Uttar Pradesh Act XXIV of 1964) read within Rules 3 and 5 of the Uttar Pradesh Molasses Advisory Committee Rules, 1965, the Governor of Uttar Pradesh is pleased to constitute an Advisory Committee to advise on matters relating to the control on storage, supply, gradation and prices of molasses with effect from the date of issue of this notification and further pleased to direct that the said Committee shall consist of the following persons: (a) the Controller of Molasses, Uttar PradeshEx Officio Chairman (b) the Assistant Excise Commissioner (Molasses), Uttar PradeshEx Officio Secretary. (i) The representatives of Sugar Factories Sri V.D. Jhunjhunwala Kamlapat Moti Lal Sugar Mills, Motinagar, district Faizabad. Sri B.C. Kohli, Ganga Sugar Corporation Ltd., Deoband, district Saharanpur. Sri L.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 Ch D 262, Cotton, L.J. stated; I think that great misconception is caused by saying that in some cases may means must . It never can mean mus , so long as the English language retains its meaning; but it gives a power, and then it may be question in what cases, where a Judge has a power given by him by the word may , it becomes his duty to exercise it. (emphasis supplied) 32. In leading case of Julius v. Lord Bishop of Oxford, (1880) 5 AC 214 : 49 LJ QB 580 : (1874-80) All ER Rep 43 (HL), the Bishop was empowered to issue commission of inquiry in case of alleged misconduct by a clergyman, either on an application by someone or suo motu. The question was whether the Bishop had right to refuse commission when an application was made. The House of Lords held that the Bishop had discretion to act pursuant to the complaint and no mandatory duty was imposed on him. 33. Earl Cairns, L.C., however, made the following remarkable and oft-quoted observations: The words it shall be lawful are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conformity with bye-laws [R.V. Nescastle-upon-Tyne Corporation, (1889) 60 LT 963]. Again, the court was required to pass a decree for possession in favour of a landlord, if the relevant grounds existed [Ganpat Ladha v. Shashikant, (1978) 3 SCR 198 : (1978) 2 SCC 573]. 38. In Alcock v. Chief Revenue Authority, 50 IA 227 : AIR 1923 PC 138, the relevant statute provided that if in the course of any assessment a question arises as to the interpretation of the Act, the Chief Revenue Authority may draw up a statement of the case and refer it to the High Court. Holding the provision to be mandatory and following Julius, Lord Phillimore observed: When a capacity or power is given to a public authority, there may be circumstance which couple with the power of duty to exercise it . 39. In Commissioner of Police v. Gordhandas Bhanji, 1952 SCR 135 : AIR 1952 SC 16, Rule 250 of the Rules for Licensing and Controlling Theatres and Other Places of Public Amusement in Bombay City, 1884 read as under: The Commissioner shall have power in his absolute discretion at any time to cancel or suspend any licence granted under these Rules . 40. It was contended that there was no specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding. (emphasis supplied) 44. We do not wish to refer to other cases on the point. We are, however, in agreement with the observations of Earl Cairns, L.J. in Julius referred to above wherein His Lordship stated; (W)here a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised. (emphasis supplied) 45. In the case on hand, considering the legislative scheme as also Rules and particularly Rules relating to constitution of Committee, namely, the U.P. Molasses Advisory Committee Rules, 1965, in our opinion, investment of power in the State Government is not merely enabling or discretionary. It is obligatory on the Government to constitute a Committee to carry out the purpose and object of the Act. The Committee has to perform an important role of advising the State Government on matters relating to the control of storage, preservation, gradation, price, supply and disposa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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