Full Judgment
R.S. Garg, J.
1. Heard learned counsel for the
parties, also perused the writ application
and the counter-affidavit.
2. The grievance of the petitioners are that in accordance with Section 48, Sub-section (2) as amended by Act Mo. 2/1994 amending the Bihar Sugarcane (Regulations f9r Supply and Purchases) (Amendment) Act, 1993, the State Government is obliged to declare or determine the share of Zonal Development Council and the Co-operative Society from the commission payable under Sub-section (1) of Section 48 of the said Act, and, as the State Government has not issued any notification to that effect the State Government be required to issue necessary notification determining the share of the Zonal Development Council and the Co-operative Society.
3. The respondents submit before this Court that by the said amending Act number of the amendments were made in the original Act. It is contended that from the body of Sections 29. 32, 35, 41, 43, 44, the words, 'the Secretary of the Co-operative Society' or 'Cooperative Society' have been deleted, therefore, the Co-operative Societies are not entitled to any commission. Through Annexure-B it is sought to be contended that the Co-operative Societies have utterly failed in their purpose to serve the cane growers, and have been rendered infructuous, this should be disbanded. It would only be proper to pass the Societies commission to the Zonal Development Work. The learned counsel for the State Government submits that in view of the amendment in Section 29 etc. and the policy of the State Government, the Societies shall not be entitled to any commission and in any case, if the Societies are entitled to any commission then a particular Society cannot claim a particular share from the commission, which would be paid to the Zonal Development Council. Learned counsel for the petitioner on the other hand submits that though drastic amendments have been made in body of Section 29 and other sections, but the State Government in its turn has utterly failed in appreciating that Section 18, Sub-section (1) and Sub-section (2) have been introduced by the very same amending Acts. He submits that the State Government had issued the percentage pf the commission payable to the Zonal Development Council but has not determined the share of the council and the Co-operative Societies. According to him the State Government has failed in its statutory duty, therefore, the State Government deserves to be directed to issue the required notification determining the share of the Zonal Development Council and Co-operative Society from the commission payable under subsection (1) of Section 48 of the Act.
4. True it is that by Act No. 2/1994 various amendments were made in the Act of 1993. It is also true that the words 'the Secretary of a Co-operative Society' and/or 'the Co-operative Society' have been deleted from body of number of the sections but Section 48(1) and Section 48(2) have been Introduced by the very same amending Act, Act No. 2 of 1994.
5. Sub-section (1) and Sub-section (2) of Section 48 as amended by the amending Act read as under :--
'(1) The State Government may, by notification in the Official Gazette, determine the amount of commission payable by the occupier of the factory on the purchase of sugarcane by such occupier or on his behalf and may by a like notification exempt the occupier of a new factory to be specified in the notification, from the payment of the amount of such commission for a prescribed period.'
(2) The commission payable under subsection (1) shall be collected in the prescribed manner and the State Government shall determine the share of Zonal Development Council and Co-operative Society.'
6. Sub-section (1) of Section 48 (as amended) requires the Government to issue a notification determining the amount of commission payable by the occupiers of the factory on the purchase of sugarcane by such occupier or on his behalf or exempt the occupier of a new factory to be specified in the notification, from the payment of the amount of such commission for a prescribed period.
7. The very language of Sub-section (1) of Section 48 makes it obligatory on the State Government to issue a notification and determine the amount of commission for a prescribed period.
8. Sub-section (2) of Section 48 of the Act provides the division of the commission so prescribed by the State Government under sub-section (1) of Section 48. The amount of the commission collected under Sub-section (1) of Section 48 is to be distributed between the Zonal Development Council and the Co-operative Society, what shall be the percentage of the share is to be determined by the State Government. Present is not a case where the State Government has prescribed a particular percentage and the petitioners are aggrieved by the said percentage. Present is a case where there is an absolute inaction/ non-action on the part of the State Government in not issuing a notification determining the share of the Zonal Development Council and the Cooperative Society. So far as Annexure-B is concerned no importance can be attached to it. Nobody knows that, who had decided this policy. Nobody knows that the person, who had framed this policy had understood law or not. The policy simply says that because the Co-operative Societies have utterly failed in their purpose, it would only be proper to pass the society's commission to the Zonal Development Council for development work. This policy decision is in the teeth of Section 48(2) of the Act, when the Act provides that the commission is to be shared between Zonal Development Council and the Co-operative Societies then by some administrative circular or fiat the statutory provision cannot be superseded. When the statute requires the State Government to do a particular thing in a particutar manner then the particular things have to be done in the said manner so long as the statutes oblige the State Government to do so. Some report by the Industrial Development Commissioner, Cane Commissioner or some Secretary would not override the provisions of law. To legislate the law is the function of the Legislature and not of some Secretary and Commissioner.
9. The State Government is hereby directed to issue the necessary notification determining the share of Zonal Development Council and the Co-operative Society, within a period of four weeks from today.
10. The petition is allowed.