Disposed

The South Indian Sugar Mills v. The Union of India, Rep. by

Madras HC13 Feb 2019WP/7872/2015

Case brief

AI extract

What is this about?

Sugar mills challenged additional cane price determination following omission of the governing provisions. The court held that growers’ accrued rights survived and upheld fixation of the L factor. It dismissed the mills’ petitions and disposed of the growers’ petitions by directing mills to furnish the required particulars within seven days.

What did the court decide?

Sugar mills directed to furnish particulars sought in the Director of Sugar’s communications within seven days of receiving a copy of the order.

The South Indian Sugar Mills Vs The Union of… — Contract and Commercial Disputes | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 13.02.2019

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CORAM:

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THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM

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WRIT PETITION NOS.7872 OF 2015, 33387 OF 2013, 531, 532, 2026, 2369, 3382, 3383, 3581, 4095, 5047, 5539, 8706, 9047, 9781, 9938, 12060 TO 12062 AND 13951 OF 2015 W.P.NOS.5841, 6220 TO 6222 OF 2017 M.P.NOS.1,1,1,1,1,1,1,1,1,1,1,1 AND 2 OF 2015, M.P.NOS.1 TO 3 OF 2016, BY CONNECTED WMP'S.

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Orders reserved on Orders pronounced on 25.09.2018 13.02.2019

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THE SOUTH INDIAN SUGAR MILLS ASSOCIATION – TAMIL NADU REP., BY ITS SECRETARY, “KARUMUTHU CENTRE”, 2^ND FLOOR, 634, ANNA SALAI, CHENNAI – 600 035.

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.. PETITIONER IN W.P.NO.7872 OF 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM

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(REGN. NO.19/88) SALEM CO-OPERATIVE SUGAR MILL MOGANOOR SALEM DISTRICT REP. BY SECRETARY S.JAYAKUMAR UPPILIPALAYAM TRICHY DISTRICT

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... PETITIONER in WP No.531 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM (REGN. NO.19/88) BR: BANNARI

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AMMAN SUGARS LTD REB.BY ITS PRESIDENT K.N.SUBRAMANIAN, S/o.LATE NATCHI MUTHU GOUNDER, NO.20 THIPPU SULTHAN RD, VADUKKUPET, SATHYAMANGALAM-638 401, ERODE DISTRICT.

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... PETITIONER in WP No.532 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM (REGN.NO.19/88) BRANCH: PERAMBALUR SUGAR MILLS LIMITED ERAIYUR REP.BY PRESIDENT A.K.RAJENDRAN NO.3-ROAD, THURAIMANGALAM PERAMBALUR-621 220

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... PETITIONER in WP No.2026 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM (REGN NO.19/88) PONNI SUGARS LTD (BRANCH PALLIPALAYAM) REP BY ITS SECY S.NALLA GOUNDER, PADAIVEEDU VILLAGE AND POST,

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TIRUCHENGODU TK NAMAKKAL DISTRICT-637 303

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... PETITIONER in WP No.2369 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM BR: MRK CO-OPERATIVE SUGAR MILLS LTD., SETHIATHOPE REP. BY SECY K.ADHIMOOLAM

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PERUR & PO KATTUMANNAR KOIL TK CUDDALORE DISTRICT

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... PETITIONER in WP No.3382 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM BR: TIRUTTANI CO-OPERATIVE SUGAR MILLS LTD REP. BY PRESIDENT P.BABU NAIDU GOLLAKUTTAM VILLAGE PONPADI PO TIRUTTANI TALUK THIRUVALLU

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... PETITIONER in WP No.3383 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM (REGN.NO.19/88) DHARANI-I SUGARS LTD VASUDEVA NALLUR REP.BY A.M.PALANICHAMY, PRESIDENT, S/O.A.MUTHAIAH NO.11 KOVIL STREET 3RD LANE SIVAGIRI POST TIRUNELVELI DISTRICT ... PETITIONER in WP No.3581 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM (REGN.NO.19/88) HARUR SUBRAMANIASIVA COOPERATIVE SUGAR MILLS LTD. GOPALAPURAM DHARMAPURI DISTRICT REP. BY ITS SECRETARY P.KUMAR. S/O.PERUMAL, 106/16, AMB NAGAR, DHARMAPURI DISTRICT ... PETITIONER in WP No.4095 of 2015

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1 TAMILNADU KARUMBU VIVASAYIGAL SANGAM SSAKTHI SUGAR LIMITED UNIT 1 REP BY ITS SECRETARY A.AYYAVOO 94A/1 SIRVALUR ROAD KAVUNDAPADI POST ERODE DISTRICT 638 455 ... PETITIONER in WP No.5047 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM (REGN.NO.19/88) NATIONAL CO-OPERATIVE SUGAR MILLS LTD.REP. BY SECRETARY K.KATHIRESAN 2F 33-A GANDHI NAGAR 2ND STREET MELUR MADURAI-625 106.

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... PETITIONER in WP No.5539 of 2015

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TAMIL NADU KARUMBU VIVASAYIGAL SANGAM (REGN.NO.19/88) BRANCH: CHEYYAR COOPERATIVE SUGAR MILLS LIMITED ANAKKAVOOR REP. BY ITS PRESIDENT P.HARIDOSS. S/O.PERUMAL, NO.1092 CURN ROAD, KILDODUGADU POST, VANDAVASI TALUK, THIRUVANNAMALAI DISTRICT.

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... PETITIONER in WP No.8706 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM BRACH: RAJ SHREE SUGAR MILLS UNIT-I VAIGAIDAM VILLAGE REP.BY ITS DISTRICT SECRETARY P.KANNAN JAYAMANGALAM PERIYAKULAM TK THENI DIST

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... PETITIONER in WP No.9047 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM (REGN.NO.19/88) BRANCH : DHRANI SUGAR MILLS LTD. UNIT II KARAIPOONDI VILLAGE REP. BY IT SECRETARY K.BALAMURUGAN THIRUVANNAMALAI DT

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... PETITIONER in WP No.9781 of 2015

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1 TAMILNADU KARUMBU VIVASAYIGAL SANGAM BRANCH:AMARAVATHI COOP. SUGAR MILLS LTD. REP. BY ITS SECRETARY S.KANAGARAJ VATTAMALAI PUDUR KOTTATHURAI PO. PALANI TK. DINDUGAL DT.

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... PETITIONER in WP No.9938 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM (REGN. NO.19/88) BR: EID PARRY INDIA LTD NELLIKUPPAM REP. PRESIDENT R.THENNARASU NO.17 MORAI METTU ST

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NELLIKUPPAM CUDDALORE DT

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... PETITIONER in WP No.12060 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM

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(REGN. NO.19/88) BR: SHREE AMBIKA SUGARS LTD UNIT II PENNADAM(V)

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SECY S.KAMARAJ 16 EAST RATHA ST PENNADAM

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PO CUDDALORE DT

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... PETITIONER in WP No.12061 of 2015

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM

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BR:ARINGNAR ANNA SUGAR MILLS

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(PUBLIC) LTD KURNGULAM(V) REP. PRESIDENT

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S.NARAYANASAMY MATTANGAL PO KANTHARVAKOTTAI TK PUDUKOTTAI ... PETITIONER in WP No.12062 of 2015

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1 TAMILNADU KARUMBU VIVASAYIGAL

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SANGAM KALLAKURICHI CO-OP.SUGAR MILL-I

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MOONGILTHURAIPET VILLUPURAM DIST. REP.BY

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ITS PRES. G.SETHURAMAN ODIYANDAL KADAMBUR PO, SANKARAPURAM TK, VILLUPURAM DISTRICT

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... PETITIONER in WP No.33387 of 2013

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM (REGN. NO.19/88) BRANCH: THIRU AURAN SUGARS LTD., THIRUMANGUDI REP BY ITS SECRETARY

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P.M.KADER HUSSAIN

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... PETITIONER in WP No.13951 of 2015

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1 TN KARUMBU VIVASAYIGAL SANGAM (REGN. NO.19/88) BRANCH: RAJASHREE SUGARS VILLUPURAM DT.REP.BY PRESIDENT MR.T.R.GUNDU REDDIAR S/O.RAJA REDDIAR, GPS COMPLEX ALAMPOONDI T.V.MALAI RD GINJEE TK VILLUPURAM DT

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... PETITIONER in WP No.5841 of 2017

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM

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(REGN. NO.19/88) BRANCH:VELLORE CO OPERATIVE SUGAR MILLS LTD., VELLORE DISTRICT REP.BY SECRETARY MR.P.SUBRAMANI S/O.PERIYATHAMBI 5 THIRUVATHAMAN KOIL ST

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KILANDAI MOTTU VILLAGE SHOLINGAR PO VELLORE DT 631 102

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... PETITIONER in WP No.6220 of 2017

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https://hcservices.ecourts.gov.in/hcservices/

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM (REGN. NO.19/88) BRANCH:EID PARRY SUGARS, ERODE DISTRICT, REP.BY ITS SECRETARY MR.K.S.ESWARAMOORTHY, S/O.SUBBANNA GOUNDER

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KANIYAMPALAYAM KAGAM POST SIVAGIRI SO. ERODE DISTRICT.

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... PETITIONER in WP No.6221 of 2017

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1 TAMIL NADU KARUMBU VIVASAYIGAL SANGAM BRANCH:NPKRR CO-OPERATIVE SUGAR MILLS LTD., THELAI NAGAR VILLAGE REP.BY GENERAL SECRETARY T.KASINATHAN S/O.THANGAVELU NO.53 NARIKUDI

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BALAKUDI POST THIRUVIDAIMARUTHUR TK NAGAPATINAM DT 612 102

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... PETITIONER in WP No.6222 of 2017

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VS.

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THE UNION OF INDIA, REP., BY THE SECRETARY/DEPUTY SECRETARY TO GOVT., MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION, DEPARTMENT OF FOOD AND PUBLIC DISTRIBUTION, KRISHI BHAVAN, NEW DELHI – 110 114.

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THE DIRECTOR OF SUGAR & CANE COMMISSIONER OF TAMIL NADU,

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690, ANNA SALAI, NANDANAM, CHENNAI – 600 035.

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.. R1 & R2 in all Writ Petitions

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THE TAMIL NADU KARUMBU VIVASAYIGAL SANGAM, (REGN.NO.19/88) REP., BY ITS VICE PRESIDENT MR.D.RAVINDRAN, S/O.P.DHARMALINGAM, 46-A, V.O.C.STREET, WEST TAMBARAM, CHENNAI – 600 045. .. RESPONDENTS

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(R3 IS IMPLEADED AS PER ORDER DATED 05.01.2016 IN M.P.NO.4 OF 2015 IN W.P.NO.7872 OF 2015.)

