judgement:
section 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, section 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. section Chitale, and G. N. Dikshit.
Miss Shobha Dikshit, Pradeep Mishra, section 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 section 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, section 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 article 14 of the Constitution.
Section 8 of the Adhiniyam is violative of article 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 section 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 section 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 section 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 section 2 (a) of the Adhiniyam.
Market fee is not claimed from the petitioners in any manner different from the one stipulated in section 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.
article 19 (1) (f) does not exist any longer and article 301 does not confer any fundamental right on the petitioners. 'There is no discrimination against the petitioners and section 8 of the Adhiniyam is not violative of article 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 section 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 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 article 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 article 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 section 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 section 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 section 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 section 2 (a) of the Adhiniyam deals also with traders as held in Laxmi Khandsari Etc.
vs State of U. P. and Others(1) and that what the petitioners produce is khandsari though it may (1) ; 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 section 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 section 2(a) of the Adhiniyam by the U.P. Amendment Act 10 of 1970.
Trader is defined in section 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 section 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 section 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 section 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 section 2(d) of the Sugarcane (Control) Order, 1966 khandsari sugar means sugar produced by the open pan process.
According to section 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 section 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 section 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 section 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 section 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 section 2(a).
It was after that decision that Ordinance No. 8 of 1970 was promulgated including gur, rab, shakkar, khandsari and jaggery in section 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 section 2(a); and (5) The provisions of the Amendment Act 10 of 1970 infringe the fundamental right guaranteed by article 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 vs 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 section 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.
vs 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 article 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.
v State of Andhra Pradesh and Ors.(2) where it has been held that factories producing plantation white sugar by the vacuum pan (1) ; at 94.
(2) ; 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 , 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 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 vs Taj Mahal Hotel(1) and Porrits & Spencer (Asia) Ltd. vs State of Haryana(Z) as also in numerous other decisions.
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 the decisions.
For, the principle, though garbed 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 ', how 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.
They have been obtaining licence under the Act and paying market (1) at p. 47.
(2) ; 991 fee at 1% of the value since 1969 70 till 1981 without demur.
even A though the coverage of 'Khandsari ' by virtue of the definition of section 2(a) as amended in 1969 70 was challenged in 1969 it was not on this ground.
As mentioned earlier, the challenge initiated in 1969 ended in 1979 with the decision of the Division Bench of the Allahabad High Court rendered in Special Appeal No 175 of 197 3.
A copy of this judgment has been placed on record of the present group of petitions at annexure II.
[t is not necessary to advert to the judgment in detail for the purposes of the discussion of the present point.
Suffice it to say that the challenge was made on five grounds indicated in the judgment and that none of these grounds pertained to the aspect relating to the meaning and content of the term 'Khandsari '.
Thus, for more then ten years even the petitioners have not felt that 'Khandsari ' means something other than what they produce.
The petitioners have not established that their produce is marketed under a different name in the market.
There is no material for holding that the petitioners sell their product under the name "Khandsari Sugar" to the traders.
Or that the traders inter se in transacting their business refer to the same as Khandsari Sugar.
Or that any consumer desirous of purchasing factory produced Khandsari would ask for "Khandsari Sugar".
I is not shown that either the petitioners or the traders or the consumers refer to the product as "Khandsari Sugar".
Nor is it shown that it is not marketed under the name 'Khandsari '.
In other words, it is not shown that in the popular or commercial sense, the product is not known as 'Khandsari ', but is known as Khandsari Sugar.
In this context one significant fact needs to be stressed, namely, that 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 The contention that the article produced by the petitioners is not Khandsari must, therefore, be firmly and unhesitatingly negatived.
The legislature, it is also argued, 'could not have intended ' to cover the produce turned out by producers like the petitioners The principal object of the Act is to protect the producers from exploitation.
Those who own or run Khandsari units, like the petitioners, engaged in large scale production with the aid of relatively modern plant and machinery worth lacs of rupees, and employ a large number of workers, need no such protection.
Such is the 992 argument.
In our opinion the argument is untenable.
The legislature has in terms encompassed 'Khandsari ' within the definition of section 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 assured by the petitioners that the object of the Act is merely to protect the producers from exploitation is fallacious.
