ORDER
E. Padmanabhan, J.
1. W.P. No. 16123 of 1997 has been filed by M/s. Cottage Industries a Unit of Sri Aurobindo Udyog Trust praying for the issue of writ of declaration declaring as illegal and unenforceable the notification dated 7.3.1997 made in G.S.R. 140 (E) by the Ministry of Civil Supplies and Consumer Affairs and Public Distribution in so far as it seeks to limit Sub-clause (c) of Rule 34, in respect of the item 'Incense sticks' under Standard Weight of (PC) Rules, 1977 insofar as the petitioner is concerned.
2. W.P. No. 16124 of 1997 has been filed by M/s Udavi Auroshika Agarbathis seeking for identical relief.
3. Both the writ petitions were heard jointly and Mr. S. Venkataraman, counsel appearing for the petitioner contended that the notification dated 7.3.1997 is illegal and unenforceable.
4. The petitioners in both the Writ petitions claim that they are manufacturers of Agarbathi and the manufacturing of Agarbathis is a cottage industry. It is the claim of the petitioner that the workmen are mostly women and residents of local village. The demand for Agarbathis, according to the petitioner is seasonal. The agarbathis are being marketed locally and it is also exported. The Agarbathis are being manufactured in largescale in the State of Karnataka and to certain extent in Tamil Nadu. The marketing of Agarbathis is highly competitives.
5. The Union of India introduced the Standards of Weights and Measures Act, 1976 (Central Act 60 of 1976). In exercise of power conferred under the Central Act, 60 of 1976, the Central Government framed the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 which came into force on 26.9.1977. The rule are made applicable to commodities, which are in the packaged form and intended for sale or likely to be stored for sale or for distribution at a place or stored for sale.
6. In terms of Rule 5, the commodities are to be packed and sold only in standard package. Rule 6 provides for declaration of name and address of manu-factupers, not quality, month and year of manufacture and unit sale price of the commodity and retail sale price etc. Rules9,10 and 11 deal with the manner of making declaration regarding compliance of Rule 6. Rule 3 deals with the export and import of packaged commodities. Rule 39 provides for penalty for contravention of Rules.
7. Immediately after commencement of the Central Act 60 of 1976 and after the commencement of the Rules framed thereunder, the Agarbathi manufacturers in the country represented to the Government expressing grievance and hardship that they have to face to comply with the Rules. The Government of India after due consideration of the representations by a notification dated 16.3.1978 granted partial relief to Agarbathi industry by granting exemption. Subsequently on the representation of the trade, the Government of India reconsidered the issue and by notification No. GSR 347 (E) dated 30.6.1978 amended the Rule 34 and exempted the 'incense sticks' from the purview of Rules. The industry had thus enjoyed total exemption.
8. However to the shock of trade and particularly to the petitioner, the Central Government issued a notification in GSR No. 140 (E) dated 7.3.1997 by which the respondent omitted the Sub-clause (c) in Rule 34 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. As a result, the entire exemption granted with respect to 'incense stick' had been withdrawn. The withdrawal of exemption, according to the petitioner is causing great hardship to the industry as a whole. The withdrawal and the consequential implementation of the Rules in respect of incense stick came into force from 7.6.1997.
9. Once again, the Agarbathi manufacturers and other traders have submitted representation to the Central Government expressing that there is no charge of circumstances warranting withdrawal of exemption and pleaded that the exemption notification be continued. As the representation of the Agarbathi traders had not found favour, the petitioner had filed the present writ petition, challenging the notification dated 7.3.1997 withdrawing the earlier exemption.
10. Mr. Venkataraman, the learned Counsel for the petitioner raised the following contentions:
(1) The first respondent is estopped from with-drawing the exemption notification.
(2) The first respondent has acted in violation of principles of natural justice in withdrawing the exemption notification.
(3) The withdrawal notification is discriminatory and offends Article 14.
(4) The impugned notification is beyond rule making power and hence ultra vires of the Act and the power exercised is wholly unguided, arbitrary and unreasonable.
11. Before consideration of the contentions, it is necessary to refer to the statutory provisions of the Central Act 60 of 1976 and the Rules framed thereunder.
12. The Central Act 60 of 1976 was enacted with the object to establish standards of weights and measures to regulate inter state trade and commerce and other goods which are sold or distributed by weight, measure or number and to provide for matters connected therein/The Act came into force on 8th April, 1976. Section 2 of the Act is the definition section. Part II Chapter I of the Act provides for establishment of standards of weights and measures and Chapter II provides for physical representation of standard units. Chapter II provides for standard weights and measures. Chapter IV provides of custody and verification of standard equipments. Part II of the Act provides for appointment and powers of director and other staff. Part IV provides for Inter-state trade or commerce in weight, Measure or other goods. Section 32 of the Act provides that the Central Government may, by rules made in this behalf, direct that in respect of the class of goods of undertakings or users specified therein direct that no transaction, dealing or contract shall be made or had except by such weight, measure or number as it is specified in the said rules. Section 33 prohibits quotation or price or exhibition or publication of any package or advertisement, otherwise than in terms of standard unit of weights, measure or numeration.
