Full Judgment Text
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PETITIONER:
SUKHNANDAN SARAN DINESH KUMAR & ANOTHER ETC. ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ANOTHER ETC. ETC.
DATE OF JUDGMENT03/03/1982
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
VARADARAJAN, A. (J)
CITATION:
1982 AIR 902 1982 SCR (3) 371
1982 SCC (2) 150 1982 SCALE (1)165
ACT:
Sugar Cane (Control) Order 1966, Clauses 3, 3A, 4 and
4A & U.P. State Government Notification dated September 3,
1980.
Sugar Cane brought in bundles-Binding material-Grant of
rebate-Whether valid and reasonable.
HEADNOTE:
The raw material for manufacturing sugar or Khandsari
sugar is sugarcane. When the vacuum pan process is employed
the end product is called sugar and when the open pan
process is employed the end product is called Khandsari
sugar. In order to extend protection to the farmers who had
undertaken raising of sugarcane crop, the Central Government
issued the Sugarcane (Control) Order 1966. Clause 3 of this
Order conferred power on the Central Government to fix
minimum price of sugarcane to be paid by producers of sugar
for sugarcane purchased by them. Clause 4 conferred similar
power to fix the minimum price to be paid by the producers
of khandsari sugar for the sugarcane purchased. Clause 3A
which was introduced on September 24, 1976 conferred power
on the Central Government and various other authorities to
allow a suitable rebate in regard to the weight of the
binding material not exceeding 0.625 Kg. per quintal of
sugarcane, when sugarcane was purchased by the producer of
the sugar. Later, Clause 4A was introduced on March 20, 1978
to provide for the rebate that can be deducted from the
price paid for sugarcane by producers of khandsari sugar.
The State Government issued a notification on September
3, 1980 to provide that where sugarcane is brought in
bundles and is weighed as such, a rebate in regard to the
binding material at 0.625 Kg. per quintal should be allowed.
As there was a printing error in mentioning the figure
’0.650 kg.’ a corrigendum was issued to correct it, to
’0.625 kg’ per quintal in the notification.
The petitioners in the writ petitions who were
manufacturing khandsari sugar by the open pan process
assailed the decision of the State Government allowing
rebate. They contended that: (1) the power to prescribe the
rate of rebate under the third proviso to clause 4 is
conditional upon the fixing of the minimum price of
sugarcane and as the pre-condition for exercise of that
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power was not satisfied, the authorities cannot exercise
power to prescribe the rate of
372
rebate, (2) if the purchaser and seller of sugarcane are
free agents to negotiate the price no useful purpose would
be served by prescribing the rate of rebate statutorily. If
higher rebate is to be allowed, the producer of khandsari
sugar and the grower of sugarcane would work out the price
accordingly and if less rebate is allowed, it will have a
direct impact on the negotiated price, (3) assuming that the
power to prescribe the rate of rebate under clause 4A read
with the third proviso could also be exercised where the
price of sugarcane was left to be negotiated between the
growers of sugarcane and the producers of khandsari sugar,
the quantum of rebate determined must have a reasonable
relation to the reality of market situation as well as to
prevalent trade practice, (4) assuming that the Central
Government was influenced by the report made by the
Director, National Sugar Institute the report suggests that
the average works out at 0.741 kg per quintal, and
consequently there was no justification for further reducing
it to 0.625 kg, (5) the notification places a restriction on
the freedom of trade guaranteed under Article 19(1) (g) and
as it is neither reasonable nor imposed in public interest,
it is violative of freedom of trade and therefore void, and
(6) in order that a restriction may be reasonable it must
have a reasonable relation to the object which the statute
seeks to achieve and must not be in excess of that object.
Dismissing the writ petitions.
^
HELD: The State Government notification dated September
3, 1980 directing that where sugarcane is brought in bundles
and is weighed as such a rebate in regard to the binding
material at 0.625 kg per quintal be allowed, is valid and
legal. The rebate was statutorily prescribed to ensure that
sugarcane growers were not at the mercy of the producers of
sugar and khandsari sugar. The statutory rebate serves two-
fold purpose: (i) it ensures price of sugarcane avoiding
impermissible deductions and (ii) it circumvents fraud by
making such deductions as would render illusory even the
negotiated price, if not fixed price. The restriction is
undoubtedly reasonable and is imposed in the interest of the
general public and the guarantee of freedom of trade is not
violated.
[376 E; 392 H; 393 A-C]
1. (i) Though clause 3A was inserted in the Control
Order in 1976 conferring power on the Central Government or
with the approval of the Central Government, on the State
Government to allow rebate at 0.625 kg. per quintal of
sugarcane purchased by manufacturers of sugar, such rebate
was being prescribed by the Central Government since 1968.
