Govinda Chandra Panda and anr. Vs. State of Orissa and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/526439
SubjectCivil
CourtOrissa High Court
Decided OnMar-31-1997
Case NumberO.J.C. Nos. 4064 and 10495 of 1996
JudgeD.M. Patnaik and ;P.K. Misra, JJ.
Reported inAIR1997Ori172; 83(1997)CLT656; 1997(I)OLR497
ActsConstitution of India - Article 226; Orissa Agricultural Produce Market Act, 1957 - Sections 18A to 18G, 27 and 27(6); Orissa Agricultural Market Rules, 1958 - Rules 32, 33, 39, 39(2), 40 and 45B; Orissa General Clauses Act - Sections 24A(1)
AppellantGovinda Chandra Panda and anr.
RespondentState of Orissa and ors.
Appellant AdvocateR.K. Mohapatra and ;Jagannath Patnaik, Advs.
Respondent AdvocateA.S. Naidu, Adv. and ;A.K. Mohapatra, Addl. Government Adv.
DispositionPetitions partly allowed
Cases ReferredSukhram Singh v. Smt. Harbheji.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - air 1969 sc 1114 that sometimes statutes have a retrospective effect when the declared intention is clearly and unequivocally manifest from the language employed in the particular law or in the context of connected provisions.d.m. patnaik, j. 1. in both the writ petitions under articles 226 and 227 of the constitution of india, the petitioners invoke the extraordinary jurisdiction of this court to quash the notification dated 3-8-1996 (annexure 1 in o.j.c. no. 10495/96) of the co-operation department of the government of orissa amending the orissa agricultural produce markets rules, 1958 (for short, the 'rules') being arbitrary, unreasonable, against the public policy and ultra vires of the orissa agricultural produce markets act, 1956 (hereinafter referred to as the 'act'). 2. the petitioner in o.j.c. no. 4064 of 1996 is a member of sakhigopal regulated market committee in the district of puri and petitioner no. 1 in o.j.c. no. 10495 of 1996 is a life member of the bahada jhola regulated market committee and petitioner no. 2 is an ex-member of the said market committee in the district of nayagarh.their case is, the above market committees have been constituted under the provisions of the orissa agricultural produce market act, 1953 (act 3 of 1957). the members of the committee are elected representatives of the traders, agricultural producers, local bodies and officials nominated by the government. the marketing rules 1956 have been framed to carry out the purposes of the act. according to them, the above notification dated 3-8-1996 brought out substantial amendment of rules 25,33, sub-rule (2) of rule 39 and rule 45 of the rules by way of substitution and insertions.the said rules are challenged as arbitrary, unreasonable and ultra vires of the provisions of the act. it is claimed that rule 45(b) makes it obligatory for the market committee to contribute to the board's fund an additional percentage from out of the income of committee besides the statutory contribution of not less than 5% of its income as provided under section 18-g of the actand, therefore, the rule is ultra vires of the act. same is also the case in regard to the amendment of rule 33 vesting the power of approval with the board in the matters of appointment of officers and servants of the committee and in regard to the punishment pursuant to the disciplinary preceding in violation of section 9 of the act. amended rule 39(2) and rule 45 substituting the controlling and supervisory power of the director in the existing rules with that of the board is also claimed to be arbitrary, unreasonable, and against the direction and guideline of the ministry of rural development and directorate of marketing and inspector of the government of india. besides the above, the entire notification is challenged as invalid, unenforciable for not having been laid before the orissa legislative assembly as provided under section 27(6) of the act.3. opposite party no. 1. state of orissa through its under secretary in the department of cooperation and opposite party no. 2, the director through its administrative officer have filed two separate counter-affidavits pleading the amendments to be legal and justified.4. mr. r. k. mohapatra, learned counsel for the petitioner in o.i.c. no. 4064 of 1996, advanced extensive argument with reference to the provisions of the act. the existing rules and the amended rules (annexures 1 & 4). it was strenuously urged that the amended rules if enforced would work out to the utter detriment of the working of the market committee itself and thus are against public policy and unreasonable for which they should be struck down. besides, it was contended that the rules so amended are invalid for having not been laid before the orissa legislative assembly as per the mandatory provisions of section 27(6) of the act. in support of his contention the learned counsel relied on the case of indian aluminium company ltd. v. slate of orissa decided by this court in a.h.o. no. 47 of 1991 on 23-7-1993.mr. jagannath patnaik, learned counsel for the petitioners in o.j.c. no. 10495/96 supported the points advanced by mr. mohapatra, but then supplemented the same by contending that (he amendment to rule 33 giving unbriddled power to the board in the matter of appointments of officers and employees of the committee is impermissible being against the spirit of section 9 of the act and according to him, this would give rise to the scopefor misusing the power on political consideration. it was further contended by him that power conferred by the amended rules being contrary to the model act of the central government defining the power of the dircctor and the board should be declared ultra vires because for unreasonableness. commenting board's supervision as inefficient and purfunctory, mr. patnaik with reference to the press-clipping dated 18-10-96 published in the indian express under annexure-2 series submitted that the building worth rs. 3.3 lakhs of the jeypore regional marketing committee collapsed 10 days after its completion.5. mr. naidu learned counsel for the board on the other hand, submitted that sub-section (5) of section 27 of the act prescribes that all rules made shall be published in the gazette and become effective from the