IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 18498 of 2008 M/S Vishnu Sugar Mills Limited, PO - Harakhua, P S - Vishnu Sugar Mills, District - Gopalganj through its General Manager Shri P R S Panicker - Petitioner Versus 1 The Union of India through the Secretary, Ministry of Consumer Affairs and Public Distribution (Department of Food and Public Distribution), Government of India, Krishi Bhawan, New Delhi - 110 001 2 The Joint Secretary (Sugar), Ministry of Consumer affairs and Public Distribution (Department of Food and Public Distribution), Government of India, Krishi Bhawan, New Delhi - 110 001 3 The Chief Director (Sugar), Government of India, Ministry of Consumer Affairs, Food and Public Distribution (Department of Food and Public Distribution), Directorate of Sugar, Krishi Bhawan, New Delhi - 110 001 4 The Dy Director (Sugar Control), Government of India, Ministry of Consumer Affairs, Food and Public Distribution, Directorate of Sugar, Krishi Bhawan, New Delhi - 110 001 5 The State of Bihar through the Secretary, Department of Food, Supply and Commerce, Government of Bihar, Patna 6 The Bihar State Food and Civil Supplies Corporation Ltd, Sone Bhawan, 05th Floor, Bir Chand Patel Path, Patna through its Managing Director 7 The State of Jharkhand through the Secretary, Department of Food and Civil Supplies, Government of Jharkhand, Ranchi 8 The State of West Bengal through the Secretary, Department of Food and Civil Supplies, Government of West Bengal, Kolkata 9 The West Bengal Essential Commodities Supply Corporation Ltd, 11A, Mirza Ghalib Street, Kolkata - 700 087 through its Managing Director - Respondents *** For the petitioner : M/s Y V Giri, Sr Advocate, Ashish Giri & Vikas Ratan Bharti, Advocates For Union of India : Mr Sarva Deo Singh, CGC For State of Bihar : Mr Prabhat Kumar, AC to GA 3 For respondent No 6 : Mr R S Pradhan, Sr Advocate *** 15 05.11.2009 The present writ application has been filed by the petitioner primarily for quashing the order of the Central Government dated 01.10.2008 as extended by order dated 03.12.2008 by which allotment 2 in purported discharge of levy liability under the Sugar (Control) Order/Levy Sugar (Control) Order has been directed. The contesting respondents have appeared and filed their counter affidavit and rejoinder has been filed. With consent of parties, the writ petition has been heard for final disposal at this stage itself. Under orders duly issued and enforced under Section 3 of the Essential Commodities Act, every sugar mill is required to deliver as levy sugar varying percentage of sugar produced in a sugar year. A sugar year starts from 01st November and ends on 31st October, the next year. The levy liability, which was originally 67% of the production in a sugar year, is now down to 10% of the production in a sugar year. For this levy sugar, the manufacturer is entitled to a price determined in terms of Section 3 (3C) of the Essential Commodities Act. A manufacturer of sugar is obliged to honour such an order of allocation of levy sugar, and on receipt of price thereof as statutorily fixed, deliver the same to the allottee within the period as fixed in the said allotment order issued by the Central Government. It so happened that from year to year, sugar having been produced and levy liability having been incurred, the Central Government was unable to provide for its full utilization. It, accordingly, took a policy decision that the unutilized levy sugar liability of a particular year would get carried forward and be added to the liability of the next year. The validity of this policy decision was challenged before this Court in CWJCs No 6964 and 7960 of 2006 both of which were heard and dismissed by judgment and order dated 3 04.09.2006 (Annexure-1). The policy was upheld but with a rider as quoted hereunder : “However, before parting, I may observe that carry forward rule is reasonable if it is carried forward for a reasonable short period. If it is pointed out that this carry forward rule is being extended for unreasonable long period then the question may arise as to its reasonableness or otherwise but in the facts of the present case, the period does not appear to be unreasonable especially considering the circumstances in which earlier lifting could not be done.” It would, thus, be seen this Court held that the carry forward rule was valid but could not be carried forward unreasonably. This was so because the manner in which liability was being carried forward is allowed to operate ad infinitum then after a short while, the entire production of a sugar year by a sugar mill would be appropriated towards levy liability still leaving substantial amounts to be delivered by sugar company which would be unreasonable. This judgment inter party attained finality. It appears that because this Court upheld the validity of the carry forward rule, the Central Government effectively did not take steps to ensure that the levy liabilities were promptly and duly utilized. The carry forward of liability continued. This forced the petitioner and others to come to this Court and file CWJCs No 9555 and 9892 of 2007. The sugar mills gave figures as to how now the carry forward is accumulating and it has far exceeded its yearly levy liability and if that amount of sugar is required to be held in stock to be delivered as levy, it would become unreasonable. Having considered the matter and heard the parties in detail, by judgment dated 02.09.2008, the writ petitions 4 were allowed. In the writ petitions, it was pointed out that so far as the petitioners are concerned, the accumulated levy sugar liability