[379 G]
(ii) Clause 4 confers power on the Central Government
or a State Government with the concurrence of the Central
Government to fix the minimum price or the price of
sugarcane to be paid by producers of khandsari sugar for
sugarcane purchased by them. Third proviso to clause 4
provides that the Central Government or with the approval of
the Central Government the State Government to allow a
suitable rebate in the price so fixed. If the provision were
to end with clause 4, the question may arise whether the
power to determine rate of rebate can be exercised de hors
the power to fix minimum price or price of sugarcane or can
be unilaterally exercised. But the language of the third
proviso "...as it may specify, allow a suitable rebate of
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the price so fixed", indicates that the rebate is co-related
to the price fixed. [381 C-F]
373
(iii) The rebate contemplated by the third proviso to
clause 4 is not necessarily confined to rate of rebate for
binding material only but permissible rate of rebate from
the price or minimum price fixed under the substantive
provision of clause 4 can be prescribed. [381 H; 382 A]
(iv) Clause 4A stands on an independent footing and it
is independent of clause 4. Clause 4A is neither inter-
dependent nor interrelated to clause 4. Clause 4A visualises
a situation in which either the minimum price of sugarcane
is fixed under clause 4 or where no such price if fixed, the
price agreed to between the sugarcane grower and the
producer who purchased sugarcane and even in this latter
situation the power to prescribe rate of rebate only in
respect of binding material was conferred on the authorities
set out in the third proviso to clause 4A. Therefore, fixing
of the minimum price may be a pre-condition to the exercise
of power under the third proviso of clause 4, as far as
clause 4A is concerned, even where the price to be paid by
the producer to the sugarcane grower is the one negotiated
between the two, the producer or his agent will have to
allow that much rebate and no more for binding material if
notified under the third proviso. This literal construction
accords with the intendment of the provision. [382 B-E; 383
G]
2. (i) Sugarcane is a perishable commodity. The grower
of the sugarcane is at the mercy of producers of sugar or
khandsari sugar. It would be uneconomic for him to transport
sugarcane to a long distance. The product, being perishable
and transport over a distance being uneconomic, the grower
of sugarcane has limited choice in selecting the producer to
whom it could be sold. Between the producer of khandsari and
the grower of sugarcane, the first one is primarily in a
position to dominate and dictate and they do not operate on
the level of equality. The grower of sugarcane in relation
to the producer of the khandsari sugar would therefore be
weaker and requires to be protected. If the protection of
fixing of minimum price is not resorted to because the
authorities have information that the grower of sugarcane
would be able to obtain a reasonably fair price for his
labour, the only thing which is required to be protected
against is iniquitous. unauthorised and impermissible
deductions. In the States of Uttar Pradesh and Bihar the
weight of the binding material when sugarcane is brought in
bundles to the producer has been a fruitful source for the
producers of khandsari sugar to make deductions from the
weight of sugarcane delivered to them in an exorbitant
quantity so as to deny in real money worth the negotiated
price. [382 H; 388 A-D]
(ii) While retaining the power to fix minimum price or
price to be paid and also in a given situation leaving it to
the purchaser of sugarcane to negotiate the price in order
to eschew any exploitation of the weaker section between the
two, the power to prescribe the rate of rebate was acquired
and it can be rightly enforced. There is therefore no merit
in the submission that unless the power to fix the price or
minimum price is exercised there is no power to prescribe
the rate of rebate. [383 F-G]
3. The rate of rebate has been determined by the law of
averages after collection information from all over the
country, and the present rate of rebate
374
is in vogue for over a quarter of a century. It is therefore
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difficult to accept the submission that the fixation of rate
of rebate for binding material at 0.625 kg. for the whole
country is either arbitrary or unreal or unrelated to trade
and practice.
[376 G-H]
4. (i) The differential between what is prescribed and
what is calculated as average by the study of the National
Sugar Institute is not so wide as to render the prescribed
rate arbitrary or unrealistic. The differentials being
within a narrow range, the one which is in vogue for over a
quarter of a century cannot be rejected as arbitrary or
unrelated to trade and practice. Nor is the Court competent
to work out the exact permissible rebate with mathematical
accuracy.
[387 D-E]
(ii) The rate of rebate set out in the impugned
notification bears resemblance to the sample testing of
actual weight of binding material used in binding sugarcane
when brought in bundles to the khandsari factory. [388 G]
(iii) This does not however imply that no case has been
made for upward revision of the rebate. The Central
Government may realistically examine the same before the
next crushing season commences. [388 G]
5. (i) It would be open to the producer of khandsari
sugar to buy sugarcane from the grower who may be asked to
bring sugarcane not bound in bundles. The rebate for binding
material is to be allowed only when sugarcane is brought to
the khandsari sugar producing unit bound in bundles. It is
always open to the purchaser of sugarcane to insist upon the
grower bringing the sugarcane not bound in bundles and he is
free to negotiate the price of sugarcane is not fixed and
the impugned notification will not even remotely impinge
upon his freedom to carry on his trade. The restriction
complained of therefore does not directly and proximately
interfere with the exercise of freedom of trade and Article
19(1) (g) is not attracted. [389 E-G]
(ii) Producers of sugar and khandsari sugar constitute
powerful trade lobby, and this can be taken judicial notice.
Sugar being an essential commodity occasionally kept in
short supply and being a commodity needed for consumption by
almost the entire population, the powerful industry magnates
are in a position to dominate both the growers of sugarcane
as also the consumers of the essential commodity. Number of
regulations have been enacted to regulate this powerful
combination of manufacturers of sugar and khandsari sugar
all over the country for the ultimate benefit of consumers,
the farmers-the growers of sugarcane. The marginal farmers,
are unable to stand up against the organised industry and
need protection for selling at fair price their meagre
agricultural produce. [391 D-G]
(iii) Sugarcane growers who are farmers cannot
negotiate on the footing of equality with the producers of
sugar and khandsari sugar. The State action for the
protection of the weaker sections is not only justified but
absolutely necessary unless the restriction imposed is
excessive. If price or minimum price of sugarcane is fixed,
the producers of sugar would try to circumvent the price or
minimum price by unrealistic and impermissible deductions.
The rebate for weight of binding material seems to be a
source for indulging in this nefarious, if not wholly
fraudulent conduct.
375
6. To strike the balance between the conflicting
interests not only the State acquired power to fix minimum
price of sugar and khandsari sugar but that this wholesome
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effort may not work to the disadvantage of the sugarcane
growers another weaker section of the society, the power to
prescribe rate of rebate was acquired. And the power to fix
price or minimum price comprehends the power to so regulate
supply as to ensure the price so fixed and to ensure that in
the name of unauthorised and unwarranted deduction the price
fixed or negotiated is not rendered illusory. [393 G-H; 394
A]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition Nos. 6443-44/80,
8829-30, 9123-24, 370-87, 777-796, 658-62, 732-63, 824-31,
847-62, 1080-1103, 1131-52, 8916, 9071-74, 9130-32, 9176-79,
8965, 8971-72, 9347-48, 9352-67 of 1981.
(Under Article 32 of the Constitution of India)
AND
Writ Petitions Nos. 14-19/82, 333-25, 458-96, 1307-17,
1410-13, 1595, 8268-72 of 1981 and 152 of 1982.
(Under article 32 of the Constitution of India)
C.M. Lodha. in W. P. No. 6443-44/80, Shanti Bhushan, in
WP. Nos. 732-63, 3423-25/81-S.N. Kackar, in W.P. 777-96 &
1131-52 of 81; R.K. Jain, S. Mitter, K.K. Mohan, N.S. Das
Bahl, Rameshwar Dial and Madan Gopal Gupta for the
Petitioners.
G.N. Dikshit and Mrs. Shobha Dikshit for Respondents.
