Punjab-Haryana High Court
M/S Bansal Rice Mills & Anr vs Union Of India & Ors on 16 September, 2014
Author: Ritu Bahri
Bench: Ritu Bahri
CWP No. 10386 of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 10386 of 2011 (O&M)
Date of decision : 16.09.2014
M/s Bansal Rice Mills & anr. ...Petitioners
versus
U.O.I and others ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr. S.S. Dinarpur, Advocate
for the petitioner.
Mr. Ajay Kaushik, Advocate
for U.O.I-respondent No. 1
Mr. Ravi dutt Sharma, Advocate
for respondent No. 2
Mr. Indreesh Goel, Addl.A.G. Haryana
****
RITU BAHRI , J.
This petition under Articles 226/227 of the Constitution of India is for issuance of writ in the nature of certiorari for declaring the action of respondent No. 1 and 2 as discriminatory and illegal in not allowing the relief @ Rs.200/- per quintal of KS 2009 paddy (PAU 201) delivered to the petitioners for milling and directing them to give the same relief to the petitioner as cost of up-gradation of rice as has been given to the similarly situated rice millers in the Districts of Mansa and GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -2- Bathinda (Punjab) and further prayer is for issuance of writ in the nature of mandamus directing respondents to release the FDR's and undated cheques which are lying as security with the respondents along with damages to the tune of Rs.80 lac.
Both the firms/petitioners are registered partnership firms under the Indian Partnership Act, 1932 and are engaged in the rice shelling in the State of Haryana. Respondent Nos. 3 to 5 purchased paddy relating to Kharif 2009 crop of the year 2009 as per its policy from various Grain markets located in the State of Haryana. The entire paddy was to be purchased by the State agencies from the farmers through the Grain Markets and after purchase, the same has to be got milled and consequently the rice has to be delivered to the Central pool i.e respondent No. 2. During the Kharif Marketing Seasons (KMS), 2009, respondent No. 5 for and on behalf of respondent Nos. 3 to 5 had purchased a large quantity of paddy of Grade 'A' (PAU-201) from Ismailabad Market, Distt. Kurukshetra.
Respondent No. 5 allocated the aforesaid procured paddy to various rice millers in Distt. Kurukshetra and also entered into the similar milling contracts with petitioners on 26.09.2009 for the quantity not disclosed therein. As per contract (P-5), 69999.80 quintals and 35751.65 quintals of paddy was allocated to the petitioners from Grain Market, Ismailabad. The aforesaid quantity of paddy was removed by the GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -3- petitioners from Grain Market, Ismailabad and stocked the same in their rice mill premise, respectively up to the first week of November, 2009. A copy of contract dated 26.09.2009 entered between petitioner No. 2 and state agency is P-5. The paddy was to be milled by them interms of policy framed by the State of Haryana for the KMS, 2009 (P-6). As per this policy, the petitioners/firms gave their requisite guarantees of two local commission agents respectively were obtained by respondent No. 5 from the petitioners in terms of clause 12 of the Contract. The village Ismailabad falls on Ambala-Pehowa road. Punjab region of District Patiala is 6 km away from this village Ismailabad. In this belt, there was huge production of paddy and respondent Nos. 3 to 5, against policy (-6) allotted 6999.98 M.T paddy to petitioner No. 1 and 3575.16 M.T paddy to petitioner No. 2 for milling. After paddy is delivered by respondent No. 5 to the petitioners, rice was to be delivered by the petitioners according to the schedule mentioned in para No. 9 of the petition.
