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CASE NO.:

Appeal (civil) 4466 of 2007

PETITIONER:

M/S DHAMPUR SUGAR MILLS LTD

RESPONDENT:

STATE OF U.P. & ORS

DATE OF JUDGMENT: 24/09/2007

BENCH:

C.K. THAKKER & ALTAMAS KABIR

JUDGMENT:

J U D G M E N T

ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 4137 OF 2005

C.K. THAKKER, J.

1. Leave granted.

2. The present appeal is directed against the

judgment and final order passed by the Division Bench

of the High Court of Judicature at Allahabad dated

October 29, 2004 in Civil Miscellaneous Writ Petition No.

1369 of 2004. By the said order, the High Court

dismissed the writ petition filed by the writ petitioner-

appellant herein.

3. Facts in nutshell giving rise to the writ

petition as well as present appeal may now be stated.

4. The appellant-M/s Dhampur Sugar Mills Ltd.

(\021Company\022 for short) is a Public Limited Company

incorporated under the Companies Act, 1956 having its

registered office at Dhampur (Bijnor). The appellant has

sugar mill in the State of Uttar Pradesh and has also a

distillery. The distillery manufactures ethyl alcohol,

used for blending of petrol, manufacture of chemicals

and rectified spirit for medicines. It is also having a

similar business at Asmouli, District Moradabad,

Mansurpur, District Muzaffarnagar and Rozagaon,

District Barabanki The writ petitioner approached the

High Court by invoking Article 226 of the Constitution

against the respondents for issuance of appropriate writ,

direction or order quashing certain Government Orders

said to have been passed by the Authorities under the

Uttar Pradesh Sheera Niyantran Adhiniyam, 1964 [Act

XXIV of 1964] (hereinafter referred to as \021the Act\022)

directing the writ-petitioner to supply 20% of the

molasses produced by the sugar mills for manufacturing

\021country made liquor\022 by distilleries for the financial

years 2003-04 and 2004-05. The writ petitioner also

challenged consequential action of issuance of show

cause notices as to why it should not be prosecuted for

committing offences punishable under the Act since it

has not complied with the orders issued by the

Authorities and has not supplied 20% molasses for

manufacturing country liquor. The main challenge of the

writ petitioner was that though the Company was

producing molasses, the entire production was required

by the Company itself which was used for captive

consumption and even that was not sufficient. The

Company had, therefore, obtained permission from the

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Government for import of molasses from other States as

also other Countries. Since the writ petitioner did not

have balance or extra stock of molasses for being

supplied to distilleries for manufacturing country-made

liquor, the Authorities could not compel the writ

petitioner to supply molasses as directed in various

Government Orders and Letters. Such action was

improper, illegal, arbitrary and unreasonable,

inconsistent with the provisions of the Act as also

violative of Articles 14 and 19(1)(g) of the Constitution.

The action was also against public policy reflected in

Article 47 of the Constitution. It was contended that

since the above directives could not have been issued by

the Authorities, issuance of show cause notices as to

why the writ petitioner should not be prosecuted also

were not legal and the prosecution should be quashed.

It was also the case of the writ petitioner that the State

Government ought to have constituted \021Advisory

Committee\022 under Section 3 of the Act.

5. The stand of the Government before the High

Court was that in accordance with the provisions of the

Act and the Uttar Pradesh Sheera Niiyantran Niyamavali,

1974 (hereinafter referred to as \021the Rules\022), it was open

to the Authorities to ask the writ petitioner to supply

20% molasses for the purpose of manufacturing country

liquor. As the said action was in consonance with law,

the Company was bound to supply 20% molasses for the

said purpose and the action could not be termed as

illegal or unlawful.

6. It was also contended by the respondents that

an alternative and equally efficacious remedy of filing an

appeal under Section 9 of the Act was available to the

Company and hence writ petition was not maintainable.

7. As to Article 47 of the Constitution, the case of

the State Government was that the point was finally

concluded by a decision of this Court in Khoday

Distilleries Ltd. & Ors. V. State of Karnataka & Ors.,

(1995) 1 SCC 574 : JT 1994 (6) SC 588 in favour of the

State. Section 3 of the Act, according to the State, was

merely an enabling provision and thus directory in

nature and the writ petitioner could not compel the State

to constitute \021Advisory Committee\022.