Girish Chandra and Miss A. Subhashini for Union of
India in W.P. Nos. 6443-44/80.
The Judgment of the Court was delivered by:
DESAI, J. Even an innocuous marginally regulatory
measure affecting the sugar trade at fringes is sufficient
for this powerful industry to invade the courts with
petitions galore almost proclaiming that there should be
hands off policy in respect of this trade. The filimsty
albeit untenable grievance made in this group of petitions
would underscore the truth of what is just stated.
In exercise of the power conferred by clause (4) third
proviso of the Sugarcane (Control) Order, 1966, (Control
Order’ for short), the 2nd respondent-State of Uttar
Pradesh, with the permission of
376
the 1st respondent Union of India, issued Notification dated
September 3, 1980, which is impugned in these petitions. The
impugned Notification reads as under:
"Sr. No. 398 A (Ka) 13-38-16, 56
Government Gazette, U.P.
Extraordinary
Legislative Supplement
Part 4, Section (b) (Kha)
...Order
Lucknow, Wednesday, 3rd September, 1980.
Notification
P.As.-306
In exercise of the powers conferred by clause 4 proviso
3 of the Sugarcane Control Order, 1966, the Governor, with
the permission of the Central Government, allows in Uttar
Pradesh in respect of Khandsari units, producing Gur, rab or
Khandsari sugar, where sugarcane is brought in bundles and
is weighed as such, a rebate in regard to the binding
material at 0.650 kilograms per quintal.
By Order,
R. Basudev,
Secretary"
It was stated that there was a printing error in mentioning
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the figure ’0.650 kg.’ and a corrigendum has been issued to
correct it to ’0.625 kg.’ per quintal in the Notification.
The allegations in all the petitions are identical and,
therefore, we would state a few representative facts from
the writ petition filed by M/s. Sukhnandan Saran Dinesh
Kumar and Another. The petitioners are producers of sugar by
open pan process, the product being described as Khandsari
sugar. This term is to be understood in contra-distinction
to the marketable commodity called ’sugar’ which is produced
by vacuum pan process. The raw material for manu-
377
facturing sugar or Khandsari sugar is sugarcane. The
petitioners have set up a factory for manufacturing
khandsari sugar by open pan process. The petitioners buy
sugarcane from the sugarcane growers. In order to extend
protection to the farmers who have undertaken raising of
sugarcane crop, the Central Government issued the Control
Order in exercise of the power conferred by section 3 of the
Essential Commodities Act, 1955. By clause 3 of this order,
power was conferred on the Central Government to fix minimum
price of sugarcane to be paid by producers of sugar for
sugarcane purchased by them. Clause 4 confers similar power
to fix the minimum price to be paid by the producers of
khandsari sugar for sugarcane purchased by them. Other
clauses of the Order for the present purpose are not
relevant. Clause 3A was introduced by GSR 815 (E)/ESS.
COM./Sugarcane dated September 24, 1976, which, inter alia,
conferred power on the Central Government and various other
authorities mentioned therein to allow a suitable rebate in
regard to the weight of the binding material not exceeding
0.625 kg, per quintal of sugarcane, when sugarcane was
purchased by the producer of sugar. Subsequently, by
Notification GSR 197 (E)/Ess. Com./Sugarcane dated March
20,1978, Clause 4A with the marginal note "Robate that can
be deducted from the price paid for sugarcane by producers
of Khandsari sugar" was introduced. Clauses 4 and 4 A are
material for the present discussion and they may be
extracted:
"4. Minimum price of sugarcane payable by producers of
Khandsari sugar:-
The Central Government or a State Government, with
the concurrence of the Central Government, may, by
notification in the Official Gazette, from time to
time, fix the minimum price or the price of sugarcane
to be paid by producers of khandsari sugar or their
agents for the sugarcane purchased by them:
x x x
Provided also that the Central Government or, with
the approval of the Central Government, the State
Government, may in such circumstances and subject to
such con-
378
ditions as it may specify allow a suitable rebate in
the price so fixed."
*"4A. Rebate that can be deducted from the price paid
for sugarcane by producers of khandsari sugar:
A producer of khandsari sugar or his agent shall
pay, for the sugarcane purchased by him, to the
sugarcane grower or the sugarcane growers’ co-operative
society, either the minimum price of sugarcane fixed
under clause 4, or the price agreed to between the
producer or his agent and the sugarcane grower or the
sugarcane growers’ co. operative society, as the case
may be (hereinafter referred to as the agreed price:)
Provided that:
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x x x
x x x
(iii) Where the sugarcane is brought bound in bundles
and weighed as such, the Central Government, or,
with the approval of the Central Government, the
State Government or the Director of Agriculture or
the Cane Commissioner or the District Magistrate
within their respective jurisdiction, may allow a
suitable rebate in regard to the weight of the
binding material not exceeding 0.625 Kilograms per
quintal of sugarcane; and,
x x x
Clause 4 conferred power on the Central Government or a
State Government with the concurrence of the Central
Government to fix the minimum price or the price of
sugarcane to be paid by producers of khandsari sugar or
their agents for the sugarcane purchased by them. The second
and third proviso to clause 4 were simultaneously introduced
with clause 4A. By the Third proviso to clause 4, power was
conferred on the Central Government or
379
with the approval of the Central Government on the State
Government to allow a suitable rebate in the price fixed in
exercise of the power conferred by clause 4. The purpose
underlying the proviso is manifest. If the minimum price or
price of sugarcane to be paid by producers of khandsari
sugar is fixed, it is incumbent upon the producers of
khandsari sugar to pay that price and nothing less than that
price on the pain of criminal prosecution. The authorities
clearly envisaged a situation where sugarcane may be brought
in bundles to the unit manufacturing khandsari sugar and if
the sugarcane is weighed with the binding material used, the
minimum price or price fixed by the Government to be paid
per quintal of sugarcane would ipso facto include the weight
of the binding material and if the power to grant rebate is
not conferred the producer of khandsari sugar will be under
an obligation to pay the same price even if the part of the
payment was for something other than sugarcane, namely,
binding material. The raison d’etre behind conferring this
power is thus clearly discernible.