The paddy delivered to the petitioners was to remain in joint custody of the petitioners and respondent Nos. 3 to 5 respectively. Respondent No. 3 to 5 purchased paddy PAU-201 having grade-A for the first time and it was pointed out by the petitioners/firms to respondent Nos. 3 to 5 that the paddy is not of good quality and standard. Similar complaints were received from other corners of the State of Haryana and almost from whole of Punjab regarding their variety. On 06.10.2009, a GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -4- joint committee of both departments i.e respondent No. 5 and respondent No. 2 was constituted to look into the two samples of paddy pertain to variety PR-201 and found the variety not as per specification of Govt. of India. The damaged or discoloured grains upto 4% are within the specifications but in the analysis by the aforesaid committee, the damage and discoloured grains were found 7.5% and 6.8% in two samples analyzed by it. A copy of proceedings dated 06.10.2009 is Annexure P-7. As per provisions of Prevention of Food Adulteration Act, this paddy could not be purchased and processed for Human consumption. The petitioners/firms purchased Sortex Machine on 12.01.2010 for an amount of Rs.25,95,624/- for upgrading the rice procured from this paddy. As per policy (P-6) damaged grains upto 3%, discoloured grains upto 3% and red grains upto 3%, total 9% in the rice were per specifications. Vide letter dated 05.11.2009, respondent Nos. 1 and 2 without consent and concurrence of respondent Nos. 3 to 5 and the petitioners, changed the specifications and brought it upto 8%, damaged grains upto 4% and discoloured/red grains upto 4%. The petitioners were called upon to deliver rice according to this specification. They were compelled to deliver entire rice according to this specification and they had to put more labour to expand the milling process and had to suffer rejection of their rice for 29 times. A request was made to the respondents to extend time to deliver rice upto 03.06.2010(P-8). Respondent Nos. 1 and 2 vide GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -5- letter dated 7.4.2010 exnteded the time of delivery of rice with relaxation up to 31.05.2010. Respondent Nos. 3 to 5 issued reminder on 01.06.2010 in this regard to respondent Nos. 1 and 2 (P-9). Respondent No. 1 and 2 extended the time limit for receipt of rice up to 30.06.2010 along with aforesaid relaxation vide letter dated 11.06.2010 (P-10) Respondent Nos. 3 to 5 again on 24.6.2010 (P-11) sought extension, which was allowed up to 31.7.2010 by respondent Nos. 1 and 2 vide letter dated 01.7.2010 (P-
12). Due to heavy rains, milling was hampered and there was no space available for rice and paddy driage, packing, loading etc in the mills. Respondent Nos. 3 to 5 seeing the flood like situation asked respondent Nos. 1 and 2 for extension of period of rice receipt up to 30.09.2010 vide letter dated 26.7.2010 (P-13). Respondent Nos. 1 and 2 accepted the recommendations of respondent Nos. 3 to 5 and extended the time limit up to 30.09.2010 vide letter dated 5.8.2010. Despite all efforts put by the petitioners/firms like other millers in the area to upgrade the rice of the paddy received (PAU-201), the rice could not be upgraded and delivered and thus extension was sought upto 30.11.2010 i.e after the next kharif paddy is purchased and delivered to the millers. The copy of letter dated 27.09.2010 is Annexure P-14. Respondent Nos. 1 and 2 vide letter dated 8.10.2010 (P-15) accepted the recommendation of respondent Nos. 3 to 5 and extended the time up to 30.11.2010. Vide subsequent letters of the respondents dated 02.12.2010 and 9.12.2010, the time limit for GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -6- delivery of rice stands extended upto 31.1.2011. Copies of letters dated 02.12.2010 and 9.12.2010 is P-16 and P-17 respectively. Petitioner No. 1 laid its bills of milling dated 1.12.2010 and 13.12.2010 to respondent Nos. 3 to 5 for an amount of Rs.19,28,836/- and Rs.4,78,483/-. Petitioner No. 2 laid its bills of milling dated 1.12.2010 and 13.12.2010 to respondent Nos. 3 to 5 for an amount of Rs.9,85,141/- and Rs.2,44,665/-, which are pending with respondent Nos. 3 to 5 on the ground that officers of respondent Nos. 3 to 5 are asking for 5% of the bills in advance as bribe.
