JUDGMENT : This petition under Article 226 of the Constitution of India has been filed by the petitioner Company which is running a sugar factory seeking following relief:- (a) To issue a suitable writ, direction or order to respondents restricting them from imposing any restriction on the right of the petitioner to sell any quantity of sugar produced and which the petitioner Company is entitled to sell as free sale sugar in the market. (b) To direct the respondents 1 and 2 to release the quota of free sale sugar from the stock of current crushing season 2009-2010 to enable the Company to meet the statutory and other indispensable expenditure in the running of the Company. (c) To direct the respondents to compensate the losses being caused to the producers in case any stock is required to be maintained by the producers for fulfilment of the policy of the Government to maintain the price. 2. The case of the petitioner is that the Central Government in exercise of the powers conferred under section 3 of the Essential Commodities Act, 1955 (for short "the Act") issued the Sugar (Control) Order, 1966 (for short "Control Order"). By invoking powers under clause 4 and 5 of the Control Order the Central Government imposed restriction for the sale or disposal of sugar which is presently to the extent of 20%. The said 20% sugar is termed as levy sugar and the remaining 80% of the sugar is regarded in common parlance as free sale sugar. In the circumstances according to the petitioner it can sell the said 80% free sale sugar to anybody at any time at any price and no restriction on it can be put by the respondents. The grievance of the petitioner is that second respondent Directorate of Sugar has put unreasonable restriction on sale of the said 80% of the sugar which is free sale sugar by issuing directions limiting release of monthly quota thereby putting a rider about sale of the said 80% free sale sugar. It is the case of the petitioner that by such restrictions which have been put by the respondents the petitioner has to suffer irreparable loss as the farmers could not be paid cane price in time. Moreover the petitioner is also required to face paucity of funds to meet its minimum liabilities which is likely to lead for final closure of the unit. Moreover the petitioner is also required to face paucity of funds to meet its minimum liabilities which is likely to lead for final closure of the unit. In support of the contention that no restrictions can be put by the Central Government for sale of free sale quota the petitioner has placed reliance on the order dated 9-1-2003 passed by a learned Single Judge of this Court in Writ Petition No. 1808/02, Jawaharlal Nehru Sahakari Agricultural Produce Processing Society Limited, Khargone vs. The Union of India and others as also the final order dated 13-7-2004 passed in the said writ petition. 3. The respondents No. 1 and 2 have filed reply in the form of counter affidavit and have stated that the petitioner has misconstrued the non levy sugar to be a sugar of free sale. It is stated that sugar is an essential commodity under the Act. Section 3 of the Act confers powers on the Government to control, production, supply, distribution, etc., of essential commodities. Section 3(1) provides that if the Central Government is of opinion 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 commerce therein. In exercise of these powers conferred by section 3 of the Act the Central Government had issued the Sugar Control Order, 1966. Clause 4 of the Control Order confers powers on the Central Government to restrict sale etc. of sugar by producers or importers. Clause 5 empowers the Central Government to issue directions to the producers or importers and dealers of sugar. Clause 4 of the Control Order confers powers on the Central Government to restrict sale etc. of sugar by producers or importers. Clause 5 empowers the Central Government to issue directions to the producers or importers and dealers of sugar. It has been stated by the respondents that the Central Government in exercise of its powers under section 3(1) and (2) (f) of the Act vide notification dated 7-10-2009 (Annexure R-l) in supersession of the earlier order of the Government of India in the Ministry of Consumer Affairs directed that every domestic producer of sugar shall sell 20% of sugar produced in 2009-2010 Sugar Season (October-September) w.e.f. the 1st day of October, 2009 to the Central Government or as directed by the Central Government under the Levy Sugar Supply (Control) Order 1979: The respondents have also stated that the Central Government in exercise of the powers conferred under Clause 4 of the Control Order had issued an order dated 4-6-1979 (Annexure R-l A) by which it has been directed that no producer of Sugar by vacuum pan process shall sell or agree to sell or otherwise dispose of or deliver or agree to deliver sugar or remove sugar from the bonded godowns of the factory in which it is produced, except under and in accordance with a direction issued in writing by the Central Government. 4. Thus, according to the respondents the sale of entire production of sugar which is manufactured during the sugar season is controlled and regulated to be sold and distributed in a staggered manner with a view to ensure (a) that the consumer get adequate sugar throughout the year at a fair price (b) the crores of cane growers who provide sugarcane which is the basic raw material for the sugar industry receive a fair price and (c) the sugar producer gets a reasonable fair return from the sale of sugar. 