Clause 4A made it obligatory to pay the minimum price
of sugarcane if so fixed under clause 4 or in the absence of
price fixation, the negotiated price. Proviso (iii) to
clause 4A confers power to allow rebate not exceeding 0.625
kg. per quintal of sugarcane where sugarcane is brought in
bundles and is weighed as such, i.e. with the binding
material. Armed with this power, the 2nd respondent after
obtaining approval of the Central Government, as per letter
dated September 6, 1979, issued the impugned notification
directing that where sugarcane is brought in bundles and is
weighed as such a rebate in regard to the binding material
at 0.625 kg. per quintal be allowed.
Before adverting to the contentions raised in this
group of petitions it may be made distinctly clear that
though clause 3A was inserted in the Control Order in 1976
conferring similar power on the Central Government or with
the approval of the Central Government, on the State
Government to allow rebate at 0.625 kg. per quintal of
sugarcane purchased by manufacturers of sugar, such rebate
was being prescribed by the Central Government since 1968.
The Gazettes of India setting out the notifications for the
years 1968, 1971, 1972 and 1975 were shown to us. The
notifications were issued in exercise of the power conferred
by clause 3 of the Sugarcane Control Order, 1966. By the
notifications hereinabove referred to minimum price of
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sugarcane per quintal payable by each sugar mill enumerated
in the Schedule to the notification was fixed.
380
While fixing this minimum price the Central Government
authorised itself as also conferred power on the State
Governments or the Commissioner or Director of Agriculture
within their jurisdiction to allow a suitable rebate in
regard to the weight of binding material not exceeding 0.625
kg. per quintal of sugarcane. It thus clearly transpires
that the power to fix the minimum price of sugarcane
comprehended the power to fix rebate to be allowed for
binding material where sugarcane is brought to the factory
or the producing centre bound in bundles. However, to avoid
any quibbling about the power to fix such rates of rebate,
clause 3A was added in 1976 and an identical clause 4A was
added in 1978 acquiring power to prescribe rebate to be
allowed for binding material where sugarcane is brought to
the khandsari sugar producing units bound in bundles and
weighed as such. This would at least show that since 1968
rebate at 0.625 per quintal of sugarcane purchased by
producers of sugar is being allowed. Sugarcane is a raw
material both for sugar and khandsari sugar, the distinction
between them being that when vacuum pan process is employed
the end product is called sugar and when open pan process is
employed the end product is called khandsari sugar. In case
of either of them, the grower of sugarcane has hardly
anything to do with the end product. After the grower sells
his sugarcane, as far as he is concerned, it is immaterial
whether the producer produces sugar or khandsari sugar or
rab or jaggery or shakkar. Therefore, clause 4A was
introduced to avoid discrimination between producers of
sugar and khandsari sugar in the matter of rebate to be
allowed when the grower of sugarcane brings the same bound
in bundles to be delivered to the producer. The producers of
sugar have without a murmur accepted this position but once
the producers of khandsari sugar are brought within the
purview of an identical provision, they have filed the
present petitions.
Mr. C.M. Lodha who led on behalf of the petitioners
contended that the power to prescribe rate of rebate under
third proviso to clause 4 is conditional upon the fixing of
minimum price or price of sugarcane, and as the pre-
condition to exercise of power is not satisfied, the
authorities cannot exercise power to prescribe rate of
rebate. The submission is that where minimum price of
sugarcane is fixed by the Government, in order to ensure
that that price is paid for sugarcane and simultaneously to
avoid any unauthorised deduction, the Central Government or
the State Government may prescribe the rate of rebate to be
allowed beyond which no deduction
381
under the camouflage of rebate for binding material can be
resorted to by the purchaser; but if the power to fix
minimum price or price of sugarcane is not exercised, there
does not arise a situation in which the power to prescribe
rebate to be allowed for binding material can be exercised.
It was urged that the power to fix price or minimum price of
sugarcane and to prescribe rate of rebate are not
independent but they are inter-dependent and one cannot be
exercised without exercising the other.
Clause 4 confers power on the Central Government or a
State Government with the concurrence of the Central
Government to fix the minimum price or the price of
sugarcane to be paid by producers of khandsari sugar for
sugarcane purchased by them. Third proviso to clause 4
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provides that the Central Government or with the approval of
the Central Government, the State Government may in such
circumstances and subject to such conditions as it may
specify, allow a suitable rebate in the price so fixed. If
the provision were to end with clause 4, a serious
contention would arise whether the power to determine rate
of rebate can be exercised de horse the power to fix minimum
price or price of sugarcane or can be unilaterally
exercised. Undoubtedly, if the power was exercised under
clause 4 probably the pre-condition to exercise of power of
prescribing suitable rebate viz. fixing of minimum price or
price of sugarcane if not satisfied, the power to prescribe
rate of rebate could not have been exercised because the
latter power for its exercise is dependent upon the power to
fix price or minimum price. Both the powers are interrelated
as would be evident from the language of third proviso:
"...as it may specify, allow a suitable rebate in the price
so fixed." The rebate is thus co-related to price fixed.
Therefore prima facie it appears that the power to fix rate
of rebate under the third proviso to clause 4 cannot be
exercised without exercising the power to fix price or
minimum price. It being a conditional power, the
satisfaction of condition giving rise to the occasion to
exercise of power is a must. Therefore, before the rate of
rebate is prescribed the price or the minimum price of
sugarcane as provided in the substantive part of clause 4
will have to be fixed. From the price so fixed a rebate has
to be allowed and, therefore, the power was conferred by the
third proviso to prescribe the rate of rebate. The rebate
contemplated by the third proviso to clause 4 is not
necessarily confined to rate of rebate for binding material
only but per-
382
missible rate of rebate from the price or minimum price
fixed under the substantive provision of clause 4 can be
prescribed.