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1 THE SPECIAL OFFICER SALEM CO-OPERATIVE SUGAR MILL, SALEM, SALEM DISTRICT.

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...3^rd RESPONDENT in WP No.531 of 2015

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1 BANNARI AMMAN SUGARS LTD REP. BY ITS AUTHORIZED OFFICER-CUM-GENERAL MANAGER ALLATTU (KOMBAI PO) SATHYAMANGALAM TALUK ERODE DISTRICT

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...3^rd RESPONDENT in WP No.532 of 2015

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1 PERAMBALUR SUGAR MILLS LIMITED ERAIYUR P.O. REP. BY ITS CHIEF

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EXECUTIVE OFFICER ERAIYUR P.O.

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PERAMBALUR DISTRICT-621133.

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... 3^rd RESPONDENT in WP No.2026 of 2015

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1 PONNI SUGARS LIMITED

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REP BY ITS GENERAL MANAGER ODAPALLI KAVERI

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RS ERODE DISTRICT 638 007

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... 3^rd RESPONDENT in WP No.2369 of 2015

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1 MRK CO-OPERATIVE SUGAR MILLS

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LTD REP. BY ITS SPECIAL OFFICER

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SETHIATHOPE CUDDALORE DISTRICT-608 702.

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... 3^rd RESPONDENT in WP No.3382 of 2015

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1 TIRUTTANI CO-OPERATIVE SUGAR MILLS LTD REP. BY ITS SPECIAL OFFICER

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THIRUVALANGADU TIRUTTANI TALUK THIRUVALLUR DISTRICT-631 303

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... 3^rd RESPONDENT in WP No.3383 of 2015

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https://hcservices.ecourts.gov.in/hcservices/

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1 DHARANI I SUGARS LIMITED VASUDEVA NALLUR REP BY ITS GENERAL MANAGER ATHVADI POST SIVAGIRI TALUK TIRUNELVELI DISTRICT 627 757

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... 3^rd RESPONDENT in WP No.3581 of 2015

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1 HARUR SUBRAMANIASIVA

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COOPERATIVE SUGAR MILLS LTD. GOPALAPURAM

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DHARMAPURI DISTRICT REP. BY ITS SPECIAL OFFICER GOPALAPURAM PAPPIREDDYPATTI TALUK DHARMAPURI DISTRICT

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... 3^rd RESPONDENT in WP No.4095 of 2015

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1 SAKTHI SUGARS LIMITED UNIT 1 REP BY ITS MANAGING DIRECTOR APPAKUDAL SAKTHI NAGAR POST BHAVANI TALUK ERODE DISTRICT 638 315

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... 3^rd RESPONDENT in WP No.5047 of 2015

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1 NATIONAL CO-OPERATIVE SUGAR

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MILLS LTD. REP. BY ITS SPECIAL OFFICER B.METTUPATTI VILLAGE T.VADIPATTI TALUK

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MADURAI DISTRICT.

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... 3^rd RESPONDENT in WP No.5539 of 2015

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1 CHEYYAR COOPERATIVE SUGAR MILLS LIMITED REP. BY ITS PRESIDENT ANAKKAVOOR VILLAGE VANDAVASI TALUK TIRUVANNAMALAI DISTRICT.

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... 3^rd RESPONDENT in WP No.8706 of 2015

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1 RAJ SHREE SUGAR MILLS UNIT-I REP. BY ITS GENERAL MANAGER VAIGAIDAM VILLAGE PERIYAKULAM TALUK THENI DISTRICT.

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... 3^rd RESPONDENT in WP No.9047 of 2015

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https://hcservices.ecourts.gov.in/hcservices/

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1 DHARANI SUGARS LTD. UNIT II REP. BY ITS GENERAL MANAGER KARAIPOONDI VILLAGE POLUR TALUK TIRUVANNAMALAI DISTRICT. ... 3^rd RESPONDENT in WP No.9781 of 2015 1 AMARAVATHI COOPERATIVE SUGAR MILLS LTD. REP. BY ITS GENERAL MANAGER KRISHNAPURAM MADATHUKULAM TIRUPUR DISTRICT

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... 3^rd RESPONDENT in WP No.9938 of 2015

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1 EID PARRY INDIA LTD REP. BY ITS GENERAL MANAGER NELLIKUPPAM PANRUTI TALUK CUDDALORE DISTRICT

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... 3^rd RESPONDENT in WP No.12060 of 2015

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1 SHREE AMBIKA SUGARS LTD UNIT II PENNADAM VILL REP. BY ITS GENERAL MANAGER PENNADAM THITTAKUDI TALUK CUDDALORE DISTRICT

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... RESPONDENT in WP No.12061 of 2015

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1 ARINGNAR ANNA SUGAR MILLS (PUBLIC) LTD REP. BY ITS GENERAL MANAGER KURNGULAM THANJAVORE DISTRICT-613 303.

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... 3^rd RESPONDENT in WP No.12062 of 2015

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1 THE SPECIAL OFFICER KALLAKURICHI CO-OP. SUGAR MILL-I MOONGILTHURAIPET SANKARAPURAM TALUK VILLUPURAM DISTRICT

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... 3^rd RESPONDENT in WP No.33387 of 2013

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THIRU ARURAN SUGARS LTD. REP BY ITS GENERAL MANAGER THIRUMANGUDI PAPANASAM TALUK TANJORE DISTRICT ... 3^rd RESPONDENT in WP No.13951 of 2015 1. THE MANAGING DIRECTOR RAJSHREE SUGARS MUNDIAMBAKKAM VILLUPURAM DISTRICT. ... 3^RD RESPONDENT IN WP NO.5841 OF 2017 1. THE MANAGING DIRECTOR VELLORE COOPERATIVE SUGAR MILLS LTD. VELLORE DT. ... 3^RD RESPONDENT IN WP NO.6220 OF 2017 1 THE MANAGING DIRECTOR, EIP PARRY SUGARS PUGALUR, ERODE DISTRICT .. 3^rd RESPONDENT IN WP.No.6221 OF 2017 1 NPKRR CO-OPERATIVE SUGAR MILLS LTD., REP.BY GENERAL MANAGER THELAI NAGAR VILLAGE MAYILADUTHURAI TALUK, NAGAI DISTRICT. ... 3^rd RESPONDENT in WP No.6222 of 2017

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Prayer:-

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Petitions filed Under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus to call for the records of the first respondent comprised in its letter dated 09.03.2015, bearing No.3(3)2005-SP and the consequent letters bearing Rc.No.18582/Cane 1/2013, dated 11.03.2015 and 13.03.2015, issued by the second respondent and quash the same as being illegal, arbitrary, without jurisdiction and consequently forbear the first and second respondents from determining the value of sugar in rupees during the sugar years 2004-05 to 2008-09 in terms of the (omitted) second schedule of the Sugarcane (Control) Order, 1966 and from consequently declaring any price for sugarcane payable by sugar producers in

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the State of Tamil Nadu over and above the price fixed under Clause 3 of the Sugarcane (Control) Order, 1966 for the sugar seasons 2004-05 to 2008-09.

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COMMON PRAYER IN WP.Nos.33387 OF 2013,

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Directing the 1st respondent to fix additional cane price as per Clause 5-A of Sugarcane (Control) order, 1966 and consequently direct the respondents to disburse the additional cane price to members of the Petitioner's Association for the period from 2004-2005 to 2008-2009

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WP.No.13951 of 2015:-

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Directing the 1st respondent to fix additional cane price as per Clause 5-A of Sugarcane (Control) Order, 1966 and consequently direct the respondents to disburse the additional cane price to members of the petitioners Association for the period from 1999-2000 to 2008-2009

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WP.No.5539, 8706, 9047, 9047, 9781, 9938 OF 2015, 5841, 6220 TO 6222 OF 2017:-

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Directing the 1st respondent to fix additional cane price as per Clause 5-A of Sugarcane (Control) order, 1966 and consequently direct the respondents to disburse the additional cane price to members of the Petitioner Association for the period from 2002-2003 to 2008-2009

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WP No.12060 of 2015:-

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Directing the 1st respondent to fix Additional Cane Price as per Clause 5A of Sugarcane (Control) Order 1966 and consequently direct the respondents to disburse the Additional Cane Price to members of the petitioner Assocation for the period from 20032004 to 2008-2009

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WP No.12061 of 2015:-

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WP No.12062 of 2015:-

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S.Udayakumar for M/s.K.Kumudha For Petitioner in W.P.Nos.33387 of 2013, 13951, 531, 532, 2026, 2369, 3382, 3383, 3581, 4095, 5047, 5539, 8706, 9047, 9781, 9938, 12060 to 12062 of 2015 and 5841, 6220,6222 of 2017; and For R3 in W.P.No.7872 of 2015 Mr.P.S.Raman, Senior Counsel assisted by Ms.Anupama Kumar For Petitioner in W.P.No.7872 of 2015; and For R3 in W.P.Nos.13951, 9047 and 12060 to 12062 of 2015

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Mr.G.Rajagopalan, Additional Solicitor General of India assisted by Mr.V.Venkatesan, Sr. Central Govt. Standing Counsel, Mr.J.Madanagopal Rao, SCGSC Mr.A.Kumaraguru, CGSC Mr.G.Baskaran, CGSC For R1 in all W.Ps. Mr.L.P.Shanmughasundaram, Special Government Pleader For R2 in W.P.Nos.13951, 7872 of 2015

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Mr.Bala Ramesh

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For R3 in W.P.Nos.33387 of 2013, 531, 532, 4095, 5539 of 2015 and 6220 to 6222 of 2017

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C O M M O N O R D E R

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There are two sets of Writ Petitions in this batch of cases-one by the manufacturers of sugar popularly known as Sugar Mills and their association and the other-sugarcane growers and their associations.

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W.P.No.7872 of 2015, is taken as the lead case filed by the South Indian Sugar Mills Association, a registered body. The sugarcane growers, individually and through their association, have filed separate Writ Petitions, which is the second batch of cases and their association called as 'Tamil Nadu Karumbu Vivasayigal Sangam' has been impleaded as the third respondent in W.P.No.7872 of 2015. Thus, the private parties are fully represented in the lead case, wherein the Union of India and the Director of Sugar are also respondents.

