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1965 DIGILAW 377 (SC)

INDUSTRIAL CORPORATION LTD. v. State Of Bihar

1965-12-09

A.K.SARKAR, J.R.MUDHOLKAR, R.S.BACHAWAT

body1965
Judgment SARKAR, J.-The appellants are two companies. The first appellant owns a sugar factory and the second appellant is the lessee of a similar factory. Both these factories are situate near Siwan in the district of Saran in the State of Bihar. The appellants moved the High Court at Patna for a writ quashing certain orders, alleged to have been passed by the Government of Bihar and its officer, the Cane Commissioner. Their grievance was that those orders were illegal as they were made in violation of the terms of the Bihar Sugar Factories Control Act, 1937 (Bihar Act 7 of 1937) and the riues made thereunder. The respondents to the petition were the State of Bihar, the Cane Commissioner, Bihar, a company called Sree Krishna Gyanoday Sugar Ltd. (for short S. K. G. Sugar Ltd.) and certain officers of this Company. It appears that the respondent Company had on September 29, 1962, purchased a sugar mill called the Indian Siwan Factory situate in Siwan not very far from the factories of the appellants. It is said that this mill had not been worked since March 1950. The orders challenged respectively permitted resumption of the working of this mill and reserved a certain area from which it was exclusively entitled to draw its supply of sugarcane. We may state here that all the factories produced sugar from sugarcane by crushing and vacuum pan process. The first Order is said to be contained in a letter dated October 23, 1964 written by a Secretary to the Government of Bihar to the respondent Company. It reads, If "With reference to your letter dated July 17, 1964, addressed to the ChiefMinister, Bihar, I am directed to say that it has been decided to permit you to work the Indian Siwan Factory during the coming season 1964/65. You are accordingly requested to furnish the original crushing licence held by the Indian Siwan Factory if the same be in your possession In case you do not have the licence, you will please apply for a licence in the prescribed form. Formal order of reservation of areas and loading stations will be issued by the Cane Commissioner in due course." The second Order is dated November 2, 1964 and was made by the Cane Commission, Bihar. Formal order of reservation of areas and loading stations will be issued by the Cane Commissioner in due course." The second Order is dated November 2, 1964 and was made by the Cane Commission, Bihar. It is in these terms, "In exercise of the powers delegated to me by the Central Government under clause 6 of the Sugarcane (Central) Order 1955, in Ministry of Food and Agriculture Notification No. S.R.C. 1968-Ess. Com. Sugarcane, date 1 August 27, 1955, read with Clause 4 (i) (a) of the said order, I Cane Commissioner, Bihar, hereby direct that the village named in the list below shall constitute the reserved area of Sri Krishna Gyanoday Sugar Ltd. Siwan (Saran) for the purchase of sugarcane during the season 1964|65 unless otherwise directed by me at any stage." There is a third instrument which does not bear any date but was sent to the respondent Company under cover of a letter dated July 24, 1965 written by the Special Cane Inspector, an officer of the Bihar Government. The relevant part of it is set out below:- "Occupier of the Shri Krishna Gyanoday Sugar Ltd., Siwan ...... Factory situated at ...... Siwan District Saran, Bihar ...... is hereby authorised to crush cane in the said Factory subject to the terms and conditions hereinafter mentioned and to the provisions of the Sugar (Control) Order, 1955." The High Court observed that the only order that affected the petitioners was the order of November 2, 1964 and as the Bihar Act earlier mentioned provided for an appeal against it to the Government, the appellants had an independent remedy. As they had not pursued that remedy, the High Court in its discretion refused to grant them any relief on the petition for a writ under Art. 226 and did not go into any other question that arose on the petition. It is not disputed that the appellants had not filed the appeal for which the Act made provision. The present appeal has been filed against the High Court s order by special leave. It seems to us that this appeal has no merit. What is called an order of October 23, 1964 is really not an order. It is not disputed that the appellants had not filed the appeal for which the Act made provision. The present appeal has been filed against the High Court s order by special leave. It seems to us that this appeal has no merit. What is called an order of October 23, 1964 is really not an order. It is a letter which communicated to the respondent Company a decision which the Government of Bihar had taken for permitting the respondent Company s factory to start functioning and requested that Company to submit the original crushing licence or to apply for a alicence for the purpose. It would appear that what was meant by permitting the respondent Company s factory "to work" was that it would be granted a crushing licence. This crushing licence was sent to the respondent Company with the Special Cane Inspector s letter of July 24, 1965. The licence is expressly said to have been issued under the Sugar (Control) Order, 1955. It would, therefore, appear that what was meant by permitting the respondent Company s factory to work, as stated in the letter of October 23, 1964, was that it had been decided to grant it a crushing licence under the Sugar (Control) Order, 1955. We may point out that the word "accordingly" in the expression "You are accordingly requested" in the letter of October 23, 1964 clearly indicates this. Apart from the fact that the communication of October 23, 1964 did not contain an order or affect any rights of the appellants, it is clear that the decision taken referred to something intended to be done under the Sugar (Control) Order, 1955. Now confining ourselves to the licence issued, it is not the complaint of the appellants that it was not rightly issued under or was in any way in violation of, the provisions of the Sugar (Control) Order, 1955. There is, therefore, nothing in the petition to justify a quashing of it. We should point out that the Sugar (Control) Order, 1955 was issued by the Central Government under powers conferred on it by the Essential Commodities Act, 1955,which is a Central Act. Obviously anything properly done under such an Order cannot be invalidated for non-compliance with the provisions of a State law which the Bihar Act is. We should point out that the Sugar (Control) Order, 1955 was