Clause 4A stands on an independent footing and it is
independent of clause 4. Clause 4A is neither inter-
dependent nor interrelated to clause 4. Clause 4A provides
that the producer of khandsari sugar or his agent shall pay
for the sugarcane purchased by him to the sugarcane grower
or the sugarcane growers’ cooperative society either the
minimum price of sugarcane fixed under clause 4 or the price
agreed to between the producer or his agent and the
sugarcane grower or the sugarcane growers’ co-operative
society as the case may be. Clause 4A thus visualises a
situation in which either the minimum price of sugarcane is
fixed under clause 4 or where no such price if fixed, the
price agreed to between the sugarcane grower and the
producer who purchased sugarcane and even in this latter
situation the power to prescribe rate of rebate only in
respect of binding material was conferred on the Central
Government or the authorities set out in the third proviso
to clause 4A. Therefore, fixing of the minimum price may be
a pre-condition to the exercise of power under the third
proviso of clause 4, as far as clause 4A is concerned, even
where the price to be paid by the producer to the sugarcane
grower is the one negotiated between the two, the producer
or his agent will have to allow that much rebate and no more
for binding material if notified in exercise of the power
conferred by the third proviso. This literal construction
accords with the intendment of the provision as would be
presently pointed out.
Mr. Lodha urged that if the purchaser and seller of
sugarcane are free agents to negotiate the price, what
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useful purpose would be served by prescribing the rate of
rebate statutorily ? Says Mr. Lodha, that if higher rebate
is to be allowed, the producer of khandsari sugar and the
grower of sugarcane would work out the price accordingly and
if less rebate is allowed, it will have a direct impact on
the negotiated price. This submission proceeds on the
unwarranted assumption that a producer of khandsari sugar
and the grower of sugarcane are capable of negotiating the
price as free agents and stand on a footing of equality.
Sugarcane is a perishable commodity. The grower of the
sugarcane is at the mercy of producers of sugar or khandsari
sugar. It would be uneconomic for him to transport sugarcane
to a long distance. By the very nature of the product, it
being perishable and transport
383
over a distance being uneconomic, the grower of sugarcane
has limited choice in selecting the producer to whom it
could be sold. Between the producer of khandsari and the
grower of sugarcane, the first one is primarily in a
position to dominate and dictate and they do not operate on
the level of equality. Unquestionably, therefore, the grower
of sugarcane in relation to the producer of the khandsari
sugar would be weaker and it is he who requires to be
protected. Now, if the protection of fixing of minimum price
is not resorted to because the authorities under the Control
Order may have information before them that looking to the
supply and demand and the demand and the market economy, the
grower of sugarcane would be able to obtain a reasonably
fair price for his labour, the only thing which is required
to be protected against is iniquitous, unauthorised and
impermissible deductions. It appears that in the State of
Uttar Pradesh and Bihar the weight of the binding material
when sugarcane is brought in bundles to the producer has
been a fruitful source for the producers of khandsari sugar
to make deductions from the weight of sugarcane delivered to
them in such an exorbitant quantity as to deny in real money
worth the negotiated price. This can be demonstrably
established by the claim made in these petitions that the
weight of binding material is 2.5 kg. per quintal of
sugarcane while the authorities have prescribed only 0.625
kg. per quintal of sugarcane and the national average as
worked out by National Sugar Institute, Kanpur is 0.741 kg.
per quintal of sugarcane. If the price of sugarcane is fixed
per quintal and the deduction is made as contended herein,
it does not require imagination or mathematician’s intellect
to work out the invisible loss inflicted by the subtle
method on the growers of sugarcane. Therefore, while
retaining the power to fix minimum price or price to be paid
and also in a given situation leaving it to the purchaser of
sugarcane and grower of sugarcane to negotiate the price in
order to eschew any exploitation of the weaker section
between the two, the power to prescribe the rate of rebate
was acquired and can be rightly enforced. Therefore, viewed
from either angle, there is no merit in the submission that
unless the power to fix the price or minimum price is
exercised there is no power to prescribe the rate of rebate.
Language of clause 4A on a literal or grammatical
construction negatives the submission and it must as well be
rejected looking to the intendment underlying this
provision.
Mr. Shanti Bhushan, learned counsel appearing for the
petitioners in Writ Petitions No. 732 to 763 urged that
assuming that
384
power to prescribe rate of rebate under clause 4A read with
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the third proviso could also be exercised where price of
sugarcane may be left to be negotiated between the growers
of sugarcane and producers of khandsari sugar, yet the
quantum as determined must at least have reasonable relation
to the reality of market situation as well as prevalent
trade practice. He urged that viewed from this angle
fixation of rate of rebate at 0.625 kg. per quintal of
sugarcane is unjust and unfair and therefore the Court
should strike down the impugned notification on the ground
that the determination is arbitrary and utterly unrelated to
trade and practice. Simultaneously he contended that
assuming that national average of weight of binding material
works out at 0.741 kg. per quintal as submitted by the
Respondents on the strength of the report of National Sugar
Institute, Kanpur, there was absolutely no justification for
reducing the same to 0.625 kg. per quintal and therefore
prescribed rate of rebate apart from being arbitrary is
unrelated to trade and practice and deserves to be quashed.
In this connection, he referred to Paragraph 6 of the
counter-affidavit filed by Shri H.A.M.L. Vaz, Deputy
Secretary, Ministry of Agriculture, Department of Food in
which it is stated as under:
"The limit of 625 grams per quintal was adopted,
as it was allowed by the States of U.P. and Bihar
before the Central Government took over the control
over the price of sugarcane, and has continued since
then. Representations were received from the
Associations of the vacuum-pan sugar mills etc. against
that limit. A survey was carried out by the National
Sugar Institute, Kanpur, and the average weight of the
binding material worked out to 0.741 kg., per quintal
for the winter season of the selected factories spread
over the whole country. Subsequently, on receipt of a
representation from the Madras State Federation of Co-
operative Sugar Factories, views of the State
Governments in the matter were also called for, with
the specific request that they might also ascertain the
views of the cane growers. The major sugar producing
State Governments of U.P., Punjab, Rajasthan,
Maharashtra, Karnataka, Andhra Pradesh, Pondicherry,
West Bengal, Orissa, Madhya Pradesh, Kerala and
Gujarat, recommended that the limit already prescribed
was adequate and that there was no need to revise it.
The Bihar Government had already indicated the same
view. Hence fixation
385
of that limit cannot be said to be unreal and arbitrary
or contrary to actualities of trade and practice."
Petitioners countered it by the affidavit in rejoinder
of Shri Prem Parkash Aggarwal; the relevant portion of para
4 reads as under:
"With reference to Para 6 of the counter-affidavit
I say that to the best of my information no survey was
carried out at any time after 1976. It is to the best
of my information that National Sugar Institute,
Kanpur, conducted some kind of survey in 1964 or
earlier."
