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High Court Of Madhya Pradesh
P. V. Dixit, C. J. and K. L. Pandey, J.
FIRM VRAJLAL MANILAL AND CO - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Misc. Petn. 439 Of 1965
Decided On : 04/22/1966
Clause (b) of sub-section (2) of section 5 of the Act permits a purchaser of Tendu leaves from the State Government or any Officer or agent for manufacture of Bidis within the State or for sale outside the State to transport the leaves "outside the unit in accordance with the terms and conditions of a permit to be issued in that behalf" by the prescribed authority. The expression "may be transported by such person outside the unit" refers not only to the transport of leaves from a place inside the unit to one outside it, but also to the transport of leaves from one place to another outside the limits of the unit.
A permit is necessary for transport of Tendu leaves by a purchaser not only when he desires to take the leaves from within the limits of the unit of purchase to a place outside it, but also when he wants to transport the leaves from one place to another outside the unit. 1966 JLJ 847 referred to. [Para 11]
(2) Tedu Patta (Vypar Viniyaman) Adhiniyam, 1964 (M. P.) - S. 5 - Constitution of India - Art. 19(1) & (6) -sub-section (1) of section 5 of the Act creates monoploy in favour of the State - protected by Art. 19 (6) of the Constitution-sub-section (2) liberalises the restriction and is valid.
Article 19(6) of the Constitution, as amended by the Constitution (First Amendment) Act, 1951, inter alia lays down that noting in sub-clause (g) of Article 19(1) shall prevent the State from making any law relating to the carrying on by the State of any trade, business, industry etc., whether to the exclusion, complete or partial, of citizens or otherwise. This provision precludes the Court from questioning the reasonableness of a law which creates a monopoly in favour of the State itself to carry on a trade to the exclusion of the citizens. Section 5 (1) of the Act being a provision creating a monolopy in favour of the State in the trade of Tendu leaves is thus completely protected by the latter part of Article 19(6) of the Constitution. If the restriction imposed by section 5 (1) on the transport of Tendu leaves is thus valid, then it follows that sub-section (2), which only liberalises the restriction in regard to transport, is a fortiori valid. [Para 13]
Section 5 (2) (b) of the Act permits the authorities to control the movement of Tendu leaves after they are take n out of the limits of the unit and that provision does not in any way infringe the petitioners' rights under Article 19(1)(f) and (g) of the Constitution. AIR 1963 SC 1047 relied on. [Para 15]
( 1 ) THIS application under article 226 of the Constitution by a partnership firm, engaged in the business of manufacture and sale of Bidis, and one of the partners of the firm is for the issue of a direction restraining the respondents from giving effect to the instructions issued by the Divisional Forest Officer, Sagar Division, on 4th June 1965 and 12th October 1965 with regard to the movement of Tendu leaves. The petitioners also pray that the respondents be prohibited from imposing any restrictions on the transport of Tendu leaves for the purpose of storing and using them in the manufacture of Bidis.
( 2 ) THE matter arises thus. In 1964 the Madhya Pradesh Tendu Patta (Vyapar viniyaman) Adhiniyam, 1964, (hereinafter referred to as the Act) was enacted "for regulating in the public interest in the trade of Tendu Leaves by creation of State monopoly in such trade". Section 1 (3) of the Act provides 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 area specified in the notification under Section 1 (3) has been defined as "specified area" by Section 2 (h ). Section 3 lays down that the State Government may divide every specified area into such number of units as it may deem fit. By Section 4. It is provided that the State Government may, for the purpose of purchase of, and trade in, Tendu leaves on its behalf, appoint agents in respect of different units. Section 5 (1) of the Act provides that on the issue of a notification under Sub-section (3) of Section 1 bringing the Act into force in any area, no person other than the State Government or an officer of the state Government authorised in writing in that behalf, or an agent in respect of the unit in which Tendu leaves have grown, shall purchase or transport Tendu leaves. Subsection (2) of Section 5, which is material here, runs as follows:
" (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 ) RULE 9 of the rules bearing the title "madhya Pradesh Tendu Patta (Vyapar viniyaman) Niyamavali, 1965, framed by the Government in the exercise of powers conferred on it by Section 19 of the Act, laid down the procedure for the issue of transport permit. This rule was in force on the dates on which the divisional Forest Officer, Sagar Division, issued instructions concerning the movement of Tendu leaves and in regard to which the petitioners seek a prohibitory direction. That rule ran as follows:
"9 (1) Application for Issue of transport permit under clause (b) of Subsection (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 die 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 w
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