dale of such publication and according to the learned counsel, in the present case, draft-amendment having been notified as under annexure-l (ojc 4064/96) objection invited and considered and thereafter final notification having been made as under annexure-4. it was not further necessary to lay the rules before the legislative assembly.in other words, according to mr. naidu, matter of laying is directory but not mandatory as claimed by mr. mohapatra. it was however, contended by mr. naidu that rules which have come into force with effect from 3-8-96, i.e. the date of notification in the gazette, as a fact has been laid before the orissa legislative assembly when it commenced its session on 20-11-1996. it was therefore contended by the learned counsel that objection to any amendment could be raised before the assembly and the rules could be modified and amended and then the same would be made effective 'in consonance with the provisions of section 27(6) read with section 24-a of the orissa general clauses act.6. mr. a k. mohapatra, learned additional standing counsel relied on the decision in the case of bailey v. william son. reported in (1873) lr 8 qb 118 and submitted that since the amended rules have been duly notified in the official gazette, they could be held to be operative and therefore could be enforced until that time when the same is laid before the assembly and therefore any act done under the rules during that period cannot be rendered invalid.the rival contentions need examination.7. the following facts may he kept in mind before dealing with the main point.o.j.c. no. 4064 of 1996 was tiled on 6-4-96 when the rules were notified on 5-4-95 (annexure 1) in a draft form. the subsequent final notification came into effect on 3-8-96 (annexure 4). the petitioners, by way of amendment, challenge this final notification. the state, opposite party no. i through its under secretary filed a counter affidavit on 5-7-96 which was obviously before the final notification and did not contend any substantial denial of facts, particularly relating to laying. on 7-10-96 the matter was heard in part in the absence of a counter-affidavit by either the stale or the board. on 21-11-96 the opposite parly-board tiled a counter which indicated thai the rules had been laid in the orissa legislative assembly which commenced its session on 20-11-96. obviously, by then the laying could not have been for the entire prescribed period of 14 days. however, a memo along with letter no. 5764/la dated 5-3-97 has been filed by mr. naidu which indicates that the rules have boon laid for the prescribed period of 14 days as on 1-3-97. this subsequent development has adequately established that by now the rules have been laid and therefore they have become valid since 1-3-97.7-a. the question however remains as claimed by the petitioners as to the validity of any of the provisions under the amended rules.even if the rules have been laid before the legislative assembly that would not stand on our way to judge the validity or otherwise of the rules so challenged as held by the apex court in the cases of mukam charid v. union of india, air 1972 sc 2427. kerala stale electricity board v. the indian aluminium co. ltd., air 1976 sc 1031 and regional transport authority. chiltor v. associate transport. madras. air 1980 sc 1872.in the case of hukam chand (supra) the point was whether the central government could frame rules giving them retrospective effect. in para 11 of the judgment while giving out three types of laying, the supreme court held that:'...... the act of the central government inlaying the rules before each house of parliament would not, however, prevent the courts fromscrutinising the validity of the rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the rule making power of the central government.'in the said case there was a clause for laying the rule before the parliament, but the same had not been done. the court held that if the enabling section providing for framing rules did not spell out either expressly or by necessary implication the power of the central government to make rules with retrospective effect then in such event the government would have no power to make that rule. giving the underlying principle the apex court observed that unlike the sovereign legislature which has the power to enact laws with retrospective operation, the athority vested with the power of making subordinate legislation has to act within the limits of its power.in the case of kerala slate electricity board (air 1976 sc 1031) (supra) in para 25 of the judgment the court while dealing with the case of subordinate legislation held as follows :'........ we are. therefore, of opinion that thecorrect view is that not withstanding the subordinate legislation being laid on the table of the house of parliament or the state legislature and being subject to such modification, annulment or amendment as they may make, the subordinate legislation cannot be said to be valid unless it is within the scope of the rule making power provided in the statute.'the principles laid down in the case of hukam chand (air 1972 sc 2427) (supra) was quoted with approval in the subsequent decision in the ease of the regional transport authority. chittor (air 1980 sc 1872) (supra). the details of the facts is found to be rather unnecessary. therefore, notwithstanding the fact that the rules have been laid before the legislative assembly in strict compliance of the provisions of section 27(6) of the act it become imperative to judge the validity of the rules so amended as laid down by the apex court.8. challenge has been made to the rules 33.39. 40. 