Heard learned counsel appearing for the respective parties. 2. The petitioners have taken out present petition seeking below mentioned reliefs:-
“11A. That this Hon'ble Court may be pleased to issue writ of or in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent Nos.1 & 2 State Authorities to issue necessary directions to the respondent Nos.3 to 22 companies to pay the difference of purchase price of B.T.Cotton seeds at the rate of Rs.430/- per kg of cotton seeds with interest, as per the undertaking given by the companies to the State Government;
B. That this Hon'ble Court may be pleased to issue writ of or in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent Nos.1 and 2 state authorities to initiate action against Respondent Nos.3 to 22 for non compliance of their undertaking including suspension of license for sale of cotton seeds, seizure of cotton seeds and initiation of criminal proceedings against the company;”
3. The petitioner has claimed that it is a registered association of farmers in Banaskantha district. It is also claimed that there are about 10,000 farmers, who are members of the petitioner association and the issue raised in present petition not only affects the said 10,000 members only, but farmers all over the State.
3.1 It is also claimed that the respondent Nos.3 to 22 are the Limited Companies which are engaged in the business of sale and distribution of transgenic and genetically modified cotton seeds commonly known as “B.T. Cotton”.
So as to justify the grievance made in the petition, certain facts have been narrated, according to which, the State Government had enacted the Gujarat Cotton Seeds (for Regulation of Supply, Distribution, Sale and Fixing of Sale Prices) Act, 2008 {hereinafter referred to as “the Act”}. In pursuance of the said Act, a notification was issued in exercise of Section 12 of the Act whereby the maximum sale price of BT Cotton seeds was fixed. The petitioner association has claimed that according to the said notification, maximum sale price of B.T. Cotton (B.G.-I) was fixed at Rs.650/- per packet of 450 grams and for B.T.Cotton (B.G.-II) at Rs.750/- per packet of 450 grams.
3.2 It is further claimed by the petitioner association that there was a long standing demand by the farmers for payment of reasonable and appropriate price for the seeds purchased by the respondent Nos.3 to 22 companies from them. The petitioner association has claimed that the farmers were being paid at Rs.260/- per kg. which was too less as against the price recovered by the companies and therefore, the farmers were demanding payment of reasonable sale price. It is also claimed that having regard to the fact that large number of farmers in the State were affected, the respondent State Government intervened in the matter and a meeting for resolving the dispute was scheduled by the Government. It is also claimed in the said meeting it was resolved that the respondent companies (i.e. respondent Nos.3 to 22) shall pay Rs.320/- to Rs.340/- per kg. for the cotton seeds to the farmers.
3.3 In the interregnum, another notification dated 11.6.2008 was issued whereby the sale price of B.T.Cotton seeds were increased to Rs.650/- per packet of 450 grams for B.T.Cotton (B.G.-I) and Rs.750/- per packet of 450 grams for B.T.Cotton (B.G.-II). Accordingly, the respondent companies were given benefit by increasing the permissible sale price.
3.4 The petitioner association claimed that in the meeting with the Government/Agriculture Director each of the respondent companies i.e. respondent Nos.3 to 22 executed identical agreements/undertaking. One of such agreement/undertaking read thus:-
“For the sake of Seeds Act-1966, Seeds control order-1983 and Gujarat cotton seeds Act-2008. As I am aware that, the decision regarding increase of the Bt. Cotton seeds prices is under consideration of the state Government and the seeds producing farmer would be the direct beneficiaries for the said purpose. In anticipation and subject to the above decision which is under consideration of the state Government, I on behalf of my company giving the written undertaking as per follow.
- I hereby assure that my company would pay the minimum amount of Rs.430 per kilogram on production of Bt. Cotton seeds in Gujarat state to the Bt. Cotton producing farmers for the year 2010- 11.
- I hereby assure that if the farmers is paid less than Rs.430 per kilogram on production of Bt. Cotton seeds in Gujarat state to the Bt. Cotton producing farmers for the year 2010-11, my company would pay the difference amount within two months from the date of issue of the price increase Notification.
- I hereby assure that the information regarding quantity of the Bt. Cotton seeds produced or marketed by my company in Gujarat state along with list of seed producing farmers and the amount paid to them would be submitted to the Director of Agriculture in the form of hard copy as well as soft copy within 60 days of the issue of the Notification.
- If any complain regarding non payment of the said amount to the Bt. Cotton producing farmer is received and proved, I assure that my company would pay the said amount with interest to the concerned farmer.
