- (1.) M. Katju, J. Heard Sri Sudhir Chandra and Sri Tarun Agarwal learned Counsel for the petitioner and learned Standing Counsel and Sri Ganga Singh for the respondents.
(2.) THE petitioner has challenged the impugned order of the Cane Commissioner U. P. dated 10-4-2003 Annexure P-1 to the petition by which he has issued direction for commission under Section 18 of the U. P. Sugar Cane (Regulation of Supply and Purchase) Act, 1953. Under that provision, commission is payable by the sugar factory to the Cane Growers Co-operative Society for the work done by the Society in organizing and supplying cane from the cane growers. THE cane commission is fixed under Section 18 of the aforesaid Act which states: "18. Commission on purchase of cane.- (1) THEre shall be paid by the occupier of a factory or a Gur, Rab or Khandsari Sugar Manufacturing unit a commission for very one maund of cane purchased by the factory or a Gur, Rab or Khandsari Sugar Manufacturing Unit - (a) where the purchase is made through a Cane growers Co-operative Society, the commission shall be payable to the Cane growers Co- operative Society and the Council in such proportion as the State Government may declare, so, however, that the share payable to the Council shall not exceed 50 per cent; and (b) where the purchase is made directly from the cane- grower, the commission shall be payable to the Council: Provided that different rates of commission may be prescribed for a factory and for a Gur or Khandsari, Sugar Manufacturing unit: Provided further that the State Government may by notification in the official Gazette remit in whole or in part such commission in respect of a factory or a Gur, Rab or Khandsari Sugar Manufacturing Unit for a limited purpose specified in the notification. (2) THE commission payable under Clauses (a) and (b) of sub- section (1) shall be at such rates as may be prescribed; provided, however, that the rate fixed under clause (b) shall not exceed the rate at which the commission may be payable to the Council under clause (a ). " Learned Counsel for the petitioner Sri Sudhir Chandra urged that the commission payable to the cane co-operative society it to be co-related to one weight of the cane purchased by the factory as mentioned in Section 18. We agree with his submission so far as this aspect of his submission is concerned. Rule 49 of the Rules made under the Act as it originally stood stated. " (49 ). The occupier of a factory shall pay a commission at the rate of fifty paise per quintal for the cane purchased. " Subsequently, however, Rule 49 was substituted, and the new rule is quoted in para 18 of the writ petition which reads as follows:
(3.) THE occupier of a factory shall pay a commission on cane purchased at the rate of 3% of the minimum statutory cane price fixed by the Government of India out of which 75% shall be payable to the Cane Growers' Co-operative Society and 25% to the Council. Sri Sudhir Chandra learned Counsel for the petitioner submitted that the new Rule 49 is ultra vires Section 18 of the Act because under it the commission payable is not related to the weight of the sugarcane. We do not agree with his submission. No doubt the new Rule 49 states that the commission payable is at the rate of 3% of the minimum statutory cane price fixed by the Central Government but this statutory cane price is directly co- related with the weight of the sugarcane as is evident from the order of the Central Government dated 5-8-2002 Annexure 4 to the writ petition. The order dated 5-8- 2002 states that the statutory minimum price for sugarcane payable for the year 2002-03 is Rs. 64. 50 per quintal and it is stated in para 19 of the petition that subsequently this was increased to Rs. 69. 50 per quintal. No doubt the cane price payable is also linked with the recovery but that is not the thrust of the Government order dated 5-8-2002. The thrust of the G. O. dated 5-8-2002 is that the statutory minimum sugar cane price is fixed at Rs. 64. 50 per quintal. No doubt this is linked to the basic recovery of 8. 5% subject to a premium of 76 paisa for every 0. 1% increase in recovery, but in our opinion this is only incidental. In our opinion, small variations here and there will not change the legal position. The increase in the cane price when the recovery increases is only a subordinate matter. Hence we are clearly of the opinion that the commission payable under Section 18 is connected with the weight of sugarcane purchased, even though the connection is indirect and through an intervening step.;