BANARSI DAS Vs. CANE COMMR U P LUCKNOW

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution.

(2.) THE petitioner Seth Banarsi Das was the lessee of Shiva Prasad Banarsi Das Sugar Mills, bijnor, for five years. The period of his lease was to expire on 30-6-1951. The dispute in the present case is with respect to the commission payable by the petitioner to the respondent No. 2, namely, the Cane Marketting Society Limited, Bijnor, (hereinafter called the society) for the years 1949-50 and 1950-51. Under the U. P. Sugar Factories Control Act of 1938 and the Rules made thereunder, it was for the respondent No. 2 to first make an offer to the petitioner in Form No. 10 mentioned in the rules of the quantity of sugarcane which the Society offered for sale to the Mills of which the petitioner was the lessee. After the offer an agreement was to be entered into between the two parties in the form of the agreement as given in Form No. 12. For the years 1949-50 and 1950-51 the Society made offers in Form No. 10 but the petitioner thought that the offer was not for the entire quantity of cane which he was entitled to purchase from the Society and he wanted the Society to make offers for larger quantities. For the year 1949-1950, the Society offered to sell 36. 25 lakh maunds of cane and for the year 1950-51 it offered 32 lakh maunds whereas according to the petitioner the Society should have offered 39 lakh maunds of cane for the year 1949-50 and 46. 92 lakhs in 1950-51. It is the petitioner's case that in these two years the price of Gur and Khandsari sugar had gone up considerably and the members of the Society therefore wanted to offer to the petitioner less quantity of cane than he was entitled to under the Rules. On 14-6-1950, the petitioner wrote to the Society that there was a shortage in the supply of sugarcane during the year 1949-50 amounting to nearly 13 lakh maunds. A reply to this letter was sent by the Society on 4-10-1950, repudiating the petitioners claim to the purchase of the quantity mentioned by him and further asserting that the So- ciety was only bound to supply the quantity mentioned in the agreement. As a result of the dispute with respect to this quantity the petitioner says that he never entered into the agreement mentioned in Form No. 12 for the purchase of cane either for the year 1949-50 or 1950-51. The petitioner appears to have preferred a claim before the Cane Commissioner by means of his letter dated 31-10-1950 claiming compensation for the Society's omission to sell the entire quantity of cane to the petitioner. This claim, however, was not adjudicated upon and nothing has been heard about it at all. In the accounts sent by the petitioner to the Society he allowed to the Society the amount of commission to which the Society was entitled for the cane already supplied by the Society to the petitioner but debited the loss suffered by the petitioner on account of short supply of cane to him. The Society's case was that the petitioner was not entitled to any compensation from the Society for short supply of cane as the supply really was not short, on the other hand, it was the Society which was entitled to receive the amount of commission from the petitioner for the cane that it had supplied to him. It consequently filed a claim against the petitioner before the Cane commissioner for the recovery of the commission amounting to Rs. 2,63,624/2/6 which claim included the amount due for the year 1948-49 also. The Society also claimed interest on the amount of this compensation. The Cane Commissioner decided to deal with the matter himself and fixed 18-8-1951 for hearing and informed the parties of the claim and the date fixed for hearing. The matter was taken up on 18th of August, and the statement of Shri R. S. Mathur, Special Attorney of the Society was recorded but an objection was raised on behalf of the Society to tne effect that the petitioner was not duly represented in the proceedings before the Cane Commissioner. The General Manager of the petitioner then requested the Cane Commissioner to fix another date to enable the petitioner to be present at the hearing and the proceedings were then adjourned to 4-9-1951. The present petition was filed on 3-9-1951, and the contentions of the petitioner in this petition are that no agreement for the purchase and sale of cane having been entered into between the parties in Form No. 12 as required by the rules, the Cane Commissioner did not get a jurisdiction to decide the dispute between the parties and also that Rule 23 (1) of the Sugar factories Control Rules was void because it was inconsistent with Article 14 of the Constitution. The main prayers contained in the petition are that a writ of Certiorari or other suitable direction or order be issued calling for the record of the case from the Cane Commissioner (Respondent no. 1) and quashing the proceedings that are pending before him and that a writ of prohibition be issued forbidding the Cane Commissioner from continuing the proceedings.

(3.) THE position taken up by the Society in the counter-affidavit filed on its behalf is that the petitioner has suppressed some material facts and the petition should therefore be dismissed on this ground alone. The facts suppressed are five in number detailed in paragraph 2 of the counter-affidavit. It is then said that the Cane Commissioner has jurisdiction to deal with the dispute between the parties, that the Society sold to the petitioner the entire quantity of cane in both the years which the petitioner was entitled to purchase and the petitioner is not entitled to recover any compensation for the alleged short supply of sugarcane by the Society; that the petitioner designedly did not return the agreement in Form No. 12 to the Society though he had been acting as if the agreement was in full force. It is said that the Society sent several reminders to the petitioner to return the agreement in Form No. 12 but the petitioner failed to send the signed agreements to the Society. In the rejoinder affidavit the petitioner reiterated the position taken up by him in his first affidavit and denied that there was concealment of any material facts in his first affidavit.