Full Judgement
Rathi Khandsari Udyog Vs. State of U.P. & Ors [1985] INSC 30 (22 February 1985)
VARADARAJAN, A. (J) VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA THAKKAR, M.P. (J)
CITATION: 1985 AIR 679 1985 SCR (2) 966 1985 SCC (2) 485 1985 SCALE (1)302
ACT:
Constitution of India, 1950-Articles r4, 19(1) ( f ) and (g), 3I, 265 and 301.
U.P. Krishi Utpadan Mandi Adhinyam Act, 1964, ss. 2 (a), 2(p), 17 (iii), and Rule 67 of the Rules made under s 40 of the Act-S 2(a)-Agricultural Produce-Amendment thereof by U.P. Krishi Utpadan Mandi (Amendment and Validation) Act 1970-"Khandsari Sugar" manufactured by open pan process- Whether different from "Khandsari" produced by agriculturists indigenously-S. 2 (p)-'Producer'-Whether excludes the article produced by the petitioners from the coverage of the Act-S.17 (iii)-Market Committee (Mandi Samiti)-Whether competent to levy and collect Market fee- Rule 67-Whether petitioners liable to obtain licence and pay licence fee-Protection of producers from exploitation- Whether principal object or the Act.
Essential Commodities Act, 1955, s.3-U.P. Khandsari Manufacturing Order, 1975-Cl. 2(f)-"Khandsari Sugar"-Scope of.
Section 2(a)-Validity of-Whether violative of Arts. 14, 19(1) (f) and (g), 31, 265 and 301 of the Constitution.
HEADNOTE:
An Ordinance, U.P. Krishi Utpadan Mandi Adhiniyam, 1964 (Amendment and Validation Ordnance No. 1969) passed on November 5, 1969 amended the definition of "agricultural produce" embodied in s. 2(a) of the U P. Krishi Utpadan Mandi Adhiniyam Act 1964 and 'gur, rab, shakkar, khandsari and jaggery' were included in the amended definition. This Ordinance was subsequently converted into U.P. Krishi Utpadan Mandi (Amendment and Validation) Act 1970. Thus 'Khandsari' stood covered a by the definition of s. 2 (a) of the Act so amended.
The petitioners, who are owners of Khandsari factories, have alleged that what they produce is "Khandsari Sugar" and not 'Khandsari', which is covered by the definition of "agricultural produce". It was contended; (1) that they are not liable to obtain a licence under Rule 67 of the Rules framed under s, 40 of the Act or to pay the licence fees (Rs. 100 per 967 annum) payable for such licence; (2) that the Market Committee (Mandi A Samiti) constituted under s. 12 of the Act cannot levy and collect market fee of 1% of the value, under s. 17(iii) of the Act, on the transactions in respect of what they produce, from the traders who purchase the product from them; and (l) that s. 2 (a) of the Act is discriminatory and violative of Article 14 of the Constitution Dismissing the petitions, ^
HELD: (Per Majority)
1. The definition embodied in s. 2(a) of the Act is an inclusive one. It in terms provides that 'Khandsari' is included within the coverage of "agricultural produce". The Act, however. does not define the term 'Khandsari'. It is not sufficient to contend that what the petitioners produce is "Khandsari Sugar" and not 'Khandsari'. It has also to be shown by them that what they produce is popularly or commercially known as "Khandsari Sugar" and not as "Khandsari". And thus they have failed to establish. It is not shown that "Khandsari Sugar" is the nomenclature employed in the world of trade and commerce in respect of their product. Neither the traders, nor the consumers are shown to have done so in their day-to-day dealings. [989F-H;
990A] 1 2. The term 'Khandsari Sugar" owes its origin to U.P. KHANDSARI SUGAR MANUFACTURING ORDER of 1977 issued under s.
3 of the ESSENTlAL COMMODITIES ACT, 1955. "Khandsari Sugar"
was defined by cl. 2(f) of the said Order as meaning "sugar containing more than 90% sucrose and manufactured by open pan process including bels." It is a statutory definition enacted for the 'purpose' of the aforesaid Control Order which uses the expression "Khandsari Sugar". It has nothing to do with the moaning and content of the term Khandsari' as used by the trade in U.P. [990B-C]
2. (i) It is unnecessary for the present purpose to cite all the decisions. Or to undertake a journey through the factual hinterland of each decision. Or to turn the headlights on the observations made in each of p the decisions. For, the principle, though Barbed in different apparel, is simply this. In legislations pertaining to the world of business and commerce, the dictionary to refer to is the dictionary of the inhabitants of that world. What they understand by the term 'Khandsari' is precisely what that term means in the statute designed to regulate their dealings and transactions. The best test therefore is to ask the question what they themselves have understood by the term Khandsari, bow they themselves have interpreted it, and on what basis they themselves have moulded their own conduct, for all these years. The factory owners similarly situated as petitioners as also the traders in general have understood the term 'Khandsari' as being applicable to the Khandsari produced by the factories by open pan process as also to Khandsari produced indigenously. [990E-G] Commissioner of Income-tax, Andhra Pradesh v Taj Mahal Hotel, (1971) 82 I.T.R. 44 at p. 47 and Porrits & Spencer (Asia) Ltd. v. State of Haryana, [1979] I S.C.R. 545, relied on.
968
2. (ii) Inclusion of Khandsari in the definition of "agricultural produced by virtue of amendment of s. 2(a) was challenged by a few commission agents carrying on business of sale and Purchase of Khandsari in 1969 by instituting writ petitions in the High Court of Allahabad. How. ever, none of the grounds of challenge pertained to the aspect relating to the meaning and content of the term Khandsari'.
The petitions were dismissed by a Single Judge and that decision was confirmed by the Division Bench. [989C-D]
2. (iii) Factory owners producing Khandsari have been obtaining licence under the Act and paying, without demur, market fee at 1% of the value since 1969-70 till 1981, when fresh challenge was made through the instant petitions. For more than ten years even the petitioners have not felt that 'Khandsari' means something other than what they produce. It is not shown that in the popular or commercial sense, the product is not known as Khandsari' but is known as Khandsari Sugar". The term "Khandsari Sugar" saw the light of day seven years after the Act was enacted in 1970 when U.P.
Khandsari Sugar Order of 1977 was born and the artificial nomenclature was coined for the restricted purpose of the order. There is no material even to show that this nomenclature was known to the petitioners or to the traders themselves there to before.
[990H; 991C; E-F]
3. The Legislature has in terms encompassed 'Khandsari' within the definition of s. 2(a) of the Act. And the term 'Khandsari' is sufficiently wide to cover all varieties of Khandsari including the article produced by the factories like those of the petitioners. Besides, the basic premise assumed by the petitioners that the object of the Act is merely to protect the producers from exploitation is fallacious. This is one of the objects and not the sole or only object of the Act. The Act has many more objects and a much wider horizon, and oven transactions where both the sides are traders and neither side is agriculturist, are brought within the coverage of the Act. [992A-D] Ramesh Chandra v. State of U.P., [1980] 3 S.C.R. 104 and Ramesh Chandra Kachardas Porwal & Ors. v State of Maharashtra & Ors. etc., [1981] 2 S.C.R. 866, relied on.