13. Chapter IV provides for commodities in packaged form intended to be sold or distributed in the course of inter-state trade or commerce.
14. Section 83 provides that the Central Government by notification make rules for carrying out the provisions of the Act. Such rules may provide for all or any of the matters set out in Sub-section (2) of Section 83. Section 82 provides for levy of fees. Chapter Part VI provides for offences, their trial and penalty.
15. In exercise of powers conferred under Section 83 of the Act, the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 have been framed with respect to tile commodities offered or distributed for sale in package. Rule 34 of the Rules enables the Government to grant exemption in respect of certain packages. Rule 34 which is relevant reads thus:
34. Exemption in respect of certain packages; Nothing contained in these rules shall apply to any package containing a commodity if-
(a) omitted
(b) omitted
(c) it contains beedies or incense sticks.
16. Sub-Rule (1)(c) of Rule 34 provides that nothing contained in the Rules shall apply to any package containing beedis or incense sticks. So long as such exemption rule was in force, manufacturers of Agarbathis are exempted under Rule 34 with respect to the marketing of the package for the purpose of sale, its standards and weights or price which are normally prescribed in the Rules to be affixed on the package in terms of the Standards of Weights and Measures Act, 1976 and Rules framed therein.
17. Initially as seen from the notification dated 16th March, 1978, the first respondent Government of India granted partial exemption to the packages of Agarbathis from the provisions of various rules such as Rule 5, Rule 6-D and such exemption was initially grated upto 30th of June, 1978. However, it was clarified that the package of Agarbathis would have to bear other mandatory declarations namely,
(1) Name of the commodity,
(2) the name and address of the manufacturer/packer
(3) the net contents of weight, measure or num-ber and
(4) the net price in accordance with the provisions of the Rules.
Rule 34 incorporated above was amended by adding Sub-claus (c) by notification G.S.R. 346 (E) dated 30th of June, 1978 and the said notification was issued in exercise of powers conferred by Section 83 of the Central Act 60 of 1976. Thus by introduction of Sub-clause 1(c), the beedis or incense sticks were exempted with effect from 30th of June, 1978.
18. As a result of the said notification manufacturers and traders of agarbathis were exempt from the provisions of the Act and Rules.
19. By the impugned notification GSR 140 (E), dated 7th March, 1997, issued in exercise of power con-ferred under Section 83 of the Standards of Weights and Measures Act, 1976 Sub-clause (1)(c) of Rule 34 had been deleted. This impugned Sub-clause (c) of Rule 34 is being challenged in the present writ petition. The effect of deletion of Sub-clause (c) of Rule 34 would bring in the manufacture, sale and distribution of Agarbathis within the purview and the requirement prescribed by the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 are to be satisfied. This amendment to Sub-clause (1)(c) of Rule 34 is being challenged in the present writ petition by the two of the manufacturers.
20. The Standards of Weights and Measures (Packaged Commodities) Rules, 1977 has been framed by the Central Government in exercise of powers con-ferred under Section 83 of the Central Act 60 of 1976. The learned Counsel for the petitioner did not and could not challenge the rule making power of the Central Government under Section 83 of the Central Act (60 of 1976). The power to frame rules is not challenged. It is fundamental that the Central Government, which is competent to frame the Rules has also the authority to amend or alter the rules by virtue of powers conferred under the same Rule make provisions, namely Section 83 of the Act, Sub-section (4) of Section 83 provides that every rule made by the Central Government in this Act requires to be placed before each house of Parliament, while it is in session for a total of 30 days and if both the Houses agree in making any modification in the rule or both the houses agree whether the rules should not be made, the rule shall thereafter shall have the effect only in such modified form or be of no effect, as the case may be, and such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
21. To be precise initially, the Government of India took a decision to exempt Agarbathi packages from the obligation of packaging in standard quantities (Rule 5) and that of date marking (Rule 6-D) and manufacturers/packers of Agarbathi may use their existing stocks of their packaging materials upto 30th of June, 1978. It was also clarified that the packages of Agarbathi would have to bear thereon the other mandatory declarations namely, (1) the name of the commodity, (2) the name and address of the manu-facturer/packer, (3) the net contents of weight, measure or number, and (4) net price in accordance with the provisions of the Rules.
