- (1.) J. C. S. Rawat, J. Since there is a common question of law and fact involved in both petitions, therefore, both petitions have been heard together and are being disposed of by this common judgment.
(2.) BY means of Writ Petition No. 204 of 2008 (WB), the petitioners have sought the following reliefs : " (i) issue a writ, order or direction or writ in the nature of certiorari quashing the notification/ order dated 23rd January, 2008, fixing the SAP of Rs. 1321- per quintal for early maturing cane varieties and Rs. 1271- per quintal for gen eral cane varieties, issued by re spondent no. 1, as contained in Annexure No. 1 to me writ peti tion. (ii) issue a writ, order or direction or writ in the nature of mandamus declaring section 16 of the U. P. Sugarcane (Regulation of Supply and Purchase) Act 1953 (adopted by Uttarakhand) as unconstitu tional. (iii) issue an appropriate writ, order or direction or writ in the nature of mandamus declaring that the State Government would have no au thority to fix a price for sugarcane till adequate and appropriate guidelines are framed and incor porated in the provisions of the U. P. Sugarcane (Regulation of Sup ply and Purchase) Act, 1953 (as adopted by Uttarakhand ). (iv) issue a writ, order or direction or writ in the nature of mandamus directing the respondents to ap point a. Committee consisting of experts in the field, including in dustry representative, to fix the price of sugarcane after consider ing the guidelines, which may be framed by the respondent State. (v) issue a writ, order or direction or an appropriate writ calling for the records of the State Government and quashing its decision fixing State Advised Price for 2007-08. vi) issue a writ order or direction or writ in the nature of mandamus commanding the respondent State to refix a fair and reasonable price for sugarcane for the crushing sea son 2007-08 after taking into con sideration relevant factors, as enu merated in the writ petition. (vii) issue a writ, order or direction permitting the petitioners to pay cane price for the crushing season 2007-08 equal to the Statutory Minimum Price fixed by the Cen tral Government till such time as guidelines are framed under the Act. (viii) issue a writ, order or direction or writ in the nature of certiorari quashing Form C aforesaid. (ix) issue an appropriate writ, order or direction declaring the fixation of State Advised Price under the U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 as void in view of Article 254 of the Consti tution of India. (x) issue a writ, order or direction in the nature of mandamus directing the respondents not to insist upon the execution of any agreement to be executed in Form-C till appro priate guidelines are framed for fixation of State Advised Price and further not to enforce any agree ment executed by the petitioners in Form-C. (xi) issue a writ, order or direction in. the nature of mandamus, includ ing diversion of cane centre be taken against the petitioners on the basis of the arrears arising out of the State Advised Price. (xii) issue an ad-interim mandamus to the above effect. (xiii) issue such other writ, order or di rection which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case; and (xiv) award the cost of the petition to the petitioners. " By means of Writ Petition No. 205 of 2008 (M/b), moved under Article 226 of the Constitution of India, the petition ers have sought the following reliefs : " (i) issue a writ, order or direction or writ in the nature of mandamus summoning the record from the respondent State determining the State Advised Price (SAP) of sugarcane for the crushing season 2006- 07 and declare the same to be arbitrary, illegal and void abinitio and further the conse quential right accrued in favour of the petitioners may be declared to flow in their favour. (ii) issue a writ, order or direction or writ in the nature of certiorari quashing the order dated 28th December, 2006 issued by the State Government fixing the State Advised Price of sugarcane for the crushing season 2006-07, after the aforesaid declaration, as con tained in Annexure No. 1 to the writ petition. (iii) issue a writ, order or direction or writ in the nature of mandamus commanding the respondents not to enforce the State Advised Price, as laid down in the im pugned order dated 28th Decem ber, 2006 issued by the State Government, as contained in Annexure No. 1 to the writ peti tion, against the petitioners. (iv) issue a writ, order or direction or writ in the nature of mandamus commanding the respondents not to take any coercive steps against the petitioners for recovery and enforcement of the impugned State Advised Price for the cane crushing season 2006-07. (v) issue an ad-interim mandamus to the above effect. (vi) issue any other appropriate writ, order or direction in favour of the petitioners as the. Hon'ble Court may deem fit in the circumstances of the case. (vii) award the costs of the petition to the petitioners. " In substance, the writ petitioners in W. R No. 204/2008 (M/b) have challenged the Government Notification/order dated 23-01-2008 fixing the State Advised Price (SAP) of Rs. 132/- per quintal for early maturing cane varieties and Rs. 127/- per quintal for general cane varieties for the crushing season 2007-2008. In the latter petition, the petitioners have challenged the Government Notification dated 28th December, 2006 fixing the State Advised Price (SAP) of sugarcane for the crushing season 2006- 2007. The grounds of chal lenge in both petitions are common. It has been alleged in the petitions that the sugarcane is an essential commodity un der the Essential Commodities Act, 1955 (hereinafter referred as the E. G.-Act) what empowers the Central Government to make orders for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices or for regulating or prohibiting the production, supply and distribution thereof and trade and com merce therein. In exercise of the said Act, the Central Government has made the Sugarcane (Control) Order 1966 {herein after referred as 'the 1966 Order (Cen tral)}. The object of this Order was to pro mote the sugar industry and to eliminate unnecessary impediments in the produc tion of sugar. The Central Government after a thorough consideration had fixed a Statutory Minimum Price (for short 'smp' ). It was further alleged in the peti tions that while fixing the 'smp', the Central Government has consulted the appropriate bodies and associations and also made necessary enquiries, including the collection of relevant data and its evaluation. The State of U. P has enacted the U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 (hereinafter re ferred as V. P. Act,. 