There is nothing in the definition of 'Producer' contained in s. 2(p) of the Act which would justify overriding the clear language of the statutes read in the light of the perspective of the Act and the history of the levy. While the term 'Khandsari' has not been defined, it is obviously wide enough to cover Khandsari produced by any process regardless of its quality or variety [994D-E]
5. This Court has had several occasions to deal with a similar problem in the context of taxing statutes. And this Court has consistently taken the view that in the matter of classification the Legislature has a wide discretion in selecting the persons or objects it will tax, and that a statute is not open to attack on the ground that it taxes some persons or objects and not others. 'Everything-or- nothing' argument is basically fallacious. For, the Legislature may tax or regulate the trade in some 969 Objects and not in others. Or may bring within its net some objects A initially and may cast the net wider later on. Or may tax or regulate the trade in only such objects which it considers expedient or worthwhile. The decision essentially a policy decision, may depend on several factors. Factors, such as, the felt necessity for such an impost or regulation of a trade in a particular article, likely impact of the decision on the trade, industry, or consumer, viability of the same from the stand point of its own management resources. Or from the angle of the net advantage to be secured in the balance-sheet of pros and cons taking into account the anticipated administrative and management inputs required to be invested in the exercise. In substance, it is a policy decision turning on numerous and complex factors.
[99B-E] 5 (i) It is not for this court to question why Khandsari produced by the petitioners is included when sugar produced by the Mills is not so included. It is not a question to which we can legitimately address ourselves, for, essentially it is a question of legislative wisdom and legislative policy dictated by countless and complex considerations. The Court cannot, and will not substitute its own wisdom in place of the legislative wisdom in such matters. The Court will not impose on itself this responsibility, if not for any other reason, than for the reason that it is beyond its province. Hence s. 2(a) of the Act is not discriminatory and violative of Article 14.
[996G-H; 997Al East India Tobacco Co. v. State of Andhra Pradesh, [1963] I S.C R. 404, relied on.
Willie on Constitutional Law p. 857, referred to.
Per A. Varadarajan, J (Dissenting)
1. What the petitioners, produce in their modern Khandsari mills by the open pan process is Khandsari sugar, an industrial product like plantation white sugar and not Khandsari which is produced by agricultural producers in the indigenous method and the levy of market fee on sales of khandsari sugar under the Adhiniyam is unwarranted as the Adhiniyam is intended for the protection of agricultural producers in the disposal of their products and only Khandsari produced by agricultural producers is included in the definition of agricultural produce" in s. 2(a) thereof and not Khandsari sugar. [986P-G]
2. A manufacturer producing Khandsari Sugar by the modern method in the open pan process is not a producer within the meaning of s. 2(p) of the Adhiniyam. [980E]
3. The object of the Adhiniyam as seen from the prefatory note and preamble is to protect the agricultural producer from exploitation. Protection of any industrial producer is not the object of the Adhiniyam.
[979G]
4. The Khandsari sugar produced by the petitioners in their mills with the aid of power in the open pan process by employing large number of employees to whom the Industrial Disputes Act, Minimum Wages Act, Factories Act. Employees Provident Fund Act and similar enactments apply 970 is an industrial product which is very different from Khandsari produced by agricultural or sugarcane growers in the old indigenous method. [982E-F]
5. The Adhiniyam originally intended to protect the interests of agricultural producers has not become a marketing legislation under entry 28 of List II in the Seventh Schedule by the mere fact of inclusion of one or more industrial products in the definition of agricultural produce in s. 2(a) of the Adhiniyam. [983H; 984A]
6. The prefatory note and the preamble can be looked into in the present case as there is dispute between the parties on the question whether "Khandsari sugar" produced by the petitioners, which is not included in the schedule or definition of agricultural produce in the Adhiniyam, while "Khandsari" is mentioned in the definition of agricultural produce in s. 2(a) thereof can be the subject matter of levy of market fee under the Adhiniyam. [984F-G]
7. The principle underlying the levy of tax cannot be made applicable to the levy of market fee under the Adhiniyam. Both Plantation While Sugar and Khandsari Sugar are industrial products and there is discrimination against Khandsari Sugar in seeking to subject it to the levy under the Adhiniyam leaving out plantation White Sugar [988B] Laxmi Khandsari Etc. v. State of U.P. & others, [1981] 3 SCR, 92 Paunakram v. State of Punjab, AIR 1975 SC 187 and Andhra Sugars ltd.& Anr. etc. v. State of Andhra Pradesh & Ors., [1968] I SCR, 705 referred to.
ORIGINAL JURISDICTION: WP- Nos. 1347-60/81, 132-143, 3405 16, 342Q-22, 3423-25 of 1980, 806-18 of 1981,4251,9500- 05, 9511-13 9514 of 1981, 21-23,37-43, 45-56, 63, 91-1 l l, 166-67, 174, 181-192 of 1980, 407-11 of 1979, 412-415, 416- 18 of 1979, 193-220, 237-48, 825 36, 7) 1-722 of 1982, 723- 39, 3 19-30,969-78, 2171 -73 of 1982 and 3864 69 of 1980,1227-33 of 1981,5520-22 of 1980, 1001-07 of 1981, 1109- 30 1384,1453-62, 1469 of 1981, 805-24,866, 972, 1453-62, 1498, 4667-68, 975-83, 854, 984, 1469-78, 787, 1319 24, 1400-02, 1504-05, 1608-11, 1621-25, 1934-63, 2172-77, 2228- 31, 2251-53, 2374-75, 2327 61 2556-65, 2612-13, 2625-27, 2624, 3070-88, 3178-95, 985, 4158-65 4527-32, 5113-19, 9196- 98 of 1982, 5727, 8397, 9583, 9719-22 of 1982, 8262-67 of 1981, 10039, 10223 of 1982, 2682-84 of 1983, 3885 86 of 1983, 66-67, 68-69, 1139-2759 of 1983, 2379 of 1982, 2703, 1119 of 1983, 7993 of 1982, 1172 of 1983, 6498 of 1982 (Under Article 32 of the Constitution of India) 971 FOR THE APPEARING PARTIES Shanti Bhushan, R. K Garg P. R. Mridul R. K. Jain, Pradeep Kumar Jain, B. R. Kapoor, S. R. Srivastava. P. H.
Parekh, Miss Nisha Srivastava, Hemant Sharma, Miss Indu Sharma. K R Mohan, and Geetanjali Moham.
O. P. Rana, D. D. Thakur, E. C. Agarawala, Raju Ramachandran, R. Sathish, V. K Pandita and R. Rana Dr. L. M. Singhvi, L. N Sinha, Y. S. Chitale, and G. N. Dikshit.