issued by the Central Government under powers conferred on it by the Essential Commodities Act, 1955,which is a Central Act. Obviously anything properly done under such an Order cannot be invalidated for non-compliance with the provisions of a State law which the Bihar Act is. It seems to us, therefore, clear that the violations of the Bihar Act, assuming there was any violation of it-as to which we say nothing in the present case-cannot make orders passed under another provision, illegal. But it was said that the crushing licence and the communication of October 23, 1964 had been issued under the Bihar Act. Our attention was drawn to a notification dated November 9, 1957 issued by the Governor of Bihar in exercise of powers delegated to him under the Sugarcane (Control) Order, 1955 which also is an Order issued by the Central Government under the Essential Commodities Act. By that notification it was provided that "all the provisions of the Bihar Sugar Factories Control Act, 1937 and the Bihar Sugar Factories (Control) Rules, 1938, in respect of reserved areas as defined in clause (n) of Section 2 of the said Act, shall, so far as may be, apply" to certain areas in Bihar. It was contended that this notification made the provisions of the Bihar Act applicable and, therefore, the Order of October 23, 1964 and the crushing licence must be deemed to have been issued under those provisions. This seems to us to be a misreading of the notification. Quite clearly, it applied only those provisions of the Bihar Act which related to reserved areas and these are the provisions which authorised the Government to reserve for each sugar factory separate sugarcane growing areas for obtaining the supplies of sugarcane. Such an order would be of the same kind as the order of November 2, 1964. The decision mentioned in the communication of October 23, 1964 and the crushing licence were clearly not of this type and were not made under provisions of the Bihar Act relating to reservation of sugarcane growing areas for sugar factories. They did not reserve any such areas at all. The notification, therefore, does not support the contention of the appellants. That should be enough to dispose of the attack on the decision to issue crushing licence and the licence itself. They did not reserve any such areas at all. The notification, therefore, does not support the contention of the appellants. That should be enough to dispose of the attack on the decision to issue crushing licence and the licence itself. It was however also contended that the decision mentioned in the communication of October 23, 1964 was really a decision granting permission to the respondent Company to extend its factory which could only be done under Section 9 of the Bihar Act. It was said that the provisions of that section not having been complied with, the decision referred to in the communication of October 23, 1964 was illegal. This contention seems to us completely misconceived. We say nothing as to whether the respondent Company had extended its factory. The respondent Company disputes that it did so. However that may be, the decision communicated on October 23, 1964 has nothing to do with any extension of the respondent Company s factory. No question of a decision permitting such extension having been arrived at in violation of Section 9 of the Bihar Act, therefore, arises. We may remind here that we have earlier pointed out what the affect of the decision mentioned in the communication of October 23, 1964 was ; it was to grant a crushing licence to the respondent Company. No question of that decision being invalid under Section 9 of the Bihar Act at all arises. We have also earlier held that the crushing licence was issued under the Sugar (Control) Order, 1955. We now come to the Order of November 2, 1964. All it did was to reserve a certain cane growing area for supplying of sugarcane to the respondent Company s factory. It is purported to have been made under the Sugarcane (Control) Order, 1955 and not under the Bihar Act. Even if it is said that in view of the notification of November 9, 1957 it has to be held that this Order was made under the terms of the Bihar Act, the appellants will be faced with the difficulty that the Bihar Act gave them a remedy by way of an appeal from the Cane Commissioner s decision, to the Government. As no such appeal was filed, we find the High Court s order refusing in its discretion a relief under Art. 226 in regard to the order of November 2, 1964 unexceptionable. As no such appeal was filed, we find the High Court s order refusing in its discretion a relief under Art. 226 in regard to the order of November 2, 1964 unexceptionable. It is said that it was no use appealing to the Government because the Government had made up its mind to make the order reserving a sugarcane area for the respondent Company s factory. There is nothing to support thatconclusion. It was not so contended before the High Court either. Even if the Government had decided to reserve an area for the respondent Company s factory, there is nothing on the record which will justify a conclusion that the Government on a proper appeal being filed would not have changed its decision. We find no justification to quash the Order of November 2, 1964 at the present moment. It. was not contended that this Order violated any provisions of the Sugarcane (Control) Order. 1955 under which it was issued. We wish to make it clear that in this judgment we have not pronounced either way on the validity of any of the orders or decisions of the Government which were challenged. All that we say is that so far as the Government decided to and did, grant the respondent Company a licence to begin crushing sugarcane in its mills, it did so under the Sugar (Control) Order, 1955 issued under a Central Act. It has not been said that the grant of the crushing licence had been decided upon or the licence itself issued, in violation of any of the provisions of that Order. There is no material before us, therefore, on which we can proceed to set aside that licence or decision on the ground that it violates that Order. As regards the order reserving sugarcane growing areas for the respondent Company s factory, all that we say is that since there is another remedy available to the appellants, they should have followed that remedy and not have come to the Court without doing so for a writ under Art. 226 quashing that order and that it was not contended that the order violated the Sugarcane (Control) Order, 1955 under which it purports to have been issued. The result is that this appeal fails and is dismissed with costs. Appeal dismissed. For Citation: 1969 Fac LR 366 (SC)