JUDGMENT Anjani Kumar and Rakesh Sharma, JJ.
1. Since these three writ petitions raise common questions of fact and law, therefore, are being dealt with by a common order.
Heard Sri Shashi Nandan, learned Senior Counsel assisted by Sri Ashok Kumar Padney, appearing for the petitioners, Sri Zafar Naiyar, learned Additional Advocate General appearing for the State and Sri Ravindra Singh, counsel appearing for the respondent No. 4.
2. The petitioners have challenged the State Advised Price (hereinafter referred to as the 'S.A.P.') for sugar cane fixed by the State Government for the year, 2007-08. With regard to the S.A.P. fixed by the State Government for the previous year, 2006-07, a Division Bench of this Court by its judgment and order dated 19th December, 2007 passed in Civil Misc. Writ Petition No. 33288 of 2007; The Basti Sugar Mills Co. Ltd. and Anr. v. Sate of U.P. and Ors., have found that the S.A.P. fixed by the State Government for the crushing season 2006-07 is unjust and invalid, therefore quashed the same.
It is further submitted on behalf of the petitioners that the S.A.P. for the year, 2007-08 is also unjust and invalid because the exercise as contemplated by the decision of this Court passed in Civil Misc. Writ Petition No. 33288 of 2007; The Basti Sugar Mills Co. Ltd. and Anr. v. Sate of U.P. and Ors., has not been undertaken by the State before r fixing S.A.P. for the current year, 2007-08. Thus, while fixing S.A.P. for 2007-08 direction issued by this Court in Basti Sugar Mills Co. Ltd. (supra) has not been followed by the State Government.
3. It is stated that the respondents have filed a Special Leave Petition before the Hon'ble Apex Court being S.I.P. (Civil) No. CC 186 of 2008 Kisan Mazdoor Sangathan v. Basti Sugar Mill Co. Ltd. and Ors. against the Judgment and order dated 17.12.2007 wherein the Apex Court on 8.1.2008 has been pleased to pass the following order:
List on 18.1.2008 3.1 On 17.1.2008 this Court in the present writ petition has passed the following interim order:
...In view of the above, we are of the opinion that until a specified committee as directed by this Court is constituted and its report is received and amendment in law is carried out on the basis of such report, the fixation of S.A.P. for the year subsequent to 2006-07 is wholly invalid and improper. In the facts and circumstances of the case, as an interim measure it is provided that in the meantime sugar mill shall pay statutory minimum price for year 2007-08 as fixed by the Central Government regularly until a report of the Committee is received and directions given in the Judgment and order dated 19.12.07 which is still in vogue are carried out.
3.2 On 18.1.2008 Hon'ble Apex Court was pleased to pass the following order:
Permission granted.
Application for exemption from filing O.T. is granted.
Issue notice returnable on 12th February, 2008.
Dasti, in addition, is permitted.
Respondents takes notice through respective counsel.
Counter, if any, may be filed within two weeks.
There shall be interim stay of the impugned order till 12th February, 2008.
3.3 On 12th February, 2008 the Apex Court was pleased to, pass the following order:
Place the petitions before a Bench of which Hon'ble Mr. Justice B.N. Agrawal is not a member.
3.4 Then on 12th February, 2008 itself the Apex Court was pleased to pass the following order:
List on 15.2.2008.
On 15th February, 2008 the Apex Court was pleased to pass the following order:
List these matters on 21.02.2008.
Counter affidavits and rejoinder affidavits shall be exchanged before that date.
Interim order dated 18.01.2008 to continue till the next date of hearing.
It is stated that auction proceedings have been fixed. The same may continue but no final decision shall be taken without leave of this Court.
3.5 On 21st February, 2008 the Apex Court was pleased to pass the following order:
List these matters on 27.02.2008.
Before that date pleadings shall be completed.
No coercive action shall be taken till the next date of hearing.
Interim order so far as non finalisation of the auction is concerned, shall continue till the next date of hearing.
3.6 In between, on 14th February, 2008, this Court in the present writ petition passed the following order:
Heard learned Counsel for the petitioner and learned Additional Advocate General.
4. It is prayed on behalf of learned Additional Advocate General that this matter may be heard finally. Since he is not prepared to argue the case as he was no expecting that this case will come up today, he prayed for listing of case on 22.02.2008.
Learned Counsel for the petitioner states that initially there was an interim order staying the order passed by Division Bench of this Court dated 19.12.2007 passed in W.P. No. 33288 of 2007 by Hon'ble Apex Court on 18.01.2008 in SLP (C) Nos. 372-281/2008 which is being quoted below:
Permission granted.
Application for exemption from filing O.T. is granted.
Issue notice returnable on 12th February, 2008.
Dasti, in addition, is permitted.
Respondents takes notice through respective' counsel.
Counter, if any, may be filed within two weeks.
There shall be interim stay of the impugned order till 12th February, 2008.
There is another order passed by Hon'ble the Apex Court on 12.02.208 which is being reproduced below:
Place the petitions before a Bench of which Hon'ble Mr. Justice B.N. Agrawal is not a member.
The Court asked the learned Additional Advocate General to produce order if any by Hon'ble Apex Court extending the interim order which is time bound but nothing has been produced.
5. In this view of the matter, we are reiterating the earlier order dated 17.01.2008 with further direction to respondents not to take any coercive measure against the petitioner for non payment of SAP fixed for the year 2007-08 till the next date of listing.
Put up on 27.02.2008.
On 27th February, 2008 the Apex Court was pleased to pass the following order:
Heard.
These special leave petitions shall be heard along with C.A. No. 7508/2005 and C.A. No. 150/2007.
As an interim arrangement for the cane year 2006-2007, let payments be made by the sugar mills at the following rates;
For the Declined unsuitable variety Rs. 115/-per quintal.
