TRILOCHAN MISHRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioners in all these petitions under Article 32 of the Constitution pray for a declaration that Sections 3 (2) (a), 8 (1) and Rule 5-B (6), (7), (8) (9) and (16) and Rule 6 (3) and Rule 7 (l) of the Orissa Kendu Leaves (Control of Trade) Act, 1961 as amended and the rules framed thereunder are violative of the fundamental rights of the petitioners guaranteed under Articles 14, 15 and 19 (1) of the Constitution, for a declaration that the "revised policy" as enjoined by the said Orissa Kendu Leaves (Control of Trade) Amendment Act, 1969 and rules framed is arbitrary, discriminatory and male fide and for a writ or direction in the nature of a mandamus quashing the appointment of respondents 2 to 108 as purchasers.

(2.) To appreciate the grievances of the petitioners it is necessary to note in brief how the trade in Kendu leaves has been taken over by the State of Orissa by successive legislation and two decisions of this Court bearing thereupon. Kendu leaves appear to have formed a lucrative source of revenue for the State of Orissa for many years past. After the merger of the Indian States with the Province of Orissa the Government of Orissa passed an order in exercise of the powers under Section 3 (1) of the Orissa Essential Articles Control and Requisitioning (Temporary Powers) Act, 1947 by which the Kendu leaves growing areas in the State were divided into units and licences were issued to persons entitled to trade in such leaves. The District Magistrate fixed the minimum rates from time to time and the Order provided that the licensees were bound to purchase Kendu leaves from the pluckers or owners of private trees and forests at rates not below the minimum prescribed. The licensees were however not fettered in the matter of the sales of the leaves after purchase. This was followed by the Orissa Kendu Leaves Control Order, l960 which effected some changes in the scheme previously adopted. In 1961 Orissa Kendu Leaves (Control of Trade) Act was passed with the object of creating a State monopoly in the trade of these leaves. Section 3 (1) of that Act provided that no person other than the Government, an officer of Government authorised in that behalf or an agent in respect of the unit in which the leaves are grown shall purchase or transport Kendu leaves. Sub-section (2) provided for transport of leaves from one place to another within the unit wherein such leaves have grown to any other place in that Unit. By sub-section (3) any person desiring to sell Kendu leaves was at liberty to sell them to the aforesaid Government officer or agent at any depot situated within the said unit. Under Section 4 the Government was to fix the price at which the leaves were to be purchased by them or by any officer or agent from the growers after consultation with the Advisory Committee. Section 5 enabled the Government to divide each district into such number of units as they thought fit. Under Section 7 the Government or their authorised officer or agent were bound to purchase at the price fixed under Section 4 the leaves which were offered to them for sale at the depots. Under Section 8 (1) Government was authorised to appoint agents on their behalf in respect of different units for the purpose of purchase of and trade in Kendu leaves in respect of different units and any such agent might be appointed in respect of more than one unit Under Section 10 Kendu leaves purchased by Government- or their officers or agents under the Act were to be sold or otherwise disposed of in such manner as the Government might direct.

(3.) The whole Act and the notifications thereunder were challenged in this Court, particularly Sections 3 and 4, on the ground that they were in conflict with Articles 19 (1) (f) and (g) and 19 (6) of the Constitution in Akadasi Padhan v State of Orissa, (1963) Suppl 2 SCR 691 = (AIR 1963 SC 1047). It was held therein by this Court that the Act was a valid piece of legislation although it created a State monopoly. The validity of Section 3 was upheld as the persons specified in Cls (b) and (c) were intended to work as agents of the Government and all their actions and dealings in pursuance of the provisions of the Act were to be actions and dealings on behalf of the Government and for the benefit of the Government. The validity of Section 4 was also upheld but Rule 7 (5) promulgated under the Act was held to be bad because it left it to the sweet will and pleasure of the officer concerned to fix any terms and conditions regarding agents on an ad hoc basis on the ground that the agency permitted under Article 19 (6) (ii) of the Constitution had to be an agency in the strict and narrow sense of the term and could only include agents who could be said to carry on the monopoly at every stage on behalf of the State for its benefit and not for their own benefit at all.