45-b as ultra vires of the act vide impugned notification dated 3-8-96 (annexures 1 and 4 respectively in the cases). rule 45-b is claimed to be inconsistent with the provision of section 18-g of the act. section 18-g relates to contribution to be paid by the marketing committee to theboard. the said section is quoted as under :' 18-g contribution to be paid to the board -every market committee shall, out of its funds, pay to the board as contribution such percentage of its income derived from licence fees and market fees not less than live percent of such income as may be prescribed to meet the expenses of the establishment of the board and also those incurred in the interest of the market committee.'the amended rule 45-b is in the followinglanguage:'45-b. contribution to be paid to the board - every market committee shall make contributions to the board as required under section 18-g of the act at a rate of live percentum of its gross income derived from licence fee and market fees in a market year, besides paying such an additional pcrcentum of the said income as may be fixed by the board in proportion to cost of the works of the market committee, executed in that year.'9. section 18-g of the act us quoted above is very clear and admits of no ambiguity that the contribution of the market committee to the board's fund to meet the expenses of the establishment of the board and expenses incurred for the interest of the market committee shall not be less than 5% of the income of the market committee. on a plain reading, the section does not spell out that besides the above contribution, market commitee shall be liable to pay any additional percentage of its income to be fixed by the board and this, according to the rule, shall be in proportion to the cost of the works under the market committee executed in that year. in other words, the section itself does not delegate the power to the state, government in making the market committee liable to pay any additional contribution besides the one-time contribution which shall not be less than 5% of the gross income and this certainly is not. the intention of the legislature in framing section 18-g. this being beyond the rule making power of the state. we declare the same as ultra vires of section 18-g of the act to the extent of inconsistency spell out therein.10. in regard to the challenge to the board's power of approval under amended rule 33 of the rules, it may be stated that no doubt section 9 of the act does not spell out any such approval by either the director or me board. the provisions ofthe section show that market committee is alone competent to appoint its own officers and servants. but clause (i) of section 18-b(1) of the act prescribes that, subject to the provisions of this act the board shall exercise the powers of superintendence and control over the working and other affairs of the market committees so on and so forth.therefore, vesting power of approval is not against the spirit of the main section of the act and we make clear that such power of approval with the board is not meant to he exercised lo create any huddle or impediment in the working of the market committee or with appointment of its officers and servants: and needless to point out that the board under the amended rules will he competent to point out any illegality or irregularity in the matter of appointment or punishment pursuant lo any disciplinary proceeding. the provision is not unreasonable nor is in conflict with the spirit of the act. but rather is aimed at achieving an effective control over the management of the committee. we do not find any reason to hold it ultra vires.11. so far as amended rules 39(2) and 45 are concerned, the controlling and the supervisory power of the director has been substituted with that of the board. we are unable to accept the argument of the learned counsel for the petitioners that the decision of the board will be backed by political consideration. the board being a duly constituted supervisory body is supposed to take an effective decision after deliberation among its members which normally would not have been the case, had (he power been vested with the director alone. further, we accept the case of the opposite parties that such an amendment has become necessary lo make it consistent with the power and functions of the board as prescribed in the newly amended provisions under sections 18-a to 18-g of the act. we therefore, do not find anything wrong in such amendment.12. then it becomes necessary to examine the contention of the learned counsel for the petitioners that since admittedly the rules were not laid before the legislative assembly by 3-8-96 all actions taken by the board under those rules during the period from 3-8-96 till 31-8-97 should be held to be invalid in the eye of law.it has been held by the apex court in the case of sukhram singh v. smt. harbheji. air 1969 sc 1114 that sometimes statutes have a retrospective effect when the declared intention is clearly and unequivocally manifest from the language employed in the particular law or in the context of connected provisions. it is always a questionwhether the legislature has sufficiently expresseditself.if this is the touchstone to find out the retrospectivity of an ad/rules, in the case at hand, on going through the provisions of section 27. sub-sections (5) and (6) and the amended rules, we have no hesitation to hold that various provisions of the rules were not meant to be effective from the date of their publication i.e 3-8-96. that apart, we accept the contention of mr. naidu, learned counsel for the board that section 24-a(l) of the orissa general clauses ad, 1957 will be applicable so as to make this rule effective and valid during the period. this is because the above section states that after the rules are laid, the legislature may amend the rules and they shall take effect in such modified form so that such modification 'shall be without prejudice to the validity of anything previously done under the law'. the intention and purpose of this saving clause is not to invalidate any action taken under the rules which have been duly notified in the official gazette. therefore, any action taken during the period cannot he invalid. this disposes also the argument of mr. mohapatra, learned counsel for the state. therefore, any action under these rules, unless the rules are declared ultra vires, shall remain valid.13. in the result, the writ petitions are allowed in part. the amended rule 45-b of the rules (vide annexures-1 and 4 respectively) is declared ultra vires to the extent indicated in the body of the judgment. no costs.p.k. mishra, j.14. i agree.
Judgment:

D.M. Patnaik, J.

1. In both the writ petitions under Articles 226 and 227 of the Constitution of India, the petitioners invoke the extraordinary jurisdiction of this Court to quash the notification dated 3-8-1996 (Annexure 1 in O.J.C. No. 10495/96) of the Co-operation Department of the Government of Orissa amending the Orissa Agricultural Produce Markets Rules, 1958 (for short, the 'Rules') being arbitrary, unreasonable, against the public policy and ultra vires of the Orissa Agricultural Produce Markets Act, 1956 (hereinafter referred to as the 'Act').

2. The petitioner in O.J.C. No. 4064 of 1996 is a member of Sakhigopal Regulated Market Committee in the district of Puri and petitioner No. 1 in O.J.C. No. 10495 of 1996 is a life member of the Bahada Jhola Regulated Market Committee and petitioner No. 2 is an ex-member of the said market committee in the district of Nayagarh.

Their case is, the above market committees have been constituted under the provisions of the Orissa Agricultural Produce Market Act, 1953 (Act 3 of 1957). The members of the committee are elected representatives of the traders, agricultural producers, local bodies and officials nominated by the Government. The Marketing Rules 1956 have been framed to carry out the purposes of the Act. According to them, the above notification dated 3-8-1996 brought out substantial amendment of Rules 25,33, Sub-rule (2) of Rule 39 and Rule 45 of the Rules by way of substitution and insertions.

The said rules are challenged as arbitrary, unreasonable and ultra vires of the provisions of the Act. It is claimed that Rule 45(b) makes it obligatory for the market committee to contribute to the Board's fund an additional percentage from out of the income of committee besides the statutory contribution of not less than 5% of its income as provided under Section 18-G of the Actand, therefore, the rule is ultra vires of the Act. Same is also the case in regard to the amendment of Rule 33 vesting the power of approval with the Board in the matters of appointment of officers and servants of the Committee and in regard to the punishment pursuant to the disciplinary preceding in violation of Section 9 of the Act. Amended Rule 39(2) and Rule 45 substituting the controlling and supervisory power of the Director in the existing rules with that of the Board is also claimed to be arbitrary, unreasonable, and against the direction and guideline of the Ministry of Rural Development and Directorate of Marketing and Inspector of the Government of India. Besides the above, the entire notification is challenged as invalid, unenforciable for not having been laid before the Orissa Legislative Assembly as provided under Section 27(6) of the Act.