Miss Shobha Dikshit, Pradeep Mishra, S. K. Kulshrestha, and A. M. Singhvi, Advocates Ravindra Bana, Sarva Mittra, Rajiv Datta, B. Tawakley, R. B. Mebrotra, Pramod Swarup, R. N. Poddar & N. N. Sharma.
The following Judgments were delivered VARADARAJAN, J. Writ Petitions 1347 to 1360 of 1981 and Writ Petition 174 of 1982 are by manufacturers of Khandsari sugar in the open pan process and sellers thereof in Uttar Pradesh. Writ Petitions 21 to 23 of 1982, Writ Petitions 3178 to 3195 of 1982, Writ k. Petitions 3178 to 3195 of 1982, Writ Petitions 4527 to 4532 of 1982 and Writ Petition 3890 of 1983 are by traders in that product in U.
P. The pleadings in W. Ps. 1347 to 1360 of 1981 were referred to by the learned counsel for the parties when common arguments were advanced in all the writ petitions.
Therefore, the pleadings in those writ petitions alone are referred to in this judgment.
These W. Ps. 1347 to 1360 of 1981 under Article 32 of the Constitution are for declaring the provisions of the U.
P. Krishi Utpadan Mandi Adhiniyam, 1964 as ultra vires the Constitution and for restraining the respondents from realising market fee and licence fee from the petitioners under the provisions of that Adhiniyam (hereinafter referred to as 'the Adhiniyam').
The case of the petitioners/firms which manufacture Khandsari sugar by the open pan process in the State of Uttar Pradesh and sell the same in that State is this.
972 In the process of manufacture of Khandsari sugar there is not only a physical change of the sugarcane used but also a chemical change and the white crystalline sugar of 90 per cent sucros purity is obtained after drying, grading and vagging by eliminating all the ingredients of sugarcane except sucros. But in the case of desi khandsari, gur, jaggery, rab and shakkar which are all manufactured from raw sugarcane juice, pectins, live saps, motals, minerals, nitrogenous compounds, wages and salts are not removed and there is no chemical change in the manufacturing process.
The Adhiniyam was enacted to reduce multiple trade charges and provide amenities to the producers and sellers of agricultural produce, for certification of accurate weights and scales and for the establishment of market committees to ensure that the agricultural producer has a say in the matter of utilisation of the market funds. The Adhiniyam applies to agricultural products which according to s. 2 (a) are 'such items of produce of agriculture, horticulture, viticulture, sericulture, pisciculture, animal husbandary or forest, as are specified in the schedule, and include and mixture of two or more such items and also include any such item in processed form and further include gur, rab, shakkar, Khandsari and jaggery'. The Adhiniyam does not define khandsari sugar but it is defined in clause 2 of the U. P. Khandsari Sugar (Levy) Order, 1975 as "whole crystalline sugar containing more than 90 per cent and manufactured at a sulphitation unit by open pan process including a bel". The khandsari sugar produced by the petitioners who hold licence for operating hydraulic power crushers is not khandsari but crystalline sugar as produced by sugar mills. The sugar produced by the petitioners is physically and chemically different from sugarcane which is one of the items specified in the schedule to the Adhiniyam and also from gur, rab, jaggery and khandsari and cannot be treated as a processed form of sugarcane. 'therefore, the Adhiniyam cannot apply to the product manufactured by the petitioners which is plantation white sugar. The petitioners/firms which are producers of sugar are not liable to pay market fee under the Adhiniyam, s. 17 (iii) (b) whereof provides that the market committee shall have power to levy and collect market fee which shall be payable on transactions of sale of specified agricultural produce in the market area at seh rates being not less than one per cent and not more than one and a half per cent of the price of the agricultural produce so sold as the State Government may specify by notification.
Section 17 (iii) is ultra vires the Constitution as it permits excessive delegation of legislative power and does not lay down any 973 guideline for the State Government fixing the market fees and only A market committees rendering services can determine the quantum of market fees. The illegal levy of market fees on the petitioners is violative of Articles 19 (1) (f) and 301 of the Constitution. The action of the respondents in seeking to apply the provisions of the Adhiniyam to the petitioners leaving out other manufacturers similarly situate is violative of Art. 14 of the Constitution. Section 8 of the Adhiniyam is violative of Art. 14 as it does not provide any guideline regarding the basis on which the State Government can include or exclude any agricultural produce from the list of notified commodities under s. 6.
The market fees and licence fees are in the nature of payments for services rendered. But the market committees render no service at all to the petitioners and therefore the levies are really in the nature of tax. The levies deprive the petitioners of their right to property without any authority of law and are therefore violative of Articles 265, 31 and 19 (1) (f) and (g) of the Constitution. It is in these circumstances that the petitioners have prayed for declaration of the provisions of the Adhiniyam as being ultra vires the Constitution and for the issue of a writ of mandamus restraining the respondents from realising market fee and licence fee from the petitioners under the Adhiniyam.
The contentions of the Mandi Samiti/respondents who oppose the petitions are these:
The petitioners who are manufacturers of khandsari/khandsari sugar are fully covered by the Adhiniyam in view of the definition of 'agricultural produce' in s. 2 (a). Khandsari is mentioned in schedule 'Kha' to the notification No. 584/XII-8-104176 dated 11.4.1978. Khandsari sugar is not sugar as is evident from the definition of sugar in s. 2 (f) of the Sugar (Regulation of Production) Act. 1961 according to which sugar means any form of sugar whether wholly or partially manufactured but does not include khandsari sugar, that is to say, sugar in the manufacture of which neither a vacuum pan process nor a vacuum operator is employed; or palmyra sugar, that is to say, sugar manufactured from jaggery obtained by boiling the juice of palmyra palm. 'Khandsari' is the short form of 'Khandsari sugar' in the Adhiniyam and the notification and there is nothing like khandsari different from khandsari sugar in any of the concerned laws or in common parlance.
There as only one khandsari and it is called khandsari sugar and it is manufactured 974 by mechanical power process, The word 'sugar' has been used everywhere for the sugar manufactured by the vacuum pan process by mills and factories and the words 'khandsari sugar' have been used for the material produced by open pan process In the Sugarcane (Control) Order, 1966 by clause 2 (d), khandsari sugar is defined as sugar produced by the open pan process Khandsari sugar is defined in clause 2 (f) of the U. r. Khandsari Sugar Manufacturing Order, 1967 as sugar containing more than 90 per cent sucros and manufactured by the open pan process including bels.
