ORDER
Vijender Jain, J.
1. Rule.
2. This writ petition can be disposed of at this stage. This is an off-shoot of the writ petition originally filed by the petitioners before the Allahabad High Court for the crushing season for grant of interim prices claimed by the writ petitioners. It seems that Allahabad High Court granted interim price, which was higher than the notified price subject to the petitioners-sugar factories furnishing bank guarantee along with the interest amount @12% p.a. Pursuant to interim order the petitioners furnished bank guarantee to the satisfaction of the Registration of the Allahabad High Court. The writ petitions of the petitioners i.e. DCM Shriram Industries Ltd. and Siel Ltd. Writ Petition no.1989/1983 (Transferred Case no. 54/1989), Sir Shadilal Enterprises Ltd. Writ Petition no.1840/1993 (Transferred case no.55/1/1989) and Simbaoli Sugar Mills Ltd. Writ Petition no.5963/1993 (Transferred Case no.84/1988) after furnishing of the bank guarantee were transferred to Supreme Court. Supreme Court in Shri Malaprahba Coop. Sugar Factory Ltd. Vs.Union of India & another decided all the cases including the cases of transfer by judgment dated 22.9.1993. Reliance has placed by Mr. Sudhir Chandra, learned counsel appearing for the petitioners, on the judgment of Supreme Court in Shri Malprabha Coop. Sugar Factory Ltd. ‘s case as decided in 1993 (supra).
3. Learned counsel has contended that, as a matter of fact, transfer cases were cases were allowed by the Supreme Court. He has contended that in para-109 of the said judgment, the Supreme Court specifically directed the Union of India to amend the notification taking in account the liability of the manufacturers under Clause 5-A of the Sugar-cane (Control) Order as regards to the cane price and refix the price of levy sugar having regard to the factors mentioned in Section 3(3-C) of the Essential Commodities Act. He has further contended that Government was further directed to issue amended notification by 31.12.1993. Lengthy arguments have been advanced on the basis of Shri Malaprabha Coop. Sugar Factory Ltd. Vs.Union of India & another as decided in 1993 as well as Shri Malaprabha Coop. Sugar Factory Ltd. Vs. Union of India & another (1977) 10 SCC 216 as decided in 1997. The relevant para on which reliance has been placed in Shri Malprabha Coop. Sugar Factory Ltd.’s case as decided in 1997 (supra) is as under:-
“The respondents have also tried to support their action by contending that clause 5-A is interconnected with clause 3 of the 1996 Order and Section 3(3-C) in an independent provision. Therefore, the direction given by this court cannot be interpreted to mean that the additional cane price fixed in terms of clause 5-A should also be taken into account as a cost element in addition to those specified in Section 3(3-C). It is also submitted that it is also not feasible to include the additional cane price payable under clause 5-A in the minimum cane price payable under Section 3(3-C) as the two exercises are required to be done at two different stages and the additional cane price is payable only in case of surplus. It was lastly contended that a three-Judge Bench of this Court has upheld on 20.2.1996 the levy prices fixed for 1982-83 in TC no.9 of 1990 and that would mean that this Court has now accepted the contention of the Government that it is not required to include the additional cane price payable under clause 5-A while determining the price of levy sugar under Section 3(3-C).”
4. The Supreme Court in para 11 of Shri Malparabha Coop. Sugar Factory Ltd. ‘s case as decided in 1997 (supra) has held :-
“All these contentions except the last one were raised by the respondents earlier while the above batch of matters, the review applications and the applications for clarification were heard by this Court. All those contentions have ben rejected and, therefore, it is really not open to the respondents to raise them again. It appears to us that the respondents, like an ordinary litigant, are trying to find excuses for not complying with the judgment of this Court merely because it is not palatable to them. The direction given by this Court in para 109 of the judgment is quite clear and does not lend itself to two interpretations or any confusion as contended by the respondents. In unambiguous terms this Court has directed the Government of India to take into account the liability of the manufacturer under clause 5-A of the 1966 Order as regards cane price and refix the price of levy sugar. Obviously, the price of levy sugar has to be fixed having regard to the factors mentioned in Section 3(3-C) of the Act and, therefore, this Court while giving the aforesaid direction also directed them to refix the price of levy sugar having regard to those factors also. The doubt or confusion, if any, appears to us to be the result of unwillingness of the Government to give up its views and accept, and implement the decision of this Court.”
