By this Special Civil Application under Article 226 of the Constitution of India, the writ-petitioner, a member of the Court of the Gujarat University, the respondent No.3, has prayed for a declaration that Section 10 of the Gujarat University Act is ultra vires, void and inoperative being in conflict with the provisions contained in Regulation 7.3.0 of the Annexure to the UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010, with further direction upon the said respondent to implement UGC Regulations, 2010 in its entirety. The writ-petitioner has further prayed for direction restraining respondent No.3, the University, from appointing its Vice Chancellor except by complying with the provisions of UGC Regulations, 2010. 2. As the petitioner has prayed for a declaration that Section 10 of the Gujarat University Act is ultra vires the Constitution of India, a notice has been given to the learned Advocate General. The University and UGC, who are also made parties, have entered appearance through Mr Shelat, the learned Senior Advocate and Mr Champaneri, the learned Assistant Solicitor General of India respectively.
3. As a pure question of law arises for determination in this writ- application, the learned counsel appearing on behalf of the parties have restricted their submissions on the question of law only without using any affidavit on merits.
4. According to the petitioner, the method of selection of Vice- Chancellor of the University as prescribed in Section 10 of the Gujarat University Act (“the Act”) is in conflict with the provisions contained in Regulation 7.3.0 of the Annexure to the UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010.
5. Mr Dave, the learned Senior Advocate appearing on behalf of the petitioner, vehemently contended before us that Section 10 of the Act laying down the procedure for appointment of Vice-Chancellor of the said University is no longer valid after the enactment of the UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 (“hereinafter referred to as “the Regulations”) which has been enacted pursuant to the power conferred under Section 26(1)(e) and (g) of the University Grants Commission Act (hereinafter referred to as “the UGC Act”). Mr Dave contends that UGC Act has been enacted by the Parliament and the subject matter falls within Entry No.66 of List-I of the 7th Schedule whereas the Act has been enacted by the State Legislature and the subject matter falls within the Entry No. 25 of the Concurrent List of 7th Schedule but the said Entry is subject to the provisions of Entries No.63, 64, 65 and 66 of List-I. Mr Dave, therefore, contends that the moment the Regulations were enacted indicating specific provisions for selection of Vice-Chancellor and also his qualifications which are on the face of it in conflict with Section 10 of the Act laying down similar procedure for selection, the Regulations will have overriding effect upon Section 10 of the Act. Mr Dave further contends that the Act has not received the assent of the President after its enactment and, therefore, by virtue of Article 254 of the Constitution of India, the law enacted by the Parliament will have overriding effect upon the law laid down by the State Legislature to the extent of repugnance. Mr Dave further contends that even if the Regulation is enacted by virtue of delegated legislation, it is deemed to be part of the UGC Act and, therefore, notwithstanding the fact that the Regulation has been framed by way of delegated legislation, it will have overriding effect upon Section 10 of the Act.
6. Mr Champaneri, the learned Assistant Solicitor General of India, appearing on behalf of the UGC, has adopted the aforesaid arguments of Mr Dave and has supported the writ-petitioner.
7. Mr Trivedi, the learned Advocate General, appearing on behalf of the State-respondent and Mr Shelat, the learned Senior Advocate, appearing on behalf of the University have, on the other hand, opposed the aforesaid contentions on behalf of the writ-petitioner.
8. Mr Trivedi, the learned Advocate General appearing on behalf of the State-respondent, first submitted before us that the subject matter of Regulation 7.3.0 does not come within the purview of either of the clauses (e) or (g) of Section 26 of the UGC Act inasmuch as the Vice-Chancellor is not a teacher of the University but is the Administrative Head. According to Mr Trivedi, the qualifications fixed by Regulation 7.3.0 may, at the most, come within the purview of Section 12 of the UGC Act and in that event, it is recommendatory in nature and as such, even if Section 10 of the Act is in conflict with such recommendation, for that reason, the provision contained in Section 10 cannot be declared as ultra vires the Constitution of India.
9. Secondly, Mr Trivedi contends that even if it is assumed for the sake of argument that the Regulation 7.3.0 is within the subject matter of Entry No.66 of List-I of 7th Schedule of the Constitution, the Regulation in question having been enacted by a delegated authority and not by the Parliament, it cannot have any overriding effect upon Section 10 of the Act which is enacted in exercise of plenary jurisdiction by the State Legislature. Mr Trivedi, therefore, prays for dismissal of the writ-application.