Of course, one of the main objects of the Act is to protect the producers from being cheated by unscrupulous traders in the matter of price, weight, payment, unlawful market charges etc.
and to render them immune from exploitation as indicated by the 'prefatory note ' and by the provisions contained in sections 16(i), (ii), (iii), (iv), (viii) etc.
While this is one of the objects of the Act, it is not the sole or only object of the Act.
The Act has many more objects and a much wider perspective such as development of new market areas, efficient collection of data, and processing of arrivals in Mandis with a view to enable the World Bank to give substantial economic assistance to establish various markets in Uttar Pradesh, as also protection of consumers and even traders from being exploited in the matter of quality, weight and price This needs no elaboration in view of the pronouncements of this Court.
For instance in Ramesh Chandra vs State of U.P.(1) this Court has observed thus: "The long title of the Act in indicates 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 therefor in Uttar Pradesh." From the Objects and Reasons of the enactment it would appear that this Act was passed,for the development of new market areas and for efficient data collection and processing of arrivals in the Mandis to enable the World Bank to give a substantial help for the establishment of ' various markets in the state of Uttar Pradesh.
In other States the Act is mainly meant to protect an agriculturist producer from being exploited when he comes to the Mandis for selling his agricultural produce.
As pointed out by the High Court certain other transactions also have been roped in the levy of the fee, in which both sides are traders and neither side is an agriculturist.
This has been done for the effec (1) ; 993 tive implementation of the scheme of establishment of markets mainly for the benefit of the producers. " And in Ramesh Chandra Chandra Kaehardas Porwal & Ors vs State of Maharashtra & Ors.
etc.(1) it has been stated that: "It is true that one of the principal objects sought to be achieved by the Act is the securing of a fair price to the agriculturist for his produce, by the elimination of middle men and other detracting factors.
But, it would be wholly incorrect to say that the only object of the ,Act is to secure a fair price to the agriculturist.
As the long title of the Act itself says, the Act is intended to regulate the marketing of agricultural and certain other produce.
The marketing of agricultural produce is not confined to the first transaction of sale by the producer to the trader but must necessarily include all subsequent transactions in the course of the movement of the commodity into the ultimate hands of the consumer, 80 long, of course, as the commodity retains its original character as agricultural produce.
While middlemen are sought to be eliminated, it is wrong to view the Act as one aimed at legitimate and genuine traders.
Far from it.
The regulation and control order is as much for their benefit as it is t`or the benefit of the producer and the ultimate consumer.
The elimination of middlemen is as much in the interest of the trader as it is in the interest of the producer.
Promotion of grading and standardisation of agricultural produce is as much to his benefit as to the benefit of the producer or consumer.
So also proper weighment.
The provision for settlement of disputes arising out of transactions connected with the marketing of agricultural produce and ancillary matters is also for the benefit of the trader.
It is because of these and various other services performed by the Market Committee for the benefit of the trader that the trader is required to pay a fee.
It is, therefore, clear that the regulation of marketing contemplated by the Act involves benefits too traders to in a large way.
It is also clear to our mind that the regulation of marketing of agricultural produce, if confined to the sales by producers within the market area to traders, will very soon lead to its circum (1) 11981] 2 S.C.R. 866 994 vention in the guise of sales by traders to traders or import of agricultural produce from outside the market area to within the market area.
" In the face of these pronouncements it cannot be success fully urged that the object of the Act is merely to protect the producer from exploitation.
As pointed out in the aforesaid decisions, while the analogous Acts in other States had a limited perspective, so far as Uttar Pradesh is concerned, the Act has a much wider horizon, and even transactions where both the sides are traders and neither side is an agriculturist, are brought within the coverage of the Act.
There is, therefore, no merit in this nuance of the challenge.
The petitioners have next contended that having regard to the definition of 'Producer ' contained in section 2(p) of the Act, this Act could not have been intended to cover the article produced by them We do not see anything in the definition which would justify overriding the clear language of the statute read in the l) 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 As discussed earlier, one of the objects of the Act inter alia is to protect the consumer as also the trader.
We need not reiterate the reasoning articulated by us a moment ago in dealing with the first facet of this argument.
The argument based on the supposed intendment of the Act.
in our opinion, is wholly misconceived.