5. It was contended on the basis of the aforesaid authority that in unambiguous terms the Supreme Court has directed the Government of India to take into account the liability of the manufacturers under clause 5-A, which was inserted subject to the amendment of 1974 in the Sugar Control Order and the price of levy sugar has to be fixed having regard to the factors mentioned in Section 3(3-C) of the Act. It was contended by Mr. Sudhir Chandra that the Supreme Court took note in Shri Malaprabha Coop. Sugar Factory Ltd. ‘s case decided in 1997 (supra) of Modi Industries Ltd. & Vs.Union of India & ors. (1999) 9 SCC 245 Transferred Case no.9/1990 decided on 20.2.1996 and held that decision in Modi Industries Ltd. & anr. ‘s case (supra) will have no bearing on the case of the petitioners.
6. It was contended that Modi Industries Ltd, was not a party in Shri Malaprahba Coop. Sugar Factory Ltd. ‘s case (supra). Cases decided subsequently by the Supreme Court i.e. Union of India & ors. Vs.Triveni Engg.Works Ltd. & ors. and Bharat Sugar Mills Ltd. & anr. Vs. Union of India & ors. (1999) 9 SCC 246 on the basis of Modi Industries Ltd. & anr. ‘s case (supra) will not be binding on the petitioners, firstly on account of the fact that the petitioners were protected under Shri Malaprahba Coop. Sugar Factory Ltd. ‘s case (supra) and petitioners in all the aforesaid three cases i.e. Modi Industries Ltd. & anr. , Triveni Engg. Works and Bharat Sugar Mills Ltd. & anr. (supra) were not parties in Shri Malaprahba Coop. Sugar Factory Ltd. ‘s case (supra) and secondly, in Shri Malaprahba Coop. Sugar Factory Ltd. ‘s case decided in 1997 (supra) the Supreme Court while taking note of Modi industries Ltd. & anr. ‘s case (supra) has returned the following finding:-
“The order that was passed by this Court on 20.2.1996 in Transferred Case (Civil) No. 9 of 1990 was in respect of levy sugar price for the year 1982-83, and, therefore, it cannot have any bearing on the fixation of price of levy sugar for the years 1975-76 to 1979-80. Moreover, this Court, while passing the said order, has clearly stated that”…..this matter is not covered by the decision of this Court in Sri Malprabha Coop.Sugar Factory Ltd. v.Union of India”. Even if the Government has omitted to take into consideration one unfavorable element, namely, mapping up the excess realisation it cannot justify its omission to take element which is favorable to the producer of sugar.”
7. Another contention has been raised by the learned counsel for the petitioners with regard to payment of interest. It has been contended that as no price fixation has been done in terms of the order passed by the Supreme Court in Shri Malaprahba Coop. Sugar Factory Ltd. ‘s case decided in 1993 (supra), the petitioners are not liable to pay any interest. He has further contended that in view of the aforesaid reasons the respondents are not liable to encash the bank guarantee given by the petitioners.
8. On the other hand, Mr. H S Phoolka, learned counsel appearing for the respondent-UOI, has contended that after the decision in Modi Industries Ltd. & anr. ‘ case (supra) pricing of 1982-83 is no more res integra. Counsel for respondent-UOI has very fairly conceded that no price fixation taking into account clause 5-A of Sugar Cane (Control) Order has been fixed by the Union of India. Mr. Phoolka has stated that once the Supreme Court in Modi Industries Ltd. & anr. ‘s case (supra) has taken the price fixed by the Union of India of 1982-83, the same prices will be applicable in the case of the petitioners. He has further contended that as per the Levy Sugar Price Equalisation Fund Act, 1976 a producer shall on the final disposal of the proceedings of the court aforesaid, or in any court of appeal or revision, has to pay interest from the date of payment by the respondents to the petitioners. In support of his contentions learned counsel for the respondent-UOI has relied upon the judgments of the Supreme Court in the matters of Bilewhwar Khand Udyod Khedut Shahakari Mandli Ltd. etc. Vs. Union of India & anr. Civil Appeal no.1660-66/1991 decided on 10.2.1999 and The Anakapalle Coop. Agricultural & Industrial Society Ltd. & anr. etc. etc. Vs. Union of India & ors. etc. decided on 4.5.1977.