For the General variety Rs. 118/- per quintal.
For the Early variety Rs. 123/- per quintal.
If any payment has been made towards the State Advised Price, the same shall be adjusted from the amounts payable on the basis of the rates indicated above.
If any payment has been made beyond the rate fixed above there shall not be for the present any refund. The payment shall be made within a period of six weeks from today. The factories which have been closed for alleged non-payment, shall be opened subject to filing of under taking that the amount as directed shall be paid within the stipulated time. The same shall be deposited with the State Cane Commissioner who will in turn shall ensure that all the eligible persons are paid amount pro-rata on the basis of rate fixed by this interim order. The necessary steps in that regard shall be taken within a week from the date of deposit. It is made clear that there shall not be any recovery charges or interest for delayed payment at this stage.
All the civil appeals and SLPs shall be listed in the second week of April, 2008.
The earlier order is modified to the aforesaid extent.
6. Learned Additional Advocate General has submitted that these writ petitions No. 3271, 5210 and 7827 of 2008 on 8.2.2008 were directed to be listed by the Bench of Hon'ble Chief Justice along with Civil Misc. Writ Petition (PIL) No. 10 of 2008, therefore these matters may be directed to come up before the Bench of Hon'ble Chief Justice. In Civil Misc. Writ Petition (PIL) of 2008 the Bench of Hon'ble Chief Justice, on 29.2.2008 has been pleased to pass the following order:
1. We clarify the order that we have passed on 8.2.2008. We have directed Writ Petition (PIL) No. 10 of 2008 to be listed along with Writ Petition No. 3271, 5210 and 7827 of 2008. The Registry has listed all those matters before this Bench, which is not correct. Those petitions were filed earlier. The Public Interest Litigation was directed to be listed along with those other matters.
2. That being the position, all these four petitions will be listed in the next cause list before the Bench, which is taking miscellaneous writ petitions.
Today, this matter has come up before this Court for hearing. It is submitted by counsel for the parties that since the Judgment and order dated 19th December, 2007 is subject to scrutiny in the aforesaid S.L.P. before the Hon'ble Apex Court, this Court should not adjudicate the matter on merits and await for the decision of the Hon'ble Apex Court which is fixed in the second week of April, 2008.
7. However, on the question of continuance of the interim order, the parties were heard at length. It is submitted on behalf of the petitioners that so far as the price fixed by the Apex Court with regard to crushing season 2006-07 is concerned, majority of payments were already made by that time in terms of the order of this Court passed on 19th December, 2007 in Civil Misc. Writ Petition No. 33288 of 2007 The Basti Sugar Mills Co. Ltd. and Anr. v. Sate of U.P. and Ors., therefore, the position would not affect very much with regard to fixation of prices at the rate specified by the Apex Court. However, so far as the present crushing season is concerned, since crushing seasons is on, the payment has to be made everyday/periodically by the petitioners and in case, petitioners would be subjected to make payment of S.A.P. fixed by the respondents for the year, 2. 37-08, it is submitted that if ultimately the appeal filed by the respondents before the Hon'ble Apex Court is rejected, it would be practically impossible for the petitioners to recover back the amount paid in terms of S.A.P. fixed by the respondents for the current year, 2007-08,
8. Learned Additional Advocate General has submitted that it may be correct that they have not undertaken the exercise while fixing the S.A.P. for the year, 2007-08 but the State Government has taken into account all the relevant factors while fixing S.A.P. for the year, 2007-08, therefore, petitioners are not entitled for interim order by this Court and there should be direction for the petitioners to pay S.A.P. fixed by the State Government for the year, 2007-08.
9. Learned Counsel for the petitioners has submitted that once it is admitted by the respondents, as is submitted by learned Additional Advocate General that they have not undertaken exercise as contemplated by the decision of this Court dated 19th December, 2007 passed in Civil Misc.-Writ Petition No. 33288 of 2007 The Basti Sugar Mills Co. Ltd. and Anr. v. Sate of U.P. and Ors., while fixing S.A.P. for current season, for the reasons given in the Judgment dated 19th December, 2007 and as demonstrated in the writ petition and from the facts and figures, fixing S.A.P. for the year, 2007-08 is arbitrary and invalid. Therefore, petitioners may not be subjected to pay S.A.P. fixed by the State Government rather they are prepared to pay or under obligation to pay Statutory Minimum Price (hereinafter referred to as the 'S.M.P.') fixed by the Central Government and that has been approved by the Division Bench of this Court in its Judgment dated 19th December, 2007 in the Judgment passed in Civil Misc. Writ Petition No. 33288 of 2007 The Basti Sugar Mills Co. Ltd. and Anr. v. Sate of U.P. and Ors.
10. In these circumstances, it is provided that the petitioners may be directed to pay S.A.P. at the rate of S.M.P. fixed by the Central Government as approved by this Court by its Judgment dated 19.12.2007 for the current year 2007-08. Considering the facts and circumstances of the case, in order to balance the equities, we are of the opinion that until further orders of this Court, the petitioners are directed to pay S.A.P. at the rate fixed by the Central Government as held by Division Bench of this Court in its Judgment dated 19.12.2007 for crushing season 2007-08 and petitioners are further directed to furnish bank guarantee for the remaining amount which would be the difference of the S.A.P. fixed by the State Government impugned in the present writ petition and the S.M.P. fixed by the Central Government.
This bank guarantee shall be furnished to the Cane Commissioner, U.P. Lucknow weekly or fortnightly for the difference between S.A.P. and S.M.P. for the concerned variety of sugar cane which is impugned in the present writ petition.
The payment of S.A.P. made by the petitioners in terms of the interim order and the Bank Guarantee furnished by the petitioners shall be subject to the result of these writ petitions.