5. In order to justify such restriction which has been put by issuance of the order dated 4-6-1979 (Annexure R-1A) it has been further stated by the respondents that the quantum of non levy sugar for international consumption is decided by the Central Government having regard to the production, stock, requirement and, price of sugar in the country. On the basis of non levy quota decided by the Central Government, month to month release order for sale of sugar in the open market are issued. On the basis of non levy quota decided by the Central Government, month to month release order for sale of sugar in the open market are issued. This mechanism of regulated releases helps to keep sugar price in open market at a reasonable level. All India monthly non-levy sugar quota to be released to the sugar mills is announced on quarterly basis prior to the beginning of the quarter and the non-levy sugar quota of the sugar mills is calculated and released on monthly' basis through release orders having a normal validity period of 30 days for delivery/dispatch of sugar. However, the Central Government has decided to release non-levy sugar quota on monthly basis till suspension of future trading remain in force. In order to keep a check on rising prices on sugar mills in the open market Government has directed the sugar mills to sell and dispatch their release of monthly non-levy quota on a fortnightly basis. From the month of February, 2010 onwards the sugar mills are required to sell their monthly non-levy quota on weekly basis, as per the percentage mentioned in the non-levy order. This system has now been changed to fortnightly basis from the month of April, 2010. The powers under Clause 4 and 5 of the Control Order enable the Government not only to ensure that sugar is made available in reasonable quantities throughout the year, but also to moderate the sugar prices within a reasonable band. In the absence of any sugar distribution mechanism, there is likelihood of a glut in the availability of sugar in the market in certain parts of the year resulting in crash of prices to the detriment of the sugar mills and sugarcane farmers. Equally, when the prices are hardening for reasons like lower production short supply, hoarding etc., the Central Government uses the release mechanism to vary the quantity in the market to maintain reasonable prices of sugar. Thus, according to the respondents the regulated release mechanism protects not only the consumer by ensuring reasonable sugar supply throughout but also the sugar factories by way of maintaining prices at a steady level enabling them to pay cane price to sugarcane farmers and earn reasonable returns on the capital employed after meeting manufacturing cost and duties and taxes etc. 6. 6. It has been further averred by the respondents that the Act was amended by The Essential Commodities (Amendment) Act, 2003. By Act No. 37 of 2003 sub-sections (3D) and (3E) have been inserted w.e.f. 2nd June, 2003 enabling the Central Government to issue orders or direction to implement regulated release mechanism policy of the Government effectively. Thus, according to the respondents the Central Government has the power to regulate supply of non-levy sugar in the open market and in terms of such powers monthly release order of the sale/dispatch of the non-levy sugar mills are issued invoking its powers under sub-section (3E) of section 3 read with Clause 5 of the Control Order. The orders which have been issued from time to time are fair to all the sugar factories in the country. Their stock position are ascertained and release orders have been issued to them in proportionate to their reported stocks. This ensure that the carrying cost is shared by all the factories. 7. As regards the interim order and final order passed by a learned Single Judge of this Court in Writ Petition No. 1808/08 and also interim orders passed in other writ petitions on which strong reliance was placed by the petitioner it has been stated by the respondents that the said interim orders were passed placing reliance on the interim order dated 19-3-2002 passed by the Allahabad High Court treating the said interim order of the Allahabad High Court to be a final order, however, the said order of the Allahabad High Court was not a final order but was an interim order. The Allahabad High Court vide order dated 24-1-2006 dismissed the said writ petition in which the said interim order was passed. In the circumstances, according to the respondents, the interim order dated 9-1-2003 was passed by this Court on misconception and incorrect factual position and therefore the same is being per incuriam is of no help to the petitioner. 8. Heard learned counsel for the parties at length and perused the annexures. 9. In order to appreciate the controversy involved in the petition it would be appropriate to extract relevant clauses of the Control Order and the relevant sections of the Act:- Control Order "4. Power to restrict sale, etc. 8. Heard learned counsel for the parties at length and perused the annexures. 9. In order to appreciate the controversy involved in the petition it would be appropriate to extract relevant clauses of the Control Order and the relevant sections of the Act:- Control Order "4. Power to restrict sale, etc. of sugar by producers or importers:- The Central Government may direct that no producer or importer shall sell or agree to sell or otherwise dispose of, or deliver or agree to deliver any kind of sugar or remove, any kind of sugar from the bonded godowns of the factory in which it is produced, or from the warehouse of the importers, except under and in accordance with a direction issued in writing by the Central Government. Provided that this clause shall not affect the pledging of such sugar by any producer in favour of any scheduled bank as defined in clause (e) of section 2 of the Reserve Bank of India Act, 1934 (2 of 1934) or any corresponding new Bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) and no such bank shall sell the sugar pledged to it except under and in accordance with a direction issued in writing by the Central Government." "5. Power to issue directions to producers or importers and dealers:- The Central Government may from time to time by general or special order, issue to any producer or importer or recognized dealer, or any class of producers or importers or recognized dealers, such directions regarding the production, maintenance of stocks, storage, sale, grading, packing, marking weighment, disposal, delivery and distribution of any kind of sugar as it may deem fit." 10. Section 3 of the Act reads thus:- "3. Powers of Control production, supply distribution etc. of essential commodities - (I) If the Central Government is of opinion 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. (2) Without prejudice to the generality of the powers conferred by sub-section (1) an order made thereunder may provide - (a) ........................................ (b) ........................................ (c) ........................................ (d) For regulating by licenses, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity: (f) For requiring any person holding in stock or engaged in the production, or in the business of buying or selling, of any essential commodity - (a) To sell the whole or a specified part of the quantity held in stock or produced or received by him, or (b) In the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order." (3D) The Central Government may direct that no producer importer or exporter shall sell or otherwise dispose of or deliver any kind of sugar or remove any kind of sugar from the bonded godowns of the factory in which it is produced, whether such godowns are situated within the premises of the factory or outside, or from the warehouses of the importers or exporters, as the case may be, except under and in accordance with the direction issued by the Government. Provided that this sub-section shall not affect the pledging of such sugar by any producer or importer in favour of any scheduled bank as defined in clause (e) of section 2 of the Reserve Bank of India Act, 1934 (2 of 1934) or any corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, (5 of 1970) so, however, that no such bank shall sell the sugar pledged to it except under and in accordance with a direction issued by the Central Government. (3E) The Central Government may from time to time, by general or special order, direct any producer or importer or exporter or recognised dealer or any class of producers or recognised dealers to take action regarding production, maintenance of stocks, storage, sale, grading, packing marking weighment, disposal, delivery and distribution of any kind of sugar in the manner specified in the direction. Explanation - For the purposes of sub-section (3D) and this sub­section,- (a) "producer" means a person carrying on the business of manufacturing sugar; (b) "recognised dealer" means a person carrying on the business of purchasing, selling or distributing sugar; (c) "sugar" includes plantation white sugar, raw sugar and refined sugar, whether indigenously produced or imported.] 11. From careful scrutiny of language employed in the aforesaid provisions of the Control Order and of the Act there remains no doubt that the Government has power to control production, supply, distribution of sugar which is an essential commodity. The notification restricting selling of non-levy sugar by way of judicious and balanced monthly release through the system of regulated release mechanism which has been applied uniformly to all the sugar mills throughout the country cannot be interfered into merely on the ground that the petitioner would suffer hardship as it has to pay dues against various expenditure and repay the loan advanced by the financial institution. The Control Order and the Act, do not violate the fundamental right of anyone to trade. The restriction imposed is reasonable and has been put to ensure the interest of the cane growers, sugar producers and the consumers. The Government can always impose reasonable restrictions on the exercise of right to trade or business in the interest of general public. The restriction being imposed by the Central Government on sale of non-levy sugar exercising authority under the Control Order and under sections 3(3D) and 3(3E) of the Act, and having been applied uniformly to all the sugar mills in the country in public interest, is a reasonable restrictions keeping in view the interests of all the stakeholders, namely producers, sugarcane growers and consumers. In the absence of challenge to the constitutional validity of the Control Order and sections 3(3D) and 3(3E) of the Act, the petitioner cannot make any grievance on such restriction which has been imposed being permissible. In the absence of challenge to the constitutional validity of the Control Order and sections 3(3D) and 3(3E) of the Act, the petitioner cannot make any grievance on such restriction which has been imposed being permissible. In my considered view the said restriction has been imposed to ensure that the consumer get adequate sugar throughout the year at fair price and the cane growers who provide sugarcane also get fair price. Any permission in favour of the petitioner to sell in excess of the release orders issued from time to time would cause unfair advantage to the petitioner vis-a-vis other manufacturers. 12. It has now been well settled that unless the policy framed is absolutely capricious and not being informed by any reason whatsoever cannot be held to be arbitrary. Unless the same is based on no reason whatsoever and founded on mere ipse dixit of the executive functionaries thereby offending Article 14 of the Constitution or such policy offends other constitutional provisions or comes into conflict with any statutory provisions, the Court cannot and should not out step its limit and tinker with the policy decision of the executive functionary of the State. It has been held by various judicial pronouncements that the policy decision is in the domain of the executive authority of the State and the Court should not embark on the unchartered ocean of public policy and should not question the efficacy or otherwise such policy so long the same does not offend any provision of the statute or the Constitution of India. [See M.P. Oil Extraction vs. State of M.P., JT 1997 6 SC 97]. It has been held by the Supreme Court in the case of Directorate of Film Festivals and others vs. Gaurav Ashwin Jain and others, (2007) 4 SCC 737 that the scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are Courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining the policy of the Government is to check whether it violates the fundamental rights of the citizen or is opposed to the provisions of the Constitution or opposed to any statutory provisions or manifestly arbitrary. The scope of judicial review when examining the policy of the Government is to check whether it violates the fundamental rights of the citizen or is opposed to the provisions of the Constitution or opposed to any statutory provisions or manifestly arbitrary. The Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy and not the wisdom or soundness of the policy is the subject of judicial review. This view has also been recently taken by the Full Bench of this Court in the case of Chingalal Yadav vs. State of M.P. and others, 2010(2) MPLJ (FB) 443. 