R.K. Deshpande, J.

1. The challenge in this petition is to the validity of Rule 6(b) of the Seeds Rules, 1968 empowering the Certification Agency to prescribe the outline procedure for submission of applications and for growing, harvesting, processing, storage and labeling of seeds intended for certification till the end, to ensure that seed lots finally approved for certification are true variety and meet prescribed standards for certification under the Seeds Act, 1966 or the Rules framed there under.

Challenge to the validity of Rule 6(b) of the Seeds Rules :

2. Shri Sunil Manohar, the learned Senior Advocate, assisted by Shri Shantanu Khedkar, Advocate, appearing for the petitioners, submits that the provision of Rule 6(b) of the Seeds Rules is ultra vires the provision of Section 25(2)(f) of the Seeds Act, which empowers the Central Government to make rules to be published in the official gazette by issuing notification in respect of the form of application for grant of a certificate under Section 9, the particulars, it may contain, the fees which should accompany it, the form of certificate and the conditions subject to which the certificate may be granted. According to him, the requirement contained in Rule 6(b) of the Seeds Rules can only be prescribed by the Central Government in exercise of its rulemaking power conferred by Section 25(2)(f) of the Seeds Act and it cannot be the subject-matter of delegation to the Certification Agency, as has been done by Rule 6(b) of the said Rules.

Prima facie consideration :

3. We find that prima facie case is made out in respect of challenge to the validity of Rule 6(b) of the Seeds Rules being ultra vires the provision of Section 25(2)(f) of the Seeds Act.

4. Hence, Admit.

5. Shri Aurangabadkar, the learned Assistant Solicitor General of India, waives service of notice for the respondent No.1; and Shri Ghurde, the learned Assistant Government Pleader, waives service of notice for the respondent Nos.2 and 3.

Objection to grant declaration as to invalidity :

6. The first question, which arises for consideration, is whether notice to the Attorney-General is required to be issued to consider the challenge to the validity of Rule 6(b) of the Seeds Rules, 1968. Though on the last occasion we passed an order that the matter shall be decided finally at the stage of admission, no notice was issued to the Attorney-General. Shri Aurangabadkar, the learned Assistant Solicitor General of India, submits that this notice is mandatory. We put a specific question to Shri Aurangabadkar and the Senior Advocate Shri Sunil Manohar to point out to us any provision under the Constitution of India or any other law for the time being in force, requiring this Court to issue notice of challenge to the provision in the Central enactment or the Rules, Regulations, Control Order, Manual, etc., issued therein to the Attorney-General of India or in case of any State enactment or Rules, Regulations, Control Order, Manual, etc., issued therein to the Advocate-General of the State.

Provision requiring notice to be issued to the Attorney-General or the Advocate-General :

7. It is conceded by the learned counsels appearing for the parties that there is no provision either in the Constitution of India or in any other law for the time being in force, except Order XXVIIA of the Code of Civil Procedure containing the requirement of issuance of notice in a case where the question as is referred to in Clause (1) of Article 132 read with Article 147 of the Constitution of India is involved to issue notice of challenge either to the Attorney-General in case of the Central enactment or to the Advocate-General of the State in case of the State enactment. We have no hesitation to accept this position.

Questions posed by the Court :

8. We then put up the following questions to both the learned counsels :

(1) Whether the requirement of Order XXVIIA of the Code of Civil Procedure is so mandatory that the Court becomes incompetent to g