- I hereby assure that my company would provide maximum 30% of the total quantity of the Bt. Cotton seeds produced in Gujarat to the organizations viz. Gujarat state seeds corporation, APMC, Cooperatives, NGOs etc. as preferential dealer at the dealer's price with same terms & conditions offered by my company.
- I hereby give above mentioned undertaking on behalf of my company which has designated me as the authorized person and I am solely responsible for the implementation of above undertaking.
- If there is any breach of above mentioned undertaking then I am fully responsible for the legal procedure being undertaken by the Government.
- If there is any complaint regarding above mentioned undertaking, my company would solve the problem within 30 days accordingly.
- Even though if there is any dispute which is unresolved with regard to the above mentioned undertaking, the decision of the Director of Agriculture would be final.”
3.5 The petitioner association has alleged that despite the said undertaking, the respondent companies have not made payment to the members of the petitioner association at the rate mentioned in the said undertaking and despite repeated requests, the respondent State Government has not taken any action requiring the companies to act in consonance with the undertaking. It is claimed that in respect of about 7 companies, the State Government initiated certain actions, however, in case of other companies, any action has not been taken and even in case of the said 7 companies, subsequently, the licenses have been restored.
3.6 In background of such facts, the petitioner association has prayed for above mentioned reliefs and directions.
4. The respondents have opposed the maintainability of the petition on diverse grounds e.g. locus of the petitioner association to prefer the writ petition in connection with the undertaking given by the respondent Nos.3 to 22 companies; availability of alternative remedy; the subject matter of the writ petition being subject matter of agreement/contract for which writ petition would not be entertained, etc.
4.1 It is also claimed that the petitioner association has not mentioned relevant details to justify the allegations that the members (i.e. the farmers) of the petitioner association have not been paid in accordance with the undertaking.
4.2 The learned counsel for the petitioner association has opposed the submission that payment in accordance with the undertaking has been made. It is submitted that the claim made by the respondent companies is actually jugglery of accounting procedure.
4.3 Mr. Shah, learned advocate for the petitioner association, has reiterated the aforesaid factual details and submitted that it is the responsibility of the respondent State Government to ensure that the undertaking is honoured by the respondent companies and the farmers are not deprived of their rights to receive payment of reasonable price, atleast the price which the respondents agreed to pay. Mr. Shah, learned advocate for the petitioner association, also contended that the petitioner association has prayed for directions against the State Government and not against the respondent Nos.3 to 22 companies and that therefore, present petition is maintainable and the contentions raised by the respondent companies do not deserve to be entertained.
4.4 Learned counsel appearing for the respondent Nos.3 to 22 companies have emphasized the objections against the maintainability of the petition and have also submitted that according to the respondent companies, payments have been made in accordance with the undertaking and therefore, question of making any other payment does not arise and that therefore, the petition may not be entertained.
4.5 So far as the respondent – State Government is concerned, Mr. Shah, learned AGP, has relied on the reply affidavit dated 27.2.2012 filed by the respondent – State Government. He has submitted that the respondent State Government has initiated actions against the concerned respondents to ensure that the undertaking is duly complied with.
5. The premise on which the petition is preferred is the undertaking executed by the respondent companies who are impleaded as respondent Nos.3 to 22 in present petition.
5.1 It is not in dispute that the respondent companies have executed the said undertaking.
5.2 At the same time, it also cannot be overlooked that the petitioners are not party to the said undertaking. The concerned respondents executed and gave the undertaking to the respondent State Government. Differently put, the said undertaking, which can, at the most, be treated on par with the contract, is executed by the respondent companies and is given to the respondent State Government and the petitioner association is not a privy to the said agreement/contract. Therefore, the petitioner association does not have any cause of action against the respondent companies.
6. It is, however, true that the said agreement has been arrived at between the respondent companies and the State Government for the benefit of the farmers of the petitioner association. The respondent State Government acted on behalf of the farmers and beneficiaries of the said agreement is before the Court seeking benefit of the said agreement.
6.1 Even if the objections raised by the respondent companies against the maintainability of the petition on the ground of privity of the contract or locus of the petitioner association or availability of the alternative remedy are not taken into consideration, then also, a substantial issue which would still survive is the respondent's allegation that payment according to the agreement has not been made. On the other hand, the said respondent Nos.3 to 22 have claimed that they have paid full amount as per the said undertaking. Thus, there seems to be a serious dispute between the parties on this count. If there is any dispute as to whether the payment as required under the agreement is paid or not, then, such dispute would acquire colour of disputed question of facts and it would not be possible to examine such issue in a writ proceedings.