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The said Writ Petition has been filed for issuance of a Writ of Certiorarified Mandamus to quash the communication issued by the first respondent, the Union of India represented by its Deputy Secretary to Government, Ministry of Consumer Affairs, Food and Public Distribution, New Delhi, dated 09.03.2015 and the consequential communication issued by the second respondent, the Director of Sugar, dated 11.03.2015 and 13.03.2015, as being illegal, arbitrary and without jurisdiction and to forbear the official respondents from determining the value of sugar in rupees during the sugar years 2004-05 to 200809, in terms of the omitted second schedule of the Sugarcane (Control) Order, 1966 (hereinafter referred to as 'Control Order') and consequently declaring any price for sugarcane payable by sugar producers in the State of Tamil Nadu, over and above the price fixed under Clause 3 of the Control Order for the sugar seasons 2004-05 to 2008-09.

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A brief prelude leading to the present controversy would be necessary.

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The Essential Commodities Act, 1955 (hereinafter referred to as the “EC Act”) was enacted to provide, in the interest of the general public, for the control of the production, supply and distribution of, and trade and commerce in certain commodities. Section 2(e) of EC Act defines sugar to mean (i) any form of sugar containing more than 90% of sucruose, including sugar candy; (ii) khandsari sugar or bura sugar or crushed sugar or any sugar in crystalline or powdered form; or (iii) sugar-inprocess in vacuum pan sugar factory or raw sugar produced therein. Undisputedly sugarcane is declared as an essential commodity under the EC Act. Section 2-A, which stood inserted by Central Act, 54 of 2006, w.e.f., 12.02.2007, in sub-section (1) therein, states that for the purposes of the EC Act,

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“essential commodity” means a commodity specified in the schedule. Section 3 deals with power to control production, supply, distribution etc., of essential commodities. In terms of sub-section (1) of Section 3, if the Central Government was of view that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. The Sugarcane (Control) Order 1966 was issued by the Central Government in exercise of the power conferred under Section 3 of the EC Act, which contained 12 Orders/Provisions and three Schedules.

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By the Essential Commodities (Management and Validation) Act, 2009, the Central Government amended the provisions of the EC Act, to make provision for validation of certain orders issued by the Central Government determining the prices of levy sugar and actions taken under those orders and for matters connected therewith. The Amendment and Validation Act, came to be passed on account of the conflicting decisions of the Hon'ble Supreme Court as to the factors to be taken into consideration in determining price of levy sugar. Accordingly, Section 3 of the Act was amended and Explanation II was inserted. The Amendment and Validation Act also validated, actions taken etc., under specified orders issued under sub-section (3C) of the Section 3 of the Principal Act. The Control Order came to be amended in the year 2009.

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In this batch of cases, the controversy raised by the sugar mills revolves around the amendment to the Control Order. Thus, we have to take note of the position prior to the amendment in 2009 and post amendment scenario. Clause 3 of the Control Order deals with Fair and Remunerative Price of sugarcane payable by producer of sugar, for brevity, it shall be referred as the “FRP”. Clause 5 provides for additional price for sugar cane purchase, which shall be in addition to the FRP. Clauses 3, 5 and 5A as it stood prior to the amendment is quoted herein below:-

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Minimum price of sugarcane payable by producer of sugar.—(1) The Central Government may, after consultation with such authorities, bodies or associations as it may deem fit, by notification in the Official Gazette, from time to time, fix the minimum price of sugarcane to be paid by producers of sugar or their agents for the

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sugarcane purchased by them having regard to — (a the cost of production of sugarcane; (b) the return to the grower from alternative crops and the general trend of prices of agricultural commodities;

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(c) the availability of sugar to the consumer at a fair price; (d) the price at which sugar produced from sugarcane is sold by producers of sugar; and

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(e) the recovery of sugar from sugarcane: 2 [Provided that the Central Government or with the approval of the Central Government, the State Government, may, in such circumstances and subject to such conditions as specified in Clause 3-A, allow a suitable rebate in the price so fixed.]

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[Explanation.—(1) Different prices may be fixed for different areas or different qualities or varieties of sugarcane.

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(2) When a sugar factory produces ethanol directly from sugarcane juice or B-Heavy molasses, the recovery rate in case of such sugar factory shall be determined by considering every 600 litres of ethanol so produced as equivalent to 1 tonne of production of sugar;

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(3) Production of ethanol directly from sugarcane juice shall be allowed in case of sugar factories only.]

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(2) No person shall sell or agree to sell sugarcane to a producer of sugar or his agent, and no such producer or agent shall purchase or agree to purchase sugarcane, at a price lower than that fixed under subclause (1). 1

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[(3) Where a producer of sugar purchases any sugarcane from a grower of sugarcane or from a sugarcane growers’ co-operative society, the producer shall, unless there is an agreement in writing to the contrary between the parties, pay within fourteen days from the date of delivery of the sugarcane to the seller or tender to him the price of the cane sold at the rate agreed to between the producer and the sugarcane grower or the sugarcane growers’ co-operative society or that fixed under sub-clause (1), as the case may be, either at the gate of the factory or at the cane collection centre or transfer or

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deposit the necessary amount in the Bank account of the seller or the co-operative society, as the case may be.] [(3-A) Where a producer of sugar or his agent fails to make payment for the sugarcane purchased within 14 days of the date of delivery, he shall pay interest on the amount due at the rate of 15 per cent per annum for the period of such delay beyond 14 days. Where payment of interest on delayed payment is made to a cane growers’ society, the society shall pass on the interest to the cane growers concerned after deducting administrative charges, if any, permitted by the rules of the said society.] (4) Where sugarcane is purchased through an agent, the producer or the agent shall pay or tender payment of such price within the period and in the manner aforesaid and if neither of them has so paid or tendered payment, each of them shall be deemed to have contravened the provisions of this clause. (5) At the time of payment at the gate of the factory or at the cane collection centre, receipts, if any, given by the purchaser, shall be surrendered by the cane grower or co-operative society.

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(6) Where payment has been made by transfer or deposit of the amount to the Bank account of the seller or the co-operative society, as the case may be, the receipt given by the purchaser, if any, to the grower or the cooperative society if not returned to the purchaser, shall become invalid. 3 [(7) In case, the price of the sugarcane remains unpaid on the last day of the sugar year in which cane supply was made to the factory on account of the suppliers of cane not coming forward with their claims therefor 4 [x x x x x], it shall be deposited by the producer of sugar with the Collector of the district in which the factory is situated, within three months of the close of the sugar year. The Collector shall pay, out of the amount so deposited, all claims considered payable by him and preferred before him within three years of the close of the sugar year in which the cane was supplied to the factory. The amount

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still remaining undisbursed with the Collector, after meeting the claims from the suppliers, shall be credited by him to the Consolidated Fund of the State, immediately after the expiry of the time limit of 3 years within which claims therefor could be preferred by the suppliers. The State Government shall, as far as possible utilise such amounts for development of sugarcane in the State.]

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[(8) Where any producer of sugar or his agent has defaulted in furnishing information under Clause 9 of this Order or has defaulted in paying the whole or any part of the price of sugarcane to a grower of sugarcane or a sugarcane growers cooperative society within fourteen days from the date of delivery of sugarcane, or where there is an agreement in writing between the parties for payment of price within a specified time and any producer or his agent has defaulted in making payment within the agreed time specified therein, the Central Government or an officer authorised by the Central Government in this behalf or the State Government or an officer authorised by the State Government in this behalf may either on the basis of information made available by the producer of sugar or his agent or on the basis of claims, if any, made to it or him regarding non-payment of prices or arrears thereof by the concerned grower of sugarcane or the sugarcane growers co-operative society as the case may be, or on the basis of such enquiry that it or he deems fit, shall forward to the Collector of the district in which the factory is located, a certificate specifying the amount of price of sugarcane and interest due thereon from the producer of sugar or his agent for its recovery as arrears of the land revenue.

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(9) The Collector on receipt of such certificate, shall proceed to recover from such producer of sugar or his agent the amount specified therein as if it were arrears of land revenue.

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(10) After effecting the recovery, the Collector shall intimate to the concerned growers of the sugarcane or the concerned

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sugarcane growers co-operative societies through a public notice to submit their claims in such a manner as he considers appropriate within thirty days: Provided that the Collector may, for the reasons to be recorded in writing allow the submission of claims after the period so specified if he is satisfied that there was sufficient cause for not submitting such claim earlier. (11) If the amount recovered is less than the amount specified in the certificate under sub-clause (8), the Collector shall distribute the amount so recovered among the concerned growers of the sugarcane or the concerned sugarcane growers co-operatives in proportion to the ratio determined by the Collector on the basis of the sugarcane supplied by the concerned growers of sugarcane or the sugarcane growers’ cooperative society as the case may be. (12) If the amount recovered and distributed under sub-clause (11) is less than the amount specified in the certificate under sub-clause (8), the Collector shall proceed to recover the remaining amount, as if it were arrears of land revenue till the full amount is recovered and distributed to satisfy the remaining claims.

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(13) If the amount is given to the concerned sugarcane growers co-operative societies, it shall distribute the amount through cheque/draft/or any other recognised banking instrument on any Scheduled Bank to the concerned sugarcane growers within ten days of the receipt of the amount from the Collector. (14) If the concerned sugarcane grower or the concerned sugarcane growers co-operative society do not come forward to claim or collect the amount so recovered by the Collector within three years from the date of the public notice referred to in subclause (10), the unclaimed amount shall be deposited by the Collector in the Consolidated Fund of the State.]

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[3-A. Rebate that can be deducted from the price paid for sugarcane.—A producer of sugar or his agent shall pay for the sugarcane purchased by him to the sugarcane grower or the sugarcane growers’ co-

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operative society, either the minimum price of sugarcane fixed under Clause 3, or the price agreed to between the producer or his agent and the sugarcane grower or the sugarcane growers’ co-operative society as the case may be (hereinafter referred to as the agreed price):

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Provided that.— [(i) in the case of sugarcane delivered at any purchasing centre and the same being transported to the factory by the factory owner by rail or by road using his own transport a rebate shall be made from the minimum price or the agreed price as the case may be and such rebate shall be fixed by the Central Government having regard to the actual cost of transportation in the area after consultation with such body or bodies as it may deem fit by notification in the Official Gazette from time to time and the owner shall accordingly make the rebate;] (ii) the Central Government or the State Government, or the Director of Agriculture, or the Cane Commissioner, or the District Magistrate may allow a suitable rebate in the minimum price or the agreed price as the case may be, for the 3 [burnt cane or stale cane or dried cane or rejected varieties of cane] supplied to factories within their respective jurisdiction subject to the condition that the rebate so allowed does not exceed the reduction in price on account of the estimated shortfall in the recovery of sugar from4 [burnt cane or stale cane or dried cane or rejected varieties of cane.] (iii) where the sugarcane is brought bound in bundles and weighed as such, the Central Government, or with the approval of the Central Government, the State Government, or the Director of Agriculture, or the Cane Commissioner, or the District Magistrate, within their respective jurisdictions may allow a suitable rebate in regard to the weight of the binding material 5 [not exceeding 1,000 grams per quintal of sugarcane;] and

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[(iv) The Central Government or the State Government or the Director of Agriculture or the Cane Commissioner or the DistrictMagistrate, may allow a suitable

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rebate in the minimum price or the agreed price as the case may be, when the cane is supplied ex-field to sugar factories within their respective jurisdictions subject to the condition that the rebate so allowed shall not exceed the estimated expenditure on harvesting.]