10. Mr Shelat, the learned Senior Advocate appearing on behalf of the Gujarat University, has adopted the contentions of the learned Advocate General and in addition to that, has also pointed out that even though the Regulation in question was placed before the Parliament in terms of the provisions contained in Section 28 of the UGC Act, the Regulation nevertheless maintains the character of a subordinate legislation and it cannot be elevated to the status of plenary legislation by the Parliament.
11. In order to appreciate the aforesaid question involved in this writ-application, it will be profitable to refer to the provisions contained in Regulation 7.3.0 of the Regulations and Section 10 of the Act, which are quoted below :-
“7.3.0. VICE CHANCELLOR
i. Persons of the highest level of competence, integrity, morals and institutional commitment are to be appointed as Vice-Chancellors. The Vice-Chancellor to be appointed should be a distinguished academician, with a minimum of ten years of experience as Professor in a University system or ten years of experience in an equivalent position in a reputed research and/or academic administrative organization.
ii. The selection of Vice-Chancellor should be through proper identification of a Panel of 3-5 names by a Search Committee through a public Notification or nomination or a talent search process or in combination. The members of the above Search Committee shall be persons of eminence in the sphere of higher education and shall not be connected in any manner with the University concerned or its colleges. While preparing the panel, the search committee must give proper weightage to academic excellence, exposure to the higher education system in the country and abroad, and adequate experience in academic and administrative governance to be given in writing along with the panel to be submitted to the Visitor/Chancellor. In respect of State and Central Universities, the following shall be the constitution of the Search Committee.
a) a nominee of the Visitor/Chancellor, who should be the Chairperson of the Committee.
b) a nominee of the Chairman, University Grants Commission.
c) a nominee of the Syndicate/Executive Council/ Board of Management of the University.
iii. The Visitor/Chancellor shall appoint the Vice-Chancellor out of the Panel of names recommended by the Search Committee.
iv. The conditions of service of the Vice-Chancellor shall be prescribed in the Statutes of the Universities concerned in conformity with these Regulations.
v. The term of the office of the Vice-Chancellor shall form part of the service period of the incumbent concerned making him/her eligible for all service related benefits.”
Section 10 the Act reads as under:-
“10. (1) The Vice-Chancellor shall be appointed by the State Government from amongst three persons recommended under sub-section (3) by a committee appointed for the purpose under subsection (2).
(2) (a) For the purposes of sub-section (1), the Chancellor shall appoint a committee which shall consist of the following members, namely:-
(i) two members (not being persons connected with the University or with any affiliated college, recognized institution or approved institution) out of whom one shall be a person nominated in the manner prescribed by the Statutes by the Executive Council and the Academic Council jointly and the other shall be a person nominated in the manner prescribed by the Statutes by the Vice- Chancellors of all the Universities established by law in the State of Gujarat:
[Provided that in any case where for any reason whatsoever a person is not nominated under this sub- clause:-
(a) by the Executive Council and the Academic Council jointly, or
(b) by the Vice-Chancellors.
it shall be lawful for the Chancellor to nominate a person to be a member of the Committee in any such case;]
(ii) one member to be nominated by the Chancellor.
(b) The Chancellor shall appoint one of the three members of the Committee as its Chairman.
(3) The Committee so appointed shall, within such time and in such manner as may be prescribed by the Statute, select three persons whom it considers fit for being appointed as Vice-
Chancellor and shall recommend to the State Government the names of the persons so selected together with such other particulars as may be prescribed by the Statutes;
Provided that, as far as possible, the Committee shall not select any such person who if appointed as a Vice-Chancellor would cease to hold that office on account of attaining the age of 65 years before completion of the term of three years.
(4) The Vice-Chancellor shall hold office for a term of three years and he shall be eligible for re-appointment to that office for a further term of three years only:
Provided that no person appointed as the Vice-Chancellor shall continue to hold his office as such after he attains the age of 65 years.
(5) The emoluments to be paid to the Vice-Chancellor, and the terms and conditions, subject to which he shall hold office, shall be such as may be determined by the State Government:
Provided that such emoluments or such terms and conditions shall not, during the currency of the term of the holder of that office, be varied to his disadvantage without his consent.