We have, therefore, no hesitation in repelling this contention Lastly section 2(a) of the Act has been challenged on the ground that it is discriminatory and violative of article 14 They have contended that section 2(a) of the Act, in so far as it includes Khandsari in the definition of agricultural produce and thereby subjects the trade in the said product to regulation under the relevant provision of the Act is ultra vires Art 14 of the Constitution of India inasmuch as it introduces a hostile discrimination.
According to the petitioners, the article produced by them, which they call Khandsari sugar, is almost indistinguishable from the plantation sugar mills.
Whether the article produced by the petitioners is very much similar to plantation sugar or not is a moot question.
The other side has controverted this averment.
The process of manufacture is different.
The market price of Khandsari is lower depending on the quality.
995 The most inferior variety would be more like the Khandsari A produced by the indigenous process (yellowish in colour and powdery in form) and would fetch a lesser price in the market.
It would appear from the affidavit that the most superior variety might perhaps be approximate in appearance to the plantation sugar manufactured by the sugar mills but would all the same fetch a somewhat lesser price than the price fetched by plantation sugar It is a different commercial product known by a different name in the trade Be that as it may, the argument that unless both are regulated under the Act article 14 would be offended, is meritless.
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 is 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 objects and not in others Or may bring within its net some objects 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.
In East India Tobacco Co. vs State of Andhra Pradesh(t) this Court has quoted with approval the following passage from Willis on Constitutional Law(2): "A State does not have to tax everything in order to tax something.
It is allowed to pick and choose districts, objects, persons, methods and even rates for taxation if it does so reasonable .
The Supreme (1) [1963] 1 S.C.R 404 (2) Willis on Constitutional Law p. 857 996 Court has been practical and has permitted a very wide latitude In classification for taxation.
" And this Curt has turned down the plea that in order to respect Art 14, both varieties of tobacco (Virginia tobacco on the one hand and country tobacco on the other) must be taxed or none.
says the Court: "if a State can validly pick and choose one commodity for taxation and that is not open to attack under Article 14 the same result must follow when the State picks up one category of goods and subjects it to taxation.
" In the matter of market regulation also Khandsari and Mill sugar are governed by different regulations As a matter of fact mill sugar is subject to control and regulation of no mean order under Sugar (Control) Order of 1966 where under the sugar mills are obliged to make available a significant quantity of sugar by way of levy at stipulated prices which are very much lower than prevailing open market prices Khandsari ' produced by the petitioners was not subject to similar control, for all these years.
The producers of Khandsari like petitioners, it is obvious have benefited thereby.
It 15 true than for a short period Khandsari was also subjected to levy under Khandsari Sugar (Levy) Order of 1981 on a relatively small portion of its production That however makes little difference from the standpoint of challenge to section 2(a) of the Act on the ground that Mill sugar is not included in the definition of 'agricultural produce and not subjected to the provisions of the Act.
So also the mere fact that both are sweetening agents will not justify condemnation of the classification which is based on a totality of the factors of differentiation There is therefore no substance in the challenge from the standpoint of article 14 of the Constitution of India.
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 997 Court will not impose on itself this responsibility, if not for any A other reason, than for the reason that it is beyond its province, The arguments advanced on this wavelength need not, therefore, detain us any a longer.
The petitions, accordingly, fail.
Rule issued in each of the petitions will stand discharged There will be no order regarding costs.
Interim orders will stand vacated.
In view of the majority decision, all the writ petitions are dismissed.
There will be no order regarding costs.
Interim orders will stand vacated.

dataset_name: IN-Abs

summary/full:
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 section 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 section 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 section 12 of the Act cannot levy and collect market fee of 1% 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; and (l) that section 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 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 '.
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 section 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, at p. 47 and Porrits & Spencer (Asia) Ltd. vs 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 section 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.
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 section 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 vs State of U.P., ; and Ramesh Chandra Kachardas Porwal & Ors.
v State of Maharashtra & Ors.
; , , relied on.
There is nothing in the definition of 'Producer ' contained in section 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 section 2(a) of the Act is not discriminatory and violative of Article 14.
