CIVIL WRIT JURISDICTION CASE No.2421 of 2001 With CIVIL WRIT JURISDICTION CASE No. 6768 of 2001 With CIVIL WRIT JURISDICTION CASE No. 6771 of 2001 _______ In the matter of applications under Article 226 of the Constitution of India. _____ CWJC No. 2421 of 2001 1. M/S. Adarsh Rice Mill, Khaira Bhudhar, Police Station – Bikramaganj, District – Rohtas, through its Partner Sri Bishundeo Ojha. 2. M/S. Adarsh Chawal Mill, Khaira Bhudhar, Police Station – Bikramganj, District – Rohtas, through its Partner sri Birendra Ojha. 3. M/S. Adarsh Modern Rice Mill, Relwaiya, Police station – Dinara, District – Rohtas, through its Partner Satyendra Ojha. 4. M/S. Parwati Jee Rice Mill, Dinara, Police station – Dinara, District – Rohtas through its Partner Arvind Ojha. _________ Petitioners Versus 1. The State of Bihar. 2. The Food Corporation of India, Exhibition Road, 4th Floor, Arunachal Building, Patna through Senior Regional Manager. 3. Union of India through the Secretary, Govt. of India, Krishi Bhawan, New Delhi. ________ Respondents CWJC No.6768 of 2001 M/S. shree Shanker Rice Mills, a partnership firm having its place of business at Akhauripur Gola, Chausa (Buxar) through its one of the partners Shree Krishna Gupta. __________ Petitioner Versus 1. The Union of India through its Under Secretary, Ministry of Consumer Affairs & Public Distribution (Department of Public Distribution), Krishi Bhawan, New Delhi – 110 001. 2. The Food Corporation of India constituted under the Food Corporation of India Act, 1964 (Central Act 37 of 1974) having its Headquarters situated at 16-20, Barakhamba 2 Lane, New Delhi-1 through its Managing Director. 3. The Manager (M & P), Food Corporation of India, 16-20, Barakhamba Lane, New Delhi-1. 4. The Senior Regional Manager, Food Corporation of India, Arunachal Bhawan, Exhibition Road, Patna. 5. The Regional Manager, Food Corporation of India, Regional office, Exhibition Road, Patna. 6. The District Manager, Food Corporation of India, Firdaus Building, Exhibition Road, Patna. 7. The Purchase Incharge, Food Corporation of India, FSD, Buxar. ________ Respondents CWJC No.6771 of 2001 M/S Shree Bishwanath Jee Mills, a partnership firm having its place of business at Gajadharganj, Buxar, District – Buxar, through its one of the partners Hem Prakash. ____________ Petitioner Versus 1. The Union of India through its Under Secretary, Ministry of Consumer Affairs & Public Distribution (Department of Public Distribution), Krishi Bhawan, New Delhi – 110 001. 2. The Food Corporation of India constituted under the Food Corporation of India Act, 1964 (Central Act 37 of 1974) having its Headquarters situated at 16-20, Barakhamba Lane, New Delhi-1 through its Managing Director. 3. The Manager (M & P), Food Corporation of India, 16-20, Barakhamba Lane, New Delhi-1. 4. The Senior Regional Manager, Food Corporation of India, Arunachal Bhawan, Exhibition Road, Patna. 5. The Regional Manager, Food Corporation of India, Regional office, Exhibition Road, Patna. 6. The District Manager, Food Corporation of India, Firdaus Building, Exhibition Road, Patna. 7. The Purchase Incharge, Food Corporation of India, FSD, Buxar. ________ Respondents For the petitioners: M/S. Dhanendra Chaubey, Pramod Pandey (In CWJC No.2421 of 201)and M/S. Ramesh Kumar Agrawal, 3 Gopi Krishna & Anupa Nand Jha(In CWJC Nos. 6768 and 6771 of 2001). For the F C I : Mr. Prabhakar Tekriwal. _______ P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI Ajay Kumar Tripathi,J. All these writ applications have been heard together since common questions of law are involved. There could be a slight variation in the facts because of periods for which procurement of rice has been made by the respondent Food Corporation of India from time to time but the basic dispute which has been carried to this Court is common. 2. Government of India, Ministry of Consumer Affairs and Public Distribution as it was known then have been issuing notifications for procurement of rice from various rice mills. For common rice a particular price has been fixed and for Grade-rice some other amounts are notified. This was the minimum basic price for the procurement. The notification in this regard further categorically states “the above price is exclusive of taxes, if any, leviable at rice stage (emphasis by me). 4 3. According to the petitioners, therefore, the minimum basic price notified by the Government of India is the price which these petitioners are entitled to on effecting supplies to Food Corporation of India, the procurement agency. In addition to the basic price of procurement, the petitioners have claimed that they should be paid or the Sales Tax Department should be made over sales tax @ 4 per cent, which is a statutory obligation. In addition to the same the petitioners also want reimbursement of the amount which they have paid as market fee, which is quantified at 1 per cent. They also want the cost of transportation, the cost of gunny bags in which rice is supplied and the stitching charges. It may be clarified that all these components and claims are not universal to all the writ applications. Some of those components are limited to sales tax and the market fee. In some other writ application additional components are there. 