6.2 Upon consideration of the facts and circumstances of the case and the rival contentions raised by the contesting parties, it emerges that there is privity of the contract between the petitioners and the respondent Nos.3 to 22 companies. Furthermore, the claim raised by the petitioners is about unpaid price which is in the realm of contract and purely civil dispute. The respondents have asserted that payment as contemplated by and assured by the said undertaking/ agreement has already been paid, whereas the petitioners claim that the amount assured by way of said undertaking / agreement has not been paid. This aspect being the central issue of the petition, raises disputed question of facts. The claim made by the petitioners and denied by the respondent companies is purely in realm of contract. Furthermore, in view of the fact that the petitioners are not party to the agreement, it cannot ask or demand, as a matter of right, direction to enforce the undertaking/agreement. For the aforesaid reasons, the petition does not deserve to be entertained.
6.3 However, in the reply affidavit dated 27.2.2012 filed by the respondent Government, it is averred that :-
“5. The Bt Cotton seeds producing companies must pay for the cotton seeds being procured from the Bt cotton seeds farmers as per the undertaking being submitted. Deponent has clearly instructed the Bt Cotton Seeds companies to pay the amount as per the agreement dated: 20-4-2011 vide letter dated: 30-7-2011. The copy of the letter dated 30.07.2011 is already at Annexure-M on page no.110. Deponent sought production related information for Bt Cotton seeds from various Bt Cotton producing companies in Gujarat State. In this regard this directorate has instructed the licensing authority to suspend the Seeds sale license of companies which have not provided the required information within the time limit. The licensing authority has already initiated necessary action by suspending the license of such companies.
6. A Cotton seed was taken away from the preview of Essential Commodity on 12-2-2007. Hence there was no price restriction on the Bt cotton seeds. In view of this matter, State Government came out with the issuance of the Gujarat Cotton Seeds Act-2008 for regulating supply, distribution, sale and fixation of sale price of the Cotton seeds including Bt. Cotton Seeds. Accordingly, in Gujarat state, prices were fixed at Rs.650/- for BG-I and Rs.750/- for BG-II per packet of 450 gram of Bt cotton seeds on 11-06-2008, so that farmers may get the Bt. Cotton seeds at reasonable and affordable price. Cotton Seed was reintroduced in the list of essential commodities from 22.12.2009. In this reference again a petition was filed to challenge the Gujarat Cotton Seeds Act-2008. In this matter, Honourable Gujarat High Court gave the judgment that Gujarat Cotton Seeds Act, 2008 cannot be upheld and is accordingly set aside. This decision of High Court is challenged by the State Government by filing writ petition in the Hon'ble Supreme Court.”
6.4 It also transpires from the reply affidavit of the respondent State Government, particularly from the details mentioned in para-8 of the reply affidavit that the respondent State Government had taken actions against some of the companies, including the action of suspending their licenses. It does not come out from the reply affidavit of the State Government as to why similar action has not been taken against other defaulting companies. The said para-8 reads thus:-
“8. Deponent sought production related information for Bt Cotton seeds from various Bt Cotton producing companies in Gujarat State. In this regard this directorate has instructed the licensing authority to suspend the Seds sale license of companies which have not provided the required information within the time limit. Accordingly Licensing authority has suspended the Seeds sale license of the following companies.
The seeds sale license of above mentioned companies for Bt cotton seeds is withheld till the date. The deponent has already withheld the license of companies which has not submitted appropriate information.”
7. Having regard to the overall facts and circumstances involved in the petition and the preliminary objections raised by the respondents about maintainability of the petition, the interest of the farmers who are allegedly not paid even the amount agreed by the respondents during meeting with the respondent State Government, it appears that present petition can be disposed of with below mentioned observations:-
7.1 In view of the details mentioned in para-8 of the reply affidavit and the aspects stated in para-5 and 6 of the affidavit, the respondent – State Government may take into account the grievance of the petitioner association and consider the option of taking similar actions as per the details mentioned in para-5 and 8 of the reply affidavit dated 27.2.2012.
7.2 However, so far as petitioner association's claim for payment and/or enforcement of the undertaking and other grievances are concerned, the objections raised by the respondent companies have to be accepted. For such purpose, writ petition for execution of the agreement, and that too between the companies and the Government, cannot be entertained at the instance of the petitioners.
If at all the petitioner association or its members have any right or claim against the respondent companies for alleged outstanding payment of price of the material supplied by them to the concerned respondent companies, then, the dispute being in the nature of commercial transaction between the parties and in realm of contract, will have to be adjudicated in accordance with law before the trial Court.
With the aforesaid observations and direction, present petition stands disposed of. Notice is discharged.
(K.M.Thaker, J.) kdc