22. Subsequently in exercise of powers conferred by Section 83 of Central Act 60 of 1976, the Central Government introduced amendment to the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. In terms of this amendment Clause (c) was introduced in Rule 34, the amendment being' (c) if contains biddies or incense sticks. '
23. Clause (c) in Rule 34 of the said Rules had been deleted by the exercise of powers conferred by Section 83 of the Central Act 60 of 1976. The relevant portion of the notification reads thus:
In the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, Rule 34, Sub-clause (c) Shall be omitted.
This omission of Sub-clause (c) is being challenged in the present writ petition on various grounds. By the introduction of Sub-clause (c) of Rule 34, the applicability of The Standards of Weights and Measures (Packaged Commodities) Rules, 1977 had been excluded by exercise of powers conferred under Section 83 of the Central Act 60 of 1976. By subsequent exercise of powers conferred under Section 83, Sub-clause (c) in Rule 34 had been omitted. In other words, the Agarbathis, which were excluded by the introduction of Clause (c) in Rule 34 stands included and the exemption rule had been deleted by the exercise of rule making power.
24. The exercise of rule making power is not being challenged in this writ petition. It is admitted that the Central Government has got the power to amend the rules or delete the rules.
25. It is contended by Mr. S. Venkataraman, that the Government of India, the first respondent is estopped from withdrawing the notification. It is to be pointed out that it is not an exemption notification but it is the deletion of the rule by which the applicability of the rules was excluded for few years and consequent to the amendments the rules are made applicable to Agarbathis. It has nowhere been pleaded or set out that the respondents have represented to the petitioner or other traders or manufacturers of Agarbathis that the first respondent will not withdraw the exemption. It is also to be pointed out that no such representation has been made at any point of time by the respondents. The principle of promissory estoppel has been invoked on a mis-conception. (No material has been placed before the court to show that the first respondent at any point of time had represented that the exemption will continue for ever or till a particular period. In the absence of any representation by the respondents, the plea of promissory estoppel cannot be raised by the petitioner. Further, the first respondent had exercised the powers of delegated leg-islation and with respect to exercise of such powers of delegated legislation the plea of promissory estoppel cannot be invoked at all.
26. In Jit Ram Shiv Kumar and Ors. v. The State of Haryana anad another, the Apex Court had considered the applicability of the doctrine of prom-issory estoppel. The Apex Court held thus:
A Bench of four Judges of this Court in a decision Excise Commissioner, U.P., Allahabad v. Ram Kumar : AIR1976SC2237 , after examining the case law on the subject observed that 'it is now well-settled by a catena of decisions that there can be no question of estoppel against the Government in exercise of its legislative, sovereign or executive powers'. The earlier decisions of this Court in N. Ramanatha Pillai v. State of Kerala : (1973)IILLJ409SC and State of Kerala v. Gwalior Rayon Silk t. : [1974]1SCR671 were followed. It may, therefore, be stated that the view of this Court has been that the principle of estoppel is not available against the Government in exercise of legislative, sover-eign or executive power.
xx xx xx xx xx
The scope of the plea of doctrine of promissory estoppel against the Government may be summed up as follows:
(1) The plea of promissory estoppel is not available against the exercise of the legislative functions of the state.
(2) The doctrine cannot be invoked for preventing the Government from discharging its functions under the law.
(3) When the officer of the Government acts out-side the scope of his authority, the plea of promissary estoppel is not available. The doctrine of ultra vires will come into operation and the Government cannot be held bound by the unauthorised acts its officers.
(4) When the officer acts within the scope of his authority under a scheme and enters into an agreement and makes a representation and a person acting on that representation puts himself in a dis-advantageous position, the court is entitled to re-quire the officer to act according to the scheme and the agreement or representation. The officer cannot arbitrarily act on his mere whim and ignore his promise on some undefined and undis-closed grounds of necessity or change the conditions to the prejudice of the person who had acted upon such representation and put himself in a disadvanteous position.
(5) the officer would be justified in changing the terms of the agreement to the prejudice of the other party on special considerations such as difficult foreign exchange position or other matters which have a bearing on general interest of the State.