4. The respondent Food Corporation of India, after the bills were raised by the petitioners, have made some payments but these payments have been worked out according to their calculations on the basis of so-called cost of procurement worked out by the Government of India. Their 5 stand in the counter affidavit is that detailed break-up has been provided by the Government of India. Certain items have already been included as part and parcel of cost of procurement and in this case an example is the procurement tax at the stage of procurement of paddy. Since in the State of Bihar there is no 4 per cent tax on procurement of paddy, therefore, so far as the claim of petitioners for payment of sales tax is concerned, no extra money is required to be paid under the head of sale tax. This is the justification for not making the payment under the head of sale tax component to the petitioners and this element has been held back. 5. The respondent Food Corporation of India in their supplementary counter affidavit in para 7 have further explained the calculation in so far as CWJC No.6768 of 2001 as well as in CWJC No. 6771 of 2001 are concerned. According to the counsel for the FCI, the calculation and details furnished therein is the complete answer to the liability and the payments which have been made to these petitioners. 6. Learned counsel representing the petitioners, however, seriously dispute the stand of the respondent FCI. There is no counter affidavit on behalf of the Government of India and therefore, 6 the burden of defending the case lies on the shoulders of FCI. A plain reading of the notification, part of which has been quoted above, categorically states the minimum procurement cost of rice in question. It also states that it is exclusive of taxes and if any, leviable at the rice stage. The stand of the FCI that 4 per cent tax at paddy procurement stage seems to be totally misplaced. Even according to the calculation made, 4 per cent tax is with regard to procurement of paddy and not rice. The claim of the present petitioners arises on effecting supplies of mill rice to FCI. The offer which has been made to these petitioners is at the stage of rice. The component of tax and other cost which have gone into for procurement at paddy stage is none of the concern of these petitioners. 7. The notification fixing the minimum basic price for procurement is the offer made by FCI. It categorically states that this price does not include levy or taxes which is legally payable by these petitioners. It goes without saying then that they have a claim for reimbursement of payment of sales tax, market fee, transportation and other component which have been noted in the earlier part of the order 7 depending upon the claim of the petitioners from case to case. An offer made and accepted by the petitioners unconditionally cannot be altered by FCI unilaterally. 8. The Court is not impressed by the submissions made on behalf of the FCI that recalculation has been done keeping certain components of procurement of paddy and the final price and payment has been worked out on those re- calculation on the reduced price. It is not open to them to reduce the price on procurement which has been duly notified and a notional figure cannot be worked out by them for payment of liability to the petitioners. The minimum basic price is the touchstone for payment of liability. In view of the above the FCI has a legal obligation in terms of the notification to reimburse the price of rice duly notified to the petitioners in addition to the component of sales tax and market fee wherever it is required to be paid as well as the calculation of transportation, price of gunny bags as well stitching charges where there is no dispute on it. 9. It is clarified that all these petitioners have an obligation to satisfy the respondent FCI that the demands under the sales tax have been made or paid. So is the case with regard to market 8 fee. If those demands have been made or paid and proof and evidence of such demand is available or furnished then only the question of reimbursement would arise. 10. All these writ applications are allowed to the extent indicated above. The competent authorities shall ensure that dues and claim of the petitioners is settled in light of the above, preferably within a period of eight weeks from the date of communication/ production of a copy of this order. 11. Before parting the Court also records that since the money of the petitioners have been blocked with the FCI because of the above dispute raised by the FCI, it will be in fairness of things that they should be paid simple interest at the rate of 5 per cent from the date it was due till the date of payment. (Ajay Kumar Tripathi,J) Patna High Court: The 15th April, 2010. R K Pathak (NAFR)