(6)(a) During the leave or absence of the Vice-Chancellor, or (b) in the event of a permanent vacancy in the office of the Vice-Chancellor, until an appointment is made under sub- section(1) to that office, the Pro-Vice Chancellor, and in the absence of the Pro- Vice-Chancellor, one of the deans nominated by the Chancellor for that purpose shall carry on the current duties of the office of the Vice-Chancellor.”
12. It will also be relevant to refer to Sections 12, 14, 26 and 28 of the UGC Act. Those are quoted below:-
“12. . It shall be the general duty of the Commission to take, in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co- ordination of University education and for the determination and maintenance of standards of teaching, examination and research in Universities, and for the purpose of performing its functions under this Act, the Commission may-
(a) inquire into the financial needs of Universities;
(b) allocate and disburse, out of the Fund of the Commission, grants to Universities established or incorporated by or under a Central Act for the maintenance and development of such Universities or for any other general or specified purpose;
(c) allocate and disburse, out of the Fund of the Commission, such grants to other Universities as it may deem necessary or appropriate for the development of such Universities or for the maintenance, or development, or both, of any specified activities of such Universities] or for any other general or specified purpose:
Provided that in making any grant to any such University, the Commission shall give due consideration to the development of the University concerned, its financial needs, the standard attained by it and the national purpose which it may serve;
(cc) allocate and disburse out of the Fund of the Commission, such grants to institutions deemed to be Universities in pursuance of a declaration made by the Central Government under section 3, as it may deem necessary, for one or more of the following purposes, namely:-
(i) for maintenance in special cases,
(ii) for development,
(iii) for any other general or specified purpose;
(ccc) establish, in accordance with the regulations made under this Act, institutions for providing common facilities, services and programmes for a group of universities or for the universities in general and maintain such institutions or provide for their maintenance by allocating and disbursing out of the Fund of the Commission such grants as the Commission may deem necessary;
(d) recommends to any University the measures necessary for the improvement of University education and advise the University upon the action to be taken for the purpose of implementing such recommendation;
(e) advise the Central Government or any State Government on the allocation of any grants to Universities for any general or specified purpose out of the Consolidated Fund of India or the Consolidated Fund of the State, as the case may be.
(f) advise any authority, if such advice is asked for, on the establishment of a new University or on proposals connected with the expansion of the activities of any University;
(g) advise the Central Government or any State Government or University on any question which may be referred to the Commission by the Central Government or the State Government or the University, as the case may be;
(h) collect information on all such matters relating to University education in India and other countries as it thinks fit and make the same available to any University;
(i) require a University to furnish it with such information as may be needed relating to the financial position of the University or the studies in the various branches of learning undertaken in that University, together with all the rules and regulations relating to the standards of teaching and examination in that University respecting each of such branches of learning;
(j) perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to the discharge of the above functions.”
14. If any University grants affiliation in respect of any course of study to any college referred to in sub-section (5) of section 12A in contravention of the provision of that sub-section or fails within a reasonable time to comply with any recommendation made by the Commission under section 12 or section 13, or contravenes the provision of any rule made under clause (f) or clause (g) of sub-section (2) of section 25, or of any regulation made under clause (e) or clause (f) or clause (g) of section 26, the Commission, after taking into consideration the cause, if any, shown by the University for such failure or contravention, may withhold from the University the grants proposed to be made out of the Fund of the Commission.
26.(1) The Commission may, by notification in the Official Gazette, make regulations, consistent with this Act and the rules made thereunder –
(a) regulating the meeting of the Commission and the procedure for conducting business thereat;
(b) regulating the manner in which and the purposes for which persons may be associated with the Commission under section 9,
(c) specifying the terms and conditions of service of the employees appointed by the Commission;
(d) specifying the institutions or class of institutions which may be recognized by the Commission under clause (f) of section 2;
(e) defining the qualification that should ordinarily be required of any person to be appointed to the teaching staff of the University, having regard to the branch of education in which he is expected to give instruction;
(f) defining the minimum standards of instruction for the grant of any degree by any University;
(g) regulating the maintenance of standards and the coordination of work or facilities in Universities
(h) regulating the establishment of institutions referred to in clause (ccc) of section 12 and other matters relating to such institutions;
(i) specifying the matters in respect of which fees may be charged and scales of fees in accordance with which fees may be charged, by a college under sub-section (2) of section 12A;
(j) specifying the manner in which an inquiry may be conducted under sub-section (4) of section 12A.