There is no chemical change in the process adopted by the petitioners in the manufacture of Khandsari sugar and there is nothing like desi Khandsari sugar. What the petitioners call desi khandsari is shakkar produced by manual efforts. It is true that khandsari sugar manufactured by the petitioners contains more than 90 per cent sucros but it is denied that the sugar manufactured by the petitioners is not khandsari or that it is crystalline sugar as produced by sugar mills or that the khandsari sugar produced by the petitioners is not physically and chemically different from the sugar produced by mills. The produce manufactured by the petitioners is processed form of sugarcane, namely, sugarcane from which the chaff has been removed and the sweet material has been retained for human consumption Gur, rab, jaggery and khandsari sugar are all manufactured by the open pan process while sugar produced by mills is manufactured by the vacuum pan process. The producers of khandsari sugar by open pan process and the producers of sugar by vacuum pan process have to take out licences under different order namely, U. P. Khandsari Sugar Manufacturing Order, 1967 and U. P. Vacuum Pan Sugar Factories Licensing Order, 1969 Thus khandsari sugar produced by the petitioners is different from sugar produced by sugar mills and it is fully covered by s. 2 (a) of the Adhiniyam.
Market fee is not claimed from the petitioners in any manner different from the one stipulated in s. 17 (iii) (b) of the Adhiniyam Section 17 (iii) (b) is not ultra vires the Constitution and does not suffer from any excessive delegation of legislative power. The levy of market fee and licence fee is not violative of any constitutional provision. Art. 19 (1) (f) does not exist any longer and Art. 301 does not confer any fundamental right on the petitioners. 'There is no discrimination against the petitioners and s. 8 of the Adhiniyam is not violative of Art. 14- The market fee and licence fee are fees 975 and not taxes. A major portion of the funds of the market committees is applied for development of the market area.
The Rajya Krishi Utpadan Mandi Parishad (hereinafter referred to as 'the Parishad'), impleaded as respondent in the petitions has filed separate counter-affidavit raising similar contentions as the market committees. The additional contentions raised by that Board which also opposes the petitions are these:
The original definition of agricultural produce in s. 2 (a) of the Adhiniyam did not contain the words "and further includes gur, rab, shakkar, khandsari and jaggery".
These words were added in the definition by the U. P.
Amendment Act 10 of 1970 in order to remove anomalies in the words "processed agricultural produce". The Government issued the said notification No. 584/X11-8-10 :176 dated 11.
4. 1978 after considering all the objections raised, specifically mentioning Khandsari along with gur, rab, shakkar and jaggery in the list of 115 commodities liable for the levy of market fees. The sale of khandsari is free without any Government control and it is effected in the market areas by commission agents by mutual negotiation or open auction while a large part of the sugar produced by the vacuum pan process is controlled by the Central Government.
Sugar and khandsari are distinct and different from each other. The sugar produced in vacuum pan process is standardized as per India Sugar Standards and graded into A30, B30, C30, D30, E30, A29, B29 C29, D29 and E29 whereas khandsari sugar produced by the open pan process is called khandsari, khandsari sugar, rab and sugar in the market.
There is no levy on khandsari and it is sold in the open market whereas 65 per cent of the sugar produced in the mills by the vacuum pan process is taken by the Central Government for feeding the public distribution system by levy and the remaining 35 per cent along is left with the factories for free sale through wholesale dealers approved under the control orders. The producers of khandsari sugar are not liable to pay the impugned market fee. they are liable to pay it only if they also hold licences as commission agents or wholesale dealers and sell the product.
Mr. Shanti Bhushan, learned counsel for the petitioners advanced arguments in these petitions under three main heads, namely (i) whether khandsari sugar manufactured by the petitioners in their mills by the open pan process is an agricultural produce, covered by the Adhiniyam as amended by the U. P. Ace 10 of 1970; (ii) whether khandsari sugar manufactured by the petitioners in their 976 industrial units employing a large number of workmen to whom the Industrial Disputes Act, Employees Provident Fund Act, Factories Act and Minimum Wages Act apply and which is subject to levy of excise duty under the Sugar (Special Excise Duty) Act, 1959 is subject to the levy of market fee under the Adhiniyam and (iii) whether on account of the interpretation of the Adhiniyam, khandsari sugar manufactured by the petitioners could be said to be subject to the levy of market fee under the Adhiniyam there is any difference between khandsari sugar produced by the petitioners in the open pan process, and the plantation white sugar produced by the other mills in the vacuum pan process, and there is no discrimination between khandsari sugar sought to be subjected to the levy of market fee under the Adhiniyam and the plantation white sugar produced by the vacuum pan process which is not subject to the levy under the Adhiniyam. He clubbed his arguments on points (i) and (ii) and submitted that khandsari sugar produced by the petitioners in their mills by the open pan process is not an agricultural produce contemplated to be covered by the provisions of the Adhiniyam for the purpose of levy of the market fee as it is not produced by the agricultural producer but produced in mills employing modern methods though under the open pan process. On the third point he submitted that there is no difference between the khandsari sugar produced by the petitioners in their mills by the open pan process and the plantation white sugar produced by the other mills by the vacuum pan process except that khandsari sugar is produced by the open pan process while the plantation white sugar is produced by the vacuum pan process and the difference in the composition of the two products is only as regards CAO, filterability and conductivity and consequently there is discrimination hit by Art. 14 of the Constitution in leaving plantation white sugar out of the levy and seeking to subject the khandsari sugar produced by the petitioners-mills alone to the levy of market fee under the Adhiniyam.
On the other hand, Mr. L. N. Sinha, learned counsel for the Parishad submitted that the original object of the Adhiniyam was protection of agricultural produce as originally defined in the Adhiniyam and that the position has changed now and it has become a marketing legislation covered by entry 28 of List II (Market) of the Seventh Schedule to the Constitution. He further submitted that if the Adhiniyam has become a marketing legislation as contended by him industrial produce also can be included in the schedule of produce appended to the Adhiniyam and khandsari is genus and 977 khandsari sugar is a specie and it is liable to be subjected to the A levy of market fee under the Adhiniyam.
As regards discrimination Mr. Sinha submitted that similarity is one thing and identity is another and that Art. 14 will be attracted only in the case of identity and there is difference between Khandsari sugar and plantation white sugar and therefore there is no question of discrimination.
Mr. D. D. Thakur, learned counsel for the Market Committees submitted that it is not the only object of the Adhiniyam to benefit the agricultural producer, but 2 number of other objects are noticeable in the Adhiniyam and that if the object is to protect the agricultural producer alone the levy of market fee would have been confined to the first sale alone. He further submitted that the Adhiniyam covers sales by producers to traders and sales by traders to other traders subject to the requirement that what is sold is an agricultural produce and no market fee is livable on retail sales etc. having regard to the proviso to s. 17 of the Adhiniyam. He submitted that the levy is not on khandsari producers but on khandsari traders and that what is contained in the preamble to the Adhiniyam is slightly different from the scheme of the Adhiniyam, and s. 2 (a) of the Adhiniyam has to be looked into independently of the preamble which in turn can be looked into only in case of ambiguity. He too submitted that khandsari is a genus and khandsari sugar is a specie. He however. admitted that agriculturists producing khandsari without the use of power need not obtain licence for its remanufacture while producers of khandsari sugar by the open pan process in the khandsari industry are bound to obtain licence. He contended that what is produced by the petitioners would fall within the ambit of s. 2 (a) of the Adhiniyam. On the question of discrimination he submitted that plantation white sugar manufactured by the vacuum pan process does not require regulation, unlike khandsari sugar produced by the open pan process and that if that is so there is no question of discrimination in not subjecting the plantation white sugar to the levy of market fee under the Adhiniyam.