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Additional price for sugarcane purchased.— (1) Where a producer of sugar or his agent purchases any sugarcane from a grower of sugarcane or a growers’ cooperative society during each of the four successive years beginning on the 1st day of November, 1958, the producer shall, in addition to the minimum price of sugarcane fixed under sub-clause (1) of Clause 3 pay to the grower or the cooperative society, as the case may be, an additional price, if found, due, in accordance with the provisions 6 [of the First Schedule] hereto annexed.

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(2) Nothing in sub-clause (1) shall apply to the purchase of sugarcane,—

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(a) where such sugarcane is used for the production of sugar in a newly established factory until the expiry of three years commencing from the year in which the factory is so established;

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(b) where the purchase is made by a producer of sugar, which is a co-operative society, from the members of that co-operative society.

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(3) If the Central Government is satisfied that during any year a factory has made no profit or has made inadequate profit, that Government, may by order in writing, exempt either wholly or partially, any producer of sugar from payment of the additional price due from him under sub-clause (1) in respect of sugarcane purchased for that factory during that year.

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(4) The Central Government may appoint any person or authority as it thinks fit for the purpose of determining the additional price due from a producer of sugar under subclause (1) for each of the successive four years beginning on the 1st day of November, 1958 and when the price is so determined, the person or authority, as the case may be,

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shall intimate the same in writing to the producer and to the growers’ co-operative societies or the local growers’ associations, if any, connected with the supply of sugarcane to the factory. (5) (a) Any producer of sugar or grower of sugarcane or growers’co-operative society who or which feels aggrieved by any decision of the person or authority referred to in sub-clause (4), may, within thirty days from the date of communication of such decision under that sub-clause, appeal to the Central Government:

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Provided that the Central Government may, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the aforesaid period of thirty days, admit the appeal if presented within a further period of fifteen days. (b) The Central Government may, after giving an opportunity to the appellant to represent his case and after making such further enquiry as may be necessary, pass such order as it thinks fit.

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(c) The decision of the officer or authority referred to in sub-clause (4) where no appeal is filed, and of the Central Government where an appeal is filed, shall be final.

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(6) The price determined under sub-clause (4) or sub-clause (5), as the case may be, shall be paid at such time and in such manner as the Central Government may from time to time direct.

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(7) Where any payment has been made in accordance with the directions issued by the Central Government under sub-clause (2) of Clause 5 as it stood immediately before the commencement of the Sugarcane (Control) (Amendment) Order, 1962, then, notwithstanding anything contained in the foregoing provisions of this clause, such payment shall be deemed to have been made in lieu of the payment provided for in this clause as if that sub-clause were in force when the direction was issued or payment was made.

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[5-A. Additional price for sugarcane purchased on or after 1st October, 1974.—(1) Where a producer of sugar or his agent

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purchases sugarcane from a sugarcane grower during each sugar year, he shall, in addition to the minimum sugarcane price fixed under Clause 3, pay to the sugarcane grower an additional price, if found due in accordance with the provisions of the Second Schedule annexed to this Order. (2) The Central Government or the State Government, as the case may be, may authorise any person or authority, as it thinks fit for the purpose of determining the additional price payable by a producer of sugar under subclause (1) and the person or authority as the case may be, who determines the additional price, shall intimate the same in writing to the producer of sugar and the sugarcane grower connected with the supply of sugarcane to such producer of sugar.

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(3) (a) Any producer of sugar or sugarcane grower, who is aggrieved by any decision of the person or authority referred to in subclause (2), may, within thirty days from the date of communication of such decision under that sub-clause, appeal to the Central Government or the State Government as the case may be:

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Provided that the Central Government or the State Government, as the case may be, may, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the aforesaid period of thirty days admit the appeal, if presented within a further period of fifteen days. (b) The Central Government or the State Government, as the case may be, may, after giving an opportunity to the appellant to represent his case and after making such further enquiry as may be necessary pass such order as it thinks fit.

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(c) The decision of the person or authority referred to in sub-clause (2) where no appeal is filed, and of the Central Government or State Government, as the case may be, where an appeal is filed shall be final ll be paid by the producer of sugar to the sugarcane grower, at such time and in such manner as the Central Government or the State Government, as the case may be, may, from time to time direct.

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(5) No additional price determined under

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sub-clause (2) or sub-clause (3), as the case may be, shall become payable by a producer of sugar who pays a price higher than the minimum sugarcane price fixed under Clause 3 to the sugarcane grower: Provided that the price so paid shall in no case be less than the total price comprising the minimum sugarcane price fixed under Clause 3 and the additional price determined under sub-clause (2) or sub-clause (3), as the case may be.

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(6) Where any extra price is paid by the producer of sugar to the sugarcane grower for the supply of sugarcane in addition to the minimum sugarcane price fixed under Clause 3, the extra price so paid shall be adjusted against the additional sugarcane price determined under sub-clause (2) or sub-clause (3), as the case may be, and the balance, if any, shall be paid to the sugarcane grower.

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(7) Subject to the provisions of sub-clause (4), the additional price shall become payable to a sugarcane grower if he in performance of his agreement with a producer of sugar supplies not less than 85 per cent of the sugarcane so agreed:

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[Provided that the additional price shall become payable to a sugarcane grower, even when he supplies less than 85 per cent of the sugarcane so agreed, if for the same supply he has not been subjected to any penalty by or under any Central or State Act or any rules or orders made hereunder for his failure to supply 85 per cent of sugarcane so agreed.]

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(8) Where the additional price determined under sub-clause (2) or sub-clause (3), as the case may be, is paid to a sugarcane growers’ co-operative society or the local sugarcane growers’ association of whatever name it may be called, it shall disperse the said additional price to such of its member who has supplied not less than 85 per cent of the agreed sugarcane in performance of his agreement with it, within one month of the receipt of such additional price by it from the producer of sugar.

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(9) The additional price payable but not actually paid in view of sub-clause (7)

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shall be added to the amount found payable for the following sugar year arrived at as per provisions of the Second Schedule. [(10) In case, the additional price determined under sub-clause (2) or subclause (3), as the case may be, remains unpaid on account of the sugarcane grower not coming forward to claim it 3 [x x x x x], it shall be deposited by the producer of sugar with the Collector of the District in which the factory is situated, within six months of the close of the sugar year. The Collector shall pay out of the amount so deposited all claims, considered payable by him and preferred before him within three years of the close of the sugar year in which the sugarcane was supplied to the factory. The amount still remaining undisbursed with the Collector, after meeting the claims of the sugarcane growers, shall be credited by him to the Consolidated Fund of the State, immediately after the expiry of the time limit of three years within which claims therefor could have been preferred by the sugarcane growers. The State Government shall as far as possible, utilise such amounts for the development of sugarcane in the State.] [(11) Where any producer of sugar or his agent has defaulted in paying the whole or any part of the additional price of sugarcane within the time specified in this regard by the Central Government or an officer authorised by Central Government in this behalf or the State Government or an officer authorised by the State Government in this behalf, then such Government or officer may after making such enquiries or calling for such additional information from the producer of sugar or his agent as deems fit, or on the basis of claims of the sugarcane growers, forward to the Collector of the district in which the factory is situated a certificate specifying the amount of arrears of additional price of sugarcane due from the producer of sugar or his agent for its recovery as arrears of land revenue. (12) The Collector on receipt of such certificate shall proceed to recover from such producer of sugar or his agent the

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amount specified therein as if it were arrears of land revenue.

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(13) After effecting the recovery, the Collector shall intimate to the concerned growers of the sugarcane or the concerned sugarcane growers co-operative societies through a public notice to submit their claims in such a manner as he considers appropriate within thirty days: Provided that the Collector may, for the reason to be recorded in writing allow the submission of claims after the period so specified if he is satisfied that there was sufficient cause for not submitting such claim earlier.

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(14) If the amount recovered is less than the amount specified in the certificate under sub-clause (11), the Collector shall distribute the amount so recovered to the concerned growers of the sugarcane or the concerned sugarcane growers co-operatives in proportion to the ratio determined by the Collector on the basis of the sugarcane supplied by the concerned growers of sugarcane or the sugarcane growers’ cooperative society as the case may be.

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(15) If the amount recovered and distributed under sub-clause (14) is less than the amount specified in the certificate under sub-clause (11), the Collector shall proceed to recover the remaining amount as if it were arrears of land revenue till the full amount is recovered and distributed to satisfy the remaining claims.

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(16) If the amount is given to the concerned sugarcane growers’ co-operative societies, it shall distribute the amount through cheque, draft, or any other recognised banking instrument on any Scheduled Bank to the concerned sugarcane growers within ten days of the receipt of the amount from the Collector.

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(17) If the concerned sugarcane grower or the concerned sugarcane growers’ cooperative society do not come forward to claim or collect the amount so recovered by the Collector within three years from the date of the public notice referred to in sub-clause (13), the unclaimed amount shall be deposited by the Collector in the

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Consolidated Fund of the State.] Explanation.—For purposes of this clause and the Second Schedule.—

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(1) “Sugarcane grower”, includes a grower of sugarcane, a sugar growers’ cooperative society, or a sugarcane growers’ association of whatever name it may be called and who enters into an agreement with a producer of sugar to supply sugarcane; (2) “Sugar year” means the year commencing on the 1st day of October and ending with the 30th day of September in the year next following;

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[(3) “Ethanol” means anhydrous ethyl alcohol of minimum 99% strength, produced directly either from sugarcane juice or B-Heavy molasses or both;

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(4) When a sugar factory manufactures ethanol directly from sugarcane juice or BHeavy molasses, then every 600 liters of ethanol so produced directly from sugarcane juice or B-Heavy molasses shall be taken as equivalent to one ton production of sugar.]]

