TMI Blog1990 (8) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... retention price in 1969 to be paid to all producers for the cement produced by them and acquired by the State Trading Corporation. In short, the appellants' grievance is that the fixation of a uniform retention price for all producers in 1969 instead of three different retention prices for different categories of producers, as was done earlier, amounted to discrimination contravening Article 14 of the Constitution. The background in which the argument of discrimination has to be tested may now be stated. Cement has been a controlled commodity for a long time and its production, distribution and price were regulated by Cement Control Orders issued by the Central Government from time to time in exercise of the powers conferred under the Industries (Development Regulation) Act, 1951. The arrangement made in 1856 was that the entire quantity of cement produced by all producers was acquired by the State Trading Corporation which distributed it throughout the country at a uniform price on f.o.r. basis. The price payable by the State Trading Corporation to the producer was, however, the 'retention price' or 'ex-works' or 'ex-factory price' fixed by the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t found workable and the Central Government decided to re-impose control. The Cement Control Order, 1967 was passed under Section 18G and Section 25 of the Industries (Development Regulation) Act, 1951, to be effective from 1.1.1968. Under this Order, the threetier retention price system was continued and the retention prices fixed for the three groups were specified in the Schedule as ₹ 90.50, ₹ 93.50 and ₹ 96. Both the appellants fell under the category for which the retention price specified in the Schedule was ₹ 96. Under this Cement Control Order, the system of uniform consumer price was preserved and freight equalisation was maintained by requiring the manufacturer to either contribute or draw from the cement regulation account set up under clause 9 of the Order. The Cement Controller replaced the Cement Allocation and Co-ordinating Organisation. Pursuant to the representation made by various manufacturers, the Central Government enquired into the increase in the cost of production since 1.1.1966. In consultation with the concerned authorities, it was estimated that the weighted average increase in the cost of production since 1.1.1966 was ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which a higher retention price was fixed. Shri Parasaran, therefore, contended that atleast in the case of this appellant, discrimination is proved on the basis of the High Court's finding of fact and a direction for re-fixation of a reasonable price 'for this appellant would be justified. Shri G.L. Sanghi, learned counsel for the appellant in Civil Appeal No. 2192 of 1972, advanced a slightly modified argument. He too referred to Clause 12 of the Cement Control Order, 1967 to contend that fixation of one uniform retention price for all producers is not permissible thereunder. He argued that the increase of ₹ 7 per tonne was to be made to the existing three-tier retention prices, but an irrational basis was adopted in fixing the uniform price of ₹ 100 per tonne which results in an unequal increase to the three different retention prices then existing. Both the learned counsel contended that the result, therefore, is that whereas producers for whom the retention price fixed earlier was ₹ 90.50 per tonne have got an increase of more than ₹ 7, the producers for whom the retention price was fixed at ₹ 96 per tonne have been given an increase of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry by us, learned counsel for the appellants did not dispute that no grievance would survive to the appellants if the uniform retention price was fixed at ₹ 104 per tonne instead of ₹ 100 per tonne. In substance, the grievance of both the appellants, therefore, is only to this extent and the argument of discrimination has been advanced for this purpose. In the counter-affidavit filed on behalf of the Central Government, the manner in which the uniform retention price for the industry was fixed at ₹ 100 per tonne has been elaborately explained. A portion of the counter-affidavit, relied on by the High Court also, is as under: The question of introduction of a uniform price for the entire industry had been under consideration from time to time since 1961. The opportunity of the request of the industry for an upward revision of their retention price due to increase in cost of production as a result of Governmental actions since 1.1.1966, was availed of to consider whether it was not opportune to introduce finally a uniform price for the entire industry as a Whole. In view of the observations of the Tariff Commission in 1961 that economies were possible with bett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e being shows to be made on a principle which has not been faulted, the actual fixation at ₹ 100 instead of ₹ 104 to be received by the industry is not within the domain of permissible judicial review if the principle of a uniform retention price for the entire industry cannot be faulted, The principles of price fixation permitting the fixation of a uniform price for the entire industry are no longer debatable after the recent decision of a Constitution Bench in M/s, Shri Sitaram Sugar Company Limited Anr. v. Union of India Ors., and U.P. Stale Sugar Corporation Ltd. Anr. v. Union of India Ors., JT 1990 (1) SC 462 even if the same were debatable when the controversy arose in the present case. In this decision, the Constitution Bench while affirming the earlier decisions of this Court in Anakapalle Co-operative Agricultural Industrial Society Ltd. etc. etc. v. Union of India Ors., [1973] 2 SCR 882 and The Panipat Cooperative Sugar Mills v. Union of India, [1973] 2 SCR 860 reiterated the settled principles. It was pointed out that what is best for the industry and in what manner the policy should be formulated and implemented, bearing in mind the object of sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made it. In the present case, we find that the fixation of the uniform retention price at ₹ 100 per tonne is based on the weighted average increase of ₹ 7 in the cost of production and the weighted average retention price on the basis of three different retention prices determined at ₹ 93 per tonne on the basis of expert opinion. Fixation of a uniform retention price being clearly permissible and the same having been determined at ₹ 100 per tonne on the basis of expert opinion, rounded on relevant factors, there is no scope for interference within the limits of permissible judicial review in the present case. A brief reference to Clause 12 of the Cement Control Order, 1967 may also be made. Clause 12 reads as under: 12. POWER TO VARY THE PRICES AND TO ALTER THE SCHEDULE. The Central Government may, having regard to any change in any of the factors relevant for the price of cement, such as an increase or decrease in the cost of production or distribution, by notification in the Official Gazette, vary the price fixed in this Order or alter the Schedule to this Order as appear to it to be necessary. We are unable to appreciate how Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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