13. In the case of Union of India vs. International Trading Company, 2003(5) SCC 437 , it has been held by the Supreme Court that if the State acts within "the bounds of reasonableness it would be legitimate to take into consideration the national priorities and adopt trade policies. The ultimate test is whether on the touchstone of the reasonableness the policy decision comes out unscathed. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time entered into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interest of the country are concerned or where the business affects the economy of the country. In the present case the restriction which has been imposed is a reasonable restriction for the reasons stated above. It has been imposed for the interest of the general public and therefore it cannot be said to be unfair. 14. In the present case the restriction which has been imposed is a reasonable restriction for the reasons stated above. It has been imposed for the interest of the general public and therefore it cannot be said to be unfair. 14. A Division Bench of Bombay High Court Bench at Aurangabad in the case Shri Rameshwar Sahakari Sakhar Karkhana Ltd. vs. Union of India and others in Writ Petition No. 3896/2008 vide its order dated 9-9-2008 has observed that the powers contemplated under Clause 4 and 5 of the Control Order restricting the sale by sugar factory has certain basis. The Central Government has to take into consideration the production, stock, requirement, festival seasons and have to maintain a streamlined approach in the prices of the sugar in the country. The free sale sugar is to be disposed of by month to month release orders in the light of the Clause 5 of the Control Order. This mechanism of regulated release of sugar naturally helps to keep open market sugar prices at a reasonable level. If the additional release of sugar quota as is sought by the present petitioner is tried to be put in the market it will definitely destabilized the principles of demand and supply. Such exercise will create discrimination to other sugar growers. In my considered view these observations of Bombay High Court fully applies to the question involved in the present case. 15. So far as the reliance of the petitioner on the order dated 9-1-2003 passed by learned single Judge of this Court in Writ Petition No. 1808/02, Jawaharlal Nehru Sahakari vs. Union of India to urge that this Court is bound to follow the same and pass similar order, I am of the view that the said order has got no binding force. Firstly because it is an interim order, secondly it was passed on the basis of an interim order dated 19-3-2002 of Allahabad High Court on the assumption that their Lordships of Allahabad High Court had rendered a final decision, on 19-3-2002 by which the writ petition was allowed thirdly it was passed by observing that the decision of the Allahabad High Court was upheld by the Supreme Court vide order dated 12-7-2002. However on close scrutiny of the order dated 19-3-2002 passed by the Allahabad High Court I found that the said order dated 19-3-2002 was not a final order but was an interim order. When the said matter reached to the stage of final hearing the Division Bench of Allahabad High Court finally dismissed the writ petition vide order dt. 24-1 -2006 holding it to have rendered in fructuous. The Division Bench while dismissing the writ petition also observed that the legal questions involved in the writ petition are left open for some other appropriate case. While dismissing the writ petition vide aforesaid order dated 24-1-2006 it was categorically made clear by the Division Bench of Allahabad High Court that the interim order dated 19-3-2002 passed in the writ petition stands discharged and shall not be treated as precedent in future. It is also noteworthy that against the interim order dated 19-3-2002 passed by the Allahabad High Court, the S.L.P. filed before the Supreme Court was dismissed by observing that no interference is called at 'this stage. In the case of Om Prakash Gargi vs. State of Punjab and others, (1996) 11 SCC 399 and in the case of State of Manipur and others vs. Thingujam Brojen Meetei, AIR 1966 SC 2124 the Supreme Court has held that the dismissal of a Special Leave Petition by a non-speaking order which does not contain the reasons for dismissal does not amount to acceptance of the correctness of the decision sought to be appeal against. The effect of such a non-speaking order of dismissal without anything more only means that Supreme Court has decided only that it is not a fit case where the special leave petition should be granted. The said order does not constitute law laid down by the Supreme Court for the purpose of Article 141 of the Constitution. 16. Thus when finally the Allahabad High Court had dismissed the said writ petition observing that the interim order shall not be treated as precedent and when the S.L.P. against the interim order was dismissed not on merits, the order which was passed by a learned Single Judge of this Court placing reliance on the said interim order of Allahabad High Court cannot be treated to be of any binding precedent nor it has got any persuasive value. On the other hand the interim and the final order which was not passed on merits by learned single Judge of this Court are per incuriam. I find that final order passed by this Court in the said Writ Petition No. 1808/2002 does not decide the question involved in the petition but petition was disposed of by observing that the interim order passed on 9-1-2003 virtually disposed of the entire matter and there remains nothing to decide.