IN THE

HIGH COURT OF RAJASTHAN

AT JODHPUR

Writ Petition No.:........./2011

(Under Article 226 of the Constitution of India, 1950)

IN THE MATTER OF:

RAM GOPAL………………………………………………..PETITIONER
V.

STATE OF RAJASTHAN……………………………………..RESPONDENT

- MEMORIAL ON BEHALF OF THE PETITIONER -

- ROLL NO. 605 -
 TABLE OF CONTENTS

INDEX OF AUTHORITIES I
STATEMENT OF FACTS
III
STATEMENT OF JURISDICTION
IV
ISSUES FOR CONSIDERATION V
SUMMARY OF ARGUMENTS VI
WRITTEN SUBMISSIONS 1
PRAYER FOR RELIEF 5
 -I-

TABLE OF CONTENTS......................................................................................................................................I

INDEX OF AUTHORITIES.................................................................................................................................I

B.K. SRINIVASAN V. STATE OF KARNATAKA, (1987) 1 SCC 658..........................................................II

GOVINDLAL V. AGRICULTURE PRODUCE MARKET COMMITTEE, AIR 1976 SC 263.................II

HARLA V. STATE OF RAJASTHAN, AIR 1951 SC 467...............................................................................II

I.T.C. BHADRACHALAM PAPER BOARDS V. MANDAL REVENUE OFFICER, ANDHRA

PRADESH, (1996) 6 SCC 634 .............................................................................................................................II

STATE OF U.P. V. KISHORI LAL, AIR 1980 SC 680....................................................................................II

JOINT CHIEF CONTROLLER OF IMPORTS AND EXPORTS V. AMINCHAND, AIR 1966 SC 478..II

NARENDRA KUMAR V. UOI, AIR 1960 SC 430 ...........................................................................................II

SAMBU NATH JHA V. KEDAR PRASAD SINHA, AIT 1972 SC 1515.......................................................II

STATE OF MAHARASHTRA V. GEORGE, AIR 1965 SC 722....................................................................II

STATEMENT OF FACTS.................................................................................................................................III

STATEMENT OF JURISDICTION.................................................................................................................IV

ISSUES FOR CONSIDERATION......................................................................................................................V

SUMMARY OF ARGUMENTS........................................................................................................................VI

WRITTEN SUBMISSIONS.................................................................................................................................1

PRAYER FOR RELIEF.......................................................................................................................................5

INDEX OF AUTHORITIES

BOOKS:
I.P. Massey, Administrative Law, (7th Edition, 2008, Eastern Book Co., Lucknow)

Wade & Forsyth, Administrative Law (Oxford University Press, Oxford,10th Edition,
2009)

Prof. M.P.Jain , Indian Constitutional Law, ( Fifth edition ,2008 , LexisNexis

Butterworths Wadhwa , Nagpur)

CASES:
 - II -

B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658

Govindlal v. Agriculture Produce market committee, AIR 1976 SC 263

Harla v. State of Rajasthan, AIR 1951 SC 467

I.T.C. Bhadrachalam Paper Boards v. Mandal Revenue Officer, Andhra Pradesh,

(1996) 6 SCC 634

State of U.P. v. Kishori Lal, AIR 1980 SC 680

Joint Chief Controller of Imports and Exports v. Aminchand, AIR 1966 SC 478

Narendra Kumar v. UOI, AIR 1960 SC 430

Sambu Nath Jha v. Kedar Prasad Sinha, AIT 1972 SC 1515

State of Maharashtra v. George, AIR 1965 SC 722

 - III -

• STATEMENT OF FACTS

The Petitioner most humbly submit that:

• The Rajasthan Legislature passed the Agriculture Produce Act, 2010 to regulate trade
in essential agricultural products.
• The Act delegated power to the government to add any other produce, subject to the
conditions that the rules shall be published in a Hindi daily having all-State
circulation prior to making additions, the objections be considered, the rules be
published in the Gazette after finalisation and finally a copy of the Rules be placed in
the House.
• The Government made a rules related to trade in ginger but the rules were published
in a Hindu daily and after considering the objections it was published in a Hindi and
English daily having an all-State circulation. Further, the rules were placed in the
House in the following session after being finalised.
• Ram Gopal was being prosecuted under this provision and challenged the FIR on the
basis that the Rules were not valid.

