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Chhotabhai Jethabhai Patel and Co. Vs. State of Madhya Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 264 of 1965
Judge
Reported inAIR1966MP34
ActsMadhya Pradesh Tendu Patta (Vyapar Viniyaman) Niyamavali Sanshodhan Adhyadesh, 1965 - Sections 3; Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Niyamavali Sanshodhan Adhyadesh, 1964 - Sections 19; Constitution of India - Article 213(1); Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Niyamavali Sanshodhan Adhyadesh Rules - Rule 7
AppellantChhotabhai Jethabhai Patel and Co.
RespondentState of Madhya Pradesh and ors.
Appellant AdvocateR.S. Dabir and ;A.P. Sen, Advs.
Respondent AdvocateM. Adhikari, Adv. General and ;R.J. Bhave, Govt. Adv. for Respondents 1 to 4 and ;R.K. Tankha and ;P.C. Pathak, Advs. for Respondent No. 5
DispositionPetition dismissed
Cases ReferredAkadasi Padhan v. State of Orissa
Excerpt:
- - that in the present case tenders had been factually submitted in march 1965 by the respondent-firm as well as by the petitioner; the act is clearly not an 'existing law' spoken of in article 254. 9. it is thus clear that an act of the legislature of the state containing the same provision as is to be found in section 3 of the ordinance would not have attracted article 254(2) of the constitution, and would have been valid notwithstanding the fact that it had not been reserved for consideration of the president and had not received his assent. a state may legislate on an item in list iii and such legislation will be perfectly valid if it does not conflict with a piece of legislation of parliament or with existing law as defined by the constitution. chakravarty for the petitioner has.....dixit, c.j. 1. by this application under article 226 of the constitution, the petitioner-challenges the validity of the 'madhya pradesh tendu patta (vyapar viniyaman) niyamavali sanshodhan adhyadesh, 1965' (hereinafter referred to as the ordinance), an ordinance promulgated by the governor on 11th may 1965, amending in certain respects the 'madhya pradesh tendu patta-(vyapar viniyaman ) niyamavali, 1965, (rules framed under the m. p. tendu patta (vyapar viniyaman) adhiniyam, 1964, and hereinafter called the rules), and of the appointment of the respondent no. 5, m/s vrajlal muljibhai and co., bilaspur, as purchaser for the purchase of tendu patta leaves collected by the government or by its officers or agents in certain units of certain ranges of north bilaspur forest division. the.....
Judgment:

Dixit, C.J.

1. By this application under Article 226 of the Constitution, the petitioner-challenges the validity of the 'Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Niyamavali Sanshodhan Adhyadesh, 1965' (hereinafter referred to as the Ordinance), an ordinance promulgated by the Governor on 11th May 1965, amending in certain respects the 'Madhya Pradesh Tendu Patta-(Vyapar Viniyaman ) Niyamavali, 1965, (Rules framed under the M. P. Tendu Patta (Vyapar Viniyaman) Adhiniyam, 1964, and hereinafter called the Rules), and of the appointment of the respondent No. 5, M/S Vrajlal Muljibhai and Co., Bilaspur, as purchaser for the purchase of Tendu Patta leaves collected by the Government or by its officers or agents in certain units of certain ranges of North Bilaspur Forest Division. The petitioner prays that the Ordinance be declared' invalid and the appointment of the respondent No. 5 purporting to have been made in accordance with the Rules, as amended by the Ordinance, be held to be illegal, and the opponents be commanded to give effect to the Chhotabhai Jethabhai Patel and Co. v. State of M. P., Misc. Petn. No. 153 of 1965, D/-27-4-1965: (AIR 1966 MP 34) by inviting fresh tenders in accordance with Rule 7 of the Rules,, as they stood before they were amended by the Ordinance, for the disposal of Tendu leaves collected from the aforesaid units.

2. The matter arises thus After the coming into force of the Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Adhiniyam, 1964, (hereinafter called the Act), the Government issued a notice on 9th February 1965 inviting tenders from persons or parties desirous of purchasing Tendu leaves purchased or likely to be collected by Government or its officers or agents in the various Tendu Patta Units, a list of which was appended to the notice. That list included the units involved in this application. According to this tender notice, tenders for the units of ranges of North Bilaspur Forest Division had to be submitted personally to the Conservator of Forests, Bilaspur, or to his Office Superintendent, before 15.00 hours of 2nd March 1965. They could also be sent by registered post so as to reach the Conservator of Forests or his office before the said date and time. No tenders for the units in question were, however, received at Bilaspur upto 15.00 hours of 2nd March 1965. 'The respondent No. 5, however, presented its tenders in respect of the units concerned at Raipur on 2nd March 1965 in sealed covers addressed to the Conservator of Forests, Bilaspur, through the Conservator of Forests, Raipur. These tenders were accepted by the Government.