[996G H; 997Al East India Tobacco Co. vs 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 section 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 section 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 section 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 section 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.
vs State of U.P. & others; , Paunakram vs State of Punjab, AIR 1975 SC 187 and Andhra Sugars ltd.& Anr. etc.
vs State of Andhra Pradesh & Ors., [1968] I SCR, 705 referred to.


judgement:
N: Criminal Appeal No. 240 of 1982 From the Judgment and Order dt.
2.3.1982 of the High Court of Kerala at Ernakulam in Crl.
R.P. No. 435181.
Criminal Appeal No. 661 of 1982 From the Judgment and Order dt.
12.2.1982 of the High Court of Kerala at Ernakulam in O.P. No. 6834/81.
G.L. Sanghi, G N Rao, A.S. Nambiar, after Singh for the Appellant in Crl.
A. No. 240182 & Respondents in Crl.
A. No. 611/82.
Govind Mukhoty, Mr. V. Maya Krishnan, A N. Bordiyar for the Respondents in Crl A.
No 240/82 and Appellants in Crl.
A. No. 661182.
D S.M. Rebelo (In person).
The Judgment of the Court was delivered by, FAZAL ALI, J.
BY Our Order dated February 12, 1985 we disposed of the above mentioned two criminal appeals dismissed criminal appeal No. 66118,2 and allowed criminal appeal No. 240 of 1982.
We now proceed to give the reasons for our Order The facts of the case lie within a very narrow compass.
The appeal by special leave has been filed by the appellant company contending that the respondent was not entitled in law to get full compensation for one year as was granted by the High Court for premature termination of his services.
The detailed facts have been given by the High Court and the criminal court and it is not necessary to repeat the same.
However, in older to understand the delicate and difficult points raised by the respondent, it may be necessary to give a short history of the circumstances in which the services of the respondent, who was Master of the ship called 'M.V. Anastasis ', were terminated it is common ground that the respondent was appointed on October 22 l980 for a period of one year.
It is not disputed that on December 11, 1980 the said ship touched the harbour and thereafter 1001 proceeded to Beypore, Calicut where the respondent received a A message from the owner of the ship that the ship has been sold as scrap to the appellant company, Steel Industrials Kerala Ltd Consequent upon the sale of the ship, by an order dated 20.12.80 the services of the respondent were terminated.
On December 22, 1980, i e, two days later, the respondent wrote a letter to the previous owner intimating that, as directed, he had handed over the ship to the appellant company A little later on 24.12.80, the respondent moved the Magistrate under section 145 of the (hereinafter referred to as the 'Act ') for payment of necessary wages. .The
Magistrate after considering all the pros and cons of the matter felt that the respondent was entitled to get compensation at least equivalent to three months ' pay.
The respondent was, however, not satisfied with the order of the Magistrate because he claimed a much higher compensation as his services were terminated before completion of one year for which he was appointed.
It is true that the salary of the respondent, calculated at the rate of $1800 per month, amounts to a substantial sum of money if he were to get compensation on a full salary basis for the entire period, which actually he had not served We are, however, not concerned with the quantum of the compensation which he could get, but the main point for consideration in this case is to whether or not his claim for compensation for the whole year could be entertained.
In one of the letters which he had written to the owner of the ship he had himself admitted that he was entitled to two months ' notice pay plus other emoluments.
This would show that the contract between the parties as understood by them was that if the services of the respondent were terminated before completion of the term of one year, he would be entitled to two months ' notice.
the Magistrate, however, took a more liberal view in the matter and held that the respondent was entitled to at least three months ' notice and consequently to the emoluments calculated at the rate of $1800 per month, and accordingly ordered payment of three months ' pay This is in accordance with section 143 read with section 148 of the Act.
It is manifest that under the contract the respondent was not appointed to any permanent post which was to last until his retirement but his appointment was really a term appointment for a fixed period.
The main contention of the respondent before us was that as he did not get any discharge slip under the provisions of the Act, he 1002 was entitled to full wages for the entire term of one year.
In this connection, he relied on certain provisions of the Act to which we shall refer here after.
It appears that the respondent seems to have presumed that he was equal in status to that of a seaman and, therefore, unless a discharge certificate was given to him he was entitled to compensation for the entire period of the contract.
A perusal of the relevant sections, clearly reveals that the statute makes a well knit distinction between a seaman and a master of the ship.