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By gazette notification, dated 22.10.2009, the Control Order was amended and the salient feature of the amendment being (a) for the words “minimum price”, wherever they occur, the words “fair and remunerative price” was substituted. In clause (2) after sub-clause (c), clause (cc), was inserted which defined “fair and remunerative price of sugar cane”, means the price fixed by the Central Government under clause (3) from time to time for sugar cane. In clause (3) in sub-clause (1) after item (f), clause (g) was inserted which states that reasonable margins for the growers for sugarcane on account of risk and profits. (d) after clause (3A), clause (3B), was inserted, which is as follow:-

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“3B, Price of sugarcane fixed above the fair and remunerative price.

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If any authority or State Government fixes any price above the fair and remunerative price fixed by the Central Government under clause 3, such authority or State Government, shall pay the amount, which it fixes above the fair and remunerative price as fixed by the Central Government, to the grower of sugarcane or to the sugarcane growers' cooperative society, as the case may be”

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The cause of action for the Writ Petitions being a communication dated 09.03.2015, sent by the first respondent,

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Government of India, addressed to the second respondent, the Director of Sugar, stating that pursuant to the interim directions issued by this Court in W.P.Nos.531 of 2015 etc., filed by the third respondent, association, the Central Government communicated the “provisional” per quintil unit cost of sugar known as “L” factor for 2004-05 to 2008-09, sugar seasons for Tamil Nadu & Pondichery zone. The second respondent was requested to take necessary action in terms of provision of clause (5A) of the Control Order. The provisional unit cost of sugar for 2004-05 to 2008-09 sugar seasons in Tamil Nadu and Puduchery zone was fixed as follows:-

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Sl.No	Sugar Season	“Provisional” unit cost of sugar (Rs. Per qtl.)
1	2004-05	1440.08
2	2005-06	1446.13
3	2006-07	1455.5
4	2007-08	1464.88
5	2008-09	1464.88

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The second respondent in turn addressed the Managing Directors/Administrators/Chief Executives of all cooperative public sector sugar mills as well as the Chairman and Managing Director of all private sector Sugar Mills, except four of them, inviting their attention to the communication from the Central Government, dated 09.03.2015, communicating the “L” factor for the relevant sugar season and requested the Sugar Mills to compute the clause (5A) price (additional cane price) for the relevant sugar season as per Second Schedule under clause (5A) of the Control Order and send a report on or before 18.03.2015. This was followed by another communication by the second respondent dated 13.03.2015, addressed to all the Sugar Mills calling upon them to depute their Chief Accountant/Accounts Officer along with following particulars for the relevant sugar seasons:-

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1.Working of additional cane price under Clause 5A of Sugarcane (Control) Order, 1966.

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2.Proforma-I 3.R.T.8(c)

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4.Sugar Sales day book Abstract for the season.

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5.Proforma-II

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6.Proforma II-A – for the next season

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7.Sugar Balance Sheet (Summary)

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8.15 days average of free sugar sales.

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9.S.M.P & S.A.P., order copy.

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The communication sent by the first respondent to the second respondent and the consequential communications sent by second respondent to the Chairman and Managing Director of all the private sector Sugar Mills has triggered this litigation. To be noted that in respect of the cooperative and public sector Sugar Mills except two, all other Sugar Mills have produced the relevant records before the second respondent and the additional cane price has been computed in terms of clause (5A) of the Control Order and paid to the sugarcane growers.

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Mr.L.P.Shanmugasundaram, learned Special Government Pleader appearing for the Cooperative Sugar Mills would submit that the two Sugar Mills namely Vellore Cooperative Sugar Mills and NPKR Sugar Mills who are yet to pay the growers would do so shortly.

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Mr.P.S.Raman, learned Senior counsel assisted by Ms.Anupama Kumar learned counsel appearing for the petitioner association submitted that by virtue of the 2009 amendment to the Control Order, Statutory Minimum Price (SMP) was substituted by FRP and FRP includes consideration of additional factor in fixing cane price namely, reasonable returns and consequent upon the amendment clause (5A) and Second Schedule to the Control Order stood omitted w.e.f., 22.10.2009, and at this juncture, the first respondent has no jurisdiction to determine “L” factor of the sugar season 2004-09. It is submitted that the first respondent did not determine the “L” factor, from 2004-09 and action was being initiated only after the sugarcane growers association filed a Writ Petition before this Court and the direction in the Writ Petition was based on an undertaking given in the counter affidavit filed by the Government of India and direction was issued to the Government of India to comply with the undertaking by paying the additional cane price to farmers provisionally and without doing so, cannot compel the petitioners/private sugar mills to effect payment. Thus, it is the case of the petitioner association that the government is unlawfully attempting to shift the obligation to make payment to the private Sugar Mills.

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It is the submission of Mr.P.S.Raman, that clause (5A) of the Control Order stood omitted and hence, ceased to have effect from 22.10.2009 and such omission is not saved in terms of Section 6 of the General Clauses Act, 1897, since it applies only to enactments and regulations and the Control Order issued in exercise of the executive power of the Government of India under Section 3 of the EC Act, will not fall within the definition of enactment under the General Clauses Act. It is further submitted that a regulation may be a Rule, but not vice versa and in the present case, the Control Order is neither an Act nor a regulation and hence, Section 6 of the General Clauses

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Act does not apply. Further, it is submitted that the sugar industry across the country is presently passing through one of the most challenging times, with National Sugar Production a out striping the domestic consumption for the fourth year in a row. This position is further worsened by the glut in the global sugar market thereby limiting the scope for resorting equilibrium in the domestic market by resort to export. It is stated that the domestic sugar price has registered a steep fall during 2012-13, crushing season from Rs.3600/- per quintal in September 2012 to Rs.3000/- per quintal in September 2013 and at the time when the Writ Petition was filed, it was around Rs.2500/- per quintal. Thus, all the private sector Sugar Mills are suffering huge losses, which has crossed Rs.15,000 crores as of 28.02.2015 and despite the huge interest free loan of Rs.6600 crores made available by the Government of India. This has lead

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to a situation where financing banks were averse to extending further working capital finances to sugar industries. It is further submitted that the Government of India has fixed provisional “L” factor only for Tamil Nadu & Pondicherry zone and not for any other State and this is discriminatory. It is submitted that as on date, clause (5A) and Second Schedule to the Control Order have been omitted and the “L” factor cannot be fixed without violating the Control Order and as on date, there is no power to determine “L” factor much less provisional “L” factor. It is submitted that even when clause (5A) and the Second Schedule were there in the Control Order, “L” factor can be fixed by taking note of empirical data of the entire country and not two States alone. Further, it is submitted that even assuming, there is power to determine the “L” factor, the private Sugar Mills are entitled to plead set off, since they have made payments to the cane growers namely, the payments made on the state advisory price, which is over the price fixed under clause 3 of the Control Order.

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In support of his contention, Mr.P.S.Raman, referred to the following decisions:-

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(i)U.P.Cooperative Cane Unions Federations vs. West U.P.Sugar Mills Association and Ors., [2004 (5) SCC 430] ; (ii)Kolhapur Canesugar Works Ltd., vs. UOI, [2000 (2) SCC 536]; (iii)Darius Rutton Kavasmaneck vs. Gharda Chemicals [2014 SCC Online 853];

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(iv)D.S.Nakara vs. UOI [(1983) 1 SCC 305];

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(v)Air India vs. Nergeesh Meerza [(1981) 4 SCC 335];

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(vi)M/s.Prag Ice & Oil Mills & Anr., vs. UOI [(1978) 3 SCC 459];

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(vii)MGB Gramin Bank vs. Chakrawarti Singh [(2014) 13 SCC 583];

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(viii)Bhavnagar University vs. Palitana Sugar Mill (P) Ltd., & Ors., [(2003) 2 SCC 111];

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(ix)Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise & Anr., [(2016) 3 SCC 643].

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Mr.G.Rajagopalan, learned Additional Solicitor General of India appearing for the first respondent submitted that clause (5A) of the Control Order obligates the sugar manufacturers to pay the additional price for sugar cane and this price is a liability cast upon them and omission of clause (5A) will not do away with the liability. It is submitted that the Writ Petition is pre-mature, since for the purpose of computing additional price, one of the components is the “L” factor and several details have to be furnished to enable computation of the additional price and an aggrieved person has got a right of appeal against such order and the Sugar Mills Association should not be permitted to approach this Court at this juncture solely based upon communication from the first respondent to the second respondent and the consequential communication by the second respondent to the Sugar Mills calling for details. The learned Additional Solicitor General of India has drawn the attention of this Court to the amendment to the EC Act in 2009, elaborated upon the objects and reasons, laid emphasis on the penalties contemplated under Section 7, the effect of the orders passed under Section 3 of the Act to state they are mandatory nature of such orders. Further, it is submitted that the EC Act is a beneficial legislation to protect the interest of agriculturist and they have a vested right to receive the additional cane price and the computation would be done in terms of the law, which was applicable for the period during which the amount is payable. Reference was made to Section 24 of the General Clauses Act and to the decision of the Hon'ble Supreme Court in the case of Fibre Boards Private Limited, Bangalore vs. Commissioner of Income Tax, Bangalore [(2015) 10 SCC 333]. Placing reliance on the decision in the case of Chief Inspector of Mines and Anr., vs. Lala Karam Chand Thapar & Anr., [AIR 1961 SC 838] it is submitted that subordinate legislation is part of the main enactment and to be treated as if it is contained in the Act and in terms of Section 24 of the General Clauses Act, the provision continues to be in operation. Further, it is submitted that this liability which is cast upon the Sugar Mills is payable upon fixation of the additional price, one of the components which goes into such fixation is “L” factor and the statute does not state as to when the additional price has to be fixed. Referring to the decision in the case of Commissioner vs. Griha Yajamanula Samkhya & Ors., [(2001) 5 SCC 651]. It is submitted that the provisional “L” factor has been determined taking into consideration the relevant factors and as long as there is a rational basis for such fixation, Article 14 will not be in the way of such fixation. To support such contention, reliance was placed on

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the decision of the Hon'ble Supreme Court in the case of K.T.Moopil Nair vs. State of Kerala [AIR 1961 SC 552]. Reliance was also placed on the decisions of the Hon'ble Supreme Court in the case of State of U.P., vs. Mohammad Nooh [AIR 1958 SC 86] and the decision in the case of UOI vs. Glazo India Limited & Anr., [(2011) 6 SCC 668].