3. The petitioner then filed an application under Article 226 of the Constitution questioning the validity of the tenders submitted by the respondent No. 5 and seeking a direction restraining the Government from acting in any manner on those tenders. It also prayed for the issue of a direction to the opponents commanding them to entertain and consider the tenders it had submitted on 16th March 1965 to the Conservator of Forests, Bilaspur, for the purchase of Tendu leaves from the units in question for which the respondents No. 5 had given its tenders. That petition (M. P. No. 153 of 1965 : (AIR 1966 MP 34) was allowed in part by us on 27th April 1965 holding that the tenders submitted for the units in question by the respondent No. 5 were invalid and consequently the acceptance of those tenders by the State Government was also invalid.

The petitioner's prayer for a direction to the opponent State to entertain and consider its tenders submitted on 16th March 1965, was, however rejected by us. The decision in M. P. No. 153 of 1965 : (AIR 1966 MP 34) proceeded on the reasoning that the Government having framed Rules under Section 19 of the Act for regulating the sale and disposal of Tendu leaves was bound to follow the Rules in the sale and disposal of Tendu leaves; that when the Rules had been framed for the exercise of the general powers conferred by Section 12, then the Rules must be read so as to import a prohibition restraining the Government from selling or disposing of Tendu leaves in contravention of the Rules; that the condition in the tender notice dated 9th February 1965 that covers containing the tenders shall either be presented personally to the Conservator of Forests, Bilaspur, or his Office Superintendent, or sent by registered post, was a mandatory requirement; that consequently the tenders submitted by the respondent-firm to the Conservator of Forests, Raipur, on 2nd March 1965 were invalid; and that the Government acted in breach of the Rules when it accepted those tenders of the respondent No. 5.

We rejected the contention advanced on behalf of the State that even if the tenders submitted by the respondent-firm were not presented in accordance with condition 7 of the tender notice dated the 9th February 1965. The Government could appoint the firm as purchaser in the exercise of its powers under Sub-rule (7) of Rule 7. In negativing this contention, we observed that the power given to the Government by this Sub-Rule to appoint any person as purchaser for any unit on such terms and conditions as may be mutually agreed upon could be exercised only when valid tenders had been received for a unit or units but the Government found all those tenders unacceptable; that if a tender was not valid, it could not be entertained at all and there could be no question of its acceptance or rejection without assigning any reason therefor, under Sub-rule (6); and that it was for meeting a situation arising from the rejection on merits of valid tenders by the Government in the exercise of the discretion given to it by Sub-rule (6) that Sub-rule (7) immediately made a provision enabling the Government to appoint any person as purchaser on terms and conditions mutually agreed upon.

4. After the decision in M. P. No. 153 of 1965 : (AIR 1966 MP 34) was pronounced, the respondent-firm was informed by the Conservator of Forests, Bilaspur on 15th May 1965 that in view of the decision of this Court the tenders submitted by it had been rejected. In the meantime, the Government promulgated on 11th May 1965 the Ordinance amending Rules 3 and 7 of the Rules. We are not concerned with the amendment made in Rule 3. By Section 3 of the Ordinance, a new Sub-rule (7-a) was inserted in Rule 7. It is as follows :

'(7-a). If- (a) no tenders are received for a Unit or Units, or, (b) tenders which are received for a Unit or Units are invalid for any reason whatsoever ; and in the opinion of the State Government, it is not feasible to invite fresh tenders or to take action under Sub-rule (8), the Government may, for reasons to be recorded in writing, appoint purchaser or purchasers for such Unit or Units any person or party or persons or parties, on such terms and conditions as may be mutually agreed upon and where tenders received for such Unit or Units are invalid, such appointment need not be limited to persons who have submitted such invalid tenders. All the Rules applicable to a successful tenderer shall apply mutatis mutandis to persons or parties appointed as purchasers under this Sub-Rule.'