Dr. Y. S: Chitale, learned counsel for the Parishad, Samiti and Mandi, the respondents in W. Ps. 1348 to 1360 of 1981 submitted that s. 2 (a) of the Adhiniyam deals also with traders as held in Laxmi Khandsari Etc. Etc. vs. State of U. P. and Others(1) and that what the petitioners produce is khandsari though it may (1) [1981] 3 S. C. R 92.
978 be more refined than khandsari produced by the agriculturists with out the aid of power. On the question of discrimination he submitted that whatever was considered necessary to be regulated was included in the schedule to the Adhiniyam and that there is no discrimination in not subjecting plantation white sugar produced by the vacuum pan process to the levy of market fee under the Adhiniyam.
'I he prefatory note to the Adhiniyam as extracted from the 'Statement of Objects and Reasons may be noted. It reads:
"The present chaotic state of affairs as obtaining in agricultural produce markets is an acknowledged fact. There are innumerable charges, levies and exactions which the agricultural producer is required to pay without having any say in the proper utilisation of the amount so paid by him. In matters of dispute between the seller and the buyer, the former is generally put at a disadvantage by being given arbitrary awards. The producer is also denied a large part of his produce by manipulation and defective use of weights and scales in the market The Government of India and the various committees and commissions appointed to study the condition of agricultural markets in the country have also been inviting the attention of the State Government from time to lime towards improving the conditions of these markets. The proposal to enact a marketing legislation was first taken up in 1938; but it could not go through as the then Ministry went out of office soon. after its inception . The Planning Commission stressed long ago that legislation in respect c f regulation of markets should be enacted and enforced by 1955-56. Most of the other States have already passed legislation in this respect. The proposed measure to regulate the markets in this State has been designed with a view to achieving the following direction- (i) to reduce the multiple trade charges, levies and exactions charged at present from the producer sellers;
(ii) to provide for the verification of accurate weights and scales and see that the producer- seller is not denied his legitimate due;
979 (iii) to establish market committees in which the A agricultural producer will have his due representation;
(iv) to ensure that the agricultural producer has his say in the utilisation of market funds for the improvement of the market as a whole;
(v) to provide for fair settlement of disputes relating to the sale of agricultural produce;
(vi) to provide amenities to the producer-seller in the market;
(vii) to arrange for better storage facilities;
(vii) to stop inequitable and unauthorised charges and levies from the Producer-seller; and (ix) to make adequate arrangements for market intelligence with a view to posting the agricultural producer with the latest position in respect of the markets dealing with his produce".
(emphasis supplied) The prefatory note shows that the object of the Adhiniyam is to save the agricultural producer from innumerable charges, levies and exactions and to enable him to have a say in the proper utilisation of the amounts paid by him, to reduce the multiple charges, levies exactions charged from producer-sellers and generally to help the agricultural producer to sell his produce to his best advantage. The objects set out in the prefatory note are reflected in a concised form in the preamble to the Adhiniyam which says that it is "An Act to provide for the regulation of sale and purchase of agricultural produce and for the establishment, superintendence and control of markets therefore in Uttar Pradesh". The preamble also speaks of the necessity to provide for the regulation of sale and purchase of agricultural produce and the establishment, superintendence and control of markets therefore in Uttar Pradesh. 'Thus the object of the Adhiniyam as seen from the prefatory note and preamble is to protect the agricultural producer from exploitation.
Protection of any industrial producer is not the object of the Adhiniyam.
Section 2(p) of the Adhiniyam defines a "producer" as meaning "a person who, whether by himself or through hired 980 labour, produces, rears or catches any agricultural produce, not being a producer who also works as a trader, broker or dalal, commission agent or arhatiya or who is otherwise ordinarily engaged m the business of storage of agricultural produce". agricultural produce is defined in s. 2(a) of the Adhiniyam as meaning "such items of produce of agriculture, horticulture, viticulture, agriculture, siriculture, pisciculture, animal husbandry or forest as are specified in the schedule and includes admixture of two or more of such items and also includes any such item in processed form and further includes gur, rab, shakkar, khandsari and jaggery".
The words "and further includes gur, rab, shakkar, khandsari and jaggery" have been introduced into s. 2(a) of the Adhiniyam by the U.P. Amendment Act 10 of 1970. Trader is defined in s. 2(y) of the Adhiniyam as meaning "a person who is engaged in buying or selling agricultural produce as a principal or as a duly authorised agent of one or more principals and includes a person engaged in producing agricultural produce". Thus it is seen from the definition of producer and trader in the Adhiniyam that emphasis is on the product produced, reared or caught by agriculturists whether by their own or through hired labour and that such producer does not include a producer who also works as a trader, broker, dalal, commission agent or arhatiya or who is otherwise ordinarily engaged in the business of storage of agricultural produce. Therefore, it is not possible to hold that manufacturer producing khandsari sugar by the modern method in the open pan process is a producer within the meaning of s. 2(p) of the Adhiniyam. The schedule to the Adhiniyam consists of 175 items including paddy, honey, silk, eggs and ghee which were in the schedule from the inception. But, as stated earlier "Khandsari" is one of the items introduced into the definition of agricultural produce in s. 2(a) of the Adhiniyam by the Amendment Act 10 of 1970.
It is seen from Annexure VIII to the counter-affidavit of the respondent-Parishad filed in W. Ps. 1347-1360 of 1981 that "The technique of sugar manufactured through the indigenous process without the use of complicated machinery has been known in this country from time immemorial. The sugar thus produced is known as khandsari". In the counter- affidavit of Shri Ram Sharan, Deputy Director (Marketing) of the Parishad filed for the petitioners' additional affidavit it is admitted that farmers and sugarcane growers produce, what he calls, khandsari sugar with the help of small electric motors, diesel engines or their own tractors. Mr.
Shanti Bhushan submitted that khandsari introduced in s.
2(a) of the Andhiniyam by the Amendment Act 10 of 1970 is khandsari produced 981 by agriculturists and sugarcane growers in the old and primitive method and not khandsari sugar produced in khandsari mills in the modern sulphitation open pan process.