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The learned Additional Solicitor General of India also referred to the Halsbury's Laws of England-third & fourth Edition, to support his interpretation of subordinate legislation stating that the same must be construed in accordance with the General Rules as those, which govern the interpretation of statute. Reference was also made to Interpretation of Statute second edition 2016 by P.M.Bakshi. Reliance was also placed on the decision of the Hon'ble Supreme Court in the case of State of Uttar Pradesh vs. Bansidhar & Ors., [(1974) 1 SCC 446]. Referring to the decision in the case of UOI vs. Cynamide India Ltd & Anr., [(1987) 2 SCC 720], it is submitted that price fixation is more in the nature of a legislative activity than any other. To explain the predominant object of the EC Act and the orders passed thereunder as well as under the Control Order, reliance was placed on the decision of the Hon'ble Supreme Court in the case of K.Ramanathan vs. State of Tamil Nadu & Ors., [(1985) 2 SCC 116]. Explaining the effect of “omission”, “deletion” and “repeal”, reliance was placed on the decision of the Hon'ble Supreme Court in the case of Shree Bhagwati Steel Rolling Mills vs. Commissioner of Central Excise & Anr., [(2016) 3 SCC 643]. Referring to the decision in the case of Britannai Industries Ltd., vs Commissioner of Income Tax WB, Kolkata & Anr., [(2006) 1 SCC 646], it is submitted that clause (5B) was available in the Control Orders at the relevant time and therefore, the liability under the said clause, cannot be avoided. Referring to the decision of the Hon'ble Supreme Court in the case of Sikkim Subba Associates vs. State of Sikkim [(2001) 5 SCC 629], it is submitted that the liability on the Sugar Mills cannot be avoided, as it is a liability and the right to receive such payment of additional price is a vested right of the cane growers.

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Mr.S.Udayakumar, learned counsel appearing for the Cane Growers Association, third respondent, referred to the counter affidavit filed by the first respondent and submitted that the Central Government is required to announce the “L” factors for the sugar seasons upto 2008-09. That the sugar producing States of the country are bifurcated into 19 zones and the “L” factor is announced zone-wise. Referring to Explanation 3 of the Second Schedule of the Control Order, the various factors, which are to be taken into account for calculating the “L” factor were referred to. It is submitted that pursuant to the interim orders passed by this Court in Writ Petition filed by the third

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respondent association and in terms of clause (5A) of the Control Order, provisional “L” factor was determined and communicated to the State Government. It is submitted that the State Government regulates and monitors the payment of cane price and the role of the Central Government is limited to fixation of “L” factor only and it has no other role to play. Referring to the impugned communication, it is submitted that what has been fixed in the provisional unit cost known as "L" factor which was done after obtaining the data from the sugar mills, the additional cane price will be calculated and such power has been delegated and obligated to the State Government. It is further submitted that in terms of Section 5 of the EC Act, the Central Government has delegated the power and competent authority is the second respondent. To Explain the meaning and scope of the EC Act, reliance was placed on the decision of the Hon'ble Supreme Court in the case of M/s.Ram Chandra Mawa Lal, Varanasi & Ors., vs. State of U.P., & Ors., [1984 (Supp) SCC 28]; referring to the decision of the Constitution Bench in Harishankar Bagla & Anr., vs. The State of M.P., [AIR 1954 SC 465], it is submitted that the amendment made in the Control Order in the year 2009 does not either expressly or by implication repeal any of the provisions of the preexisting Control Order, which is the relevant law for the relevant sugar season and that the amendment to the Control Order made in the year 2009 does not in any manner destroy the rights of the sugarcane growers. In support of such contention, reliance was placed on the decision of the Hon'ble Supreme Court in the case of Gammon India Ltd., vs. Special Chief Secretary & Ors., [(2006) 3 SCC 354]. It is further submitted that the right to receive the additional cane price, vested and accrued right cannot be denied and to support of such contention, reliance was placed on the decision in the case of Commissioner of Income Tax, U.P., vs. M/s.Shah Sadiq & Sons, [(1987) 3 SCC 516].

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By way of reply submission Mr.P.S.Raman, would contend that the decision in Fibre Boards Private Limited, Bangalore (supra), answers the question in favour of the petitioner association and referred to certain paragraphs to bring out the difference between a "repeal" and "omission". It is further submitted that whether it is omission or deletion, the same has no difference as explained in the decision in the case of Shree Bhagwati Steel Rolling Mills (supra). It is further submitted that in plenary legislation, Section 5 will apply, but not in the reading of the secondary legislation. Further, it is submitted that the right claimed by the sugar cane growers is not a vested right and this is sought to be explained by contending that “L” factor is a policy decision of the State and does not give any vested right and attention was invited to the decision in the case of MGB Gramin Bank (supra). Thus, it is

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the submission that fixation of “L” factor can be done only in the manner provided under the Control Order and without violating the provisions of the Control Order, “L” factor cannot be fixed, as on date, apart from total lack of power to fix provisional “L” factor. It is further submitted that the learned Additional Solicitor General has drawn the attention of the Court to clause 3B of the Control Order and submitted the said clause refers expressly to payment made by the authority fixing the price of sugar. It is submitted that any payment made under clause 3B of the Control Order would need to be made by the authority or Central Government and not by the Sugar Mills. Therefore, it is submitted that clause 3B of the Control Order will have no application to the present case. It is further submitted that all the members of the petitioner association, which is 18 in number have paid the Statutory Minimum Price to the cane growers and no amount remains outstanding.

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Heard the learned counsels appearing for the parties and perused the material placed on record.

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The writ petition filed by the South India Sugar Mills Association which has been taken as the lead case pray for issuance of a writ of Certiorarified Mandamus to quash the communication issued by the second respondent dated 11.03.2015 and 13.03.2015 and for a consequential direction to forbear the respondents 1 and 2 from determining the value of sugar in rupees during the sugar years 2004-05 to 2008-09 in terms of the (omitted) second schedule of the Sugarcane (Control) Order, 1966 and from consequently declaring any price for sugarcane payable by sugar producers in the State of Tamil Nadu over and above the price fixed under Clause 3 of the Sugarcane (Control) Order, 1966 for the sugar seasons 2004-05 to 2008-09.

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21.The impugned communications in my considered view can hardly be taken to be the impugned orders for the petitioner to be aggrieved. To my mind these are the communications sent by the Director of Sugar to various sugar mills inviting their attention to the communication of Government of India dated 09.03.2015, whereby the Government of India have communicated the “L” factor for 2004-05 to 2008-09 sugar seasons for Tamil Nadu and Puducherry zone to determine the additional cane price under Clause 5A of the Sugarcane (Control) Order, 1966. The members of the petitioner Association were requested to compute Clause 5A price (additional cane price) for the said sugar seasons as per second schedule under Clause 5A and send a report on or before 18.03.2052. The second communication dated 13.03.2015 is in continuation of first communication dated 11.03.2015 calling upon the officers of various sugar mills to attend a meeting to meet the Chief Accountant/Accounts Officer

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along with relevant particulars as mentioned in the said communication. Thus, what has been questioned in the writ petition are not orders passed by the authorities but the communication sent to them for computing the additional cane price. Thus, the learned Additional Solicitor General is right in his submission that the writ petitions are premature. However, I do not propose to non-suit the petitioner on the said ground because elaborate arguments were advanced by the learned counsels on either side and therefore, proceed to consider the plea raised by the petitioner and countered by the respondents.

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22.The first contention raised on behalf of the petitioner is that by virtue of 2009 amendment to the Sugarcane (Control) Order, SMP was substituted by FRP and FRP includes consideration of additional factor in fixing cane price, namely, reasonable returns and consequent upon the amendment, Clause 5A and second schedule to the Sugarcane (Control) Order stood omitted with effect from 22.10.2009 and therefore, the first respondent has no jurisdiction to determine the “L” factor for the sugar seasons 2004-05 to 2008-09. It is the submission of the learned senior counsel for the petitioner that Clause 5A of the Sugarcane (Control) Order stood omitted and ceased to have effect from 22.10.2009 and such omission is not saved in terms of Section 6 of the General Clauses Act as the said section deals with only repeal of any Central Act or regulation and the Control Order having been issued in exercise of the executive power of the Government of India under Section 3 of the Essential Commodities Act will not be saved as the said Control Order would not fall within the definition of an enactment in terms of Section 6 of the General Clauses Act.

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23.In the case of Kolhapur Canesugar Works Ltd. and another (supra), the question raised relates to the applicability of Rule 10A of the Central Excise Rules. Before the High Court one of the contentions raised on behalf of the appellants before the Hon'ble Supreme Court was that the said Rule stood deleted and new Rule 10 was introduced by notification dated 06.08.1977, the effect of such deletion and introduction of a new provision was that the old Rules under which the show cause notice was issued ceased to exist. It was further contended that Section 6 of the General Clauses Act has no application in the case because it does not apply to the repeal of statutory rules and also because it applies only where there is a repeal by a Central Act whereas in the said case, repeal was by a notification. After noting the definitions of Central Act as defined under Section 3(7), Enactment as defined in Section 3(19), Regulation as defined in Section 3(50) and Rule in Section 3(51) and various earlier decisions, it was held that Section 6 of the General Clauses Act only applies to repeals and not to omissions and applies when repeal is of a Central Act or Regulation and not of a Rule.

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Further it was pointed out that when the legislature by clear and unambiguous language extended the provision of Section 6 to cases of repeal of a “Central Act” or “Regulation”, it is not possible to apply the provision to cases of repeal of a “Rule”. Further it was held that the position will not be different even if the Rule has been framed by virtue of the power vested under an enactment; it remains a “Rule” and takes it colour from the definition of the term in the Act (General Clauses Act). It was pointed out that in such cases, the Court is to look to the provision in the Rule which has been introduced after omission of the previous Rule to determine whether pending proceedings will continue or lapse. If there is a provision therein that pending proceedings shall continue and be disposed of under the old Rule as if the Rule has not been deleted or omitted, then such proceedings will continue. Further if the case is covered by Section 6 of the General Clauses Act or there is a pari materia provision in the statute under which the Rule has been framed, in that case also pending proceedings will not be affected by the provision of the Rule. It was further held that in the absence of any such provision in the statute or in the Rule, the pending proceedings would lapse on the Rule under which the notice was issued or proceedings were initiation being deleted/omitted. It was further held that the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed and the statute must be considered as a law that never existed. To this Rule, an exception was engrafted by the provisions of Section 6(1) of the General Clauses Act. It was pointed out that if a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where omissions finds them and if final relief has not been granted before omission goes into effect, it cannot be granted afterwards. Further it was pointed that when a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings, then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision.