Government of India issued letter dated 06.10.2010 taking a decision in view of the proposal sent by the State Government of Punjab that they pay to the State Government a sum of Rs.200/- per qunital of rice for Mansa and Bathinda Districts and Rs.100/- per quintal in other districts as cost of upgradation as the variety of paddy (PAU 201) on milling was not found to meet the prescribed specifications. The petitioners are aggrieved by the discriminatory action of respondent Nos. 1 and 2 in fixing 1.10.2010 as the date after which, the rice millers in Punjab have been held entitled for Rs.200/- per quintal in Bathinda and Mansa Districts and Rs.100/- per quintal for other area for up-gradation, the same quality of paddy grade-A (PAU 201).
The petitioners are also seeking release of their FDR's and undated cheques which are lying as security with the respondents along with damages to the tune of Rs.80 lac.
GAURAV2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -7-
As per written statement filed by respondent No. 1, Government of Haryana, vide letter dated 06.10.2009 and 16.10.2009 had requested for relaxation in percentage/slightly damages grains including pin point damaged grains/discoloured and red grains in raw rice of in Grade 'A' and 'Common' on the same patterns as has been done in the case of Punjab and Government of India vide letter dated 5.11.2009 granted relaxation in percentage of damaged/slightly damaged grains including pin point damaged grains upto 4% in CMR raw of grade-A and 'common' as was given in Punjab for delivery of CMR upto 31.03.2010. It was misleading on the part of the petitioners to state that respondent Nos. 1 and 2 at their own, without consent and concurrence of respondent Nos. 3 to 5 have unilaterly changed the specifications. In paragraph 20 of the written statement, respondents have admitted that on requests received from the State, the necessary extension of time for delivery of CMR was granted with relaxed specifications. Finally vide letter dated 10.06.2010 (R-1/1), the extension was granted upto 30.06.2010.
On the request dated 27.09.2010 for extension of time limit up to 30.11.21010, Govt. of India had extended the delivery of CMR with relaxed specifications upto 30.11.2010 vide letter dated 8.10.2010. Again the State government requested for extending the period upto 31.1.2011 vide letter dated 02.12.2010 which was allowed by Government of India GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -8- vide letter dated 9.12.2010 (R-1/2) Government of Punjab vide memo dated 04.10.2010 had recommended that Government of India may sanction the cost of upgradation @ Rs.200/- per quintal in Mansa and Bathinda districts and Rs.100 per quintal in rest of the districts of Punjab where the stock of PAU-201 variety was reported to be available as per their letter dated 3.9.2010. No such request was received from Government of Haryana, as such, order dated 06.10.2010 is not discriminatory.
In a separate reply filed by the Deputy Director, food & Supplies, Haryana on behalf of respondent No.3, it has been stated that the Department of Food & Supplies never received any instructions at any time from Union of India or Food Corporation of India for releasing any such benefit, as claimed by the petitioners, which has been provided to the millers of District Mansa and Bathinda in the State of Punjab. Paddy PAU 201 variety has not been procured by the State Agencies/department in the entire District of Kurukshetra during Kharif 2009-10. This variety of paddy has not been delivered to the petitioners for milling. This fact is evident from the letter dated 01.12.2011 (Annexure R-1) written by the Secretary & Executive Officer, Market Committee, Ismailabad informing the respondents that they had purchased 329702 quintals of Grade-A Paddy in the year 2009-10 in the Ismailabad Mandi and no other type of paddy was purchased by the said department. As per notification dated GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -9- 19.01.2010 (Annexure R-II) issued by the Food and Supplies Department, Haryana, the procurement price of rice as per Schedule-III was fixed as under:-
Serial Classification Price per quintal
No. Raw Rice Parboiled Rice
1 2 3
1 Common (IR.8, Jaya) 1676 1666.9
Grade "A"
(Begmi, HM-95, PR-107 (Sita),
Parmal, Ratna,
RP-5-3 (Sona), PR-106, Basmati
(terricot),
Pusa-150, Pusa-33, Punjab No.1,
2 HKR-120 1723.7 1713.9
Thereafter, an information was sent by the Deputy Director, Agriculture, Kurukshetra to the District Food & Supplies Controller, Kurukshetra vide letter dated 23.11.2011 (Annexure R-III) that yield of paddy in District Kurukshetra for the year 2009-10 was 3008 Kg./Hect. The above communication clarified that for the Kharif year 2009-10, there was no purchase of paddy (PAU 201) variety in the entire District of Kurukshetra.