Annexure Vl to the counter-affidavit filed by the Parishad in W. Ps 1347-1360 of 1981 is the report of the Director of National Sugar Institute, Government of India, Kanpur regarding the approximate composition of khandsari sugar produced by the modern sulphitation process and that of plantation white sugar produced by the vacuum pan sugar factories. It is extracted for ready reference:
Particulars Vacuam pan sugar Khandsari sugar Pol 99.8 to 99.95 99.4 to 99.9 Reducing sugars 0.04 to 0.25 0.10 to 0.40 CAO (Mg/l00 gm) 10 to 35 45 to 80 SO2 (ppm) 2.25 5.25 Viscosity CP 20.30 20.30 Conductivity x 10(6) 3 to 15 50 to 200 Turbidity % 10 to 30 40 to 70 Filterability (FK) 0.3 to 2.5 50 to 400 Shape of crystals Monoclinic Flattened or a cubd Moisture 0.04 to 0.15 00.15 to 0.S0 Water insoluble by wt. % - - Colour OD 400-OD- 500 0.02 to - 0.05 0.04 to 0.015 It is seen from this report that the difference between plantation white sugar produced by the vacuum pan process and khandsari sugar produced by the open pan process in their composition is marked only as regards CAO, filterability, and conductivity and that the other items are more or less the same. In the aforesaid counter affidavit of Shri Ram Sharan it is stated that "khandsari produced by non-sulphur units and khandsari produced by non-sulphur units is similar in process, raw-materials and sucros contents. There may be slight difference in colour and crystalline nature of the substance which is attributable to the better clarification method and better equipment adopted by sulphur units which are all improvements and which create no difference in the nature of the product, i.e. khandsari".
982 In the counter-affidavit of Shri Zorawar Singh, Secretary, Krishi Utpadan Mandi Samiti, Moradabad filed in W.P.1359 of 1981 it is admitted that the juice of sugarcane boiled in the open pan by the producers and the khandsari sugar manufactured by them contains more than 90 per cent sucros. In Annexure VIII to the counter affidavit filed in W.P. 1347-1360 of 1981 it is stated that the improved process of khandsari manufacture as evolved by the Gur and Khandsari Research Scheme of the National Sugar Institute, Kanpur is a simplified form of the single sulphitation process as employed in the vacuum pan factories and that as a result of the improvements it is now possible to get a recovery of 7.5 to 8.0 per cent of sugar on cane of average quality and the first sugar produced is quite comparable to ordinary grade crystal sugar produced by the vacuum pan process. That process which has been set out in that Annexure though brief is quite elaborate and not far different from the one adopted in the manufacture of plantation white sugar by the vacuum pan process. On an inspection of the samples of khandsari sugar and plantation white sugar produced in the Court during the arguments in these writ petitions it was noticed that both khandsari sugar and plantation white sugar are white in colour and crystalline in form though the plantation white sugar is a little more lustrous than khandsari sugar. But khandsari produced by the agriculturists or sugarcane growers in the indigenous method is powdery in form and yellowish in colour. In these circumstances, I am of the opinion that khandsari sugar produced by the petitioners in their mills with the aid of power in the open pan process by employing large number of employees to whom the Industrial Disputes Act, Minimum Wages Act, Factories Act, Employees Provident Fund Act and similar enactments apply is an industrial product which is very different from khandsari produced by agriculturists of sugarcane growers in the old indigenous method.
According to s. 2(d) of the Sugarcane (Control) Order, 1966 khandsari sugar means sugar produced by the open pan process. According to s. 2(f) of the U.P. Khandsari Sugar Manufacturers Licensing Order, 1967 khandsari means sugar containing more than 90 per cent sucros and manufactured by the open pan process. Section 3 of that Order makes it obligatory to obtain a licence for the manufacture of khandsari sugar. Section 3(4) (a) of that Order regulates the khandsari sugar manufacturing industry in the best interest of that industry. As mentioned above, it is admitted that no licence is necessary for the manufacture of khandsari by the agriculturists or producers of sugarcane in the indigenous method without the use of power. It is not disputed that khandsari sugar produced by the petitioners is subject to excise duty under the Sugar (Special 983 Duty) Act, 1959. Clause (ii) of s. 2(c) of that Act illustrates one of the sugars not subjected to the duty, namely, palmyra sugar, that is to say, sugar manufactured from jaggery obtained by boiling the juice of palmyra palm.
The word 'sugar' has been too broadly employed in the Sugar (Special Duty) Act, 1959. But it is significant to note that in the Sugarcane (Control) Order, 1966 and the U.P.
Khandsari Sugar Manufacturers Licensing Order, 1967, what is covered is khandsari sugar, whereas what has been introduced into s 2(a) of the Act by the Amendment Act 10 of 1970 is "khandsari". Thus it would appear that what is sought to be subjected to the levy of market fee under the Adhiniyam is khandsari produced by the agriculturist or producer of sugarcane in the old indigenous method and not khandsari sugar produced by persons like the petitioners in their modern mills by the open pan process.
Mr. Lal Narain Sinha, appearing for the Parishad and Mr. Thakur appearing for the Market Committees have, in my view, conceded by their submission that khandsari is genus and khandsari sugar is a speci that what the petitioners produce in their mills by the open pan process is `'khandsari sugar" and not "khandsari". Dr. Chitale appearing for the respondents in W. Ps. 13-8-60 of 1981 has also done so but in a slightly different way by saying that what the petitioners produce is khandsari, whether it is more or less refined than khandsari as such. Mr. Sinha conceded in the course of his arguments that protection of the agricultural producer was the object when the original idea of the Adhiniyam started and he submitted that the object has now become widened and it is now not a legislation for protecting the interests of only agricultural producers and that it has become a marketing legislation under entry 28 of List II in the Seventh Schedule to the Constitution and industrial products also can be included in the schedule. There is a further implied submission in this argument of Mr. Sinha that khandsari sugar is an industrial product as it undoubtedly is. If the original idea as indicated in the prefatory note and preamble of the Adhiniyam was to protect the interests of agricultural producers in disposing of his products such as paddy, rice, silk, eggs, honey, fish and the like, and the Adhiniyam was enacted with that object in my view. it cannot be converted into a general marketing legislation by the mere inclusion of industrial products, not possible of production by agricultural producers, either in the schedule or in the definition of agricultural produce in s. 2 (a) of the Adhiniyam. Therefore, it is not possible to accept the argument of Mr. Sinha that the Adhiniyam originally intended to protect the interests of agricultural producers has become a marketing legislation under 984 entry 28 of List II in the Seventh Schedule by the mere fact of inclusion of one or more industrial products in the definition of agricultural produce in s 2 (a) of the Adhiniyam.
Mr. Thakur submitted that it is not the only purpose of the Adhiniyam to protect the interests of the agricultural producer that a number of other objects are sought to be achieved by the Adhiniyam and that if the object of the Adhiniyam was to protect the interests of agricultural producers alone, the levy of market foe would have been confined to first sales of agricultural produce.
Mr. Thakur would thus say that the only object of the Adhiniyam is not protection of the interests of the agricultural producer in the disposal of his products to his best advantage. The question whether the levy of market fee under the Adhiniyam is at a single point or whether it is a multi-point levy was not elaborated by Mr. Thakur.
