Decided on October 31,1967



- (1.) THIS application under Articles 226 and 227 of the Constitution is by M/s. Chhotabhai Jetbabhai Patel and Co. , Sagar, a firm encased in the business of manufacture and sale of Bidis and one of its partners Jhaverbhai for the issue of a writ of certiorari for quashing an order of the respondents Nos. 2 and 3 passed on 16th August 1965 seizing 9007 bags of tendu leaves weighing 2341. 25 quintals imported by the petitioners by rail from Garwah Road (Bihar) to Sagar and 256 bags of tendu leaves weighing 130. 56 quintals imported from Bindoumganj railway-station, Eastern Railway (Bihar), to Sagar. A complaint has also been filed against the petitioners in the Court of the Magistrate. First Class, Sagar, for find-Ing them guilty for importing the aforesaid tendu leaves contrary to the provisions of Section 5 of the Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Adhiniyam, 1964 (hereinafter referred to as the Act) The petitioners pray that the proceedings initiated on this complaint be also quashed by issue of a writ of rertiorari
(2.) BEFORE stating the material facts and dealing with the contentions advanced on behalf of the parties it is necessary to refer to the relevant provisions of the Act. The Madhya Pradesh Tendu Patta (Vyapar Viniyaman) Adhiniyam, 1964, is a legislation enacted "for regulating in the public interest the trade of Tendu leaves by creation of State monopoly in such trade". Section 1 (3) of the Act lays down that it shall come into force in such area or areas and on such date or dates as the state Government may, by notification, specify. The Act came into force in the whole of Madhya Pradesh with effect from 28th November 1964. Section 2 (d)defines "grower of tendu leaves" "specified area" has been defined by Section 2 (h)as meaning "the area specified in notification under Sub-section (3) of Section 1". Section 3 enables the State Government to divide the area in which the Act has been brought into force into such number of units as it may deem fit. The next section, namely Section 4, inter alia lays down that the State Government may, for the purpose of purchase ot, and trade in, tendu leaves on its behalf, appoint agents in respect of different units. Section 5, which is very material here runs as follows: "5. Restriction on purchase or transport of tendu-leaves -- (1) on the issue of a notification under Sub-section (3) of Section 1 in any area no person other than,- (a) the State Government; (b) an officer of State Government authorised in writing in that behalf; or (c) an agent in respect of the unit in which the leaves have grown; shall purchase or transport tendu leaves. Explanation I--Purchase of tendu leaves from the State Government or the aforesaid Government Officer or agent shall not be deemed to be a purchase in contravention of the provisions of this Act. Explanation II--A person having no interest in the holding who has acquired the right to collect tendu leaves grown on such holding shall be deemed to have purchased such leaves in contravention of the provisions of this Act. (2) Notwithstanding anything contained in Sub-section (1)- (a) a grower of tendu leaves may transport his leaves from any place within the unit wherein such leaves have grown to any other place in that unit; and (b) tendu leaves purchased from the State Government or any officer or agent specified in the said sub-section by any person for manufacture of bidis within the State or by any person for sale outside the State may be transported by such person outside the unit in accordance with the terms and conditions of a permit to be issued in that behalf by such authority and in such manner as may be prescribed. (3) Any person desiring to sell tendu leaves may sell them to the aforesaid Government officer or agent at any depot situated within the said unit. " Under Sections 6, 7 and 9 tendu leaves are purchased from growers by the State government or its authorized officers or agents at a price fixed by it in consultation with an Advisory Committee constituted under Section 6. The State government, its authorized officers and agents have also been given power by section 9 to refuse to purchase any leaves which in their opinion are not fit for the purpose of manufacture of Bidis. If any person is aggrieved by the rejection of his tendu leaves, he can make a complaint to the Divisional Forest Officer concerned. On receipt of such a complaint and on holding an enquiry if the Divisional Forest officer finds that the leaves were wrongly rejected, he may, if he considers the leaves in question still suitable for the manufacture of Bidis, purchase them and pay the price and compensation according to Section 9 (3) (a) or if he considers that the leaves in question are unsuitable for manufacture of Bidis, direct the payment to the person aggrieved, of the amount mentioned in Clause (b) of section 9 (3 ). Under Sub-section (4) of Section 9 the State Government can appropriate the leaves if there is reason to believe that the leaves appertain to forests or lands belonging to the State Government. Section 10 is concerned with the registration of growers of tendu leaves. Section 11 deals with registration of manufacturer of Bidis and exporters of tendu leaves. Section 12 prescribes that tendu leaves purchased by the State Government or be its officers or agents shall be sold or otherwise disposed of in such manner as the State Government may direct. Section 19 empowers the State Government to make rules to carry out all or anv of the provisions of the Act. By Sub-section (2) of Section 19 it is provided that the rules may provide for all or any of the matters enumerated in that subsection. The other provisions of the Act are not relevant here
(3.) RULE 9 of the Rules framed under the Act and intituled 'the Madhya Pradesh tendu Patta (Vyapar Viniyaman) Niyamavali, 1965' prescribes the procedure for issue of transport permits. It reads as under: "9. Procedure for issue of transport permit.- (1) Application for issue of transport permit under Clause (b)of Sub-section (2) of Section 5 shall be in Form 'm' and shall be submitted to the Divisional Forest Officer or any other officer authorised by him in writing, who shall be competent to grant the permit: provided that the said Officer, if he has reason to believe that the leaves in respect of which the application has been made have not been purchased from Government or their Officer or agent, may, after giving the applicant such opportunity of being heard as he may in the circumstances deem fit, reject such application by an order in writing, recording the reasons for such rejection. (2) Transport permit shall be in Form 'n' and shall be subject to the following conditions: (a) The leaves shall be transported only by the route specified in the permit and shall be produced for checking at such place or places as may be specified therein. (b) Except with the permission in writing of the divisional Forest Officer or of an officer authorised by him in this behalf, the leaves shall not be transported outside the Unit at any time after sunset and before sunrise (c) The permit shall be valid for such period as may be specified therein. " The prescribed form 'm' in which an application for a transport permit has to be made is as follows: form 'm' [see Rule 9 (1)] "form of application for grant of transport Permit (a) Name of the Applicant. (b) Quantity (in bags) of tendu leaves purchased-- (i) Actual bags. . . . . . (ii) Standard bags. . . . . (c) Unit in which purchased. (d) Place or places where the Tendu leaves are stored. If at more than one place, specify the quantity at each place. (e) Destination to which the leaves are to be transported. (f) Mode of transport. (g) Routes by which the leaves are to to be transported (h) Place or places where transported leaves will be stored. Certificate (S) of Sale is/are herewith enclosed. Place. . . . . Date. . . . . Signature of the Applicant" it must be stated here that the Rules framed under the Act define in Rule 2 (10) a "transport permit" as "a permit issued under Clause (b) of Sub-section (2) of section 5 for transport of tendu leaves outside the unit ";

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