8. The High Court, after hearing the parties, held

that preliminary objection raised by the respondents was

not well-founded. Considering the totality of facts and

circumstances and the decisions taken by the

respondents, the High Court held that approaching the

Appellate Authority would be a \021futile attempt\022. The High

Court, considering various decisions of this Court on the

point, held that it would not be justified in dismissing

the petition on the ground of alternative remedy and the

said objection was not well-founded.

9. The Court ruled that apart from the fact that

Article 47 of the Constitution could not be enforced by a

Court of Law, the point no longer survived in the light of

decision of the Apex Court in Khoday Distilleries Ltd.

Section 3 of the Act, according to the High Court, was

only directory and if \021Advisory Committee\022 was not

constituted by the State, the powers under the Act could

be exercised by the Controller appointed by the State.

10. On merits, the Court held that the reservation

for 20% of molasses and directive issued to the writ

petitioner to supply such stock for manufacturing

country liquor was neither contrary to law nor against

public policy. The order, therefore, could have been

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issued by the Authorities as it was open to the

Authorities to ask for 20% molasses from the writ

petitioner for manufacturing country liquor. The

Company was bound to supply the stock and as it was

not done, the Authorities were right in taking

appropriate action in accordance with law. Accordingly,

the High Court dismissed the writ petition.

11. On May 2, 2005, notice was issued by this

Court. The matter appeared on Board thereafter from

time to time and ultimately on March 2, 2007, the

Registry was directed to place the matter for final

disposal on a non-miscellaneous day. That is how the

matter has been placed before us.

12. We have heard the learned counsel for the

parties.

13. The learned counsel for the appellant

contended that Section 3 of the Act enjoins the State

Government to constitute an \021Advisory Committee\022 \023to

advise on matters relating to the control of storage,

preservation, gradation, price, supply and disposal of

molasses\024 under the Act. It was, therefore, incumbent

on the State Government to constitute such Committee.

There is no such Committee at present as envisaged by

the Act though such Committee was there in past. This

is contrary to law and against the legislative mandate.

In absence of such Committee, no directive can be

issued by the Controller to supply molasses. All the

directives are, therefore, without authority of law and are

required to be set aside. It was also contended that such

directives are against public policy reflected in the

Directive Principles of State Policy enshrined in Part IV of

the Constitution and in particular, Article 47 which

requires the State to endeavour to bring about

prohibition of intoxicating drinks. The State Government

wedded with implementation of principles enumerated in

Part IV of the Constitution cannot issue an order that

molasses should be reserved for manufacturing \021country

liquor\022 and such a directive cannot be enforced. On that

ground also, the impugned directives are liable to be

quashed. It was further urged that alternatively the

impugned directive is explicitly clear and requires a

sugar mill to reserve 20% of molasses from the balance

stock i.e. over and above actual consumption by the

industry for manufacturing country liquor. Since the

writ petitioner did not have balance stock of molasses

and the record clearly revealed that even for captive

consumption, it had to import molasses from other

States in the country and from foreign countries for

which necessary permission was granted by the

Government, it could not be compelled to reserve 20%

molasses for manufacturing country liquor. It was

submitted that even if the directive is held to be legal,

lawful and in consonance with law, the writ petitioner

could not be asked to supply 20% molasses for

manufacturing country liquor. The directive could not

be applied to the writ petitioner and notices could not be

issued to show cause as to why the Company should not

be prosecuted. On that limited ground also, the writ

petition ought to have been allowed and the High Court

was wrong in dismissing it.

14. The learned counsel for the respondents, on

the other hand, submitted that the constitutional validity

of the Act has not been challenged by the writ-petitioner.

Even otherwise, the validity has been upheld by this

Court in SIEL Ltd. & Ors. V. Union of India & Ors., (1998)

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7 SCC 26 : JT 1998 (6) SC 323. It was, therefore, open

to the respondents to implement the provisions of the

Act. Section 8 of the Act empowers the Authorities to

issue necessary directions relating to sale and supply of

molasses and in exercise of the said power, orders were

issued by the Authorities and the High court was right in

upholding them. Regarding Advisory Committee, it was

submitted that it is in the discretion of the State

Government to constitute the Committee and if no such

Committee is constituted, there is no violation of law.