Therefore, it is not possible to draw any inference from his submission based on the point of levy of market fee under the Act though it was pointed out by him that under the scheme of the Adhiniyam sales by producers to traders and by traders to other traders but not retail sales to consumers are subject to the levy of market fee provided that the produce sold is agricultural produce. Mr. Thakur submitted that the levy under the Adhiniyam is on the khandsari trader and not on khandsari producer. That would be 80 if the item with reference to which levy is made is one produced by an agricultural producer to protect whose interests the Adhiniyam has been enacted. Khandsari sugar produced by the petitioners in their mills by the open pan process is not an agricultural produce but an industrial produce. Mr. Thakur is right in his submission that the preamble could be looked into only in the case of ambiguity. The prefatory note and the preamble can be looked into only in the present case as there is dispute between the parties on the question whether khandsari sugar" produced by the petitioners, which is not included in the schedule or definition of agricultural produce in the Adhiniyam, while "khandsari" is mentioned in the definition of agricultural produce in s. 2(a) thereof can be the subject matter of levy of market fee under the Adhiniyam. It is not possible to accept the submission of Dr Chitale that what the petitioners produce is an agricultural produce, be it more or less refined than khandsari. What the petitioners produce in their modern mills by the open pan process is khandsari sugar, an industrial produce, and not an agricultural produce which is produced by agriculturists.
It is admitted by Dr. Chitale that the petitioners' factories are working under licences and that it is not obligatory on agricultural producers producing khandsari in the indigenous method to obtain licences for producing the same.
985 Reference is made at page 3 in the judgment of my learned A brother Thakkar, J. in these Writ Petitions, to the judgment of a Division Bench of the Allahabad High Court in Special Appeal No. 175 of 1973 filed against the decision of a Single Judge of that court in W P. No. 4636 of 1969. It is Annexure II to the counter affidavit of the Parishad in W.P. 1350 etc. Of 1981. The reliefs claimed in that Writ Petition were a writ of certioraris quashing the U.P.
Ordinance 8 of 1979 which was replaced by the Amendment Act 10 of 1970 and a writ of mandamus directing the respondents State of Uttar Pradesh and others not to enforce the Ordinance against the petitioners therein. The appellants in that case were commission agents carrying on business in the sale and purchase of gur, shakkar and khandsari in the New Mandi, Muzaffarnagar. The State Government issued a notification dated 8.11.1968 under s. 5 (1) of the Adhiniyam declaring their intention to regulate the sale and purchase of specified agricultural produce in the areas including the New Mandi, Muzaffarnagar. That notification included among other things gur, rab, shakkar and khandsari. After the issue of that notification the Mandi Samiti authorities required the writ petitioners in that case to obtain licences for carrying on their business in gur, rab, shakkar and khandsari. Thereupon, a writ petition, out of which Special Appeal No. 49 of 1969 arose, was filed by one Nanak Chand, challenging the enforcement of the Adhiniyam against him. In that appeal, decided on 11.3.1969 a Division Bench of the High Court held that gur, rab and jaggery are not agricultural produce within the meaning of s. 2(a). It was after that decision that Ordinance No. 8 of 1970 was promulgated including gur, rab, shakkar, khandsari and jaggery in s. 2(a) of the Adhiniyam. The points raised in the aforesaid Special Appeal No. 175 of 1973 were: (1) The State Legislature was not competent to enlarge the definition of agricultural produce so as to include gur, rab, shakkar, khandsari and jaggery within the term 'agricultural produce"; (2) The State Legislature had no legislative competence to enact the U P. Amendment Act 10 of 1970 as that Act was with reference to subject of industries the control of which lay with the Union Government as declared by Parliament by law to be expedient in the public interest within the meaning of entry 52 of List I to the Seventh Schedule; (3) The provisions of the Amendment Act 10 of 1970 are repugnant to the Industries Development and Regulation Act, 1951; (4) The provisions of the Amendment Act 10 of 1970 are discriminatory as vacuum pan sugar is not included in the definition of agricultural produce in s.
2(a); and (5) The provisions of the Amendment Act 10 of 1970 infringe the fundamental right guaranteed by Art. 19(1) (f) and (g) of the Constitution.
986 The High Court held in Special Appeal No. 175 of 1973 relying upon this Court's decision in Paunakram v. State of Punjab(l) that in view of the extended definition of agricultural produce after the Amendment Act 10 of 1970 an enquiry whether gur, rab, shakkar and khandsari are agricultural produce or not is beyond the purview of the Court and that there is no discrimination as there is essential U difference between gur, rab, shakkar and khandsari under one head and vacuum pan sugar on the other, as the former are manufactured by the open pan process and the latter is manufactured by the vacuum pan process and the vacuum pan process sugar industry is in existence since 1931 and involves big sugar factories whereas industries producing khandsari sugar by open pan process are of recent origin and those units carry on small scale business. In my view, these may be good reasons for not subjecting khandsari sugar to the levy of market fee and subjecting plantation white sugar to the levy. It is not necessary to refer to the decision of the High Court on the other three points. It is sufficient to say that in my view that decision relates to the necessity to obtain a licence under the Adhiniyam for dealing in khandsari sugar and certain other commodities introduced into the definition of agricultural produce by the Ordinance which was replaced by the U.P. Amendment Act 10 of 1970 and it had nothing to do with the liability of khandsari sugar manufacturers-sellers to pay market fee under the Adhiniyam.
In these circumstances, I hold that what the petitioners produce in their modern khandsari mills by the open pan process is khandsari sugar, an industrial product like plantation white sugar and not khandsari which is produced by agricultural producers in the indigenous method and that the levy of market fee on sales of khandsari sugar under the Adhiniyam is unwarranted as the Adhiniyam is intended for the protection of agricultural producers in the disposal of their products and only khandsari produced by agricultural producers is included in the definition of agriculture produce in s. 2(a) thereof and not khandsari sugar.
On the question of discrimination, Mr. Shanti Bhushan submitted that plantation white sugar produced is by the vacuum pan process, in the same manner as khandsari sugar is produced by the open pan process and that there is 110 major difference between the two industrial products and there is discrimination in so far as plantation white sugar is not sought to be subjected to the levy of market fee under the Adhiniyam where only khandsari sugar is (1) AIR 1995 SC 187.