3. Opposite party No. 1. State of Orissa through its under secretary in the Department of Cooperation and Opposite party No. 2, the Director through its Administrative Officer have filed two separate counter-affidavits pleading the amendments to be legal and justified.

4. Mr. R. K. Mohapatra, learned counsel for the petitioner in O.I.C. No. 4064 of 1996, advanced extensive argument with reference to the provisions of the Act. the existing Rules and the amended rules (Annexures 1 & 4). It was strenuously urged that the amended Rules if enforced would work out to the utter detriment of the working of the Market Committee itself and thus are against public policy and unreasonable for which they should be struck down. Besides, it was contended that the rules so amended are invalid for having not been laid before the Orissa Legislative Assembly as per the mandatory provisions of section 27(6) of the Act. In support of his contention the learned counsel relied on the case of Indian Aluminium Company Ltd. v. Slate of Orissa decided by this Court in A.H.O. No. 47 of 1991 on 23-7-1993.

Mr. Jagannath Patnaik, learned counsel for the petitioners in O.J.C. No. 10495/96 supported the points advanced by Mr. Mohapatra, but then supplemented the same by contending that (he amendment to Rule 33 giving unbriddled power to the Board in the matter of appointments of officers and employees of the Committee is impermissible being against the spirit of Section 9 of the Act and according to him, this would give rise to the scopefor misusing the power on political consideration. It was further contended by him that power conferred by the amended rules being contrary to the Model Act of the Central Government defining the power of the Dircctor and the Board should be declared ultra vires because for unreasonableness. Commenting Board's supervision as inefficient and purfunctory, Mr. Patnaik with reference to the press-clipping dated 18-10-96 published in the Indian Express under Annexure-2 series submitted that the building worth Rs. 3.3 lakhs of the Jeypore Regional Marketing Committee collapsed 10 days after its completion.

5. Mr. Naidu learned counsel for the Board on the other hand, submitted that Sub-section (5) of Section 27 of the Act prescribes that all rules made shall be published in the gazette and become effective from the dale of such publication and according to the learned counsel, in the present case, draft-amendment having been notified as under Annexure-l (OJC 4064/96) objection invited and considered and thereafter final notification having been made as under Annexure-4. it was not further necessary to lay the rules before the Legislative Assembly.

In other words, according to Mr. Naidu, matter of laying is directory but not mandatory as claimed by Mr. Mohapatra. It was however, contended by Mr. Naidu that rules which have come into force with effect from 3-8-96, i.e. the date of notification in the gazette, as a fact has been laid before the Orissa Legislative Assembly when it commenced its session on 20-11-1996. It was therefore contended by the learned counsel that objection to any amendment could be raised before the Assembly and the rules could be modified and amended and then the same would be made effective 'in consonance with the provisions of Section 27(6) read with Section 24-A of the Orissa General Clauses Act.

6. Mr. A K. Mohapatra, learned Additional Standing counsel relied on the decision in the case of Bailey v. William Son. reported in (1873) LR 8 QB 118 and submitted that since the amended rules have been duly notified in the official gazette, they could be held to be operative and therefore could be enforced until that time when the same is laid before the Assembly and therefore any act done under the rules during that period cannot be rendered invalid.

The rival contentions need examination.