(2) No regulation shall be made under clause (a) or clause (b) or clause (c) or clause (d) or clause (h) or clause (i) or clause (j) of sub-section (1) except with the previous approval of the Central Government.
(3) The power to make regulations conferred by this section except clause (i) and clause (j) of sub-section (1) shall include the power to give retrospective effect from a date not earlier than the date of commencement of this Act, to the regulations or any of them but no retrospective effect shall be given to any regulation so as to prejudicially affect the interests of any person to whom such regulation may be applicable.
28. Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session, or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.”
13. After hearing the learned counsel for the parties and after going through the above materials on record, we find that Section 10 of the Act lays down the procedure for appointment of Vice-Chancellor. In the said provision, no qualification of the Vice-Chancellor is prescribed and in that sense, the same is definitely in conflict with Regulation 7.3.0 specifying qualifications in mandatory form. At the same time, the Constitution of the Search Committee mentioned in Regulation 7.3.0 is also in conflict with the provisions contained in Section 10 of the Act.
14. Therefore, the only question that falls for determination in this writ-application is, whether in view of the above conflict between the Regulations and Section 10 of the Act, the Regulations will have overriding effect over Section 10 of the Act.
15. After going through the provisions contained in the aforesaid statutory provisions quoted above, and also through the provisions of the Constitution of India, we find that UGC Act has been enacted by the Parliament where the subject matter falls within Entry No.66 of List-I of 7th Schedule of the Constitution of India.
16. Section 26 of the Act gives power to the UGC to enact Regulation in respect of the matters covered under Section 26. In our opinion, even if we assume for the sake of arguments that Section 26(1) (e) and (g) authorise the Commission to enact the qualification and procedure of appointment of the Administrative Head of the University for the purpose of having coordination among all the Universities in India, if those are in conflict with any other law enacted by a State Legislature on the subject, the same cannot have overriding effect over the law enacted by the State Legislature for the simple reason that it is not the Parliament which has enacted any such law but it is a delegated authority which has prescribed such qualification. At this stage, we may profitably refer to the Constitution Bench decision of the Supreme Court in the case of Tika Ramji & Ors. vs. State of UP & Ors. reported in AIR 1956 SC 676 relied upon both by Mr Trivedi and Mr Shelat where the Supreme Court in paragraph 41 of the judgment made the following observations:-
“41. There is also a further objection to which cl.7(1) of the Sugarcane Control Order, 1955 is open. The power of repeal, if any, was vested in Parliament and Parliament alone could exercise it by enacting an appropriate provision in regard thereto. Parliament could not delegate this power of repeal to any executive authority. Such delegation, if made, would be void and the Central Government had no power, therefore, to repeal any order made by the State Government in exercise of the powers conferred upon it by S.16 of the impugned Act.
The U.P. Sugarcane Regulation of Supply and Purchase Order, 1954, could not, therefore, be validly repealed by the Central Government as was purported to be done by cl.7 of the Sugarcane Control Order, 1955, and that repeal was of no effect with the result that the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954 stood unaffected thereby.
The result, therefore, is that there was no repeal of the impugned Act or the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954, by S.16 of Act 10 of 1955 or by Cl.7 of the Sugarcane Control Order, 1955 as contended by the petitioners.”
17. Mr Dave, at this stage, strenuously contended that the decision in the case of Tika Ramji (supra) deals with the case of repeal but the said principle cannot have any application to a case of repugnancy of two provisions. We are, however, not at all impressed by such submission. In the above decision of Tika Ramji, the Supreme Court quoted with approval the following observations of the Division Bench of the Calcutta High Court in the case of G.P. Stewart vs. B.I. Roy Chaudhury reported in AIR 1939 Cal 628:-
“It is sometimes said that two laws cannot be said to be properly repugnant unless there is a direct conflict between them, as when one says 'do' and the other 'don't, there is no true repugnancy, according to this view if it is possible to obey both the laws. For reasons which we shall set forth presently, we think that this is too narrow a test : there may well be cases of repugnancy where both laws say 'don't' but in different ways.