This half-hearted lack of knowledge would not be sufficient
to reject what Mr. Vaz stated in his counter-affidavit.
However, to put this factual averment beyond the pale of
controversy Mr. Girish Chandra, learned advocate who
appeared for the Union Government produced a file of the
Department of Food, Sugar Policy Desk, in which claim for
upward revision of allowance for binding material presently
allowed under Sugar (Control) Order, 1966 in the light of
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the suggestions received from Indian Sugar Mills Association
as per its letter dated July 14, 1977 has been meticulously
examined. It appears that Indian Sugar Mills Association
approached the Central Government requesting it for upward
revision of the rebate for binding material till then
granted under the Control Order. Indian Sugar Mills
Association appears to be the spokesman of the sugar
industry. Probably a grievance was voiced that while
producers of sugar are under a statutory obligation to grant
the prescribed rate of rebate, the producers of khandsari
sugar are under no such obligation even though they purchase
sugarcane from the the same market. Accordingly while
examining the question whether any upward revision in the
rate of rebate should be allowed to the producers of sugar
who purchase sugarcane, it was decided to simultaneously
introduce an identical provision in respect of purchase of
sugarcane by producers of khandsari sugar. That is the
genesis of the introduction of clause 4A in the Control
Order. The file meticulously examines the suggestion for
upward revision of the rate of rebate. It clearly transpires
from the file that a circular letter was sent to all the
governments of sugar producing states requesting them to
intimate their view on the desirability or otherwise of any
upward revision in the existing quantum of rebate of 0.625
kg. per quintal in respect of the weight of the binding
material
386
where sugarcane is brought bound in bundles and weighed as
such. It may be briefly mentioned that Punjab, Gujarat,
Karnataka and U.P., did not consider it necessary to grant
any upward revision. On the other hand, Tamilnadu, Kerala,
West Bengal, Pondicherry, Haryana, Rajasthan and Orissa were
of the opinion that there is some justification for an
upward revision not exceeding 1 kg. per quintal. The State
of Bihar took a neutral stand stating that in Bihar,
sugarcane is not supplied bound in bundles and therefore the
question of giving any rebate in respect of binding material
does not arise. After ascertaining the views of the
different State Governments, the department was of the view
that since the views of the State Governments are sharply
divided, a request may be made to Director, National Sugar
Institute, Kanpur to carry out an independent study in
regard to the quantum of rebate that should be given for
binding material, to enable the Government to take a final
decision, on the request of the industry for upward revision
of the existing rebate of 0.625 kg per quintal. This is the
genesis of the report of the Director, National Sugar
Institute referred to in Para 6 of the counter-affidavit.
The summary of the report of the Director, National Sugar
Institute, Kanpur was examined and it was observed that the
percentage of the binding materials varies from State to
State and ranges between 0.64 to 1.5% except in Orissa where
it is found to be 3.00%. When the matter was still under
consideration of the Department, the present writ petitions
were field. It was observed that the present rate of rebate
is in force for the last over 20 years, so far as the
vacuum-pan sugar manufacturers are concerned and the same
can be applied to the khandsari sugar manufacturers also.
Probably further examination of the request for upward
revision came to be stalled in view of the fact that the
present writ petitions were filed.
In the light of the fact situation hereinabove set-out,
it is difficult to accept the submission that the fixation
of rate of rebate for binding material at 0.625 kg. for the
whole country is either arbitrary or unreal or unrelated to
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trade and practice. The rate of rebate seems to have been
determined by the law of averages after collecting
information from all over the country. Coupled with this is
the fact that the present rate of rebate is in vogue for
over a quarter of a century. It in itself is sufficient to
negative the contention that the rate of rebate is fixed
arbitrarily or unrelated to trade and practice.
387
The next submission is that assuming that the Central
Government was influenced by the report made by the Director
of the National Sugar Institute, Kanpur, the report suggests
that the average works out at 0.741 kg, per quintal, being
approximately the mean between 0.64 and 1.5%. Therefore, it
was vehemently urged that there was no justification for
further reducing it to 0.625 kg. When the determination has
to be made on law of averages and applicable to the whole
country, the final figure cannot be mathematically
determined. If the existing rate of rebate, determined on
the national average is marginally higher or lower than the
average worked out by a later study team, it cannot be said
that the existing prescription is arbitrary or unrelated to
trade or practice No doubt, if the range is wide, and the
gap is unexplained, realistic redetermination may be
directed. According to the average worked out by the
Director of the National Sugar Institute, all India average
rate of rebate would work out at 0.741 kg. per quintal while
the Government has been fixing for over a quarter of a
century the rate of rebate at 0.625 kg. per quintal. Thus
the differential between what is prescribed and what is
calculated by the study is not so wide as to render the
prescribed rate arbitrary or unrealistic. The differentials
being within a narrow range, the one which is in vogue for
over a quarter of a century cannot be rejected as arbitrary
or unrelated to trade and practice. Nor is the Court
competent to work out the exact permissible rebate with
mathematical accuracy.
A reference at this stage to a piece of evidence
furnished by the petitioners would suffice to repel the
contention of the petitioners that the average weight of
binding material is 2.5 kg. per quintal and, therefore, the
prescribed rate is not merely marginally low but wholly
unrealistic. Annexure I to the rejoinder affidavit filed by
Shri Prem Prakash Aggarwal, Secretary of Gur Khandsari
Utpadak Sangh, Roorkee, dated December 24, 1981, purports to
be a report of the Assistant Sugarcane Commissioner on his
visit to M/s Anand Prakash Atulkumar, a Khandsari sugar
producing unit on January 25, 1978. He was accompanied by
Shri Shanker Shukla, Khandsari Officer, Sarvashri S.D.
Verma, R.C. Kureel, Deoband and Navin Chandra, Khandsari
Inspectors. In order to ascertain the average weight of
binding material a truck loaded to its full capacity with
sugarcane was weighed. The gross weight was 37 quintals and
36 kgs. Shri Shobha Ram, the owner of the sugarcane was
directed to
388
remove the joon (binding material) of sugarcane. The weight
of M. Trolly was found to be 21 quintals and 40 kgs.