7. The following facts may he kept in mind before dealing with the main point.

O.J.C. No. 4064 of 1996 was tiled on 6-4-96 when the rules were notified on 5-4-95 (Annexure 1) in a draft form. The subsequent final notification came into effect on 3-8-96 (Annexure 4). The petitioners, by way of amendment, challenge this final notification. The State, opposite party No. I through its Under Secretary filed a counter affidavit on 5-7-96 which was obviously before the final notification and did not contend any substantial denial of facts, particularly relating to laying. On 7-10-96 the matter was heard in part in the absence of a counter-affidavit by either the Stale or the Board. On 21-11-96 the opposite parly-Board Tiled a counter which indicated thai the rules had been laid in the Orissa Legislative Assembly which commenced its session on 20-11-96. Obviously, by then the laying could not have been for the entire prescribed period of 14 days. However, a memo along with letter No. 5764/LA dated 5-3-97 has been filed by Mr. Naidu which indicates that the rules have boon laid for the prescribed period of 14 days as on 1-3-97. This subsequent development has adequately established that by now the rules have been laid and therefore they have become valid since 1-3-97.

7-A. The question however remains as claimed by the petitioners as to the validity of any of the provisions under the amended rules.

Even if the Rules have been laid before the Legislative Assembly that would not stand on our way to judge the validity or otherwise of the rules so challenged as held by the apex court in the cases of Mukam Charid v. Union of India, AIR 1972 SC 2427. Kerala Stale Electricity Board v. The Indian Aluminium Co. Ltd., AIR 1976 SC 1031 and Regional Transport Authority. Chiltor v. Associate Transport. Madras. AIR 1980 SC 1872.

In the case of Hukam Chand (supra) the point was whether the Central Government could frame rules giving them retrospective effect. In para 11 of the judgment while giving out three types of laying, the Supreme Court held that:

'...... The act of the Central Government inlaying the rules before each House of Parliament would not, however, prevent the Courts fromscrutinising the validity of the rules and holding them to be ultra vires if on such scrutiny the rules are found to be beyond the rule making power of the Central Government.'

In the said case there was a clause for laying the rule before the Parliament, but the same had not been done. The Court held that if the enabling section providing for framing rules did not spell out either expressly or by necessary implication the power of the Central Government to make rules with retrospective effect then in such event the government would have no power to make that rule. Giving the underlying principle the apex Court observed that unlike the sovereign legislature which has the power to enact laws with retrospective operation, the athority vested with the power of making subordinate legislation has to act within the limits of its power.

In the case of Kerala Slate Electricity Board (AIR 1976 SC 1031) (supra) in para 25 of the judgment the Court while dealing with the case of subordinate legislation held as follows :

'........ We are. therefore, of opinion that thecorrect view is that not withstanding the subordinate legislation being laid on the table of the House of Parliament or the State Legislature and being subject to such modification, annulment or amendment as they may make, the subordinate legislation cannot be said to be valid unless it is within the scope of the rule making power provided in the statute.'

The principles laid down in the case of Hukam Chand (AIR 1972 SC 2427) (supra) was quoted with approval in the subsequent decision in the ease of the Regional Transport Authority. Chittor (AIR 1980 SC 1872) (supra). The details of the facts is found to be rather unnecessary. Therefore, notwithstanding the fact that the rules have been laid before the Legislative Assembly in strict compliance of the provisions of Section 27(6) of the Act it become imperative to judge the validity of the rules so amended as laid down by the Apex Court.

8. Challenge has been made to the rules 33.39. 40. 45-B as ultra vires of the Act vide impugned notification dated 3-8-96 (Annexures 1 and 4 respectively in the cases). Rule 45-B is claimed to be inconsistent with the provision of Section 18-G of the Act. Section 18-G relates to contribution to be paid by the Marketing Committee to theBoard. The said section is quoted as under :

' 18-G Contribution to be paid to the Board -Every Market Committee shall, out of its funds, pay to the Board as contribution such percentage of its income derived from licence fees and market fees not less than live percent of such income as may be prescribed to meet the expenses of the establishment of the Board and also those incurred in the interest of the Market Committee.'

The amended Rule 45-B is in the followinglanguage:

'45-B. Contribution to be paid to the Board - Every Market Committee shall make contributions to the Board as required under Section 18-G of the Act at a rate of live percentum of its gross income derived from licence fee and market fees in a market year, besides paying such an additional pcrcentum of the said income as may be fixed by the Board in proportion to cost of the works of the Market Committee, executed in that year.'