The High Court was right in holding that in absence of

Advisory Committee, Controller could have exercised the

power conferred on him by the State Government. As to

public policy and provisions in Part IV of the

Constitution, the counsel contended that the High Court

was called upon to consider a limited question as to

whether the action was illegal or unconstitutional and

once it was held that it was in consonance with law, the

Court was right in upholding it and in dismissing the

petition. It was, therefore, submitted that the appeal

deserves to be dismissed.

15. Having considered the rival contentions of the

parties, in our opinion, the appeal deserves to be partly

allowed. So far as the constitutional validity of the Act is

concerned, it is rightly not challenged by the writ

petitioner since the point is concluded by a decision of

this Court in SIEL Ltd. decided in 1998. It was held by

this Court that the Act was within the legislative

competence of the State and the State Act was not

inconsistent with the Industries (Development and

Regulation) Act, 1951, i.e. Central Act. But even

otherwise, the U.P. Act having received the assent of the

President as required by Article 254(2) of the

Constitution, would operate.

16. As to alternative remedy available to the writ

petitioner, a finding has been recorded by the High Court

in favour of the writ-petitioner and the same has not

been challenged by the State before us. Even otherwise,

from the record, it is clear that the decision has been

taken by the Government. Obviously in such cases,

remedy of appeal cannot be terms as \021alternative\022, or

\021equally efficacious\022. Once a policy decision has been

taken by the Government, filing of appeal is virtually

from \021Caesar to Caesar\022s wife\022, an \021empty formality\022 or

\021futile attempt\022. The High Court was, therefore, right in

overruling the preliminary objection raised by the

respondents.

17. On merits, the learned counsel for the

appellant drew our attention to an order dated June 9,

2004 which was relied upon by the High Court for

dismissing the writ petition. Clause (3) of the said order

relates to supply of 20% molasses for manufacturing

country liquor. The High Court in its order reproduced

the said clause which is in Hindi and reads thus;

\023PRATYEK CHINI MILL KE SHEERE KE

AWASHESHA STAAK ME SE DESHI

MADIRA KE LIYE 20 PRATISHAT SHEERE

KA AARKSHAN EISI AASHWANI YO KE

LIYE HOGAA JO USKAA UPYOG DESHI

MADIRA UTPADAN ME KAREGI. AISI

CHINI MILE JINKI SWAYAM KI BHI

AASHWANIYA HAI, UKTANUSAR KIYE JA

RAHE SHEERE KE AARAKSHAN SE OOS

SEEMA TAK BAHAR RAHEGI KI CHINI

MILL SAH-AASHWANI DWARA SWAYAM

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KE VASTAVIK UPBHOG KE ATIRIKT JO

SHEERA BACHATA HAI, OOS PER 20

PRATISHAT KA AARAKSHAN LAGOO

HOGA\024.

18. The English translation supplied by the

appellant at Annexure P-3 reads thus;

\023From the balance stock of molasses

with each sugar mill, 20% of molasses

shall be reserved for the distilleries

manufacturing country liquor. The

sugar mills having their own distilleries

shall not be covered with this

reservation to the extent that after the

actual consumption of molasses in their

captive distillery, 20% reservation shall

be applicable on the balance stock\024.

19. The learned counsel for the writ petitioner, in

our opinion, is right in contending that the said order

applies only to balance stock (Avshesh staak). According

to the High Court, 20% molasses must be reserved by

each and every sugar mill for manufacturing country

liquor notwithstanding whether there is balance stock or

not. In other words, the High Court held that 20%

molasses must be reserved by every sugar mill for the

purpose of manufacturing country liquor. If such sugar

mill is having facility of manufacturing country liquor, it

should utilize the said stock for the said purpose,

otherwise it should supply to the Authorities.

20. In our opinion, however, clause (3) applies

only to excess stock of molasses, that is, molasses which

is in excess of and not used for captive consumption by

sugar factory and is thus \021balance stock\022. It is the

assertion of the writ petitioner that the Company has no

excess stock of molasses. Not only that, but it has to

import molasses from other sources even for its own

requirement for manufacturing industrial alcohol and

such permission has been granted by the Central

Government as well as by the State Government. If it is

so, the case does not fall within the mischief of clause (3)

and said clause cannot be pressed in service by the

Authorities. The High Court, in our opinion, was not

right in holding that all sugar mills were bound to supply

20% molasses to the Authorities under clause (3) of the

Government Order dated June 9, 2004 irrespective of

stock possessed. Only on that ground, the appeal

deserves to be allowed.