was about 6,720.30 metric tones. This Court, thus, held as under : “Thus, this carry forward rule, which was earlier held to be valid, cannot now hold good and, accordingly, the carry forward liabilities would totally lapse extinguishing the liability but before this can be effective, the Central Government is given three months’ time to liquidate the accumulated carry forward liabilities beyond which the same would not continue and with the next sugar production year commencing from 01st November 2008, there would not be a carry forward of past liability and the levy liability would start with a clean slate.” Thus, this Court clearly held that the carry forward sugar liability had to be completely utilized and discharged by 31st October, 2008. If not so utilized and discharged, the same would lapse in totality. From 01st of November, the accounts in that regard would start with a clean slate. Notwithstanding the aforesaid what the Central Government did was it first issued on 01.10.2008 an order allotting 6720.30 metric tones of sugar of the petitioner in favour of West Bengal Government or any person or organization duly authorized by the said person or office by the said Government. Petitioner could not and did not raise any objection because this is the total liability which it was required to discharge. The only objection it raised was that the order should be amended so that the liability of the production year and the carry forward liability are bifurcated. On behalf of petitioner, learned counsel is candid enough to submit that if by 31st of October, any person had come to lift the sugar in question pursuant to the allocation as made by the Central Government, petitioner could not have stopped or refused 5 to make delivery but the fact of the matter is that no one appeared at all to lift the sugar nor anyone informed the petitioner that it was coming to lift the sugar nor any payment for any amount thereunder whatsoever was tendered. Thus, there was no obligation on part of the petitioner to deliver the said quantity to any person. It is under those circumstances that ultimately Annexures-10 and 11 was issued by the Central Government on 03.12.2008 which virtually extended the life of the original allotment letter dated 01.10.2008 and again a request was made to the West Bengal Government to lift the sugar. It is a matter of record that West Bengal Government then wrote to the petitioner evincing intention to lift only 268 metric tonnes of sugar only on 19.12.2008 but did not even tender payment in that regard. The petitioner, thus, filed this writ petition for quashing the said Annexures-8, 10 and 11 on the ground that 31st October 2008, the deadline set by this Court having expired and the carry forward levy sugar liability having not been utilized/lifted, the same lapsed and the validation of the allotment letter dated 01.10.2008 was of no consequence. The accumulated levy liability lapsed and with effect from 01st November 2008, it was not required to deliver anything as past levy liability which was in accordance with the direction issued in the second round of litigation, as aforesaid. When this writ petition was taken up, it appears that the Central Government realized that unless they challenged the judgment and order of this Court in the second litigation, the present litigation was fate accompli. A belated Letters Patent Appeal being LPA No 438 of 2009 was filed. The matter was heard by a Division Bench of this Court 6 and the Letters Patent Appeal was dismissed by order dated 20.07.2009 finding no reason to interfere with the order of the Writ Court. Thus, the order of this Court in relation to the cut off date as provided by this Court attained finality inter party and that is virtually up for implementation by this writ petition as Annexures-10 and 11 are invalid thereof. It may also be noted here that as, at a point of time, West Bengal Government through its Essential Commodities Supply Corporation Limited had evinced intention to purchase 260 metric tonnes of sugar, they were also made a party and notices were issued to them but they have neither chosen to appear in these proceedings nor have even they approached the petitioner for over almost last one year for purchase and delivery of the levy allotment made in its favour. In fact, till interim orders were passed by this Court on 05.03.2009, no one at all had approached the petitioner-company to lift the levy sugar against previous liabilities. The judgment in the second round of litigation being judgment inter party and having attained finality cannot now be reopened. In pursuance to the directions contained therein, the balance of levy liability of 6720.30 metric tonnes would, thus, lapse unutilized. It will not be carried forward as petitioner’s liability. The levy liability in subsequent year and with effect from 01st November, 2008 for the sugar year, 2008-2009 onwards, there would be no past carry forward liability and accounts would start afresh. The levy liability would accrue afresh depending on the production for the sugar year, 2008- 7 2009 and so on and so forth. Thus, the order of allocation dated 01.10.2008 (Annexure-8) would lose its force with effect from 01.11.2008. The orders of Central Government dated 03.12.2008 (Annexures-10 and 11 respectively) have to be held to be invalid. Pursuant to interim order dated 05.03.2009, the petitioner having sold the stocks, which it had held for delivery as levy sugar in dispute, in open market is in order and cannot be questioned. The writ petition is, thus, allowed in terms, as indicated above. M.E.H./ (Navaniti Prasad Singh)