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24.In the case of Darius Rutton Kavasmaneck (supra), it was pointed out that it is settled principles of statutory interpretation that the repeal of an enactment effaces the repealed statute from the statute book abinitio thereby creating a fiction in law that such a statute never existed, never created in any legal consequences except for rights and obligation which emanated from various acts and omissions covered by the statute and are saved by express provisions under

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the repealed Act or by virtue of the provisions of the General Clauses Act.

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25.In the case of Shree Bhagwati Steel Rolling Mills , one of the question which was considered is whether omissions of a compounded levy scheme in 2001 wipes out the liability of the assessee for the period during which the scheme was in operation. In the said case, the High Court had held that on omission the liability of the assessee was not wiped out. Before the Hon'ble Supreme Court, it was argued that omission would amount to a repeal for the purposes of Section 24 of the General Clauses Act. It was pointed out that the expression “ Repeal” is used in both Sections 6 and 24 of the General Clauses Act, construction of the said expression in both the sections would therefore include within it the omissions made by legislature. While answering the question, it was held that on a conjoint reading of the three expressions “delete”, “omit” and “repeal”, it becomes clear that “delete” and “omit” are used interchangeable, so that when the expression “repeal” refers to delete it would necessarily take within its ken an omission as well. It was pointed out that there is no substance in the argument that “repeal” amounts to an obliteration from the very beginning whereas omission is only in futuro. Thus, it was held that omission being tantamount to a deletion as a form of repeal.

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26.The question is whether these decisions would come to the aid of the petitioner to escape from the liability to pay additional cane price. The Sugarcane Control Order has been passed in exercise of the powers conferred under Section 3 of the Essential Commodities Act, 1955 as it stood amended from time to time. The Essential Commodities Act was enacted to provide, in the interest of general public, for the control of the production, supply and distribution of trade and commerce in certain commodities. The amendment to the Act which was brought in the year 2009 assumes importance in this case to understand as to what are the rights and liability of both the cane growers and the sugar mills.

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27.The Hon'ble Supreme Court in the case of Modi Industries Ltd. and another vs. Union of India reported in (1999) 9 SCC 245 accepted the statement made on behalf of the Union of India that while determining the minimum can price of levy sugar, regard had been given only to the minimum cane price referred to in Section 3(3-C) of the Essential Commodities Act and that the additional cane price payable under Clause 5A of the Sugarcane (Control) Order, 1966 had not been taken into account and held that the case was not covered by the decision of the Hon'ble Supreme Court in Shri Malaprabha Cooperative Sugar Factory Ltd. vs. Union of India [(1994) 1 SCC 648 (referred as Malaprabha

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(1)). Subsequently, the decision of a Bench of three Judges of the Supreme Court in the case referred as Malaprabha (2) reported in (1997) 10 SCC 216 held that the decision in Modi Industries' case did not have any bearing on the fixation of price of levy sugar for the year 1975-79 to 1979-80. The decision in the case of Modi Industries was followed in the case of Bharat Sugar Mills Ltd. and another vs. Union of India dated 19.08.1998 after noticing the judgments in Malaprabha (1) and Malaprabha (2). In the case of Union of India and others vs. Triveni Engineering Works Ltd. [(1999) 9 SCC 244], the appeal of the Union of India was allowed relying upon the decision in Modi Industries' case and the decision of the Bench of two Judges of the Supreme Court in the case of Bharat Sugar Mills Ltd. Inthe case of Shri Malaprabha Cooperative Sugar Factory Ltd. vs. Union of India [(2002 ) 9 SCC 716], contempt petitions filed against the Union of India for alleged non-compliance with the decision in Malaprabha (1) and Malaprabha (2), were dismissed and the working statement given before the Hon'ble court was taken into account not to the full extent as desired by the petitioner.

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28.The Essential Commodities (Amendment and Validation) Act, 2009 stated that notwithstanding the judgment in Modi Industries case, Bharat Sugar Mills case, Triveni Engineering Works Ltd. case, Malaprabha (3), etc., in relation to sugar seasons 1983-84 and 1984-85, held that the actual price payable to cane growers was absolutely relevant for determining the price of levy sugar. The Act noted the conflicting decisions as to the factors to be taken into consideration in determining the price of levy sugar. Accordingly, it became necessary to make suitable amendments to the Essential Commodities Act to clarify and reiterate the underlying principles and the facts that noted to be taken into consideration in determining the price of levy sugar and to give effect accordingly. Apart from that, in order to remove doubts and ambiguities it was decided to give such provision retrospective effect to validate the determination of price of levy sugar by the Central Government from time to time pursuant to the provisions of the Essential Commodities Act, 1955. On the other hand, the amendment which was brought about in 2009 had made radical changes in the scheme of working of the Act. Section 3 of the Essential Commodities Act confers wide power on the Central Government to order for regulation or prohibiting production, supply and distribution thereof and trade and commerce of Essential Commodities and Sub-section (2) provides list of various types of orders that may be passed without prejudice to the generality of powers conferred by sub-section (1) of Section 3 of the Essential Commodities Act.

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29.The sheet anchor of the argument of the petitioner is that on and after the amendment in 2009 to the Control Order deleting the statutory minimum price and substituting fair and

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remunerative price consequently omission of second schedule with effect from 22.10.2009 leads to a situation where the first respondent has no jurisdiction to determine the "L" factor for the sugar seasons 2004-05 to 2008-09. The argument is further supplemented by contending that the omission of second schedule with effect from 22.10.2009 is a deletion and no action can be taken on a deleted/omitted provision since Section 6 of the General Clauses Act would have no application to a Control Order which is neither an enactment nor a regulation in terms of Section 6 of the General Clauses Act. Though at the first blush, the argument advanced on behalf of the petitioner appears to be impressive, but on a closer scrutiny, more particularly, considering the scope of Essential Commodities Act and the object of the Control Order, makes me think otherwise. The power to fix "L" factor is traceable to the provisions of the Control Order which is an order passed in exercise of the powers conferred under Section 3 of the Essential Commodities ACt.

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30.The Hon'ble Supreme Court in the case of Union of India vs. Cynamide India Ltd and another [(1987) 2 SCC 720] held that the price fixation is more in the nature of a legislative activity than any other. It was further held that administration and administrative adjudication may also be of general application and they may be legislation of particular application only. Further it was pointed out that adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future course of action. Adjudication is determinative of the past and the present while legislation is indicative of the future. A price fixation measure does not concern itself with interest of an individual manufacturer or producer. It is generally in relation to a particular commodity or class of commodities or transactions. It is a direction of a general character, not directed against a particular situation. It is intended to operate in future. It is conceived in the interest of the general consumer public. The right of the citizen to obtain essential articles at fair prices and the duty of the State to so provide them are transformed into the power of the State to fix prices and the obligation of the producer to charge not more than the price fixed. Further it was held that viewed from whatever angle, the angle of general application the prospectivity of its effect, the public interest served and the rights and obligations flowing therefrom, there can be no question that price fixation is ordinarily a legislative activity.

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31.In the case of K.Ramanathan vs. State of Tamil Nadu and another [(1985) 2 SCC 116], the Court analysed the object, preamble to the Act and it was held that the predominant object of the Act is to provide in the interest of the general public,

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for the control of the production, supply and distribution of and trade and commerce in certain commodities. It is a piece of socioeconomic legislation enacted in the national interest to secure control over the production, supply and distribution of and trade and commerce in essential commodities. The various Control Orders issued by the Central Government in sub-section (1) of Section 3 of the Act or by the State Government under Section 3 read with Section 5 have introduced a system of checks and balances to achieve the object of the legislation, i.e. to ensure equitable distribution and availability of essential commodities at fair prices. It was further held that special public interest in an industry e.g. that it is engaged in the production of a commodity vitally essential to the community, may justify the regulation of its production, supply and distribution and its trade and commerce, provided such regulation is not arbitrary and has a rationale nexus with the object sought to be achieved.

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32.The above decisions and the Amendment and Validation Act, 2009 gives a clear picture as to the object of the Essential Commodities Act and no attempt can be permitted to be made to dilute the object and if done would be against the public interest. Bearing this in mind, I proceed to consider the contentions of the petitioner that the relevant Control Order/second schedule having been omitted, there is no power to fix the "L" factor at this juncture having not fixed it earlier. It may be true that the Central Government thought fit to introduce a different price called as a fair and remunerative price, wherein several factors were to be taken note of while fixing the price. This was to ensure that the interest of agriculturist is protected. The agriculturist get a fair deal for their produce. The fixation had to be on scientific terms taking into consideration all relevant parameters. Thus, sufficient thought process has gone into to determine as to what are the factors which are to be taken note of for arriving at the FRP. Admittedly, prior to the introduction of FRP, SMP was the price payable to the cane growers.

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33.In my considered view, the right of the cane growers to be entitled to SMP is a statutory right. It accrues on the date when supply of sugarcane is made to the sugar mills. Though subsequently the Central Government thought fit to introduce a new system of determining fair price and brought about FRP that would not in any manner affect the rights of the cane growers to be entitled to SMP, as it was very much available in the Sugarcane (Control) Order at the relevant time during which supply of sugarcane has been done.

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34.In the case of Britannia Industries Ltd. (supra), it has been held that though at a subsequent point of time, the

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Legislature felt it necessary to omit the said provision, but they were in the statute book at the relevant point of time and the rigour of the same cannot be avoided in the instant case.

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35.In the case of Sikkim Subba Associates (supra), it was held that apart from the axiomatic principle of law that a subordinate legislation in the form of Rule or Notification could not be made/unmade retrospectively unless any power in that regard has been specifically conferred upon the Rule-making Authority, a mere retrospective deletion could not be per se have the effect of nullifying or destroying orders passed or acts already performed, when such powers were available in the absence of any specific statutory provision enacted to destroy all such rights already acquired or obligations and liabilities incurred.

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36.The petitioner do not contend that at the relevant time, the cane growers were not entitled for SMP. Their objection itself is that the Central Government as on date could not have fixed "L" factor or provisional "L" factor after 2009 amendment. As pointed out earlier, the rights have accrued with the cane growers and this right which has accrued for all the relevant years upto the year 2009 cannot be obliterated or wiped away by virtue of the amendment introducing a different system for ensure fair price for the cane growers. Therefore, in my considered view, the question of going into as to what is the effect of repeal or omission or deletion becomes entirely academic in the facts and circumstances of this case.