Subtracting the weight of trolly from the gross weight, the
weight of sugarcane with binding materials worked out at 15
quintals and 96 kgs. Then followed the calculation which may
be extracted:
"The above farmer (kastkar) also reported that the
sugarcane was being purchased at Rs. 9. 10 p. per
quintal. Approximately about 1800 quintals cane was
lying at site. The weight of the joon (binding
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material) after it had been removed came to 32 kgs."
If the actual weight of the binding material in respect of
1800 quintals of sugarcane turned out to be 32 kg.,
obviously per each quintal it would be much less than 0.625
kg. Mr. Shanti Bhushan, however, attempted to urge that the
last sentence in the Report is disjointed and misplaced and
he wanted us to read the Report as meaning that the weight
of sugarcane in the trolly was 15.96 kg. and that the weight
of the binding material in respect of the same was 32 kg.
and, therefore, on an average it would work out at 2 kg. per
quintal. It is not possible to read the Report in the manner
indicated by Mr. Shanti Bhushan. In fact, the Report was
produced on behalf of the petitioners and not a word has
been stated in the affidavit to which it is annexed as to
how the Report is to be read. It would thus appear that the
rate of rebate set out in the impugned Notification bears
resemblance to the sample testing of actual weight of
binding material used in binding sugarcane when brought in
bundles to the khandsari factory.
Our rejection of the submission should not be
interpreted to imply that no case is made out for upward
revision of the rate of rebate for binding material. There
is by the law of average as recently worked out in 1980-81,
an examinable case for revision up to at least 0.741 kg. per
quintal. We do not purport to indicate the figure as a
judicial pronouncement but we believe that the Central
Government would continue its examination of the request
made by Indian Sugar Mills Association, shelved because of
these petitions, for upward revision and realistically
examine the same as early as possible and before the next
crushing season commences. With this we reject the
submission that the fixation of rate of rebate at
389
0.625 kg. per quintal in the impugned notification is
arbitrary or unrelated to trade and practice.
Mr. Kackar, learned counsel who appeared in Writ
Petitions 777-796 and 1131-52/81 urged that the impugned
notification places a restriction on the freedom of trade
guaranteed to the petitioners under Article 19 (1) (g) and
as it is neither shown to be reasonable nor imposed in
public interest, it is violative of the freedom of trade and
is, therefore, void.
Whenever it is contended that a regulatory measure
imposes restriction upon the freedom of trade guaranteed by
Articles 19 (1) (g), it must be shown that the restriction
so imposed directly and proximately interferes in presenti
with the exercise of freedom of trade. If the alleged
restriction does not directly or proximately interfere with
the exercise of freedom of trade, the freedom guaranteed by
Article 19 (1) (g) is not violated. Petitioners contend that
they have a right to carry on trade on manufacturing
khandsari sugar and for facilitating the carrying on of this
trade they have to buy the raw material called sugarcane.
When they buy sugarcane in the absence of minimum price for
sugarcane the sugarcane grower and the producer of khandsari
sugar are free to negotiate the price. The negotiated price
would take care of the condition in which sugarcane should
be supplied. It would be open to the producer of khandsari
sugar to buy sugarcane from the grower who may be asked to
bring sugarcane not bound in bundles. The rebate for binding
material is to be allowed only when sugarcane is brought to
the khandsari sugar producing unit bound in bundles. It is
always open to the purchaser of sugarcane to insist upon the
grower bringing the sugarcane not bound in bundles and he is
free to negotiate the price when price or minimum price of
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sugarcane is not fixed and the impugned notification will
not even remotely impinge upon his freedom to carry on his
trade. Therefore, the short answer is that the restriction
complained of does not directly and proximately interfere
with the exercise of freedom of trade and Article 19 (1) (g)
is not attracted.
Assuming that the impugned notification making it
obligatory to grant rebate for binding material when
sugarcane is brought bound bundles to the extent prescribed
in the impugned notifica-
390
tion does impose a restriction on the freedom to carry on
trade, the next question is, whether the restriction is
reasonable and imposed in the interest of general public.
Once it is assumed that the impugned notification imposes a
restriction on the freedom of trade, the burden is on those
who support it, to show that the restriction imposed by the
impugned law is reasonable and is imposed in the interest of
general public. In other words, the burden is on those who
seek the protection of clause (6) of Article 19 not on the
citizen who says that the restrictive enactment is invalid
(see Saghir Ahmad v. The State of U.P. & Ors.,(1) Khyerbari
Tea Co. Ltd. & Anr. v. The State of Assam(2) and Vrajlal
Manilal & Co. and Ors. v. State of Madhya Pradesh &
Ors.,(3). It is of course not necessary to recall the
dissent of Sarkar, J. in Khyerbari Tea Co. Ltd. case. The
learned judge was of the view that the whole theory of
burden of proof rests on the assumption that clause (6) of
Article 19 carves out an exception and that the burden to
prove that the case is covered by the exception is on him
who pleads the same, but it was observed that this way of
reading the Constitution is not proper and one may
legitimately say that there is no exception because the real
fundamental right is what is left after the restriction has
been imposed. Consistently with the majority view, the
burden will be on the authority who claims the protection of
clause (6) of Article 19 to show that the restriction is a
reasonable one and that is imposed in the interest of
general public.
Having settled the question of burden, the passing
submission made by Mr. Kacker may be dealt with. It was
urged that in the batch of petitions in which he appears
neither the Union Government nor the State of Uttar Pradesh
has filed counter-affidavit and therefore, one can say that
no attempt has been made to justify the restriction. We are
not disposed to accept this submission because the Union
Government has filed counter-affidavit in Writ Petitions
Nos. 6443-6444 of 1980 and all the petitions in this batch
raised identical contentions and were directed to be heard
with Writ Petitions Nos. 6443-6444 of 1980. Undeserved
respect for processual justice may have persuaded us to
direct the Union Government to file a copy of the counter-
affidavit in each petition which we
391
consider superfluous. At any rate, the petitioners in the
petitions in which Mr Kacker appears, were supplied a copy
of the counter affidavit and therefore this passing
submission must be negatived.