Section 4 of the Ordinance provides that the amendments made by Sections 2 and 3 shall be deemed to have formed part of the Niyamavali (the Rules) from the commencement thereof. The last section of the Ordinance is concerned with the validation of appointments of agents and purchasers, and is in the following terms:

'5. All things done and all actions taken in the matter of appointment of-

(a) agents under Sub-rule (7) of Rule 3 of the said Niyamavali;

(b) purchasers on terms and conditions mutually agreed upon under Rule 7 of the said Niyamavali;

shall be deemed to have been validly done or taken as if the amendments made by Sections 2 and 3 in the said Niyamavali were in force at all material times when such things were done or actions were taken and shall not be called in question on any ground including, in the matter of appointment of purchaser, the ground that no reasons in writing were recorded as required by Sub-rule (7-a) of Rule 7 of the said Niyamavali as inserted by Section 3 of this Ordinance.'

5. According to the return filed by the opponents Nos. 1 to 4, after the promulgation of the Ordinance the respondent No. 5 again applied to the Conservator of Forests, Bilaspur, on 17th May 1965 for being appointed as purchaser in respect of the units in question for the purchase of Tendu leaves on certain terms offered by it. The Conservator forwarded the application to the Slate Government, and on 25th May 1965 the Government passed an order appointing the respondent-firm as purchaser for five units of the North Bilaspur Forest Division. That order is as follows-

'Since there is no time available for calling tenders or to dispose of through auction tendu leaves, in accordance with Rule 7-a added to the M.P. Tendu Patta (V-V) Niyamavali, 1965, vide the M.P. Tendu Patta (Vyapar Viniyaman) Niyamavali Sanshodhan Adhyadesh, 1965 (M.P. Ordinance No. 3 of 11th May 1965), Government are pleased to hereby appoint M/s Vrajlal Muljibhai and Co., Bilaspur, as purchaser for the following Units as per rates indicated against each for the current season: * * * * * '

The order then set out the names of units and the rate per standard bag for each of the units specified.

6. Shri Dabir, learned counsel appearing for the petitioner, put forward four arguments. He said, first, that under the proviso to Article 213(1) of the Constitution, the Governor could not promulgate the Ordinance without instructions from the President and as no instructions had been obtained from the President, the Ordinance was invalid. Secondly, he urged that the Ordinance was a colourable piece of legislation. Thirdly, it was submitted that the power to appoint purchasers under the new Sub-rule (7-a) could be exercised only if no tenders had been received for a unit or units or the tenders received for a unit or units were invalid for any reason; that in the present case tenders had been factually submitted in March 1965 by the respondent-firm as well as by the petitioner; and that consequently the new Sub-rule could not be invoked for making the appointment of respondent No. 5 as purchaser for any unit.

In connection with this sub-rule, it was also said that the appointment of a purchaser thereunder could be made by the Government only after forming an opinion that it was not feasible to invite fresh tenders or to take action under Sub-rule (8) and after recording reasons in writing; and that the appointment of the respondent No. 5 as purchaser under Sub-rule (7-a) was made by the Government without forming the requisite opinion and without giving any reasons, for the appointment. Lastly, it was suggested that Section 5 of the Ordinance was ultra vires the Constitution and, therefore, void.

7. In our judgment, there is no force in any of these contentions. Taking first the objection that the Ordinance is invalid by reason of the want of instructions from the President, it is true, as admitted before us on behalf of the State, that no instructions from the President were obtained for promulgating the Ordinance. But none were necessary. For the promulgation of an ordinance by the Governor in the exercise of the powers conferred on him by Article 213(1) instructions from the President are necessary only in the circumstances set out in the proviso to Article 213(1), That proviso says-

'Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if-

(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or

(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or

(c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of (be President, it had received the assent of the President.'

It is not the contention of the learned counsel for the applicant that the Ordinance fell under Clause (a) or Clause (b) of the proviso. He relied on Clause (c) of the proviso, and argued that the Act had been reserved for the consideration of the President and had received his assent; that, therefore, any Act of the Legislature of the State containing the same provisions as the Ordinance amending the Rules made under the Act would under the Constitution have been invalid unless having been reserved for the consideration of the President it had received the assent of the President; and that consequently the Ordinance could not be promulgated without instructions from the President. It was further said that the amendment covered subject-matter falling under entries Nos. 7, 21 and 42 of the Concurrent List and contained provisions repugnant to the provisions of earlier laws made by Parliament and existing laws with respect to those matters; and that, therefore, previous instructions from the President for the promulgation of the Ordinance were necessary under the proviso to Article 213(1) read with Article 254 of the Constitution.