For example, one law may say, 'No person shall sell liquor by retail, that is, in quantities of less than five gallons at a time' and another law may say, 'No person shall sell liquor by retail, that is, in quantities of less than ten gallons at a time. Here, it is obviously possible to obey both laws, by obeying the more stringent of the two, namely, the second one; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified.”
Thus, in the case of Tika Ramji (supra), the Supreme Court was really dealing with the question of repugnancy of the statutory provisions and in that case, it was one of repeal, but the principles laid down in paragraph 41 quoted above covers the entire field of repugnancy.
18. Mr Dave, lastly, contended that by virtue of the provisions contained in Section 28 of the UGC Act, the regulations having been placed before the Parliament, the Regulations cannot be described as a delegated legislation and in fact, it may be treated to be a law enacted by Parliament in its plenary jurisdiction.
19. Mr Shelat, the learned Senior Advocate appearing for the University, in this connection, has placed before us a decision of three-Judge-Bench of the Supreme Court in the case of Hukam Chand vs. Union of India reported in AIR 1972 SC 2427 where the Supreme Court while dealing with similar provision of placing the delegated legislation before Parliament made the following observations at paragraph 11 of the judgment, which is quoted below:-
“11. The fact that the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a Rule if it is made not in conformity with Section 40 of the Act. It would appear from the observations on pages 304 to 306 of the Sixth Edition of Craies on Statute Law that there are three kinds of laying:
(i) Laying without further procedure;
(ii) Laying subject to negative resolution;
(iii) Laying subject to affirmative resolution.
The laying referred to in sub-sec.(3) of Section 40 is of the second category because the above sub-section contemplates that the rule would have effect unless modified or annulled by the Houses of Parliament. The act of the Central Government in laying the rules before each House of Parliament would not, however, prevent the Courts from scrutinizing 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.”
20. Mr Shelat, in this connection, also placed before us the decision of the Supreme Court in the case of Kerala State Electricity Board vs. Indian Aluminium Co. reported in AIR 1976 SC 1031. In the said decision, at paragraph 25 of the judgment, it was pointed out that in India, many statutes, both of Parliament and of State Legislatures, provide for subordinate legislation made under the provisions of those statutes to be placed on the table of either the Parliament or the State Legislature and to be subject to such modification, amendment or annulment, as the case may be, as may be made by the Parliament or the State Legislature. It was pointed out that notwithstanding such provision, where an executive authority is given power to frame subordinate legislation within the prescribed limits, Rules made by such authority if outside the scope of the Rule making power should not be deemed to be valid merely because such rules have been placed before the legislature and were subject to such modification, amendment or annulment, as the case may be, as the legislature may think fit. According to the Supreme Court, the process of such amendment, modification or annulment was not the same as the process of legislation and in particular, it lacks the assent either of the President or the Governor of the State, as the case may be. The Supreme Court ultimately held that notwithstanding subordinate legislation being laid on the table of the House of Parliament or the State Legislature and being subject to such modification, the annulment or the amendment as they may make, the subordinate legislation cannot be said to valid unless it is within the scope of the rule making power provided in the statute.
21. Therefore, we are unable to accept the contention of Mr Dave that simply because in Section 28 of the UGC Act there is provision of placing the proposed Regulation before the Parliament, for that reason, such legislation will get the status of a law enacted by Parliament itself.
22. Mr Dave lastly drew our attention to the decision of the Two- Judge-Bench of the Supreme Court in the case of State of Tamilnadu vs. Adhiyaman Educational & Research Institute & Ors. reported in (1995) 4 SCC 104 where at paragraph 41(ii), the Supreme Court held that to the extent the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List yet in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.
23. It appears that in the said decision although the said Two-Judge- Bench made a passing reference of Tika Ramji (supra), only recording that the said decision approved the decision of the Calcutta High Court in the case of G.P. Stewart vs. Brojendra Kishore Roy Chaudhury reported in AIR 1939 Cal 628, yet, did not otherwise deal with the said decision nor did it advert to the observations made by the Bench in the case of Tika Ramji (supra), in paragraph 41 of the judgment.