987 sought t 1 be subjected to the levy. He submitted that the difference A in the process of manufacture alone is not a distinguishing factor and that the difference in the process of manufacture cannot be a ground for holding that there is no discrimination if the levy could be made on khandsari sugar under the Adhiniyam, leaving plantation white sugar out of its purview. He further submitted that plantation white sugar is produced in larger quantity than khandsari sugar and that traders in plantation white sugar also derive advantage by the use of the market area in the whole of the State of Uttar Pradesh which has been divided into 250 market areas and no part of that State is left uncovered by the Adhiniyam. In this connection, Mr. Shanti Bhushan invited the attention of this Court to the decision in Laksmi Khandsari etc. etc. v. State of U.P. and Ors.(l) where it is observed at page 94 that the restriction may be partial, complete, permanent or temporary but this must bear a close nexus with the object sought to be achieved. As stated earlier, Mr. Sinha submitted that the two products must be identical for attracting the bar of Art. 14 of the Constitution and that similarity alone will not do. But it must be remembered that the Adhiniyam is concerned with the levy of market fee on a variety of products, namely, agricultural produce and that if khandsari sugar produced by the petitioners in their mills by the open pan process out of sugarcane juice could be brought under the purview of the Adhiniyam it is difficult to understand how plantation white sugar for the production of which also sugarcane is the raw material could be exempted from the levy. The levy of market fee could not be said to depend upon the exact chemical composition of the commodity. Mr. Thakur submitted that plantation white sugar produced by the vacuum pan process does not require regulation and, therefore, there is no discrimination in not subjecting it to the levy under Adhiniyam. Similarly, Dr. Chitale submitted that whatever was considered necessary to be regulated was brought under the Adhiniyam and that there is no discrimination. It is not possible to accept this submission of Mr. Thakur and Dr.
Chitale. Plantation white sugar does not require less regulation than khandsari sugar. Reference was made to this Court's decision in Andhra Sugars Ltd. and Anr. etc. v State of Andhra Pradesh and Ors.(2) where it has been held that factories producing plantation white sugar by the vacuum pan (1) [1981] 3 SCR 92 at 94.
(2) [1968] 1 SCR. 705.
988 process and khandsari units producing sugar by the open pan process are distinct and separate units. That case related to imposition of tax on sugar and exemption of khandsari and jaggery from the levy. The principle underlying the levy of tax cannot be made applicable to the levy of market fee under the Adhiniyam. Both plantation white sugar and khandsari sugar are industrial products and there is clear discrimination, in my view, against khandsari sugar in seeking to subject it to the levy under the Adhiniyam leaving out plantation white sugar.
For the reasons mentioned above I am of the opinion that the Writ Petitions deserve to succeed They are accordingly allowed but without any order as to costs.
THAKKAR, J. The petitioners in the Present group of fourteen Writ petitions under Art- 32 of the Constitution of India, are owners of Khandsari factories in Uttar Pradesh They seek appropriate relief on the premise that what they produce is 'Khandsari Sugar' and not 'Khandsari which is covered by the definition of 'Agricultural Produce' in section 2(a) of U.P. Krishi Utpadan Mandi Adhiniyam Act, 1964 (hereinafter referred to as the 'Act') which read as under:
"agricultural produce" means such items of produce of agriculture, horticulture, viticulture, apiculture, sericulture, pisciculture; animal husbandry or forest as are specified in the Schedule, and includes admixture of two or more of such items, and also includes any such item in processed form, and further includes gur, rab, shakkar, khandsari and jaggery;
Accordingly they contend that they are not liable to obtain a licence under Rule 67 of the Rules framed in exercise of powers under section 40 of the Act or to pay the licence fees (Rs. 100 per annum) payable for such licence.
So also they contend that the Market Committee (Mandi Samiti) constituted under section 12 of the Act cannot levy and collect market fee of I % of the value, under section 17 (iii) of the Act, on the transactions in respect of what they produce, from the traders who purchase the product from them.
Resistance to the regulation of the trade in 'Khandsari' and the collection of market fees thereon dates back to 1969. It was on November 5, 1969 that an Ordinance, U.P. Krishi UtPadan Mandi 989 Adhiniyam, 1964 (Amendment and validation Ordinance No.
1969) A was passed, where under, the definition of 'agricultural produce' embodied in section 2(a) of the Act was amended by including 'gur, rab, shakkar, khandsari and jaggery'. The said Ordinance was subsequently converted into U.P. Krishi Utpadan Mandi (Amendment and Validation) Act of 1970. Thus, 'Khandsari' stood covered by the definition of section 2(a) of the Act SO amended. And this provided the starting point of resistance in the form of a Writ Petition on the part of a few Commission Agents carrying on the business of sale and purchase of Khandsari.- They instituted a Writ Petition, being Misc. Writ Petition No. 4835 of 1969 in the High Court of Allahabad, challenging the validity of the inclusion of 'Khandsari' in the definition of 'agricultural produce' contained in section 2(a). The challenge was made on several grounds but no distinction was sought to be made between Khandsari produced indigenously on the one hand and Khandsari produced in the factories like the petitioners' factories on the other hands by calling the latter as 'Khandsari Sugar'. A learned single judge, by his judgment and order dated February 18, 1972, repelled the challenge and dismissed the Writ Petition. A Division Bench of the Allahabad High Court confirmed the decision in Special Appeal No. 175 of 1973 on September 7, 1977.
The matter appears to have rested there till 1981.
Market fees were being collected in respect of 'Khandsari' produced by the factories like the Petitioners' factories under the Act ever since 1969-70. So also the factory owners were obtaining the requisite licence under the Act since 1969-70 Eleven years later, some of the factory owners, petitioners herein, have woken up to the problem and have renewed the challenge by way of the present petitions. The definition embodied in section 2(a) of the Act is an inclusive one. It in terms provides that 'Khandsari is included within the coverage of "agricultural produce" The Act however does not define the term 'Khandsari'. The owners of the 'Khandsari factories', petitioners herein, therefore contend that what they produce is "Khandsari Sugar" and not 'Khandsari'. But then it is not Q sufficient for the petitioners to describe their product as "Khandsari Sugar" in order to successfully contend that it is not 'Khandsari'.
It is further more necessary for them to show that they produce is popularly or commercially known as "Khandsari Sugar" and not as 'Khandsari'. And this they have failed to establish. It is not shown that "Khandsari Sugar" is the nomenclature employed in the 990 world of trade and commerce in respect of their product.
Neither the traders, nor the consumers are shown to have done so in their day to-day dealings.
It appears that the term "Khandsari Sugar" owes its
origin to U.P. KHANDSARI SUGAR MANUFACTURING ORDER of 1977
issued under section 3 of the ESSENTIAL COMMODITIES ACT,
1955. But then "Khandsari Sugar" was defined by clause 2(f) of the said order as meaning "sugar containing more than 90% sucrose and manufactured by open pan process including bels." It is a statutory definition enacted for the 'purpose' of the aforesaid Control Order issued under section 3 of the Essential Commodities Act which Control Order uses the expression 'Khandsari Sugar'. It has nothing to do with the meaning and content of the term 'Khandsari as used by the trade in U.P. Since the term 'Khandsari' has not been defined by the Act, it must be construed in its popular sense. That is to say in the sense in which people conversant with the subject-matter with which the statute is dealing, would attribute to it.This principle of construction has been affirmed and reaffirmed by this Court in Commissioner of Income-tax, Andhra Pradesh v. Taj Mahal Hotel(1) and Porrits & Spencer (Asia) Ltd. v. State of Haryana(Z) as also in numerous other