In the case of petitioner No.1, as per agreement (Annexure R- IV), he was required to deliver 46899.87 quintals of Custom Milled Rice (CMR) up to 31.03.2010 against the paddy allotted to him. He delivered CMR to the extent of 46910.05 quintals up to 30.11.2010. Thereafter, CMR milling charges bill was prepared as per Annexure R-V. Milling charges were calculated to the tune of Rs.10,49,997/-, depreciation GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -10- charges of Rs.1,92,849/- and driage charges at that time were added in the bill to the tune of Rs.6,85,900/-. All the above said details have been given in Annexure R-V). After calculating the entire amount, a sum of Rs.16,37,649/- was found outstanding and recoverable from petitioner No.1. After admitting correctness of the bill (Annexure R-V), petitioner No.1 has cleared the entire amount.
Similarly, petitioner No.2 was issued CMR Milling Charges Bill vide Annexure R-VI. In this bill, milling charges were calculated to the tune of Rs.5,36,275/-, depreciation charges of Rs.98,496/- and driage charges to the tune of Rs.3,50,370/-. After calculation of the entire amount, a sum of Rs.11,47,316/- was found outstanding and recoverable from petitioner No.2. He cleared the said amount after admitting correctness of the bill (Annexure R-VI).
In replication, the petitioners have placed on record a communication dated 30.03.2012 (Annexure P-26) sent by the District Food & Supplies Controller to the Deputy Director, Department of Agriculture, Kurukshetra, seeking information, as to in which market/centre of District Kurukshetra, PU-201/PR-201 variety of paddy was transplanted. Pursuant to this letter, information was sent by the Deputy Director of Agriculture, Kurukshetra vide letter dated 06.04.2012 (Annexure P-27), informing that as per variety wise survey of Kharif 2009- 10, about 17,000 Hect. area was under the plantation of PAU-201 variety GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -11- and no other variety was separately notified by the name of PR-201. In Kharif 2009, PAU-201 variety was received in almost all the mandies of the District.
While making reference to Annexures P-26 and P-27 in the replication, the petitioner has taken a stand that PAU-201 variety was supplied to the petitioners for milling. Moreover, extension of time was granted by the Union of India on the request of the State Government. In order to support their case, the petitioners have referred to the letter dated 27.09.2010 (Annexure P-14) sent by the District-Cum-Special Secretary, Food & Supplies Department, Haryana to the Union of India to the effect that 38000 tonnes of rice still remains tobe delivered by the millers as it does not meet the prescribed specifications of PAU-201 variety. Moreover, vide letter dated 23.11.2011 (Annexure R-III), the Deputy Director, Agriculture, Kurukshetra had written to the District Food & Supplies Controller, Kurukshetra-respondent No.5 that yield of paddy in District Kurukshetra for the year 2009-10 was 3008 Kg./Hect. Even, the extension of time for delivery was granted by the Union of India at the request of the State Government on the basis of specific reasons and in that event, they could not charge interest nor holding charges in the absence of any fault on the part of the petitioners.
The petitioners were not issued 'NOC' for the next year i.e. 2010-11. They had deposited the outstanding amount vide Annexures P- GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -12- 24 and P-25 under protest, as claimed by the respondents as per Annexures R-V and R-VI and thereafter, they were registered for the milling season for the year 2011-12.