1953) and this Act was adopted by the State of Uttarakhand vide Uttarakhand Sugarcane (Regulation of Supply and Purchase) Act, 000. Section 16 of U. P Act 1953 empowers, the State Government to regulate the distribution, sale and purchase of cane in any reserved or assigned areas. The Constitution Bench of Hon'ble Apex Court in the case of U. P Cooperative Cane Unions Federations Vs. West U. P Sugar Mills Association and oth ers reported in 2004 (5) SCC 430 has held in its majority judgment that the power conferred upon the State Govern ment under section 16 of the U. P Act, 1953 includes the power of State Govern ment to determine State Advisory Price (hereinafter referred as 's. A. R') to be paid by the occupier of the factory for pur chasing sugarcane intended to be-used by the factory. In exercise of the power con ferred under section 16 of the U. P Act 1953, the State Government fixed the S. A. P at the rate of Rs. 132/- per quintal for early maturing cane varieties and Rs. 127 per quintal for general cane varieties. The State has disregarded the various factors which are required to be taken into consideration for fixing of the S. A. P of sugarcane. It was further alleged that there is a provision under Sections 3 and 4 of the U. P Act, 1953 to constitute a Sugarcane (Control) Boatd. The Uttarakhand State Government has not constituted the Board as provided under section 3 and 4 of the Act. Under the legis lative intent, it is obligatory on the part of the State Government to seek the ad vice of sugarcane board while fixing the S. A. P The State Government while fixing the S. A. P for the crushing season 2007-08 has neither considered any guidelines nor relevant factors, nor prevailing sugar prices, nor the cane price prevailing in other sugarcane producing States which are much lower than the cane price of Uttarakhand. The petitioners had executed Form B and C agreement which is a dotted line agreement. Petitioners' sugar factories had no option, but to purchase sugarcane at the SAP fixed by the State Government and they had to sign in the agreement in Form B and C prescribed in the 1954 Rules. The said Forms leave no choice for sugar factories, thus, the agreement in Form- B and C indicated above renders nugatory the ability of the petitioners' company have entered into an independent agreement with the farmers for purchase of sugarcane at a price lower than the S. A. P A number of representations were made to the au thorities concerned. When no heed was paid by the State Government, the peti tioners filed the writ petitions before this Court.
(3.) THE State Government has filed the counter affidavit on behalf of respond ent no. 1 and 2 alleging therein that the sugarcane growers and the petitioners have already acted upon the agreement executed in Form B and C for the year 2006-07 wherein the petitioners have agreed to purchase the sugarcane at the rate fixed by the State Government for the crushing season 2006-2007 as is apparent from perusal of Clause 1 of said agree ments. Copies of these agreements have been filed with C. A.- 1 to 3. THE re spondent no. 2 have also alleged that all the petitioners entered into an agreement to purchase the sugarcane at the rate fixed price by the State Government for the crushing season 2007-08 and the cop ies of these agreements have been filed as C. A.-4 to 7. It was further alleged that the Government fixed S. A. P at the rate of Rs. 132/- per quintal for early maturing cane varieties and Rs. 127/- per quintal for gen eral varieties for the purchase of sugarcane in the year 2006-07 and these rates of SAP were not changed for the crushing season of 2007-08. It was further alleged in the counter affidavit that after execut ing the agreement the occupier of the fac tory cannot turn around from the agree ment executed in Form 'c' by saying that it is a standard format and doted line contract. THE Central Government is em powered to fix the minimum price of sugarcane and it can be higher than the minimum price which may in the nature of agreed purchase price between the oc cupier of the factories and the sugarcane growers and sugarcane cooperative socie ties. THE Constitution Bench of the Hon'ble Apex Court in U. P. Cooperative Cane Unions Federations (supra) has held that the regulatory power is possessed with the State Government under section 16 of U. P Act, 1953 and the regulatory power also include the power to fix the price of sugarcane. If it is held that the State un der the power of regulation cannot fix the price then the statutory provisions con tained in the U. P Act, 1953 and the Or der thereunder i. e. 1954 would be com pletely one sided agreement operating for the benefit of sugarcane factories giv ing them many advantages and cor responding obligation would have to be given to the cane growers and leaving the cane growers in the lurch. At last, the respondents prayed for dismissal of the writ petitions. The Sehkari Ganna Vikas Samiti of Iqbalpur Roorkee (District Haridwar), Jwalapur (District Haridwar), Laksar (District Haridwar) and Kashipur have also filed impleadment applications alongwith their affidavits. They have alleged in their applications that the applicants are the registered societies under the Co-operative Societies Act and they supply the cane from the cane growers to the sugar facto ries. The sugar factories cannot directly purchase cane from the cane growers. The applicants' societies get payment from the sugar factory and disburse it among the cane growers. The petitioners' sugar fac tories and the societies have executed an agreement for supplying the cane and now they cannot turn around. These interveners were allowed to intervene in the matter.;