This now takes us to an analysis of the relevant provisions of the Act on which reliance has been placed by the respondent.
To begin with, sub section (22) of section 3 defines a 'Master ' thus: "master" includes any person (except a pilot or harbour master) having command or charge of a ship;" It is pertinent to note that the definition of 'Master ' does not include a seaman and, therefore, the argument of the respondent that he should be equated with a seaman or treated as such, cannot be accepted and is in fact without any substance.
Sub section (42) of section 3 defines a 'seaman ' as every person (except a master, pilot or apprentice) employed or engaged as a member of the crew of a ship but for certain specific purposes under sections 178 to 183 it includes a master.
An analysis of this sub section shows that a seaman cannot in the ordinary sense of the term be equated with a 'master '.
Thus, the second part of sub section (42) on which great reliance was placed by the respondent clearly carves out a separate area where for the purpose of this sub section a seaman might include a master.
This limited area is to be found within the four corners of sections 178 to 183.
This now brings us to a consideration of 9. 178 which may be extracted thus: "178.
Meaning of serving seaman A seaman shall, for the purposes of these provisions, be deemed to be a serving seaman during any period commencing on the date of the agreement with the crew and ending thirty days after the date on which the seaman is finally discharged from such agreement." 1003 There is nothing in this section to indicate that a seaman can m any sense of the term be equated with a 'master '.
Even section 179 refers only to a serving seaman and not a Master.
The relevant provisions of section 180 may be extracted thus:: "180.
Notice lo be given in case of unrepresented seaman (1) If a collector has certified under sub section (2) of section 179, or if a court has reason to believe that a seaman who is a party to any proceeding before the court, is unable to appear therein or is a serving seaman, the Court shall suspend the proceeding and shall give notice thereof to the shipping master :" This section merely provides that if a court has reason to believe that a seaman was a party to any proceeding and does not appear therein, the court shall postpone the proceeding and give notice thereof to the shipping master.
In this sub section, the word 'master ' has been used for the first time but the term has been used not to equate a seaman with a master but in quite a different content and subserve a different purpose The other sections also, particularly section 183, merely provide that a serving seaman may refer the question to the shipping master whose certificate shall be conclusive evidence on the question whether a seaman was a serving seaman or not at any particular time or period.
There is no clear provision from which it can be inferred either directly or by necessary intendment that a master is also a seaman for the purpose of getting compensation if his services were terminated.
Section 89 defines the duties of shipping masters which may be extracted thus: F "It shall be duty of shipping masters (a) to superintend and facilitate the engagement and discharge of seamen in the manner provided in this Act: (b) to provide means for securing the presence on , Board at the proper times of the seamen who are so engaged; (c) to facilitate the making of apprenticeship to the sea service; 1004 ( d) to hear and decide disputes under section 132 between a master, owner or agent of a ship and any of the crew of the ship, (e) to perform such other duties relating to seaman, apprentices and merchant ships as are for the time being committed to them by or under this Act.
" The various sub sections of section 89 do not at all govern the terms and conditions of a 'master ' but serve to carve out his duties at various levels or stages.
Similarly, section 101 refers only to the question that there should be an agreement with the crew in a prescribed form.
There is no reference to the terms and conditions of a master in any of the sub sections.
Section 103 is a general section which governs the terms and conditions of a seaman and there is no reference to a master of the ship.
Reliance was then placed on section 118, the relevant portion of which may be extracted thus: "118.
Discharge before shipping master (1) When a seaman serving in a foreign going ship is, on the termination of his engagement, discharged in India, he shall, whether the agreement with the crew be an agreement for the voyage or a running agreement, be discharged in the manner provided by this Act in the presence of a shipping master.
" This sub section taken together with the other sub sections also governs the terms and conditions of a seaman and not those of a master of the ship.
Section 119 merely provides that the master shall sign and give to seaman who is discharged, a discharge certificate either on his discharge or on payment of his wages specifying the period of his service and the time and place of his discharge.
This section also governs the terms and conditions of a seaman and has nothing to do with the terms and conditions of a master of a ship.
Similarly, section 120 relates to the consequences where a seaman is discharged.
Some reliance was also placed on sub section (1) of s.125 which may be extracted below: "125.