Hence the present petition before the Honourable High Court

 - IV -

STATEMENT OF JURISDICTION

It is most humbly submitted before this Honourable Court that it has the requisite jurisdiction
to entertain the present suit and adjudge accordingly.
 -V-

ISSUES FOR CONSIDERATION

I. WHETHER THE RULES MADE BY THE GOVERNMENT ARE VALID AND ENFORCEABLE?
 - VI -

SUMMARY OF ARGUMENTS

I. THE RULES MADE BY THE GOVERNMENT ARE INVALID AND ENFORCEABLE.

• Judicial control may be exercised where the rules and regulations are ultra
vires the procedure laid down in the act. The legislature stipulated a
publication of the draft in Hindi given that few farmers in India understand
English. The publication of the draft in an English daily was to no avail and in
fact does not amount to a substantial compliance of the procedure laid down
by the parent act.

• Where the parent statute prescribes the mode of publication or promulgation,

that mode must be followed. Such a requirement is imperative and cannot be
dispensed with.
 -1-

WRITTEN SUBMISSIONS

1. THE RULES MADE BY THE GOVERNMENT ARE INVALID AND ENFORCEABLE.

I.1 Rules are ultra vires the procedure of the Act

Judicial control may be exercised where the rules and regulations are ultra vires the
procedure laid down in the act. This procedure includes the manner in which the rules
are to be published. The Agriculture Produce Act

I.2 Rules of Ante-natal are not complied with

Ante-natal publication has been considered to be mandatory by the Indian courts. A
situation where the rule-making authority is obligated to publish the proposed rules
and regulations allows for democratization of the rule-making process.

In the case at hand, the parent act required that before making any addition to the
schedule of the Agriculture Produce Act, 2010, the rules were to be published in a
Hindi daily with state wide circulation. However, the rules were only published in an
English daily.

In fact, in a case where the Act provided that rules and regulations in the draft form
should be published in an Oriya daily but the rules were published in an English daily,
the Supreme Court held such rules to be violative of procedure laid down in the Act.1

In another case, the Act laid down that draft rules must be published in the Gazette
and a Gujarati newspaper. However, they were only published in the Gazette. The
Court held that there wasn’t any substantial compliance because the act applied to the
common man and the common man does not read the Gazette. The court further
commented that the accessibility of the law was a very important factor.2

It has been held that a newspaper today has become a basic medium for
communication with the people. Its effectiveness in that regard cannot be disputed,

1
ibid
2
Govindlal v. Agriculture Produce market committee, AIR 1976 SC 263
 -2-

even as its influence in the dissemination of information cannot be

underestimated. To reach out to the people, it must be published in a language with
which they are familiar.3 In the case at hand, the act relates to agricultural produce and
is of maximum relevance to the farmers concerned. Clearly, it is with this fact in mind
that the legislature stipulated a publication of the draft in Hindi given that few farmers
in India understand English. Thus, the publication of the draft in an English daily was
to no avail and in fact does not amount to a substantial compliance of the procedure
laid down by the parent act.

I.3 Rules of post-natal publication were not complied with

Post-natal publicity is a necessary element in the rule-making process because the
dictum that ignorance of law is no excuse is based on the justification that laws are
accessible to the public. Where the parent statute describes a mode of publication, that
mode must be adhered to.

Publication of rules in the official gazette is considered to have several advantages

such-

(i) It renders certainty to the rules and creates a certainty that the rules have been
duly made.