8. In order to determine whether this contention is sound, it is first necessary to examine the provisions of the Ordinance and their effect. The effect of the Ordinance is to amend in certain respects Rules 3 and 7 of the Rules made by the Government in the exercise of its powers under Section 19 of the Act and to validate appointments of agents and purchasers mentioned in Section 5 thereof. The amendments made by the Ordinance in the Rules have existence as independent legislation and not as parts of the Rules framed by the Government under Section 19. The question whether the Rules made under the Act can be amended by an Act of the Legislature or an Ordinance will be examined presently. Here it is sufficient to note that the Ordinance does not amend any provision of the Act or of the Rules made thereunder with respect to any matter falling in the Concurrent List. Section 3 of the Ordinance only inserts a new sub-rule in Rule 7 with regard to the appointment of purchasers on mutually agreed upon terms in certain circumstances. Rule 7, together with the new sub-rule inserted therein, deals with the disposal of Tendu leaves which have already become property of the State Government. That being so, it cannot be contended with any degree of force that the provisions of Rule 7, including the new Sub-rule (7a), pertain to contracts, partnership agency, or commercial and industrial monopolies or acquisition and requisitioning of property falling under items Nos. 7, 21 and 42 of the Concurrent List, or to any matter falling under other items of that list.

Learned counsel was unable to point out with reference to any law made by Parliament, or an existing law, how the provisions of the new Sub-rule (7-a) were repugnant to those laws. He no doubt referred to the Act itself, namely, the M.P. Tendu Patta (Vyapar Viniyaman) Adhiniyam 1964, as an existing law, and said that Section 3 of the Ordinance inserting a new sub-rule in Rule 7 was incompatible with Section 19 of the Act and Rule 7 of the Rules made under that section. The argument is without any merit. The term 'existing law' has been defined in Article 366(10) of the Constitution and means any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation. The Act is clearly not an 'existing law' spoken of in Article 254.

9. It is thus clear that an Act of the Legislature of the State containing the same provision as is to be found in Section 3 of the Ordinance would not have attracted Article 254(2) of the Constitution, and would have been valid notwithstanding the fact that it had not been reserved for consideration of the President and had not received his assent. That being so, it cannot be held that Section 3 of the Ordinance falls within the purview of Clause (c) of the proviso to Article 213(1). The argument that as the Act itself was reserved for consideration of the President and received his assent, therefore, the Ordinance could not have been promulgated without instructions from the President is altogether fallacious.

The question whether any ordinance promulgated by the Governor required under Article 213(1) previous instructions from the President has to be determined solely with reference to the provisions of the Ordinance. This is clear from the expressions 'a Bill containing the same provisions' and 'an Act of the Legislature of the State containing the same provisions' occurring in the three clauses of the proviso to Article 213(1) of the Constitution. The fact that the Act itself was reserved for consideration of the President and received his assent is by no means decisive. The Act dealt with many matters falling under the Concurrent List not covered by Section 3 of the Ordinance and undoubtedly required under Article 254 the assent of the President to make the legislation valid. It must be noted that 'Tendu leaves' are forest produce and the disposal of Tendu leaves which have become the property of the State Government is a matter falling under entry No. 19 of the State List. A law with respect to one of the matters enumerated in the State List does not require the assent of the President.

10. In this connection, a reference may be made to the decision of the Calcutta High Court in Nalini Mohan v. Dist. Mag., Malda, AIR 1951 Cal 346 where the validity of the West Bengal Security (Second Amendment) Ordinance, 1950, promulgated by the Governor of West Bengal, was challenged on the ground that as it was promulgated by the Governor without instructions from the President it was invalid. The argument advanced there was that the Ordinance was subsequently replaced by the West Bengal Security Act, 1950, which had received the assent of the President; that as the said Act required the assent of the President, therefore, the Ordinance could not have been passed without instructions from the President; and that as no instructions were given the Ordinance was invalid. Rejecting this argument, Harries C. J. said-

'The whole argument is fallacious because it proceeds on the basis that State legislation on an item included in List III, Schedule 7 of the Constitution is invalid, without the President's assent. Such legislation is only invalid in so far as it is repugnant to Central legislation or existing law. A State may legislate on an item in List III and such legislation will be perfectly valid if it does not conflict with a piece of legislation of Parliament or with existing law as defined by the Constitution.

