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There are, however, two other points which have been urged before us and on which the petitioner is entitled to succeed. The first ground relates to the agreement actually entered into between respondent No.1 and the agents. This agreement consists of ten clauses and it has apparently been drawn in accordance with Rule 7(5) of the Rules framed under the Act. It appears that on January 9, 1962, the Rules framed by the State Government by virtue of the power conferred on it by s. 18 of' the Act were published. Rule 7 deals with appointment of Agent. Rule 7(2) prescribes the form in which an application for appointment as agent has to be made. Rule 7(5) provides that on appointment as agent the person appointed shall execute an agreement insuch form as Government may direct within ten daysof the date of receipt of the order of appointment failing which the appointment shall be liable to cancellation and the amount deposited as earnest money shall be liable to forfeiture. It is significant that though the Form for an application which has to be made by a person applying for agency is prescribed, no form has been prescribed for the agreement which the State Government enters into with the agent. The agreement is apparently entered into on an ad hoc basis and that clearly is unreasonable. In our opinion,, if the State Government intends that for carrying on the State monopoly authorised by the Act agents must be appointed, it must take care to appoint agents on such terms and conditions as would justify the conclusion that the relationship between them and the State Government is that of agents and principal; and if such a result is intended to be achieved, it is necessary that the principal terms and conditions of the agency agreement must be prescribed by the rules. Then it would be open to the citizens to examine the said terms and conditions and challenge their validity if they contravene any provisions of the Constitution, or are inconsistent with the provisions of the Act itself. Therefore, we are satisfied that the petitioner is entitled to contend that Rule 7(5) is bad 'in that it leaves it to the sweet will and pleasure of the officer concerned. to fix any terms and conditions on an ad hoc basis; that is beyond the competence of the State Government and such terms and conditions must be prescribed by the rules made under section 18 of the Act. That takes us to the terms and conditions of the agreement which has been produced before us. These terms indicate a complete confusion in the mind of the person who drafted them. Some of them are terms which would be relevant in the case of agency, while others would be relevant and material if a contract of Government forest was made in favour of the party signing those conditions; and some others would indicate that the person appointed as an agent is not an agent at all but is a person in whom personal interest is created in carrying on the so called agency work. Clause 4 of the agreement provides for the payment which the agent has to make in respect of the Kendu leaves from private lands as well as from Government lands. It is not easy to appreciate the precise scope of the provisions of the respective sub-clauses of cl. 4 and their validity. But, on the whole, it does appear that after the agent makes the payment prescribed by the relevant clauses to the Government,-'he is likely to keep some profit to himself; and that would clearly show that the relationship is not of the type which is permissible under Art. 19 (6) (ii), Under clause 4 (iii), the agent has to pay a sum of Rs. 5/- per bag to the Government as consideration for being permitted by Government to enter into and collect leaves from Government lands and forests. It is remarkable that in the absence of any specific rule, the amount to be paid per bag can be determined differently from place to place and that is a serious anomaly. it is also not clear how this amount of Rs. 5/- per bag has been determined, and in the absence of any explanation it would be difficult to accept the plea of the learned Attorney-General that this amount has been fixed after making calculations about the profits which the agent was likely to secure and the price which the total produce of the forest was, likely to; acquire on an average basis. Under clause 4 (V), it is conceded that the agent would be entitled to make some, profits in some cases. Clause 4 (vi) entitles the agent to claim deductions for the expenses and commission that he may be entitled to in respect of the number of bags of processed leaves; and it requires him to pay to Government the profits accruing from the trading in the leaves collected in four equal instalments in the manner specified. Under clause 4

(ix) the agent has to finance all transactions. involved in purchase, collections, storage, processing, transport and disposal of the Kendu leaves purchased or collected- in the Unit. Then there are certain sub,clauses under this clause which would be appropriate 'if it was a matter of a contract between the Government 'and a forest contractor. Clause 4

(ix). (i) requires the agent to keep a register of daily accounts. Under cl. 4(ix) (p) during the subsistence of the agreement, the agent is responsible for the disposal of the Kendu leaves collected or purchased by him and the Government shall not bear any liability whatsoever, except as indicated in sub-clause (vii) of cl. 4 (ix). Clause 6 provides that subject to other terms and conditions, all charges and out goings shall be paid by the agent and he shall not be entitled to any compensation whatsoever for any loss that may be sustained by reasons of fire., tempest, disease, pest, flood, draught or other natural calamity, or by any ,Wrongful act committed by any third party or for any loss sustained by him through any operation undertaken in the interest of fire conservancy. This clause clearly shows that the agent becomes personally liable to bear the loss which,under the normal rules of agency, the principal would have to bear. We have not thought it necessary to refer to all the clauses in detail because we -are satisfied that even if the agreement is broadly considered, it leaves no room for doubt that the person appointed under the' agreement to work the monopoly of the State is not an agent in the strict and narrow sense of the term contemplated by Art. 19 (6) (ii). The agent appointed under this agreement seems to carry on the trade substantially on his own account, subject, of course, to the payment of the amount specified in the contract If he makes any profit after complying with the said terms, the profit is his; if he incurs an loss owing to circumstances specified in clause 6, tie loss is his. In terms, he is not made accountable to the State Government; and in terms, the State Government is not responsible for his actions. In such a case, it is, impossible to hold that the agreement in question is consistent with the terms of s. 3 of the Act. No doubt, the learned Attorney -General contended that in commercial transactions, the agreement in question may be treated as an agreement of agency, and in support of this argument lie referred us to the decision 'in Ex parte Bright In re Smith, (1) and Weiner v. Harris. (1) It is true that an agent is entitled to commission in commercial transactions, and so, the fact that a person cams commission in transactions carried on by him on behalf of another would not destroy his character as that other person's agent. Cases of Delcredere agents are not unknown to commercial law. But we must not forget that we are dealing with agency which is permissible under Art. 19 (6) (ii), and as we have already observed, agency which can be legitimately allowed under Art. 19(6)