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Empire Industries Ltd. and anr. Vs. M.C. Subarna and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberMisc. Petns. Nos. 677, 692, 726, 735, 747, 814, 822 and 1039 of 1977
Judge
Reported inAIR1982Bom553
ActsEssential Commodities Act, 1955 - Sections 3; Cotton Textiles (Control) Order, 1948; Constitution of India - Articles 14, 19(1) and 226
AppellantEmpire Industries Ltd. and anr.
RespondentM.C. Subarna and ors.
Appellant AdvocateP.L. Nail, Adv.
Respondent AdvocateC.J. Shah and;M.J. Sterna, Advs.
Excerpt:
.....and anonymous petitions and undertaking detailed scrutiny. income tax act 1961 s.132 - on the scanty material before us, we do not think it safe to record any finding on this point raised by the petitioners. the contention as to the impugned notification being violative of article 19(1)(g) of the constitution has been overruled in both these cases, and we are unable to see any good reason to taken a different view of the matter......by the deportee textile commissioner on 32nd dec., 1966 and 12th apr., 1967. the language of the impugned notification dated 15th apr., 1977 is substantially identical with that of the notification dated 12th apr., 1957. the alterations and modifications therein are not really relevant to the points that are raised by mr. nail in these petitions. the validity of the notification dated 12th apr., 1967 was challenged earlier in this court by several petitioners in their petitions. one of the said petitions i.e., miscellaneous petition no. 274 of 1968, was disposed of by tulzapurkar j. tas he then was) sitting as a single judge on the original side of the court, by the judgment dated 12th and 13th nov., 1968, appeal no. 6 of 1969 came up for hearing before us on 5th jan., 1981.4. the very.....
Judgment:

Deshpande, C.J.

1. These seven Miscellaneous Petitions along with Miscellaneous Pen. No. 747 of 1977 were referred to a Division Bench in view of the complexity of the question involved therein, by a learned single Judge at the time of granting rule itself. When these petitions were taken up for hearing Mr. Nail, the learned Advocate appearing for the petitioners, stated that the wanted to withdraw the said petition. The surviving seven petitions involved the same points of law and can, therefore, be conveniently disposed of by this common judgment.

2. It is necessary to refer to certain background to appreciate the contentions raised by Mr. Nail before us in these petitions. All the petitioners are processors. They print cloth with the aid of power. The petitioners challenge the validity of Notifications No. CAE/24/77 issued by the Joint Textile Commissioner on 15th Apr., 1977. The said Notification is issued by the joint Textile Commissioner in exercise of the powers conferred on him under SL. 20 of the Cotton Textiles (Control) Order of 1948 thereafter referred to as 'the Order'). The said Order, in turn, is promulgated under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 hereinafter referred to as 'the Act'). The said Act was repealed with effect from 25th Jan., 1955 firstly by the Essential Commodities Ordinance of 1955 and subsequently by the Essential Commodities Act of 1955, which became effective from 1st Apr., 1955. The Ordinance saved the Orders as if the same have been made or issued under the provisions of the Act of 1955.

3. Before the present Notification dated 15th Apr., 1977, two Notification were issued by the Deportee Textile Commissioner on 32nd Dec., 1966 and 12th Apr., 1967. The language of the impugned Notification dated 15th Apr., 1977 is substantially identical with that of the Notification dated 12th Apr., 1957. The alterations and modifications therein are not really relevant to the points that are raised by Mr. Nail in these petitions. The validity of the Notification dated 12th Apr., 1967 was challenged earlier in this Court by several petitioners in their petitions. One of the said petitions i.e., Miscellaneous Petition No. 274 of 1968, was disposed of by Tulzapurkar J. Tas he then was) sitting as a single Judge on the Original Side of the Court, by the judgment dated 12th and 13th Nov., 1968, Appeal No. 6 of 1969 came up for hearing before us on 5th Jan., 1981.

4. The very same Notification was also challenged by some petitioners in the Gujarat High Court in Special Civil Application No. 1346 of 1969. The learned Judges of the Gujarat High Court did not deal with the several points raised in the petition as two points out of them appeared to them to be sufficient to dispose of the said petition. The Gujarat High Court quashed the said Notification firstly on the ground that the Notification dated 12th Apr., 1957 did not indicate any period during which the said Notification was to remain in operation, though prescribing of such period was necessary under Clause 20 of the said Order and secondly on the ground that what the petitioners before the Court were printing were not saris at all. The Union Government preferred an appeal against the said judgment of the Gujarat High Court before the Supreme Court. The Supreme Court upheld the judgment of the Gujarat High Court on the point that omission to prescribe such period in the said Notification was fatal to the validity thereof. The Supreme Court did not feel it necessary to go into the correctnessof the other point decided by the Gujarat High Court. This judgment of the Supreme Court is reported in the case of Textile Commr. V. Sagar Textile Mills (p) Ltd. : [1977]2SCR825 , Following the said judgment of the Supreme Court, we allowed the said Appeal No. 6/69 upholding the same point raised by the petitioners in the said appeal.

