1. The petitioners have taken out present petition seeking below mentioned relief/s:-
“31 (A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing respondent Nos. 1 and 2 to issue necessary directions to the private respondents companies herein to pay the difference of purchase price of B.T. Cotton Seeds @ Rs.430/kg. of cotton seeds with interest, as per the undertaking given by the companies to the State Government;
(B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing respondent Nos. 1 and 2 to initiate action against the private respondents companies herein 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 said companies;
(C) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to direct respondent Nos. 1 and 2 to immediately recover the difference of purchase price of cotton seeds from the private respondents companies herein;
(D) ”
2. Mr. Majmudar, learned advocate has appeared for the petitioners. Mr. Rana, learned advocate has appeared for respondent Nos. 10 and 15. Other respondents though served, are not present at the time of hearing.
3. More than 425 petitioners (farmers) have claimed that through their agents they sold seeds to the respondent No.3 to 21 companies. The respondent Nos. 3 to 21 companies are Private Limited Companies or Public Limited Companies which are engaged in the business of sale, distribution and supply of transgenic and genetically modified cotton seeds popularly know as “BT Cotton”.
4. So as to support and justify the request made in the petition the petitioners have stated, inter alia, that:-
“(6) It is respectfully stated and submitted that the Gujarat State had in acted Gujarat Cotton Seeds for Regulation of Supply, Distribution, Sale and Fixing of Sale Prices Act, 2008 to regulate the supply, distribution, sale of cotton seeds and to control the sale price of such cotton seeds in the State of Gujarat. It is submitted that in the preamble of the Act, it has been stated that the traders in cotton seeds are exploiting farmers by collecting exorbitant prices and therefore, had become imperative on the part of the State Government to regulate supply, distribution and sale of cotton seeds, by fixing the sale prices in the interest of farmers in the State. It is submitted that the aforesaid Act came into force on 11.6.2008. Section 3 of the Act provides for appointment of cotton seeds controller for the State. Section 5 of the Act provides for issuance of license to the vendor. Section 6 of the Act provides for function of the controller. Section 8 provides for compensation to the farmers. Section 12 provides for power to fix the price. It provides that the State Government after taking into consideration the cost of production, etc. including trait value and other related factors fixed maximum sales price of all types of cotton seeds from time to time. Sub-section (2) provides that such price shall be published in the official gazette and shall be effective from such date as may be specified therein. Section 13 provides for punishment in respect of contraventions of the provisions of the Act. Section 17 provides for forfeiture of cotton seeds. Section 21 empowers the State Government to give directions to the controller, the Seed Inspector or the Seed Analyst for carrying out the provisions of the Act.
(7) It is respectfully stated and submitted that the State Government in exercise of powers conferred under Section 12 of the Act issued a notification dated 11.6.2008 fixing the maximum sale price of the varieties of BT Cotton Seeds. It is submitted that as per the notification dated 11.6.2008, the State Government fixed the maximum sale price for BT Cotton (BG-I) at Rs.650 / packet of 450 grms. and BT Cotton (BG-II) at Rs.750 / packet of 450 grms. Annexed hereto and marked as ANNEXURE-A is a copy of the notification dated 11.6.2008 issued by the Agriculture and Co-operation Department,the State of Gujarat.
(8) It is respectfully stated and submitted that the meeting of the representatives of cotton farmers and the representatives of the companies engaged in sale, distribution of Hybrid Cotton Seeds was held in the office of Deputy Agriculture Director (Seeds) Gujarat State for resolution of the problems of the farmers. It is submitted that the said meeting was held on 17.4.2010 wherein representation was made that the price of genetically modified cotton seed, paid by the companies to the farmers @ Rs.260 / kg. of the seed is tool less as against the price recovered by the company from the sale of the Hybrid Cotton Seeds and, therefore, the price to be paid by the companies to the farmers is required to be increased. It is submitted that in the aforesaid meeting, it was resolved that the companies shall pay an amount of Rs.320/- to Rs.340/ kg of cotton seed to the cotton seed farmers. Annexed hereto and marked as ANNEXURE-B is a copy of the minutes of meeting held on 17.4.2011.
(9). It is respectfully stated and submitted that in the year 2011, the private respondents made a representation to the State Government for increasing the sale price of BT cotton seeds. It is submitted that pursuant to the discussion held between the private respondents and the respondent authorities, the private respondents had filed an undertaking with the State Government to the effect that the companies shall pay a minimum amount of Rs.430/kg to BT Cotton producing farmers for the year 2010-2011. It is submitted that a further assurance was given by the private respondents that if the farmer is paid less than Rs.430/ kg for the year 2010-11, the companies would pay the difference amount within two months from the issue of the price notification. It is submitted that also assurance was given that in case of complaint regarding non-payment of the said amount, the company would pay interest to the concerned farmer. Annexed hereto and marked as ANNEXURE-C is a copy of the undertaking given by the private respondents.