9. I have given my careful consideration to the arguments advanced by the learned counsel appearing for the parties. It cannot be disputed that the petitions of the petitioners were transferred from Allahabad High Court to Supreme Court same pertained to the year 1982-183. In para-1 of Shri Malaprahba Coop. Sugar Factory Ltd. ‘s judgment decided in the year 1993 (supra) this is how the Court has dealt:-
“All these cases can be dealt with under a common judgment since what is under attack is the fixation of price of levy sugar under orders issued under Section 3(3-C) of the Essential Commodities Act, 1955 (hereinafter referred to as ‘the Act’)”
10. In para-94 of the said judgment, Supreme Court while dealing with the arguments advanced by the counsel for the petitioner has held:-
“With this, time we move to the next contention. Mr. Nariman, learned counsel urges that whatever might have been the position when Panipat Case was decided, namely before October 1, 1974, after that date regard must be had to Clause 5-A of the Sugar-cane Control Order, 1966. After incorporation of the said clause the Government could not, in law, proceed to determine the levy price by mopping up 100 per cent of the excess realisation on sale of free sugar…..”
11. The Supreme Court answered in para-107 of the said judgment:-
“We are in agreement with the above observations since the approach to price determination is in the proper perspective. It may also be added that the ruling in Sitaram case is silent as to the impact of Clause 5-A of the Sugar-cane (Control) Order since what came up for decision in that case was the correctness of the zonal fixation of prices. Therefore, we uphold the contention of adopted from July 11, 1975 was directly contrary to the recommendations of Bhargava Commission which have come to be accepted by the Government. Accordingly, we hold that the Government could not, in law, proceed to a determination of the levy price by mopping up 100 per cent of the excess realisation of free sale sugar. This over looks the fact that the producer had become statutorily entitled to 50 per cent of such excess realisation from October 1, 1974.”
12. The Supreme Court in para-109 of the said judgment directed the Central Government to amend the notifications issued taking into account the liability of the manufacturers under clause 5-A of the Sugar-Cane (Control) Order as regards cane price and refix the price of levy sugar having regard to the factors mentioned in Section 3(3-C) of the Act by 31.12.1993.
13. My difficulty is that in view of the judgment in Modi Industries Ltd. & ors. ‘s case (supra) the price as fixed by the respondent for 1982-83 has been taken as correct by the Supreme Court, I have no other alternative except to take the price as determined in terms of Modi Industries Ltd. & ors. ‘s case (supra) for 1982-83 which is not calculated in terms of judgment of Shri Malprahba Coop. Sugar Factory Ltd. ‘s case (supra). To the similar effect the matters relating to pricing of 1982-83 has come up before Supreme Court in Bharat Sugar Mills Ltd. & anr. ‘s case (supra) and before Allahabad High Court as well in The Reliance Jute & Industries Ltd. & anr. Vs. The Union of India & & ors. Civil Misc. Writ Petition no.5785/1983 decided on 22.10.1997 and Bagpat Coop. Sugar Mills Ltd. & anr. V. The Union of India & ors. Civil Misc. Writ Petition no. 5956/183 decided on 22.10.1997 which has been disposed of in view of Modi Industries Ltd. & ors. ‘s case (supra). I am bound by the price of 1982-83 as has been approved by the Supreme Court in Modi Industries Ltd. & ors. ‘s case (supra).
14. With regard to the contention of the parties regarding payment of interest in terms of Shri Malaprahba Coop. Sugar Factory Ltd. ‘s case (supra) where the petitioners were parties, admittedly, no refixation has been done by the Central Government as per the directions of the Supreme Court. The case as has been argued before me is not that any price has been fixed pursuant to the direction passed by the Supreme Court in Shri Malaprahba Coop. Sugar Factory Ltd. ‘s case (supra) taking into account clause 5-A of the Sugar-cane (Control) Order but in view of the prices of 1982-83 having been accepted by the Supreme Court in Modi Industries Ltd. & ors. ‘s case (supra), therefore, it would be just and fair to direct the petitioners to pay interest from the date when Modi Industries Ltd. & ors. ‘s case (supra) was decided on 20.2.1996 the respondents cannot claim any interest from 1982-83 as fixation of price for 1982-83 had not attained conclusivity till then. It was only on account of judgment in Modi Industries Ltd. & ors. ‘s case (supra) the respondents would be entitled for interest at the rate the 12% p.a. from the date of the decision in in Modi Industries Ltd. & ors. ‘s case (supra).
15. Writ petition is disposed of with these directions.