9. Section 18-G of the Act us quoted above is very clear and admits of no ambiguity that the contribution of the market committee to the Board's fund to meet the expenses of the establishment of the Board and expenses incurred for the interest of the market committee shall not be less than 5% of the income of the market committee. On a plain reading, the section does not spell out that besides the above contribution, market commitee shall be liable to pay any additional percentage of its income to be fixed by the Board and this, according to the rule, shall be in proportion to the cost of the works under the market committee executed in that year. In other words, the section itself does not delegate the power to the State, Government in making the market committee liable to pay any additional contribution besides the one-time contribution which shall not be less than 5% of the gross income and this certainly is not. the intention of the legislature in framing Section 18-G. This being beyond the rule making power of the State. we declare the same as ultra vires of Section 18-G of the Act to the extent of inconsistency spell out therein.

10. In regard to the challenge to the Board's power of approval under amended Rule 33 of the Rules, it may be stated that no doubt Section 9 of the Act does not spell out any such approval by either the Director or me Board. The provisions ofthe section show that market committee is alone competent to appoint its own officers and servants. But clause (i) of Section 18-B(1) of the Act prescribes that, subject to the provisions of this Act the Board shall exercise the powers of superintendence and control over the working and other affairs of the Market Committees so on and so forth.

Therefore, vesting power of approval is not against the spirit of the main section of the Act and we make clear that such power of approval with the Board is not meant to he exercised lo create any huddle or impediment in the working of the Market Committee or with appointment of its officers and servants: and needless to point out that the Board under the amended rules will he competent to point out any illegality or irregularity in the matter of appointment or punishment pursuant lo any disciplinary proceeding. The provision is not unreasonable nor is in conflict with the spirit of the Act. but rather is aimed at achieving an effective control over the management of the Committee. We do not find any reason to hold it ultra vires.

11. So far as amended Rules 39(2) and 45 are concerned, the controlling and the supervisory power of the Director has been substituted with that of the Board. We are unable to accept the argument of the learned counsel for the petitioners that the decision of the Board will be backed by political consideration. The Board being a duly constituted supervisory body is supposed to take an effective decision after deliberation among its members which normally would not have been the case, had (he power been vested with the Director alone. Further, we accept the case of the opposite parties that such an amendment has become necessary lo make it consistent with the power and functions of the Board as prescribed in the newly amended provisions under Sections 18-A to 18-G of the Act. We therefore, do not find anything wrong in such amendment.

12. Then it becomes necessary to examine the contention of the learned counsel for the petitioners that since admittedly the rules were not laid before the Legislative Assembly by 3-8-96 all actions taken by the Board under those rules during the period from 3-8-96 till 31-8-97 should be held to be invalid in the eye of law.

It has been held by the Apex Court in the case of Sukhram Singh v. Smt. Harbheji. AIR 1969 SC 1114 that sometimes statutes have a retrospective effect when the declared intention is clearly and unequivocally manifest from the language employed in the particular law or in the context of connected provisions. It is always a questionwhether the legislature has sufficiently expresseditself.

If this is the touchstone to find out the retrospectivity of an Ad/Rules, in the case at hand, on going through the provisions of Section 27. Sub-sections (5) and (6) and the amended Rules, we have no hesitation to hold that various provisions of the rules were not meant to be effective from the date of their publication i.e 3-8-96. That apart, we accept the contention of Mr. Naidu, learned counsel for the Board that Section 24-A(l) of the Orissa General Clauses Ad, 1957 will be applicable so as to make this rule effective and valid during the period. This is because the above section states that after the rules are laid, the Legislature may amend the rules and they shall take effect in such modified form so that such modification 'shall be without prejudice to the validity of anything previously done under the law'. The intention and purpose of this saving clause is not to invalidate any action taken under the rules which have been duly notified in the official Gazette. Therefore, any action taken during the period cannot he invalid. This disposes also the argument of Mr. Mohapatra, learned counsel for the State. Therefore, any action under these rules, unless the rules are declared ultra vires, shall remain valid.

13. In the result, the writ petitions are allowed in part. The amended Rule 45-B of the Rules (vide Annexures-1 and 4 respectively) is declared ultra vires to the extent indicated in the body of the judgment. No costs.

P.K. Mishra, J.

14. I agree.