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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.