21. So far as the submission of the learned

counsel as to Article 47 of the Constitution in Part IV

comprising of \021Directive Principles of State Policy\022 is

concerned, in our opinion, on the facts and in the

circumstances, it is not necessary to express any opinion

one way or the other and we refrain from doing so.

22. Before the High Court as well as before us it

was strenuously urged by the writ petitioner that it was

obligatory on the State Government to constitute

Advisory Committee under Section 3 of the Act. Section 3

reads thus:

3. Constitution of Advisory Committee.\027(1)

The State Government may, by notification in

the Gazette, constitute an Advisory Committee

to advise on matters relating to the control of

storage, preservation, gradation, price, supply

and disposal of molasses.

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(2) The Committee shall consist of such

number of persons and shall be constituted on

such terms and conditions as may be

prescribed.

23. Section 22 is a rule making power and enables

the State Government to make rules to carry out the

purposes of the Act. Sub-section (2) enacts that in

particular and without prejudice to the generality of the

power, such rules may provide for\027

(a) the composition of the Advisory

Committee, the manner in which its

members shall be chosen, the term of

office of its members, the allowances, if

any, payable to them, the manner in

which the Advisory Committee shall

tender its advice and the procedure for

the conduct of its business;

(b) the procedure relating to the removal of

members of the Advisory Committee;

(c) \005

24. Rule 14 of 1974 Rules is also relevant and

reads thus;

14. Orders regarding sale or supply of

molasses.\027A consolidated statement of the

estimated availability of molasses will be

drawn up and placed before the Advisory

Committee, constituted under Section 3(1) of

the Act, by the Controller who may make

orders regarding the sale or supply of molasses

in accordance with the provisions of Section 8

of the Act.

25. In exercise of power under Clauses (a) and (b)

of sub-section (2) of Section 22 read with Section 3 of the

Act, the Governor of Uttar Pradesh framed rules known

as the U.P. Molasses Advisory Committee Rules, 1965.

Rule 3 provides for constitution of Committee and reads

as under:

3. Constitution\027(1) The Advisory Committee

to be constituted under Section 3 of the Act

shall consist of:

(i) the Controller who shall be ex officio

Chairman.

(ii) the Assistant Excise Commissioner, In

charge of Molasses at the Headquarters of

the Excise Commissioner, Uttar Pradesh

who shall be ex officio Secretary.

(iii) The Director of Industries, Uttar Pradesh

or his representative not below the rank

of Deputy Director of Industries;

(iv) The Cane Commissioner, Uttar Pradesh,

or his representative not below the rank

of Deputy Cane Commissioner;

(v) Three representatives of sugar factories in

Uttar Pradesh to be nominated by the

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Indian Sugar Mills\022 Association (U.P.

Branch);

(vi) Three representatives of distilleries in

Uttar Pradesh to be nominated by the

Uttar Pradesh Distillers\022 Association;

(vii) One representative of the alcohol based

industries in Uttar Pradesh to be

nominated by the Uttar Pradesh Alcohol

Based Industries Development

Association.

(viii) One representative of Moulding and

Foundry Industry in Uttar Pradesh to be

nominated by the Excise Commissioner,

Uttar Pradesh; and

(ix) Managing Director, the Uttar Pradesh Co-

operative Sugar Factories Federation Ltd.

(2) If a representative is not nominated by

the concerned Association under Clause (v),

(vi) or (vii) of sub-rule (1) within the time

specified in that behalf by the State

Government, it shall be lawfully for the State

Government to nominate the representative or

representatives, as the case may be, under

that clause.

26. While Rule 6 prescribes term of office of

members and reconstitution of the Committee, Rule 7

deals with vacancy caused by death, resignation or

removal of members. Rule 8 provides for quorum for

meeting. Rules 9 and 10 prescribe time, place and

agenda for the meeting of the Committee and preparation

of minutes of resolutions passed and decisions taken.

Rule 11 requires the Chairman of the Committee to

forward such resolutions to the State Government.

27. It further appears that by a notification dated

November 24, 1965, such Committee had been

constituted. The Notification was also published in U.P.

Government Gazette, Extraordinary and reads thus:

Notification No.5586-E/XIII-251-65, dated

24th November, 1965, published in U.P.

Gazette, Extra., dated November 24, 1965.