After going through the the stand taken by the parties, the facts not in dispute are that the petitioners had been given paddy for the milling season 2009-10. As per contract (Annexure P-5), 69999.80 quintals and 35751.65 quintals of paddy was allocated to the petitioners from Grain Market, Ismailabad. The State of Haryana, vide letter dated 06.10.2009 and 16.10.2009 had requested for relaxation in percentage of damaged/slightly damaged grains, including pin point damaged grains, discoloured and red grains in raw rice of Grade "A" and 'Common' on the same pattern as was done in the case of Punjab. The Government of India, vide letter dated 05.11.2009, granted relaxation in percentage of damaged/slightly damaged grains up to 4%, discoloured and red grains together up to 4% in CMR raw of Grade-A and 'common', as was given in Punjab for delivery of CMR up to 31.03.2010. Vide letter dated 10.06.2010 (Annexure R-1/1), extension was granted up to 30.06.2010. Subsequently, on a request made by the State Government, extension of period was allowed up to 31.01.2011 vide letter dated 09.12.2010 (Annexure R-1/2). After extension of time, the petitioners delivered the paddy, which was allotted to them. Moreover, as per the written statement filed by respondent No.3, pursuant to delivery of rice, GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -13- petitioner No.1 was issued CMR Milling Charges Bill (Annexure R-V) amounting to Rs.16,37,649/- and petitioner No.2 was issued CMR Milling Charges Bill (Annexure R-VI) amounting to Rs.11,47,316/-, which was outstanding and recoverable. The petitioners have cleared the said outstanding amount and they have been registered for the milling season 2011-12.
The prayer of the petitioners that they should be granted upgradation cost at the rate of Rs200/- per quintal of rice in respect of PAU-201 variety, as is given by the Government of India in Mansa and Bathinda Districts, is liable to be rejected, as in the written statement filed by respondent No.1-UOI, reference has been made to a letter written by the Government of Punjab vide memo No.RP-2 (2085)-2010 dated 04.10.2010, whereby it had been recommended that Government of India may sanction the cost of upgradation at the rate of Rs.200/- per quintal in Mansa and Bathinda districts and Rs.100/- per quintal in rest of the districts of Punjab, where the stock of PAU-201 variety was reported to be available as per their letter dated 03.09.2010. The Government of India vide order dated 06.10.2010 accepted the request made by the Punjab Government. No such request was made by the State of Haryana, which was received by the Government of India. Therefore, the petitioners, who received paddy in the State of Haryana, cannot claim parity of upgradation cost at the rate of Rs.200/- per quintal, which was GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -14- specifically given to Mansa and Bathinda districts by the State of Punjab. The milling charges have been paid to the petitioners as per the policy framed by the State of Haryana for Kharif season 2009-2010. The upgradation cost was recommended in the case of Mansa and Bathinda districts keeping in view the exceptional nature of problem there and the same was not to be termed as precedent in future either in the State of Punjab or elsewhere. Therefore, the prayer of the petitioners for grant of upgradation cost with regard to paddy PAU-201 variety equivalent to Mansa and Bathinda districts of Punjab, is rejected.
The petitioners are governed by the agreement (Annexure P-
5) and as per Clause 23 of the said agreement, all the disputes and difference arising out of or in any manner touching or concerning this agreement, whatsoever (except as to any matter the decision of which is expressly provided for in the contract) shall be referred to the sole arbitration of the Director, Food and Supplies, Haryana/Managing Director of the Agency or any person appointed by them in this behalf. There will be no objection to any such appointment that the person appointed is or was an employee of Food and Supplies Department, Haryana/Agency and he had expressed views on all or any of the matter in dispute or difference.
In view of the above clause, the dispute, if any, with regard to imposition of charges/interest can be invoked by the petitioners by way GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document CWP No. 10386 of 2011 (O&M) -15- of arbitration. These facts cannot be gone into in the writ jurisdiction.
No other point requires consideration.
Dismissed.
(RITU BAHRI) 16.09.2014 JUDGE G Arora/ajp GAURAV 2014.09.18 16:36 I attest to the accuracy and integrity of this document