Master to deliver account of wages 1005 (1) The master of every ship shall, before paying off A or discharging a seaman under this Act, deliver at the time and in the manner provided by this Act a full and true account in the form prescribed of the seaman 's wages and of all deductions to be made therefrom on any account whatever " B This again defines the duties of a master in respect of a seaman who is discharged.
Section 132 provides the procedure to be followed in case any dispute arises, under the agreement with the crew, between the master, owner or agent of a ship and lays down that the same should be submitted for decision to the shipping master.
Section 143, on which some reliance was placed by counsel for the respondent, refers only to the circumstances under which a seaman could be discharged and the consequences ensuing therefrom.
D It is apparent from the facts narrated and the analysis of the sections made by us that there is no provision in the Act which equates a seaman with a master of a ship in regard to the terms and conditions or emoluments or mode of discharge.
In fact, there is no provision under which a master of a ship can get a discharge certificate.
But under section 143 read with section 148 a Master is entitled to three months ' wages in case of discharge or termination in the same manner as a seaman is entitled to three months ' wages.
Great reliance was, however, placed by the counsel for the respondent on sub sections (l) and (2) section 148 which provide that a master of a ship would have the same rights, liens and remedies for recovery of his wages as a seaman either under the four corners of the Act or by any law or custom Sub s.(2) may be extracted thus: "(2) The master of a ship and every person lawfully acting as master of a ship by reason of the decease or in G capacity from illness of the master of the ship shall, so far as the case permits, have the same rights, liens and remedies for the recovery of disbursements or liabilities properly made or incurred by him on account of the ship as a master has for the recovery of his wages.
" 1006 Hence, it is manifest that since there is no provision in the Act under which a discharge certificate can be given to a master of a ship or even otherwise, he cannot claim the rights and privileges of a seaman.
This is obviously so because a master of a ship is an officer of a higher rank than that of a seaman and therefore his terms and conditions are bound to be different from that of a seaman.
Reliance was also placed on section 199 of the Act which also deals not with the condition is of service of a master but of the forfeiture of wages of a seaman on apprentice on desertion from a ship.
It was contended on behalf of the appellant that the contract between the master of a ship and the owner was in the nature of a contract of personal service and could not be specifically enforced.
This view is supported by a decision of this Court in Dr. S.B. Dutt vs University of Delhi(1) where Sarkar, J., observed thus: "The High Court had held that it was not open to the arbitrator "to grant Dr. Dutt a declaration that h was still a professor in the University which no Court could or would give him".
The High Court felt that this declaration amounted to specific enforcement of a contract of personal service which was forbidden by section 21 of the Specific Relief Act and therefore disclosed an error on the face of the award.
We are in entire agreement with the view expressed by the High Court.
There is no doubt that a contract of personal service cannot be specifically enforced." Thus, the appellant rightly pointed out that Annexure I appearing at page 64 of the paperbook in criminal appeal No. 240 of 1982, clearly defines the terms of the appointment of Capt.
Rebello, master of the chip.
It is true that s 148 provides that a master of a ship shall have the same rights and remedies as a seaman but that is only for a particular purpose.
In these circumstances, the High Court has misconstrued the various sections of the Act and by a strange process of reasoning arrived at the conclusion that the respondent was entitled to full (1) ; 1007 compensation of one year 's wages even if his services were terminated before expiry of his actual term but there does not appear to be any warrant for this view.
Thus, having regard to the various provisions of the act which we have analysed fully, there can be no doubt that the High Court was not at all legally justified in holding that the respondent was entitled to wages for one year when in fact the ship having been treated as a scrap was no longer required and, therefore, the services of the respondent had to be dispensed with.
The respondent himself understood the terms of his appointment (mentioned at page 64 of the paperbook) and has therefore rightly put his claim at two months ' wages if he was discharged before completion of his term.
As already indicated, the Magistrate has awarded the compensation for three months ' wages instead of two months ' wages and we entirely agree with his view.
The result is that we allow criminal appeal No. 240 of 1982, set aside the judgment of the High Court and restore that of the Magistrate.
Criminal appeal No. 661 of l982, is dismissed but in the circumstances of the case there will be no order as to costs.