In exercise of the powers under Section 3

of Uttar Pradesh Sheera Niyantran Adhiniyam,

1964 (Uttar Pradesh Act XXIV of 1964) read

within Rules 3 and 5 of the Uttar Pradesh

Molasses Advisory Committee Rules, 1965, the

Governor of Uttar Pradesh is pleased to

constitute an Advisory Committee to advise on

matters relating to the control on storage,

supply, gradation and prices of molasses with

effect from the date of issue of this notification

and further pleased to direct that the said

Committee shall consist of the following

persons:

(a) the Controller of Molasses, Uttar

Pradesh\027Ex Officio Chairman

(b) the Assistant Excise Commissioner

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(Molasses), Uttar Pradesh\027Ex Officio

Secretary.

(i) The representatives of Sugar Factories\027

Sri V.D. Jhunjhunwala Kamlapat Moti

Lal Sugar Mills, Motinagar, district

Faizabad.

Sri B.C. Kohli, Ganga Sugar Corporation

Ltd., Deoband, district Saharanpur.

Sri L.N. Wahi, Indian Sugar Mills

Association, Uttar Pradesh Branch, Sri

Niwas, I, Kabir Marg, Lucknow.

(ii) Three representatives of Distilleries\027

Sri Bansi Dhar, Director, Managing

Agents, Messrs Delhi Cloth & General

Mills Co. Ltd., Bara Hindu Rao, Post Box

No.1039, Delhi.

Sri D.S. Majithia Messrs, Saraya

Distillery, Sardarnagar, Gorakhpur.

Sri V.R. Mohan, Dyer Meakin Brewery

Ltd., Lucknow.

(iii) One representative of Moulding and

Foundry Industries\027

Sri Raman, Secretary, Agra Iron

Founders Association, Agra.

(iv) One representative of Tobacco

Manufacturers Association, Varanasi.

(v) The Director of Industries, U.P. or his

representative.

(vi) Sri Ram Surat Prasad, M.L.A., Mohalla

Mohaddipur, Gorakhpur.

28. Reading the substantive provisions in the Act

as also subordinate legislation by way of Rules, there is

no doubt in our minds that the submission of the learned

counsel for the writ petitioner that such a Committee

ought to have been constituted by the State is well-

founded and must be upheld. The High Court dealt with

the submission of the writ petitioner but did not accept it

observing that the Legislature had used the expression

\021may\022 and not \021shall\022 in Section 3 of the Act. The Court

ruled that the provision was merely directory and not

mandatory.

29. We are unable to subscribe to the above view.

In our judgment, mere use of word \021may\022 or \021shall\022 is

not conclusive. The question whether a particular

provision of a statute is directory or mandatory cannot be

resolved by laying down any general rule of universal

application. Such controversy has to be decided by

ascertaining the intention of the Legislature and not by

looking at the language in which the provision is clothed.

And for finding out the legislative intent, the Court must

examine the scheme of the Act, purpose and object

underlying the provision, consequences likely to ensue or

inconvenience likely to result if the provision is read one

way or the other and many more considerations relevant

to the issue.

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30. Several statutes confer power on authorities

and officers to be exercised by them at their discretion.

The power is in permissive language, such as, \021it may be

lawful\022, \021it may be permissible\022, \021it may be open to do\022, etc.

In certain circumstances, however, such power is

\021coupled with duty\022 and must be exercised.

31. Before more than a century in Baker, Re,

(1890) 44 Ch D 262, Cotton, L.J. stated;

\023I think that great misconception is caused by

saying that in some cases \021may\022 means \021must\022.

It never can mean \021must\022, so long as the

English language retains its meaning; but it

gives a power, and then it may be question

in what cases, where a Judge has a power

given by him by the word \021may\022, it becomes

his duty to exercise it\024.

(emphasis supplied)

32. In leading case of Julius v. Lord Bishop of

Oxford, (1880) 5 AC 214 : 49 LJ QB 580 : (1874-80) All

ER Rep 43 (HL), the Bishop was empowered to issue

commission of inquiry in case of alleged misconduct by a

clergyman, either on an application by someone or suo

motu. The question was whether the Bishop had right to

refuse commission when an application was made. The

House of Lords held that the Bishop had discretion to

act pursuant to the complaint and no mandatory duty

was imposed on him.

33. Earl Cairns, L.C., however, made the following

remarkable and oft-quoted observations:

\023The words \021it shall be lawful\022 are not

equivocal. They are plain and unambiguous.