(10) It is respectfully stated and submitted that after furnishing of the undertaking, the State Government issued a notification dated 21.4.2011 in super session of the earlier notification dated 11.6.2008 and increased the maximum sale price of the varieties of BT cotton seeds for the State of Gujarat. It is submitted that the State of Gujarat by notification dated 21.4.2011 fixed the maximum sale price for BT Cotton (BG-I) at Rs.830/- packet of 450 grms. and BT cotton (BG-II) t Rs.930/- packet of 450 grms. Annexed hereto and marked as ANNEXURE-D is a copy of the notification dated 21.4.2011.
(11) It is respectfully stated and submitted that prior to notification dated 21.4.2011 the private respondents when making payment to the cotton producing farmers @ Rs.320/- to rs.340/kg of cotton sees and the maximum sale price for BT Cotton (BG-I) was Rs.650/ packet of 450 grms. and BT cotton (BG-II) was Rs.750 / packet of 450 grms. It is submitted that the State Government by notification dated 21.4.2011 revised the maximum sale price of BT cotton (BG-I) at Rs.830 / packet of 450 grms. and BT Cotton (BG-II) at Rs.930/ packet of 450 grms. It is submitted that the private respondents were given the benefit of increasing the maximum sale price of Rs.180/ packet of 450 grms. only on a condition that the private respondents shall accordingly increase the price to be paid to the cotton seed farmers. It is submitted that the private respondents had filed an undertaking / affidavit before the State of Gujarat, that for the year 2010-11, the private respondents shall pay price of Rs.430/kg. of cotton seed to the cotton producing farmers as against the earlier agreed price of Rs.320/- to Rs.340/kg. of cotton seeds. It is submitted that thus, the private respondents had agreed to increase the price of cotton seed to be paid to the cotton producing farmers by Rs.90/- to Rs. 110/kg. of cotton seeds.
(12) It is respectfully stated and submitted that as per the undertaking one of the companies viz. Vikram Seeds Limited, had made payment of the balance amount (difference amount of Rs.90/- to Rs.110/kg. of cotton seeds) to the cotton producing farmers. It is submitted that since the other companies had failed and neglected to pay the difference amount to the cotton producing farmers Banaskantha District Hybrid Cotton Seeds Producers Farmers Associated ('the Association” for short) addressed a letter dated 3.7.2011 to the private respondents to pay the difference amount of Rs.90/- to Rs.110/kg. of cotton seeds to the cotton producing farmers, copy whereof is annexed hereto and marked as ANNEXURE-E. It is submitted that in response to the same, one of the companies viz. Vikram Seeds Limited replied stating that the company has complied with the undertaking and paid the difference amount of Rs.90/kg. to Rs.110/kg. of cotton seeds to the farmers, copy whereof is annexed hereto and marked as ANNEXURE-
F. It is submitted that one of the companies viz. Raasi Seeds informed the aforesaid Association that the company is ready to pay additional payment @ Rs.95/- per 750 grms. of delimited clean seeds packet to the growers within one month, copy whereof is annexed hereto and marked as ANNEXURE-G. It is submitted that the other companies instead of making balance payment had given evasive reply to the effect that the companies had paid Rs.335/- per 750 grms. of good quality delinted clean seeds to their organizers and the resultant effect thereof would be that the purchase price of the cotton paid to the farmers would be that the purchase price of the cotton paid to the farmers would be approx. Rs.440/kg. of cotton seeds. Annexed hereto and marked as ANNEXURE-H (Colly.) are the copies of replies given by some of the companies.”
5. It is, inter alia, claimed by the petitioners that as per the notification dated 11.6.2008 the State Government had fixed maximum sale price for BT cotton (BG-I) at Rs.650 / packet of 450 grams and for BT Cotton (BG-II) at Rs.750 / packet of 450 grams. Since the dispute involved interest of farmers, the State Government considered appropriate to intervene in the matter. It is submitted that a meeting between the private respondent Nos. 3 to 21 companies, representative of the petitioner and the Government was held on 17.4.2010.
Wherein it was claimed by the farmers that rate of Rs.260 / per kg. of seeds which was being paid to the farmers which was too less and the farmers should be paid reasonable price for the seeds being supplied by them. It is claimed that after certain deliberation the respondents primarily agreed to pay more amount for cotton seeds to the farmers. It is also not in dispute that further meeting was held and pursuant to the discussion between concerned parties i.e. representative of the respondent and petitioners, private respondent companies and the State Government, it was decided that the respondent companies shall pay minimum amount @ Rs.430 / kg to the cotton producing farmers for the year 2010-2011. It is claimed in the affidavit filed by the petitioners that the respondent companies had also tendered / submitted written undertaking on affidavit to the said effect i.e. to the effect that farmers will be paid Rs.430 / kg for the year 2010-11. The respondent companies had also agreed and undertaken that if the farmers are paid less than Rs.430 / kg for the year 2010-2011 the respondent companies No. 3 to 21 shall pay amount of difference within 2 months.