5. Itis after the said judgment of the Supreme Court that the Joint Textile Commissioner issued the impogned Notification. The Notification makes it clear that the same will remain in operation up to 31st Mar., 1982. The defect with which the earlier Notification dated 12th Apr., 1967 was found to have sufferance thus is now eliminated in this fresh Notification impugned in these petitions. The validity of this Notification however, is challenged in all these petitions on several other grounds.

6. Mr. Nain raised the following points, in support of the alleged invalidity of the Notification:

(1) The Clause 20 of the said Order is ultra vires of the powers conferred on the Joint Textile Commissioner under Section 3 of the Act of 1955 under which the said Order is deemed to have been issued;

(2) The said Clause 20 cannot be said to have been saved by the provisions of the Act of 1955, as the provisions of the said clause are inconsistent with the provisions of the Act of 1955.

(3) The provisions of Clause 20 of the said Order as also the impugned Notification place unreasonable restrictions on the fundamental rights of citizens, to carry on business, guaranteed under Art. 19(1)(g) of the Constitution of India.

(4) The impugned Notification is violative of Article 14 of the Constitution, in that it discriminates the printers by machine and favours hand printers without any rational basis.

(5) The impugned Notification is violative of principles of natural justice as the same was issued without giving any opportunity to the class of persons who are thereby affected adversely.

(6) The petitioners did not print saris but merely rolls of cloth and as such the impugned Notification is not applicable to them.

7. Coming first to be the last point, Mr. Nain strongly relied on the judgment of a Division Bench of the Gujarat High Court dated 4th Aug., 1971 referred to above. The Gujarat High Court did hold that the petitioners before it were not printing saris and as such the Notification dated 12th April 1967 did not apply to them. The question whether the petitioners herein print saris or merely rolls of cloth is purely a question of fact and the answer depends on what is pleaded in this behalf. Our attention was drawn by Mr. Nain not to any detailed averments in support of this contention but only to ground (1) of par 16 of the petition. This ground was introduced by amending the petition with the leave of the Court. The revenants merely disclose how the printing is made on the cloth lengthwise. These do not disclose the instructions under which printing is done of the terms of the contract of the printing or in what manner widthwise printing is effected on the cloth. In the absence of these details it is difficult for us to decide whether the petitioners print saris or merely rolls of cloth. We are also unable to see how any occasion is furnished to the petitioners for challenging the Notification in question, if in fact, the processes carted on at their workshop do no involve printing of saris which alone is prohibited under Clause (3) of the impugned Notification No action is taken by the authorities against the petitioners for printing such saris. On the scanty material before us, we do not think it safe to record any finding on this point raised by the petitioners.

8. The averments in the petition also do not show in what manner the Notification of the Order is in conflict with the provisions of the Act of 1955. It cannot, therefore, he said that the Order is not saved under the Act of 1955.

9. Each of the remaining four points raised by Mr. Nail before us is covered by a Division Bench judgment of this Court consisting of Dharmaduikari and Kurdukar. JJ. Delivered in Spl. Civil Applns. No. 2732 of 1977 and 93 of 1978 on 10th Oct., 1978. The contentions to the same effect raised by the learned Advocate for the petitioners in these cases have been expressly overruled by the Division Bench, We are unable to see any reason why we should differ from the above case. The same points have also been overruled by Tulzapurkar J. In his judgment dated 12th and 13th Nov., 1968 in the case referred to above. The contention that clause 20 of the said Order is beyond the scope of powers conferred on the joint Textile Commissioner under S. 3 of the Act of 1955 is held to have been wiht out substance. It is clear that the order and the impugned Notification issued thereunder is intended to protect essentially the hand printers. This work provides employment to a large number of hand printer residing in villages and the impugned Notification seeks to protect this village industry. Hand printed saris are very much in demand in rural areas. The hand printed cloth is thus one of the essential supplies for the rural community. Section 3 of the Act of 1955 aims amongst others at ensuring maintenance of essential supplies. The impugned Notification seeks to ensure the supply of hand printed cloth so needed particularly in villages. It thus carries out the object of Section 3 of the Act of 1955. It cannot be said to be ultra vires of the powers contered under Section 3 of the said Act.