If freedom of trade postulates, inter alia, freedom to
negotiate price for purchase and sale both the raw material
and the finished product, the control order confers power to
fix price of sugarcane and to that extent there is a
restriction on freedom of trade. But the restriction is not
under examination here Even when he is left free to
negotiate the price where either the Central Government or
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with the approval of the Central Government, the State
Government does not fix minimum price or price of sugarcane
there is a further restriction on his freedom of negotiating
the price because he is statutorily bound to give rebate for
the binding material as prescribed in the impugned
notification. To that extent one may give credence to the
contention that there is a marginal restriction on the
freedom of trade.
The statutory prescription of quantum of rebate for
binding material has been prescribed for the benefit of
sugarcane growers. Producers of sugar and khandsari sugar
constitute a powerful trade lobby, the fact of which one can
take judicial notice. Sugar being an essential commodity
occasionally kept in short supply and being a commodity
needed for consumption by almost the entire population, the
powerful industry magnates in this field are in a position
to dominate both the growers of sugarcane as also the
consumers of the essential commodity. Number of regulations
have been enacted almost since the dawn of independence to
regulate this powerful combination of manufacturers of sugar
and khandsari sugar all over the country for the ultimate
benefit of consumers on the one hand and on the other hand
the farmers and the growers of sugarcane with their small
holdings and raising a perishable food crop. The marginal
farmers, are unable to stand up against the organised
industry. It does not require long argument in this
predominantly agricultural society that the farmers having
small holdings need protection for selling at fair price
their meagre agricultural produce. As far back as 1953, the
U.P. Legislature enacted U.P. Sugarcane (Regulation of
Supply and Purchase) Act, 1953, for rational distribution of
sugarcane to factories, for its development on the organised
scientific line, to protect the interest of cane
392
growers and of the industry, etc. Constitutionality of this
Act was challenged on various grounds including one under
Article 19 (1) (g) In Ch. Tika Ramji & Ors. v. The State of
Uttar Pradesh & Ors.,(1) this Court repelled the challenge
under Article 19 (1) (g) holding that the restriction which
is imposed upon the cane-growers in regard to sales of their
sugarcane to the occupiers of factories in areas where the
membership of the Cane-growers Co-operative Society if not
less than 75 per cent of the total cane growers within the
area, is a reasonable restriction in the public interest
designed for safeguarding the interest of the large majority
of growers of sugarcane in the area and works for the
greatest good of the greatest number. The proposition is now
beyond the pale of controversy that the State can impose a
restriction in the interest of general public on the right
of a party to contract where in the opinion of the
Government the contracting parties are unable to negotiate
on the footing of equality. Constitutional validity of
statutes prescribing minimum wages has been founded on this
proposition. The principle can be effectively extended to
the powerful sugar industry and the cane growers because the
cane growers admittedly are at a comparative disadvantage to
the producers of sugar and khandsari sugar who were
described in the course of arguments as sugar barons. It
does not require an elaborate discussion to reach an
affirmative conclusion that sugarcane growers who are
farmers cannot negotiate on the footing of the equality with
the producers of sugar and khandsari sugar. The State action
for the protection of the weaker sections is not only
justified but absolutely necessary unless the restriction
imposed is excessive.
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Viewed from another angle, the impugned restriction is
entirely reasonable. If price or minimum price of sugarcane
is fixed, the producers of sugar would try to circumvent the
price by unrealistic and impermissible deductions. The
rebate for the weight of binding material seems to be a
source for indulging in this nefarious, if not wholly
fraudulent conduct. It is equally well settled that the
State can impose reasonable restrictions under clause (6) of
Article 19 to prevent fraud or where advantage of a
fraudulent conduct is sought to be taken (see M/s. Fedco (P)
Ltd. v. S.N. Bilgrami(1). The impugned restriction serves
two-fold purpose: (i) it ensures price of sugarcane avoiding
impermissible deductions; (ii) it circumvents
393
possible fraud by making such deductions as would render
illusory even the negotiated price, if not fixed price. And
it is indisputable that if the rebate is not statutorily
prescribed the cane growers will be at the mercy of the
producers of sugar and khandsari sugar. If price or minimum
price of sugarcane can be fixed by the State, because this
power was never questioned before us, this very power
comprehends the power to provide such incidenta land
ancillary regulations which will ensure the price. Price
fixation measure is for protection of the farmer from the
exactions of producers against which he cannot protect
himself. (See Lee Nebbia v. People of the State of New
York)(1). The impugned measure ensures price either fixed or
negotiated and, therefore, it is a restriction which is
undoubtedly reasonable and is imposed in the interest of
general public and the guarantee of freedom of trade is not
violated.
The last submission is that in order that the
restriction may be reasonable it must have reasonable
relation to the object which the statute seeks to achieve
and must not be in excess of the object. It was urged that
the Sugarcane Control Order was issued in exercise of power
conferred by section 3 of the Essential Commodities Act. One
of the objects sought to be achieved by the Essential
Commodities Act, 1955, is to ensure availability at fair
price the essential commodity to the consumers. It was
further urged that one can visualise that the power to fix
minimum price or price of sugarcane may have a rational
nexus to the object sought to be achieved, namely,
availability of sugar to the consumers at fair price. But it
was urged that prescribing the rate of rebate for binding
material has no relation with the aforementioned object.
This submission does not commend to us for the obvious
reason that the restriction is imposed in the interest of
the cane growers and the State while ensuring that sugar, a
commodity of daily consumption by almost every one in this
country, is available to everyone at a fair price
simultaneously wanted to ensure that the grower of
sugarcane, another weaker section of the society is not left
to vagaries of the trade or the powerful sugar industry. To
strike the balance between the conflicting interests not
only State acquired power to fix minimum price of sugar and
khandsari sugar but that this wholesome effort may not work
to the disadvantage of the sugarcane growers section of the
society, the power to prescribe rate of rebate was acquired.
And the power to fix price or minimum price comprehends the
power to
394
so regulate supply as to ensure the price so fixed and to
ensure that in the name of unauthorised and unwarranted
deduction the price fixed or negotiated is not rendered
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illusory.
Viewed from either angle the restriction is both
reasonable and it is imposed in the interest of general
public, and has a rational relation to the object sought to
be achieved by the Control Order.
These were all the contentions in this batch of
petitions and as none has merit in it, the petitions fail
and are dismissed with costs; hearing fee in one set.
N.V.K. Petitions dismissed.
395