The excess amount which has been withdrawn by the respondent shall be refunded to the appellant within four months from today either in instalments or in one lump sum, failing which it will be open to the appellant to recover the same by way of restitution If the amount is not returned within four months, then the recovery will be made with interest at the rate of 12% per annum S R. C.A. No. 24018 ' allowed.
C.A. No. 661182 dismissed.

summary/full:
The respondent was appointed on October 22,1980 for a period of one year as a "master ' of the ship called 'M V Anastasis" in terms of the appointment order under which he was entitled to two months ' wages, if the was discharged before the completion of his term The said ship on December 11, 1980, touched the harbour and thereafter proceeded to Beypore, Calicut, where the respondent was informed that the ship having been sold as a scrap to the appellant company, Steel Industries, Kerala, he should handover the ship to the company.
Consequent upon the sale of the ship, by an order dated 20.12.80 the services of the respondent were terminated.
On December 22, 1980 the respondent wrote a letter to the previous owner of the ship of having handed over the ship to the appellant company On 24.12.80 the respondent moved the Magistrate under section 145 of the for payment of necessary wages.
The Magistrate after considering all the pros and cons of the matter felt that the respondent was entitled to get compensation at least equivalent to three months ' pay calculated at $1800 per month In appeal the High Court of Kerala increased the compensation equivalent to one year 's wages.
Allowing the company 's ' criminal appeal No 240/82 and dismissing o the Master 's appeal No 661/82, the Court ^ HELD: 1 The High Court has misconstrued the various sections of the and by a strange process of reasoning arrived at the conclusion that the respondent was entitled to full compensation of one years wages even if his services were terminated before the expiry of his actual term, when in fact the ship having been treated as a 999 scrap was no longer required and therefore his services had to be dispensed A with and when the respondent himself rightly understood the terms of his appointment and put his claim at two months ' wages only.
[1006H; 1007] 2.1 There is no provision in the which equates a seaman with a master of a ship in regard to the terms and conditions or emoluments or mode of discharge or under which a matter of a ship can get a discharge certificate But under section 143 read with section 148 a Master is entitled to three months ' wages.
[1005C E] 2.2 A perusal of the relevant section clearly reveals that the statute make a well knit distinction between a 'seaman ' and a Master ' of the ship.
The definition of 'Master ' in sub section(22) of section 3 does not include a seaman.
Sub section 42 of section 3 clearly shows that a 'seaman ' cannot in the ordinary sense of the term be equated with a 'Master ' but for certain specific purposes under sections 178 to 183 it includes a ;Master In sub section (1) OF section 180, the word 'Master" has been used for the first time but even here the term has been used not to equate a seaman with a master but in quite a different context and subserve a different purpose.
[1002B, D, E F, 1003D] 2.3 There is no clear provision from which it can be inferred either directly or by necessary intendment that a master is also a seaman for the purpose of getting compensation if his services were terminated.
The various sub sections of section 89 do not at all govern the terms and conditions of a master ' but serve to carve out his duties at various levels or stages.
Sections 101, 103, 108, 119, 120, 121.
132, 143 and 199 of the Merchant Shipping Act all these govern the terms and conditions of a service of a seaman and the crew and have nothing to do with the master of A ship.
It is true that sub sections I and 2 of section 148 provide that a master of a ship would have the same rights, liens and remedies for recovery of his wages as a seaman either under the four corners of the Act or by any law or custom.
But there is no provision in the Act under which a discharge certificate can be given to a master of a ship or even otherwise, a master cannot claim the rights and privileges of a seaman because a master of a ship is an officer of a higher rank than that of a seaman.
Therefore, his terms and conditions are bound to be different from that of a seaman.
[1003E F, 3.
The contract between the master of a ship and the owner is in the nature of a contract of personal service and cannot be specifically enforced.
[1006D] Dr. section B. DurJ vs University of Delhi, [l959l S.C.R. 1236 referred to.
[The Court directed (i) that the excess amount which has been with.
drawn by the respondent shall be refunded to the appellant within four months from 26.
2. 85 either in installment or in one lump sum failing which it will be open to the appellant to recover the same by was of restitution, and (ii) that if the amount is not returned within four months then the recovery will be made with interest at the rate of 12% per annum.] [1007E F] H 1000