JUDGMENT
H. L. Agrawal, J.
The petitioner, which is a company carrying on the business of manufacture of sugar in their factory known as Behar Sugar Works, Pachrukhi, in the district of Saran, has made this application under Article 226 of the Constitution of India, challenging the validity and legality of the Sugar (Price Determination) Order, 1972 (hereinafter to be referred to as the “Order”) made under the provisions of Section 3 (3-C) of the Essential Commodities Act, 1955 (hereinafter to be referred to as the “Act”) fixing the prices of levy sugar produced in the 1971-72 crushing season, payable to the sugar factories in the different zones specified in the said Order, and for other ancillary reliefs. A writ in the nature of mandamus has also been prayed for to direct the respondents to fix a fair price of sugar manufactured by the petitioner’s factory and in the meantime to forbear to give any effect to the aforesaid Order, which is Annexure “6” to the present application.
2. The case made out by the petitioner is that the price of levy sugar to be procured from the petitioner’s sugar factory has been fixed without taking into account the manufacturing cost of sugar and securing a reasonable return to the capital employed. It has been stated that in fixing the price, the respondents have not complied with the mandatory provisions of Section 3 (3C) of the Act.
3. In the counter-affidavit filed on behalf of the Respondents, which has been sworn by the Under Secretary to the Government of India. Ministry of Agriculture (Department of Food), a short history of the introduction of control on sugar from, the year 1963 has been traced out by giving various facts and figures and the system of the working of the Tariff Commission, on whose recommendation the Central Government fixes the price, the fixation of price of sugar under the impugned order has been supported. A table has been appended to the counter-affidavit and it has been attempted to show that in fixing the prices for various grades of sugar, a fair return to the manufacturers has been contemplated.
4. It is not necessary for us to examine in detail any of the questions raised on behalf of the petitioner in this Writ application, inasmuch as the matters have been set at rest by two recent de-
cisions of the Supreme Court. In the first case, namely the case of Panipat Co-op. Sugar Mills v. Union of India, AIR 1973 SC 537, the Supreme Court was called upon to decide the Validity of the Sugar (Price Determination) Order, 1971, This was an Order fixing the prices of levy sugar produced in the 1970-71 crushing season, that is, just for the preceding crushing season similarly made under Section 3 (3-C) of the Act. The Delhi High Court had dismissed three writ applications but had granted certificates for going to the Supreme Court. Their Lordships on considering the various aspects and provisions of the Act and the Sugar (Price Determination) Order. 1971, on the basis of the statements made by the parties, upheld the validity of the impugned order on giving a finding that the prices fixed by the Central Government were not inconsistent with the provisions of Section 3 (3-C) of the Act. Their Lordships further found that a fair price of sugar was to be determined in respect of the entire produce, ensuring to the industry a reasonable return on the capital employed in the business of manufacturing sugar, including the price available to the factory for free sale of sugar in the market. Taking the average realised in this way, it was found in the above cases that taking the picture as a whole, the factories in those cases, in any event, got a reasonable return on the capital employed.
5. The next case decided recently by the Supreme Court is the case of Anakapalle Co-op. Agrl. & Industrial Society Ltd. v. Union of India, AIR 1973 SC 734. In that case the legality and validity of the levy Sugar Supply Control Order. 1972, was challenged by the petitioner under Article 32 of the Constitution on various grounds. Six questions were posed by their Lordships on the contentions raised before them and after considering in detail the entire facts and circumstances placed before them, the levy Sugar Supply Control Order, 1972, was held to be constitutionally valid. In course of the Judgment, however, their Lordships, no doubt, have observed at some places that in fixing the price of sugar, some of the recommendations of the Tariff Commission were not accepted by the Central Government, but it has been clearly held that the Government was not bound to accept every recommendation of the Tariff Commission and was free to take its own decision with regard to the recommendations of the Commission.
6. In view of the above decisions of the Supreme Court, learned counsel for the petitioner had to fairly concede before us that it was not now open for
this Court to grant him the relief prayed for in this application as the questions raised have been finally decided and stands concluded by the Supreme Court itself. In the case of Anakapalle, AIR 1973 SC 734 (supra), the Supreme Court while upholding the reasonableness and propriety of the Zonal System observed that it was not proper to fix price of sugar unit wise i. e., on the basis of the actual costs incurred by each unit (factory) which, in their Lordships’ opinion, would defeat the entire object and purpose of controlling prices of sugar, inasmuch as the reasons for incurring losses by one particular unit might be also on account of the mis-management, lack of efficiency and following a wrong investment policy and the Zonal System, by and large, led to efficiency and making of efforts to cut down the cost on account of keen competition between the different units in the same zone. On this ground also, no relief can be granted to the petitioner who wants this Court to consider its own cost structures and on that basis to hold that the prices fixed in the impugned order are not just and proper.
7. Lastly, learned counsel for the petitioner confined his submission and submitted that observations should be made by this Court similar to those made by their Lordships of the Supreme Court in the case of Anakapalle Co-op. Agrl. & Industrial Society Ltd.. AIR 1973 SC 734 (supra) for making modifications in the impugned order in respect of the prices of lew sugar in view of the additional liability created for the payment of the increased gratuity and minimum bonus to the employees of the petitioner company, inasmuch as when the prices of sugar were fixed by the impugned order, these additional liabilities were not taken into account in determining the costs of production. Their Lordships, however, did not accept the contention with regard to the payment of gratuity, but in regard to the payment of increased bonus, it was observed that “the Government ought to make modifications in the impugned order in respect of the prices of levy sugar so as to adjust them in accordance with the provisions of the payment of Bonus Amendment Ordinance. 1972”. I have no doubt that the recommendations of the Supreme Court, as and when carried out by the Government, would have its effect upon every unit situated within a particular zone, including the petitioner, and it is not necessary, therefore, to reiterate the same observation over and again.
8. Before parting with the case, however, I think that some provisions must be made with respect to the order
regarding the furnishing of Bank guarantees passed at the time of the admission of this application on 14-8-1972. Accordingly, the petitioner is given the liberty to file application for directions in respect of the Bank guarantees furnished by it in pursuance of the order dated 14-8-1972 passed by this Court
9. In the result, all the points raised by Mr. Verma having failed, this application is dismissed, but in the circumstances of the case. I shall make no order as to costs.
S. N. P. Singh. J.
10. I agree.