Mr. Chakravarty for the petitioner has failed to suggest any piece of existing law which can be said to be repugnant to the provisions of Ordinance XIV (14) of 1950. Therefore, that Ordinance is valid, though the previous instructions of the President were not obtained. The fact that a subsequent Act required and obtained the assent of the President is by no means conclusive because the subsequent Act deals with many matters which were not covered by the Ordinance and some of those matters undoubtedly required the assent of the President to make the legislation valid.'

The Calcutta decision supports the proposition that the question whether under the proviso to Article 213(1) of the Constitution an ordinance requires instructions from the President before it is promulgated has to be determined with reference to the nature of its provisions, and not by the fact whether an earlier or subsequent Act dealing with the matter covered by the Ordinance and other matters was enacted with the assent of the President.

11. An argument somewhat similar to that urged in the Calcutta case was also put forward in Durga Rice and Baba Oil Mills Co. Nidubrole v. State of A.P. AIR 1964 Andh Pra 266. The argument presented there was that by reason of the Andhra Pradesh General Sales Tax Act, 1957, having been assented to by the President, the President had become an integral part of the State Legislature, and consequently a legislation amending the parent Act passed by the State Legislature and assented to by the Governor did not acquire any validity without the assent of the President. The Andhra Pradesh High Court rejected this contention by observing that merely because the main Act was enacted after obtaining the assent of the President, it does not follow that every amendment in the Act requires the assent of the President irrespective of the fact whether the amendment involves anything which under the Constitution calls for the assent of the President.

12. In support of his second contention that the Ordinance was a colourable piece of legislation, learned counsel for the applicant submitted that though the Ordinance purported to amend the Rules framed under the Act, it really amended the Act itself, and this could not be done without complying with the requirement of the proviso to Article 213(1). It was further said that Section 19 of the Act, which governed the rule-making power, had not been in any way affected by the Ordinance; that under that provision all rules made under the Act had to be laid on the table of the Assembly and the State Government could not make a rule having a retrospective effect; and that the Ordinance purported to do indirectly what could not be done directly and was, therefore, a colourable piece of legislation.

13. This contention is totally devoid of any merit. It is now firmly settled by numerous decisions of the Supreme Court that if anenactment is within the legislative competenceof the Legislature, then the motives whichimpelled it to act are really irrelevant andhave no bearing on the question whether theAct is or is not a colourable piece of legislation. The doctrine of 'colourable legislation'does not involve any question of bona fides ormala fides on the part of the Legislature. In Gajapati Narayan Deo v. State of Orissa, AIR1953 SC 375 : 1954 SCR 1 the Supreme Courtsaid--

'It may be made clear at the outset thatthe doctrine of colourable legislation does notinvolve any question of 'bona fides' or 'malafides' on the part of the Legislature. The wholedoctrine resolves itself into the question ofcompetency of a particular legislature to enacta particular law. If the legislature is competent to pass a particular law, the motives whichimpelled it to act are really irrelevant. On theother hand, if the legislature lacks competency,the question of motive does not arise at all.If the Constitution of a state distributes thelegislative powers amongst different bodies,which have to act within their respectivespheres marked out by specific legislativeentries, or if there are limitations on the legislative authority in the shape of fundamentalrights, questions do arise as to whether thelegislature in a particular case has or has notin respect to the subject-matter of the statuteor in the method of enacting it transgressedthe limits of its constitutional powers. Suchtransgression may be patent, manifest ordirect, but it may also be disguised, covertand indirect and it is to this latter class ofcases that the expression 'colourable legislation' has been applied in certain judicialpronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to actwithin the limits of its powers, yet in substance and in reality it transgressed these powers,the transgression being veiled by what appears,on proper examination, to be a mere pretenceor disguise.'