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37.At this juncture, it would be beneficial to refer to the decision of the Hon'ble Supreme Court in the case of M/s.Ram Chandra Mawa Lal (supra), wherein it was held that Section 6 of the Essential Commodities Act saves any order made in Section 3 of the Act from the impact of any other enactment. Thus, this is the supremacy of this legislature which was brought in, in the public interest. Though it was pointed out that the issue regarding the repeal, omission or deletion has become academic, it would be worthwhile to take note of the decision of the Constitutional Bench in the case of Harishankar Bagla and another (supra) which arose under the provisions of the Essential Supplies (Temporary Powers) Act, 1946 r/w. Clause 3 of the Cotton Textiles (Control of Movement) Order, 1948. Section 6 of the Essential Supplies (Temporary Powers) Act, 1946 stated that any order made under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act. The High Court held Section 6 to be unconstitutional. Reversing the decision, the Hon'ble Supreme Court held as follows:

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"....... Section 6 does not either expressly or by implication repeal any of the provisions of pre-existing laws; neither does it abrogate them. Those laws remain untouched and unaffected so far as the statute book is concerned. The repeal of a statute means as if the repealed statute was never on the statute book. It is wiped out from the statute book. The effect of section 6 certainly is not to repeal any one of those laws or abrogate them. Its object is simply to by-pass them where they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) Act, 1946, or the orders made thereunder. In other words, the orders made under section 3 would be operative in regard to the, essential commodity covered by the Textile Control Order wherever there is repugnancy in this Order with the existing laws and to that extent the existing laws with regard to those commodities will not operate. By-passing a certain law does not necessarily amount to repeal or abrogation of that law. That law remains unrepealed but during the continuance of the order made under section 3 it does not operate in that field for the time being. The ambit of its operation is thus limited without there being any repeal of any one of its provisions."

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38.In terms of the above decision, the effect of Section 6 is not to repeal anyone of those laws or abrogate them. Its object is to simply by-pass them when they are inconsistent with the provisions of the Essential Supplies (Temporary Powers) act, 1946 or the orders made thereunder. It was therefore held that the orders made under Section 3 of the said Act would be operative in regard to the essential commodity covered by the Textile Control Order wherever there is repugnancy in this the said order with the existing laws and to that extent, the existing law with regard to those commodities will not operate. The decision would aid the interpretation given by the respondents and convinces me to hold that the substitution of SMP for FRP and deletion of second schedule cannot take away the accrued right of the cane growers when the second schedule/SMP was in the Control Order.

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39.The decision in the case of Gammon India Ltd (supra) would also come to the assistance of the respondents. The question was whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless as the section itself says, a different intention appears. In the said decision it was held as follows:

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"46........But when the repeal is followed by fresh legislation on the same subject we would

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undoubtedly have to look to the provisions of the new Act, but only for the purposes of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore, subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section.

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56.A three-Judge Bench of this Court in India Tobacco Co. Ltd. vs. CTO, (1975) 3 SCC 512, held that repeal is not a matter of mere form but is of substance, depending on the intention of the legislature. If the intention indicated either expressly or by necessary implication in the subsequent statute was to abrogate or wipe off the former enactment wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by super-adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal. Broadly speaking, the principal object of a repealing and amending Act is to 'excise dead matter, prune off superfluities and reject clearly inconsistent enactments'.

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73.........whenever there is a repeal of an enactment and simultaneous reenactment, the reenactment is to be considered as reaffirmation of the old law and provisions of the repealed Act which are thus reenacted continue in force uninterruptedly unless, the reenacted enactment manifests an intention incompatible with or contrary to the provisions of the repealed Act. Such incompatibility will have to be ascertained from a consideration of the relevant provisions of the reenacted enactment and the mere absence of saving clause is, by itself, not material for consideration of all the relevant provisions of the new enactment. In other words, a clear legislative intention of the reenacted enactment has to be inferred and gathered whether it intended to preserve all the rights and liabilities of a repealed statute intact or

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modify or to obliterate them altogether."

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40.The legal principle that can be culled out from the above decision is that the substance depending on the intention of the legislature has to be borne in mind. As pointed out earlier, the right to be entitled to a fair SMP accrued in favour of the cane growers and it became vested right and merely because, a new type of procedure was prescribed to determine the fair price payable to the cane growers, it cannot destroy the accrued and vested rights and by introducing a new procedure after 2009, the Government was clear in its intention to preserve all rights and liabilities under the earlier Control Order/procedure and it never intended to modify or obliterate them altogether.

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41.The Hon'ble Supreme Court in the case of M/s.Shah Sadiq and sons (supra) succinctly explained the distinction between a vested and accrued right by examining the provisions of the Income Tax Act, 1922. Under the said Act, the assessee was entitled to carry forward the lossess of the speculation business and set off such losses against profits made from that business in future years. The right of carrying forward and set off accrued to the assessee under the Act of 1922. It was held that a right which had accrued and had become vested continued to be capable of being enforced notwithstanding the repeal of the statute under which the right accrued unless the repealing statute took away such right expressly or by necessary implication.

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42.Nowhere in the amendment which came into force in 2009 there is any such intention to obliterate or to deny the benefit which has accrued in favour of the cane growers. The Central Government is right in its stand in contending that the Sugarcane Control Amendment Order, 2009 dated 22.10.2009 is prospective in effect from the date of its publication in the official gazette and as said, the Sugar mills are required to pay additional cane price as determined by the State Government under Clause 5A of the Sugarcane Control Order, 1966 upto sugar season 2008-09. Further, it is to be noted that nowhere in the Control Order there is any time limit fixed for arriving at the "L" factor. Therefore, such a ground cannot be canvassed by the petitioner to deny and defeat the vested rights of the cane growers. Furthermore, the petitioner Association as well as its members have stated that they have paid the cane growers more than what they are required to pay. In otherwords contending that if at all any additional cane price is to be determined, then it would be a case where excess payment has already been made and the members of the petitioner Association would be entitled to plead set off. Thus, the members of the petitioner Association were clear in their mind that this statutory liability cannot be avoided, it is a vested right of the cane

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growers and the present plea before this Court citing the amendment of the Control Order in the year 2009 is a far fetched plea and liable to be rejected. Financial hardship and difficulties can hardly be a mitigating factor in the case on hand. The cane growers is pitted against the sugar manufacturers. If both are put on a scale, undoubtedly the scale will tilt in favour of the cane growers/agriculturists. Thus, financial hardship or difficulties can hardly be a reason to avoid the liability.

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43.One more argument advanced by the learned senior counsel for the petitioner is that there is no power to fix the provisional "L" factor. In the preceding paragraphs, this Court has held that the cane growers are entitled to additional cane price. One of the factor for determining the additional cane price is the "L" factor and the jurisdiction of the Central Government to determine the same has not been questioned on any other ground except on the ground that after 2009, i.e. after the amendment such power cannot be exercised. This argument has been rejected by holding that whatever is the law applicable for the period in question would apply. Thus, in the absence of any other challenge to the power of the Central Government to fix the "L" factor, it hardly matters whether it is the provisional "L" factor or a final "L" factor, after getting the empirical data the amount will be calculated and that power is delegated by the Government under Section 5 of the Act and the competent authority is the second respondent. Therefore, the contention advanced by the petitioner on this ground also does not merit acceptance.

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44.The learned Additional Solicitor General is right in submitting that the word 'provisional' has to be ignored because what is to be determined by the Central Government is the "L" factor and merely because the Central Government has used the word 'provisional' does not make it illegal or without jurisdiction. Furthermore, the sugar mills were fully aware of their liability and the liability having stood crystallised, the sugar mills are bound to pay the price as calculated by the second respondent after the particulars are furnished by the sugar mills as called upon by the impugned communication.

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45.An argument was advanced that "L" factor has not been determined or fixed by the Central Government for any other State in the Country except in Tamil Nadu and Puducherry and therefore, it is discriminatory and violative of Article 14 of the Constitution of India. I do not agree with the said submission for more than one reason. Firstly, action was taken by the Government to determine the "L" factor pursuant to the direction issued by this Court in W.P.Nos.531, and 532 of 2015

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https://hcservices.ecourts.gov.in/hcservices/

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and 2369 of 2015 filed by the third respondent Association. Therefore, the Central Government has complied with the direction issued by the Court and proceeded to fix the "L" factor. Secondly there is no restriction or embargo in the Act or in the Control Order that 'L' factor has to be fixed at the same time throughout the Country. The 'L' factor having been deferred for the State of Tamil Nadu & Puducherry there is no discrimination. Therefore, the plea of discrimination can never be raised by the petitioner.

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46.Thus, for all the above reasons, the petitioners have not made out any case for interfering with the impugned communication. Accordingly, the writ petition filed by the Sugar Mills Association and other individual Sugar Mills are dismissed. In so far as the writ petitions filed by the cane growers and their Association are concerned, they stand disposed of by directing the Sugar Mills to furnish the details as called for by the second respondent in the communications dated 11.03.2015 and 13.03.2015 within a period of seven days from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.

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Sd/-

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Assistant Registrar(CS V)

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//True Copy//

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Sub Assistant Registrar

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cse/pbn

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The Union of India,

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Rep., by the Secretary/Deputy Secretary to Govt., Ministry of Consumer Affairs, Food and

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Public Distribution,

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Department of Food and Public Distribution,

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Krishi Bhavan, New Delhi – 110 114.

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The Director of Sugar & Cane Commissioner of Tamil Nadu,

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690, Anna Salai,

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Nandanam, Chennai – 600 035.

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+1cc to Mr.S.Udayakumar, Advocate, S.R.No.12912

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+1cc to M/s.K.Kumudha, Advocate, S.R.No.12913

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+1cc to Mr.R.Bala Ramesh, Advocate, S.R.No.12799

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https://hcservices.ecourts.gov.in/hcservices/

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+2cc to Mr.R.Parthasarathy, Advocate, S.R.No.13373, 12987

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+1cc to Mr.A.Kumaraguru, Advocate, S.R.No.13202

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+1cc to Mr.J.Madanagopal Rao, Advocate, S.R.No.13219

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+1cc to the Government Pleader, S.R.No.13420 to 13423, 13426,

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13428 to 13435

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+1cc to Mr.G.Baskaran, CGSC, S.R.No.12704 (07/05/2019)

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Writ Petition Nos.7872, 13951, 531, 532, 2026, 2369, 3382, 3383, 3581, 4095, 5047, 5539, 8306, 9047, 9781, 9938,12060 to 12062 of 2015 W.P.No.33387 of 2013, W.P.No.5841, 6220 to 6222 of 2017

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KAN(CO) CS/01/04/2019 CS/12/04/2019

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https://hcservices.ecourts.gov.in/hcservices/

The South Indian Sugar Mills v. The Union of India, Rep. by

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The South Indian Sugar Mills v. The Union of India, Rep. by

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