24. Over and above, we find that the aforesaid observations in the case of Adhiyaman Educational & Research Institute & Ors. (supra), were obiter dicta and although we are quite alive to the position of law that an obiter dictum of Supreme Court is binding upon High Court, nevertheless such obiter dictum having been made without noticing the contrary view taken by the Five-Judge-Bench in the case of Tika Ramji (supra), the same cannot be binding upon this Court. As pointed out by the Supreme Court in the case of Oriental Insurance Co. Ltd. vs. Meena Variyal & Ors. reported in (2007) 5 SCC 428, an obiter dictum of Supreme Court may be binding on the High Courts only in the absence of a direct pronouncement on that question elsewhere by the Supreme Court. As pointed out earlier, there being a direct pronouncement of Constitution Bench of the Supreme Court in the case of Tika Ramji (supra), the aforesaid observations in Adhiyaman Educational & Research Institute & Ors. (supra) cannot be treated to be a valid precedent.
25. Mr. Champaneri, the learned Assistant General of India, however, drew our attention to the fact that a Three-Judge-Bench of the Supreme Court in the case of West U.P. Sugar Mills Assn vs. State of U.P. reported in (2012) 2 SCC 773 has disputed the correctness of the above decision of Tika Ramji (supra) and has referred the matter to the Chief Justice of India for constituting a larger Bench, preferably, a Bench consisting of seven Judges. According to Mr Champaneri, therefore, we should not rely upon the decision of Tika Ramji (supra) so long as the Seven-Judge-Bench does not approve the view taken in that decision.
26. We find that in paragraph 8 of the said reference, the following questions of law have been referred for decision:
(1) Whether by virtue of Article 246 read with Schedule VII List III Entry 33 of the Constitution the field is occupied by the Central legislation and hence the Central Government has the exclusive power to fix the price of sugarcane?
(2) Whether Section 16 or any other provision of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 confers any power upon the State Government to fix the price at which sugarcane can be bought or sold?
(3) If the answer to this question is in the affirmative, then whether Section 16 or the said provision of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 is repugnant to Section 3(2)(c) of the Essential Commodities Act, 1955 and Clause 3 of the Sugarcane (Control) Order, 1966? And if so, the provisions of the Central enactments will prevail over the provisions of the State enactment and the State enactment to that extent would be void under Article 254 of the Constitution of India.
(4) Whether SAP fixed by the State Government in exercise of powers under Section 16 of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 is arbitrary, without any application of mind or rational basis and is, therefore, invalid and illegal?
(5) Does the State advisory price (for short “SAP”) constitute a statutory fixation of price? If so, is it within the legislative competence of the State?
(6) Whether the power to fix the price of sugarcane is without any guidelines and suffers from conferment of arbitrary and uncanalised power which is violative of Articles 14 and 19(1)(g) of the Constitution of India?
27. Therefore, the principles laid down in paragraph 41 of the judgment of Tika Ramji (supra), is not the subject matter of reference. Moreover, simply because a Three-Judge-Bench has disputed the correctness of a law laid down by a Five-Judge Bench and referred the matter to the Chief Justice of India, such fact does not weaken the binding effect of the precedent laid down by the Five-Judge-Bench so long as the said view is not actually upset by the larger Bench. We, thus, find that mere reference to a larger Bench disputing some of the points decided therein will not stand in our way in following the observations made in paragraph 41 of the judgment in the case of Tika Ramji (supra), quoted by us.
28. On consideration of the entire materials on record, we thus find that the Regulations enacted by virtue of delegated legislation cannot have overriding effect on Section 10 of the Act passed by the State Legislature and so long any provision similar to the one enacted in the Regulations is not enacted by Parliament in exercise of its plenary power which is in conflict with Section 10 of the Act, the latter will remain valid.
29. We, thus, dismiss this writ-application being devoid of any merit. Rule is discharged. In the facts and circumstances of the case, there would be, however, no order as to costs. Interim order granted earlier stands vacated.
30. In view of the dismissal of the main writ-application, the connected civil application has become infructuous and the same is dismissed.
31. After this order is passed, Mr Dave appearing on behalf of the petitioner prays for stay of operation of the above order.
32. In view of what has been stated above, we find no reason to stay our order. Prayer is refused.
(BHASKAR BHATTACHARYA, CJ.) (J.B. PARDIWALA, J.) zgs/-