10. While overruling the contentions as to the impugned Notification being violative of Articles 19 and 14 of the Constitution. Dharmadhikari J. And Talzapurkar J. Have in their judgments traced the genesis of the Order and the Notification issued thereunder including the one impugned before us. The learned Judges in their collaborate judgments have indicated how protection to village industries and to a large number of hand printers is essential to the smooth functioning of our village economy. In their judgment both the learned Judges have extensively referred to the reports of various Committees constituted by the Government of India for the purpose of ascertaining as to what extent these industries can be developed and what protection is called for in the interests of village community. The contention as to the impugned Notification being violative of Article 19(1)(g) of the Constitution has been overruled in both these cases, and we are unable to see any good reason to taken a different view of the matter. The contentions as to violation of Article 14 of the Constitution that Clause 20 of the said Order and the provisions of the impugned Notification confer uncanalised or unguided powers on the authorities has been held to be devoid of any substance. Similarly, the classification between hand printers and printers with the aid of power, papers to us to have been based on intelligible differentia and the said classification is aimed at ensuring protection of the village industries so essential for the development of village economy. The contention as to the principles of natural justice papers to us to be equally devoid of any substance. It is will settled that the question of giving hearing to a class of persons does not arise where the Government is required to do something to implement its policies. Policy decisions of the Government falls in different class altogether and are distinct from the administrative Order of the Government affecting the citizens of the country.

11. It is true that the Notifications does not prohibit printing with the aid of power on the hand-made cloth. In other words, prohibition is not absolute but is restricted against printing the powerless produced cloth. But this by itself cannot affect the validity. Even the limited prohibition is enough to subserve the underlying purpose. The remote possibility of handloom cloth being printed with the aid of the power appears to be the basis of this limited prohibition. It is also consistent with the restriction being limited to the need of the summation to avoid the possible breach of Art, 19 of the Constitution.

12. Mr. Nain contends that the provisions of the impugned Notification go to impose restrictions on the petitioners in the matter of printing cloth with the aid of power. It was obligatory on the Joint Textile Commissioner to find out what the situation exactly in this behalf was in the year 1977 when the Notification is issued afresh. Reliance by the Joint Textile Commissioner on the situation, as was existing in 1965 or when the reports of Shreeraman Committee and Ashok Mehta Committee were made, was not sufficient so contends Nr. Nain. To make the restrictions reasonable Now, it is true that the original Notifications issued in the year 1966 were based on the reports of several of those committee. The affidavit filed on behalf of the respondents does not expressly indicate that the Government had made any attempt to review the position in this behalf afresh at the time when the implementation of the Notifications issued in the year 1966 was virtually staved become necessary. This creates an impression as if the situation as in existence in 1966 alone is relied on. But the affidavit also avers that the simation as in existence in 1966 alone is relied on. But the affidavit also avers that the situation as it existed at the time of issuing of the said Notifications in 1966 continued to exist even till this day. We have no material to doubt this and justify out taking a different filed on behalf of the respondents. The contention thus is untenable.

13. Before we close, it is necessary to notice now measures initiated to meer the urgent and crying needs of the society get bogged down due to sheet indifference or incapacity of the department to adjust the pursuit with the requirements of the rule of law. As such measures affect the vested interests, challenges to them in the Court are inevitable. Every citizen has a right to get the validity of such measures listed by judicial reviews in the High Court and the High Court had a duty to examine and pronounce its views on the challenges, hurled against them. The authors of the measures and the administration have to be vigilant and pursue the challenges in the Court vigilantly and defend or rectify the same if found necessary in time. The original Notification dated 12th Apr., 1967 is struck down by the Gujarat High Court on 4th Aug., 1971, because the period for its operation was not indicated in the Order. The judgment of the Supreme Court dated 27th Jan., 1977 to Textile Commissioner v. Sagar Textile Mills : [1977]2SCR825 approving this view, does not show that Government had any answer to the defect discovered by the Gujarat High Court why the Government wasted to many years and did not remove the defect discovered from 4th Aug., 1971 to 15th Apr., 1977 passes one's imagination when the measures are claimed to be so essential.

14. When the said Notification was challenged in this case, admission Court was cautious enough on 20th June 1977 in expediting the hearing and directing Government to file affidavit to reply within four weeks. The Government filed its affidavit in reply on 9th Jan., 1981 and thus itself prevented early disposal of this petition. Mr. Shah, the learned counsel for the Government could not explain why no affidavit in reply was filed within four weeks and why opportunity to have the matter disposed of immediately was not availed of. In fact another Division Bench upheld the validity of the Notification on Agu., 1978 Government slept over the matter for two years without any move. Judicial process thus comes into disrepute due to sheer negligence and inaction of the Government.

15. In the result, the petitions are liable to be rejected, Rules accordingly discharged in all the petitions. There will be no order as to costs in all the petitions.

16. Mr. Nail applies for leave to appeal to the Supreme Court under Art, 135 of Constitution of India. Leave refused.

17. Petitions dismissed.


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