They are words merely making that legal and

possible which there would otherwise be no

right or authority to do. They confer a faculty

or power and they do not of themselves do

more than confer a faculty or power. But there

may be something in the nature of the

thing empowered to be done, something in

the object for which it is to be done,

something in the title of the person or

persons for whose benefit the power is to

be exercised, which may couple the power

with a duty, and make it the duty of the

person in whom the power is reposed, to

exercise that power when called upon to do

so\024. (emphasis supplied)

34. Explaining the doctrine of power coupled with

duty, de Smith, (\021Judicial Review of Administrative

Action\022, 1995; pp.300-01) states:

\023Sometimes the question before a court is

whether words which apparently confer a

discretion are instead to be interpreted as

imposing duty. Such words as \021may\022 and \021it

shall be lawful\022 are prima facie to be construed

as permissive, not imperative. Exceptionally,

however, they may be construed as

imposing a duty to act, and even a duty to

act in one particular manner\024.

(emphasis supplied)

35. Wade also says (Wade & Forsyth;

\021Administrative Law : 9th Edn.) : p.233) :

\023The hallmark of discretionary power is

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permissive language using words such as \021may\022

or \021it shall be lawful\022, as opposed to obligatory

language such as \021shall\022. But this simple

distinction is not always a sure guide, for there

have been many decisions in which permissive

language has been construed as obligatory.

This is not so much because one form of

words is interpreted to mean its opposite,

as because the power conferred is, in the

circumstances, prescribed by the Act,

coupled with a duty to exercise it in a

proper case\024. (emphasis supplied)

36. In the leading case of Padfield v. Minister of

Agriculture, Fisheries & Food, 1968 AC 997 : (1968) 1 All

ER 694 : (1968) 2 WLR 924 (HL), the relevant Act

provided for the reference of a complaint to a committee

of investigation \021if the Minister so directs\022. The Minister

refused to act on a complaint. It was held that the

Minister was required to act on a complaint in absence

of good and relevant reasons to the contrary.

37. Likewise, it was held that the licensing

authorities were bound to renew licences of cab drivers if

the prescribed procedural requirements had been

complied with [R.V. Metropolitan Police Commissioner,

(1911) 2 QB 1131]. Similarly, local authorities were held

bound to approve building plans if they were in

conformity with bye-laws [R.V. Nescastle-upon-Tyne

Corporation, (1889) 60 LT 963]. Again, the court was

required to pass a decree for possession in favour of a

landlord, if the relevant grounds existed [Ganpat Ladha

v. Shashikant, (1978) 3 SCR 198 : (1978) 2 SCC 573].

38. In Alcock v. Chief Revenue Authority, 50 IA 227

: AIR 1923 PC 138, the relevant statute provided that if

in the course of any assessment a question arises as to

the interpretation of the Act, the Chief Revenue

Authority \021may\022 draw up a statement of the case and

refer it to the High Court. Holding the provision to be

mandatory and following Julius, Lord Phillimore

observed:

\023When a capacity or power is given to a public

authority, there may be circumstance which

couple with the power of duty to exercise it\024.

39. In Commissioner of Police v. Gordhandas

Bhanji, 1952 SCR 135 : AIR 1952 SC 16, Rule 250 of the

Rules for Licensing and Controlling Theatres and Other

Places of Public Amusement in Bombay City, 1884 read

as under:

\023The Commissioner shall have power in his

absolute discretion at any time to cancel or

suspend any licence granted under these

Rules\005.\024

40. It was contended that there was no specific

legal duty compelling the Commissioner to exercise the

discretion. Rule 250 merely vested a discretion in him

but it did not require him to exercise the power. Relying

upon the observations of Earl Cairns, L.C., the Court

observed:

\023The discretion vested in the Commissioner of

Police under Rule 250 has been conferred

upon him for public reasons involving the

convenience, safety, morality and the welfare

of the public at large. An enabling power of

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his kind conferred for public reasons and

for the public benefit is, in our opinion,

coupled with a duty to exercise it when the

circumstances so demand. It is a duty

which cannot be shirked or shelved nor

can it be evaded\005\024 (emphasis supplied)

41. In Ratlam Municipality v. Vardichan, (1981) 1

SCR 97 : (1980) 4 SCC 162; some residents of Ratlam

Municipality moved the Sub-Divisional Magistrate under

Section 133 of the Code of Criminal Procedure, 1973 for

abatement of nuisance by directing the municipality to

construct drainpipes with flow of water to wash the filth

and stop the stench. The Magistrate found the facts

proved and issued necessary directions. The Sessions

Court, in appeal, reversed the order. The High Court, in

revision, restored the judgment of the Magistrate and the

matter was carried to the Supreme Court.