Observations to the same effect are to be found in G. Nageswara Rao v. A.P.S.R.T. Corporation AIR 1959 SC 308 :(1959) Supp 1 SCR 319, Board of Trustees Ayurvedic and Unani Tibia College Delhi v. State of Delhi AIR 1962 SC 458 and Vajravelu Mudaliar v. Sp. Dy. Collector Madras, AIR 1965 SC 1017. Now, the Ordinance was clearly within the competence of the State Legislature as it fell under entry No. 19 (Forests) of the State List. Again, it is now firmly established that the power of Validation by a subsequent legislation of any defective law or act done under any Act is subsidiary or ancillary to the power to deal with the particular subject specified in the Lists of the Seventh Schedule to the Constitution (See United Provinces v. Atiqa Begum AIR 1941 FC 16; Piare Dusadh v. Emperor, AIR 1944 FC 1. Mt. Jadao v. Municipal Committee, Khandwa, AIR 1961 SC 1486).

It is also well settled that subject to any limitation imposed by the Constitution, Parliament and State Legislature can give to their laws, otherwise valid, retrospective or prospective operation (See Union of India v. Madan Gopal AIR 1954 SC 158 : 1954 SCR 541;Sundararamier and Co. v. State of A.P. AIR1958 SC 468 :1958 SCR 1422; AIR 1961SC 1486 (supra) and J. K. JuteMills Co. v. State of U.P. AIR 1961SC 1534). It cannot, therefore, be maintainedwith any degree of force that the Ordinancewas a colourable piece of legislation and itwas not within the legislative competence ofof the Stale Legislature or because it containeda validating provision or that it gave retrospective effect to the amendment made in therules. Nor can it be urged that it was beyondthe competence of the Legislature inasmuch aswhile leaving the rule-making power delegated to the State Government under Section 19of the Act intact, the Ordinance purported toamend the Rules. When the Legislature confers upon a subordinate agency the power tomake rules or regulations for carrying out all or any of the provisions of an Act and for certain mailers, the Legislature by such delegation does not efface itself (See Hodge v. The Queen, (1883) 9 AC 117 and Achchelal v. Janapad Sabha, Sihora AIR 1963 M.P. 74 (FB) ) Rejecting the contention that a legislature committing important regulations to agents or delegates effaces itself, it was said by the Privy Council in the case of Hodge (1883) 9 AC 117 (supra) that 'It retains its powers intact, and can, whenever it pleases, destroy the agency it has created and set up another, or take the matter directly into its own hands.' There can, therefore, be no doubt that the State Legislature has full powers to amend any rule made by the State Government under Section 19 of the Act. The contention, therefore, that the Ordinance could not amend the Rules made by the Slate Government under Section 19 of the Act in the face of the power given to the State Government under that section cannot, therefore, be accepted. In this connection, it would suffice to refer to the decisions in Krishi U. V. Mandal v. State of M.P. 1964 MPLJ 637: (AIR 1965 M.P. 6); Haji Lal Mohammad Biri Works v. S. T. Officer Allahabad, AIR 1959 All 208 and Jadab Singh v. Him. Pra. Administration AIR 1960 SC 1008, which are all cases in which the Legislature passed an Act validating a notification issued by the State Government under another Act, and it was held that the Legislature was competent to do so. The principle that runs through these cases is that if a legislature is competent to pass any enactment making any particular provision, it can validate a defective provision made by a subordinate agency under the authority delegated to it by the legislature. The contention, therefore, that the Ordinance as a colourable piece of legislation must fail.

14. The further submission of the learned counsel for the applicant was that the petitioner and the respondent-firm had actually submitted tenders in March 1965, and as the petitioner's tenders were valid, therefore, the new Sub-rule (7-a) could not be resorted to for making the appointment of respondent No. 5 as purchaser. Learned counsel said that the new sub-rule applied only if no tenders were received for a unit or units or the tenders received were invalid for any reason whatsoever.

This argument totally overlooks the reasoning given in M.P. No. 153 of 1965 : (AIR 1966 MP 34) for holding that the tenders submitted by the respondent-firm were invalid and the tenders submitted by the applicant on 16th March 1965 were also invalid as they were not submitted within the time limit prescribed by the first tender notice dated the 9th February 1965; that no tenders had been invited by the second lender notice dated the 5th March 1965 for the units for which the petitioner submitted tenders on 16th March 1965; and that the power given by Sub-rule (7) of Rule 7 to the Government to appoint any person as purchaser for a unit or units on mutually agreed upon terms could be exercised only when valid tenders had been received for a unit or units, but the Government found all those tenders unacceptable on merits.