(ii) It allows for easy access to the concerned individuals, since it provides for all
rules made under almost any statute.

In a case where the mode of publication has not been provided for in the parent
statute, the court held that even then, publication is essential4 and the usual method of
bringing a rule to the notice of the concerned persons was to publish it in the gazette.5

3
State of Orissa Vs. Sridhar Kumar Mallik, AIR1985SC1411
4
Harla v. State of Rajasthan, AIR 1951 SC 467; B.K. Srinivasan v. State of Karnataka,
(1987) 1 SCC 658
5
State of Maharashtra v. George, AIR 1965 SC 722
 -3-

In a case where the parent statute provides that the rules ought to be published
in the official gazette, it is a mandatory provision. It has been held that if, in such a
case, if the rules are not published in the official gazette, they are not enforceable.6

In the case of I.T.C. Bhadrachalam Paper Boards v. Mandal Revenue Officer, Andhra
Pradesh,7 the act required that the rule be published in the gazette. The Supreme
Court ruled that the requirement of publication in the gazette was mandatory. The
court stated that to call such a requirement as a dispensable full body requirement was
unacceptable. The court further recounted the numerous advantages of publication in
the gazette by stating that the gazette was an official document and thus provided an
official version of the rule or order.

The Supreme Court has clearly held that the requirement of publication in the gazette
“is an imperative requirement and cannot be dispensed with.”8 In the instant case, the
judges observed that the object of publication in the official gazette was twofold:

(i) To give publicity to the notification

(ii) To provide authenticity to the contents of that notification in case some

dispute arises with regard to the contents.9

It is thus clear from these cases that where the parent statute prescribes the mode of
publication or promulgation, that mode must be followed. Such a requirement is
imperative and cannot be dispensed with.10 Therefore, in the current case, when the
parent act clearly stipulated that the final rules ought to be published in the gazette,
merely publishing it in the English daily did not amount to procedural compliance and
hence, are invalid.

6
Narendra Kumar v. UOI, AIR 1960 SC 430; Joint Chief Controller of Imports and Exports
v. Aminchand, AIR 1966 SC 478; State of U.P. v. Kishori Lal, AIR 1980 SC 680
7
(1996) 6 SCC 634
8
Sambu Nath Jha v. Kedar Prasad Sinha, AIT 1972 SC 1515
9
ibid
10
I.T.C. Bhadrachalam Paper Boards v. Mandal Revenue Officer, Andhra Pradesh, (1996) 6
SCC 634
 -4-

I.4 Rules of laying were not complied with

Laying provisions forms part of the general publication requirement and, therefore,
should be strictly complied with; the requirement is an exercise by the legislature of
its right to check the action of its legislative delegate; parliamentary review of
delegated legislation is an essential part of the law-making process and, therefore,
parliament must have the opportunity to do so; parliament ought not to be denied such
an opportunity and this can be ensured only if laying procedure is regarded as
mandatory.11

Even if the requirement of laying is only directory and not mandatory, the rules
framed by the administrative authority without conforming to the requirement of
laying would not be permissible if the mode of rule-making has been consciously
violated.12

In the current case, the rule making authority violated the procedure laid down for
publication as well as laying and hence, the rules made suffer from procedural ultra
vires and are invalid.

11
Pearce, delegated Legislation Pg 105- Cited in Prof. M.P.Jain , Indian Constitutional Law,
( Fifth edition ,2008 , LexisNexis Butterworths Wadhwa , Nagpur)
12
I.P. Massey, Administrative Law, (7th Edition, 2008, Eastern Book Co., Lucknow)
 -5-

PRAYER FOR RELIEF

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed before this Honourable Court to declare:

1. That the rules are invalid.

2. Allow the petition filed by the petitioner.

And pass any other order that it may deem fit in the ends of equity, justice and good
conscience.

All of which is most humbly and respectfully submitted.

Date: 14th March, 2011 S/d_________________

(Counsel for Petitioner)