6. On the said premise the petitioners have claimed and alleged that the respondent companies have not acted as per the said undertaking and have not paid price as per the agreement / undertaking though, at the request of the said companies sale price of BT cotton seeds have been increased by the respondent Government to Rs.830 / packet of 450 grams for BT cotton (BG-I) and to Rs. 930 / packet of 450 grams for BT Cotton (BG-II). The petitioners have accordingly claimed that said respondents Nos. 3 to 21 are required to make payment @ Rs.430 / kg., however since the respondents have not made payment at the agreed rate, appropriate and necessary direction have been prayed for.
7. The petition is resisted by the private respondent companies. Some of the respondents have filed reply affidavit. The respondent No.2 State Government has also filed reply affidavit through one Mr. J.B. Upadhyay, Deputy Director. The respondent State Government has stated, inter alia, that:-
“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 sees on 11.6.2008, 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.
7. The written agreement on behalf of BT Cotton Seeds producers submitted on 20th April 2011 was in context to the Gujarat Cotton Seeds Act 2008. However, as per judgment of SCA 4404/2010, the notification dated 11.6.2008 issued pursuant to the Gujarat Cotton Seeds (Regulation of Supply, Distribution, Sale and Fixation of Sale Price) Act, 2008, cannot be upheld and is accordingly set aside. Accordingly notification issued on 21.4.2011 by the State Governemnt to fix the price at Rs.830/- for BG-I and Rs.930/- for BG-II per packet of 450 gram of BT Cotton Seeds was also set aside with effect from the said judgment. Therefore, State Government is unable to control the matter related to prices of the cotton seeds in the State. However the BT cotton seeds companies should adhere to the written agreement submitted on 20th April 2011 and must pay the amount to the BT cotton producing farmers for 2010 – 11 accordingly.
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 seeds 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 seed sdale 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.
9. The BT cotton seeds producing companies must pay for the cotton seeds being procured from the BT cotton seeds farmers as per the previous year contract with the farmer in normal practice and undertaking being submitted. The BT cotton seeds companies will have to submit before the Hon'ble Court regarding form of the cotton seeds, either linted or delinted, being procured from the BT cotton seeds farmers in the affidavit.
10. Deponent has no legal power to decide about the amount to be paid for the cotton seeds being procured from the BT cotton seeds farmers by BT Cotton seeds companies. However the undertaking being submitted by BT cotton seeds producing companies is the mutual agreement with BT cotton seeds producing farmers, and hence it should be fully respected and BT cotton seeds producing companies has to pay the BT cotton seeds producing farmers accordingly.
8. Mr. Majmudar, learned advocate for the petitioners has submitted that the petitioners adopt the arguments made by Mr. Shah learned advocate for the petitioner in SCA No.1003 of 2012 since present petition is identical to the said petition and petitioners in this petition do not have to add any other submissions. It is also submitted that in present case also the petitioners have prayed for similar relief and are relied on the same undertaking on which reference was made in the said petition. For the said purpose learned advocate for the petitioners has made available, for reference, a copy of the order dated 23.7.2012 passed in SCA No.1003 of 2012.
9. The respondents have opposed the petition on various grounds including the contention that the petitioners have alternative remedy available to them to agitate issue raised in the petition and also on the ground that present petition raises disputed question of facts which cannot be decided in writ proceedings and the contention that the subject matter of the petition is in realm of private agreement / contract between the parties and writ petition for alleged breach of terms of contract should not be entertained and also on the ground that the alleged default in payment is required to be established by the petitioners in accordance with law.
10. Learned advocate for the petitioners has admitted and stipulated that the petitioners were not party to the agreement / undertaking in question i.e. agreement / undertaking on which the reliance is placed by the petitioners for maintaining present petition.
11. At this stage it was inquired from the learned advocate for the petitioners as well as learned advocate for the respondent as to whether said order dated 23.7.2012 in SCA No.1003 of 2012 has been carried in Appeal and as to whether any order in connection with the order against order dated 23.7.2012 has been passed or not.
11.1 In reply learned advocate for the petitioner and learned advocate for the respondent have jointly submitted that until now said order has not been carried in Appeal and any order against the said order has also not been passed by the Division Bench. The learned advocate for the petitioner has also submitted that petitioners rely on the said order and in present petition also similar order may be passed.
12. 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 petitioners' association or availability of the alternative remedy are not taken into consideration, then also, a substantial issue which would still survive is the respondents' allegation that payment according to the agreement has not been made. On the other hand, the said respondent Nos.3 to 21 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 writ proceeding.
12.1 Upon consideration of the facts and circumstances of the case and 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 21 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.
12.2 However, the details mentioned in the reply affidavit dated 18.4.2012 filed by the respondent Government, attract attention. 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.”
12.3 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.”
13. 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:-
13.1 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 18.4.2012.
13.2 However, so far as petitioner associations' 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.
Suresh* (K.M.THAKER,J.)