42. Krishna Iyer, J. pithily summarized the

principle thus;

\023The key question we have to answer is

whether by affirmative action a court lean

compel a statutory body to carry out its duty

to the community by constructing sanitation

facilities at great cost and on a time-bound

basis. At issue is the coming of age of that

branch of public law bearing on community

actions and the court's power to force public

bodies under public duties to implement

specific plans in response to public

grievances\024.

43. Holding the provision obligatory, the Court

observed:

\023Judicial discretion when facts for its exercise

are present, has a mandatory import.

Therefore, when the sub-Divisional Magistrate,

Ratlam, has, before him, information and

evidence, which disclose the existence of a

public nuisance and, on the materials placed,

he considers that such unlawful obstruction or

nuisance should be removed from any public

place which may be lawfully used by the

public, he shall act\005. This is a public duty

implicit in the public power to be exercised

on behalf of the public and pursuant to a

public proceeding\024.

(emphasis supplied)

44. We do not wish to refer to other cases on the

point. We are, however, in agreement with the

observations of Earl Cairns, L.J. in Julius referred to

above wherein His Lordship stated;

\023(W)here a power is deposited with a

public officer for the purpose of being used for

the benefit of persons who are specifically

pointed out, and with regard to whom a

definition is supplied by the Legislature of the

conditions upon which they are entitled to call

for its exercise, that power ought to be

exercised, and the Court will require it to

be exercised\024.

(emphasis supplied)

45. In the case on hand, considering the

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legislative scheme as also Rules and particularly Rules

relating to constitution of Committee, namely, the U.P.

Molasses Advisory Committee Rules, 1965, in our

opinion, investment of power in the State Government is

not merely enabling or discretionary. It is obligatory on

the Government to constitute a Committee to carry out

the purpose and object of the Act. The Committee has to

perform an important role of advising the State

Government \023on matters relating to the control of

storage, preservation, gradation, price, supply and

disposal of molasses\024. The constitution of the

Committee, as envisaged by Rule 3 of the 1965 Rules

clearly shows the representation of various groups and

interests likely to be affected. Rule 11 requires the

Chairman (Controller of Molasses) to \023give due

consideration of the resolutions passed by the

Committee and forward it to the State Government for

orders together with a copy of the proceedings and his

recommendations\024. In our considered opinion, it is not

open to the State Government to ignore this salutary

provision taking specious plea that the provision relating

to constitution of Committee is enabling, directory or

discretionary and State, therefore, is not obliged to

constitute such Committee. In our judgment, the High

Court was not right in upholding the argument of the

respondents. We, therefore, hold that in accordance with

the provisions of 1964 Act, the Rules framed thereunder

as also under 1965 Rules, it is the duty of the State

Government to constitute Advisory Committee. We

accordingly direct the State of Uttar Pradesh to

constitute Advisory Committee as expeditiously as

possible.

46. For the foregoing reasons, in our opinion, the

appeal deserves to be allowed and the order of the High

Court deserves to be set aside. It is, accordingly held

that the directive issued by the respondents would not

apply in case there is no balance stock of molasses with

any sugar mill. The respondent-authorities have no right

to compel such sugar mills to supply 20% molasses for

the purpose of manufacturing country liquor.

47. We may, however, make one thing clear. As

seen above, the assertion of the appellant was that it has

no balance stock and even for its own requirement, it

has to import molasses. On the other hand, the

allegation of the respondents is that excess and balance

molasses was available with the appellant which it had

sold in open market. The High Court, in the impugned

order has not decided the question finally. Quoting

certain paragraphs from the writ-petition, the High Court

observed that there was no proper pleading and as such,

the Court was not in a position to go into the question. It

is, therefore, made clear that it is open to the

respondents to take appropriate action in accordance

with law on the basis of our decision and observations

made in this judgment.

48. The appeal is allowed to the extent indicated

above. On the facts and in the circumstances of the case,

however, the parties will bear their own costs.