SOMASUNDARAM, J. - (1.)In all these writ appeals, the appellants are one and the same. These writ appeals have been filed against the common order dated 2-8-1987 dismissing writ petitions 1442 to 1444 of 1986. Writ petition No. 1444 of 1986 has been filed by the 1st appellant for a declaration that Section 30(3) of the Tea Act, 1953 (hereinafter referred to as the Act), is null and void. In W.P. No. 1443 of 1986 the prayer is one for certiorari to quash S.O. No. 313-E, dated 19-4-1984 on the file of the first respondent, culminating in the issue of Tea Marketing Control Order, 1984 (hereinafter referred to as the Control Order). Writ Petition 1442 of 1986 has been filed by the 1st appellant for the issue of a writ of certiorari to quash the order dated 6-12-1985 of the Tea Board, the second respondent herein in reference No. 14(4) ML/84/12/Law/3295.
(2.)The case of the 1st appellant as disclosed in the affidavit filed in support of the above mentioned writ appeals is as follows; The 1st appellant is a partnership firm established in 1950 registered under the Indian Partnership Act. The firm owns a tea factory, wherein tea is manufactured from green tea leaves and thereafter it is marketed. The partners of the firm are major shareholders in Silver Cloud Estate Private Limited, owning 200 acres of tea plantation, known as 'Silver Cloud Tea Estate' and 50 per cent interest in another 20 acres known as 'Bar-wood Estate'. Both these tea estates have no factory of their own and they supply their produce, green tea leaves to the appellant factory under a permanent arrangement. The 1st appellant factory buys about 20% of their annual total green tea leaves from small growers in and around Gudalur. The normal channels for the marketing of the tea are: (a) Through Public auctions in India and in London in the form of loose tea, i.e. tea packed in plywood cases; (b) Sale in the domestic market ex factory or through retail depots or through depots in the same loose tea form; (c) By direct exports to consuming countries aboard and marketing in foreign countries through auctions or forward contracts of sale or other direct means; (d) Through consumer packages establishing brand names, etc. The 1st appellant's firm from the inception has been marketing tea in loose form ex factory in the domestic market. The main principle in marketing that the appellant has adopted has been to serve the ultimate consumer with good fresh tea at a reasonably stable and regulated price. In line with this policy, the 1st appellant's strategy has been to organise and widen the distribution network in keeping with the expanding production designed to reach the ultimate consumer as quickly and directly as possible with a particular steady, consistent and standard quality of tea at a reasonable price, containing the price fluctuations within a reasonable parameter, in order to produce a lasting adherence of the clientele to the appellant's tea. The 1st appellant has customers all over India. A majority of these customers buy from the 1st appellant at weekly intervals and some in biweekly intervals. By an order dated 19-4-1984 issued under Section 30(3) and (5) of the Act and published in the Government of India Gazette Extraordinary, titled "The Tea (Marketing Control) Order 1984", the Central Government has sought to regulate the marketing of tea in the domestic market. This control order prescribes that the manufacturers of tea should register themselves under the said order and has to furnish to the registering authority monthly returns in Form C prescribed therein. Under clause 17 of his Control Order, it is stipulated that every manufacturer of tea in the States of Assam, West Bengal, Tamil Nadu and Kerala has to sell in public auction not less than 70 per cent, or such other percentage as may be specific from time to time by the Tea Board, of the tea manufactured by him. Such public auctions are to be conducted only by the licensed auctioneers as prescribed therein. Clause 17 stipulates relaxation of the provisions of this Order under certain conditions. By virtue of this clause of the order the registering authority, viz. the second respondent is vested with discretion to relax all or any of the provisions of the control order if it is satisfied that any hardship will result to any manufacturer in complying with the order. By a subsequent order dated 22-3-1985 of the second respondent, the percentage of compulsory offering for auction sale has been increased from 70 per cent to 75 per cent as and from 2-3-1985. In view of the abovesaid provisions, the 1st appellant has been placed under compulsion to sell 70% (presently 75%) of its produce at the public auction. The effect of this order on the 1st appellant's right to carry on a trade is tellingly disastrous. What is left after the compulsory sale is 25 per cent. This margin of 25 per cent available for private sales under the control order is no solace, because the meagre quantity will not and cannot satisfy all the retailers of the appellant, who are 93 in number. The control order came into force within 90 days from 19-4-1984. As per clause 17 the 1st appellant applied to the Registering Authority to grant relaxation, for which an application dated 11-7-1984 was filed. The 1st appellant had raised various grounds for relaxation. By a non-speaking order dated 21/22-8-1984 the Registering Authority rejected the 1st appellant's prayer for exemption. As a result, the 1st appellant filed W.P. Nos. 10110 of 1984 and 1493 of 1985. In the former writ petition, the 1st appellant prayed for a declaration that the Control Order dated 19-4-1984 is ultra vires of the Act. In the latter writ petition, the 1st appellant sought to quash the order dated 21/22-8-1984 passed by the Tea Board/2nd respondent declining to grant exemption. Both these writ petitions came to be disposed of by a common order dated 23-9-1985. The order of the second respondent dated 21/22-8-1984 was quashed, directing the reconsideration of the same and in view of this it was held that it was unnecessary to consider the merits of the writ petition No. 10110 of 1984 and was dismissed as withdrawn. Subsequent to this, on 11-7-1984 a petition was filed for exemption. An enquiry took place. The second respondent passed an order dated 6-12-1985 rejecting the 1st appellant's prayer for exemption. It is under these circumstances, the three writ petitions have come to be preferred.
(3.)In writ petition No. 1444 of 1986, the 1st appellant challenged Section 30(3) of the Act on the grounds stated in paras 15 and 16 of the affidavit filed in support of the writ petition in the following terms;
"The matters provided in S. 30 relate to distribution of product of a controlled industry. In legislating upon the subject, parliament has delegated power to make subordinate legislation to the Government. There has been excessive delegation in this respect. The legislative subject is distribution of the produce of controlled commodity. In the matter of distribution of such commodity S. 30(1) and (2) relate to fixation of price. Sub-section (3) of Section 30 relates to prohibition of disposal of the product and direction to dispose of the product and direction to disposed of product in a particular manner respectively. There is absolute prohibition and also an absolute direction contemplated therein. But such absolute prohibition and direction will come into play in certain circumstances under certain conditions. The language of Section 30(3) is clear in this behalf. Certain circumstances and conditions contemplated therein are left undefined to be legislated upon. This is an essential legislative function which cannot be delegated. In this submission Section 30 of the Tea Act 29 of 1953 and in particular S. 30(3), (a)(b) and (c) suffer from excessive delegation and are therefore void. Even otherwise S. 30 suffers from the vice of arbitrariness. S. 30(3) contemplates the prohibition of the disposal of the product of a controlled industry. It also contemplates to a direction to dispose of such product to a person or a class of persons. Such prohibition and the direction could however come into operation only under certain circumstances and under certain conditions. The prohibition is contemplated to be absolute under certain circumstances. Similarly, the direction to dispose of the produce in a particular manner is also absolute under certain circumstances. But the law as regards what are the circumstances is left indefinitely and vague and is liable to be used in an arbitrary manner. It is significant that the prohibition and direction contemplated therein. In the absence of categorisation of those circumstances S. 30 of the Act in this respect is liable to be struck down as vague and arbitrary".