It was because of this reasoning given in M.P. No. 153 of 1965 : (AIR 1966 MP 34) that the new Sub-rule (7-a) was inserted in Rule 7 so as to give to the Government the power to appoint purchasers, on mutually agreed upon terms in cases where no lenders are received or the tenders received are invalid.

In our opinion, the conditions stated in Clauses (a) and (b) of Sub-rule (7-a) were satisfied in the present case. Equally untenable is the contention of the applicant that the order dated the 25th May 1965 appointing the respondent No. 5 as purchaser in the exercise of its powers under Sub-rule (7-a) was bad inasmuch as it did not state that the Government had formed the opinion that it was not feasible to invite fresh tenders or to take action under Sub-rule (8) and that the Government had not recorded any reasons in writing for passing the order. It is not necessary that an order passed under Sub-rule (7-a) should contain a recital about the formation of opinion by the Stale Government. The applicant has placed no material whatsoever to show that no opinion at all was formed by the State Government and that the action of the Government appointing the respondent No. 5 was mala fide.

The order dated the 25th May 1965 clearly gives reasons for appointing the respondent No. 5 as purchaser under Sub-rule (7-a). It says that 'Since there is no time available for calling tenders or to dispose of through auction tendu leaves', therefore, in accordance with Sub-rule (7-a) the Government is pleased to appoint M/s. Vrajlal Muljibhai and Co., Bilaspur, as purchaser for the units mentioned in that order. The urgency in the matter of appointing purchasers lay in the well-known fact that the season during which tendu leaves have to be picked up, collected, stored and disposed of is of short duration, namely, two summer months of May and June. All this has to be done before the rains set in. The decision in M.P. No. 153 of 1965 : (AIR 1966 MP 34) was pronounced on 27th April 1965, and, therefore, if the Government had adopted the method of inviting fresh tenders or holding auctions for the disposal of tendu leaves and for the appointment of purchasers, that would have naturally taken a long time, and this procedure would have to a great extent hampered the Government in the disposal of tendu leaves at a reasonable price.

15. It is not necessary to consider the objection of the petitioner that Section 5 of the Ordinance is ultra vires the Constitution. The reason is that the appointment of the respondent No. 5 as purchaser has been made by the Government by passing a fresh order under Sub-rule (7-a) on 25th May 1965. The opponent State has not made any attempt to justify the appointment with reference to Section 5 of the Ordinance, and indeed it could not, when at no lime the respondent-firm had been previously appointed as purchaser 'on terms and conditions mutually agreed upon' tinder Sub-rule (7) of Rule 7. In fact, after the decision in M. P. No. 153 of 1965 : (AIR 1966 MP 34) the respondent-firm's tenders were all rejected. Learned counsel for the applicant, relying on Akadasi Padhan v. State of Orissa AIR 1963 SC 1047, also suggested that the new Sub-rule (7-a) was bad inasmuch as it left to the sweet will and. pleasure of the Government to fix any terms and conditions for the appointment of purchasers. This contention cannot be accepted.

The new Sub-rule (7-a) speaks of the appointment of purchasers on 'mutually agreed upon' terms. There can, therefore, be no unreasonableness in any appointment of a purchaser made under the new Sub-rule (7-a) rendering the sub-rule itself invalid. The decision in the case of AIR 1963 SC 1047 (supra) has no applicability here. In that case, what the Supreme Court held was that Rule 7 (5) of the rules framed under the Orissa Kendu Leaves (Control of Trade) Act, 1961, providing for the appointment of agents in respect of a unit or units for the purchase and transport of Kendu leaves from those units was bad in that it left to the sweet will of the officer concerned to fix terms and conditions of the agreement to be executed by the agent with regard to his appointment. Here, we are concerned with the appointment of purchasers of Tendu Leaves from the State Government or its Officers or agents appointed and not with agent appointed under Section 4 of the Act.

16. For the foregoing reasons, our conclusion is that the appointment made by the Government under the new Sub-rule (7-a) of the respondent No. 5, M/S Vrajlal Muljibhai arid Co., Bilaspur, as purchaser is valid, and the applicant is not entitled to any of the reliefs claimed in the petition. The result is that this petition is dismissed with costs of the respondents. Counsel's fee. for respondents Nos. 1 to 4, is fixed at Rs. 150. Counsel's fee for the respondent No. 5 is assessed at Rs. 100. The outstanding amount of security deposit, if any after deduction of costs, shall be refunded to the petitioner.


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