27. In Delhi Cloth & General Mills Ltd. v. Union of India : [1988]1SCR383 , it has been held that there must be a representation for the purpose of finding whether estoppel arises. The Apex Court held thus:
It is however, quite fundamental that the doctrine of promissory estoppel cannot be used to compel the public bodies or the Government to carry out the representation or promise which is contrary to law or which is outside their authority or power. Secondly, the estoppel stems from eq-uitable doctrine, It, therefore, requires that he who seeks equity must do equity. The doctrine, therefore, cannot also be invoked if it is found to be inequitable or unjust in its enforcement. The last and final aspect of the matter to which attention should be drawn is that for the purpose of finding whether an estoppel arises in favour of the person acting on the representations, it is necessary to look into the whole of the representation It is also necessary to state that the representation made must be clear and unambiguous and not tentative or uncertain. In this context we may usefully refer to the following passage from Halsbury's Laws of En-gland, (Halsbury's Laws of England, 4th Edn., Vol. 16, page 1071, para. 1595) 1595. Representation must be unambiguous to found an estoppel a representation must be clear and unambiguous, not necessarily susceptible of only one interpretation, but such as will reasonably be understood by the person to whom it is made in the sense contended for, and for this purpose the whole of the representation must be looked at. This is merely an application of the old maxim applicable to all estoppels that they 'must be certain to every intent...
In the present case, as already pointed out no representation had ever been made by any of the respondents at any point of time. Further the plea of estoppel will have no application in respect of the legislative function. Hence the first contention raised by the learned Counsel for the petitioner cannot be sustained. 28. It was also incidentally argued by the learned Counsel for the petitioner that the respondents are estopped from withdrawing the notification. As al-ready pointed out that there was no representation by any of the respondents. It is not as if the respondents have given assurances not to bring agarbathis under the purview of the Standard of Weights and Measures (Packaged Commodities) Rules, 1977 nor it was ever represented by the respondents that Agarbathis will not be brought under the purview of the said rules till a particular point of time. In this respect, the learned Counsel relied upon the decision reported in Union of India v. J.K. Industires Ltd. (1990) 49 E.L.T. 511 (Raj.) and Union of India v. Chakra Tyres Ltd. : 1990(45)ELT3(Mad) : and it was contended that the plea of promissory estoppel could be raised even in respect of exemption notification and the with-drawal of the same by a subsequent notification. As already held above, it has never been represented that the exemption will be continued for ever or for a par-ticular period. Hence the decision reported in Union of India v. J.K. Industires Ltd. (1990) 49 E.L.T. 511 (Raj.) will have no application even assuming the plea of promissory estoppel would apply to such legislative function.
29. In a recent pronouncement the Apex Court had occasion to consider an identical issue in Kasinka Trading v. Union of India : 1994ECR637(SC) , the Apex Court has held thus:
The doctrine of promissory estoppel or equitable estoppel is well established in the administrative law of the country. To put it simply, the doctrine represents a principle evolved by equity to avoid injustice. The basis of the doctrine is that where any part has by his word or conduct made to the other party an unequivocal promise or representation byword or conduct, which is intended to create legal relations or effect a legal relationship to arise in the future, knowing as well as intending that the representation, assurance of the prom-ise would be acted upon by the other party to whom it has been made and has in fact been so acted upon by the other party, the promise, assurance or representation should be binding on the party making it and that party should not be permitted to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings, which have taken place or are intended to take place between the parties.
13. It has been settled by this Court that the doctrine of promissory estoppel is applicable against the Government also particularly, where it is necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or the public authority 'to carry out a representation or promise Which is contrary to low or which was outside the authority or power of the officer of the Government or of the public authority to make. ' There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel clear sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, Without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. In our opinion, the doctrine of prom-issory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine the courts have to do equity and the fundamental principles of equity must for ever be present to the mind of the court, while considering the applicability of the doctrine. The doctrine must yield when the eq-uity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation.
The power to grant exemption from payment of duty, additional duty etc. under the Act, as already noticed, flows from the provisions of Section 25(1) of the Act. The power to exempt includes the power to modify or withdraw the same. The li-ability to pay customs duty or additional duty under the Act arises when the taxable even occurs. They are then subject to the payment of duty as prevalent on the date of the entry of the goods. An exemption notification issued under Section 25 of the Act had the effect of suspending the collection of customs duty. It does not make items which are subject to levy of customs duty etc. as items not leviable to such duty. It only suspends the levy and collection of customs duty etc., wholly or partially and subject to such conditions as may be laid down in the Notification by the Government in 'public interest', such an exemption by its very nature is susceptible of being revoked or modified or subjected to other conditions. The super-session or revocation of any exemption notification, in the 'public interest' is an exercise of the statutory power of the state under the law itself as is obvious from the language of Section 25 of the Act, under the General Clauses Act an authority which has the poser to issue a notification has the undoubted power to resume or modify the notification in a like manner. From the very nature of power of exemption granted to the Government under Section 25 of the Act, it follows that the same is with a view to enabling the Government to regu-late, control and promote the industries and industrial production in the country. Notification No. 66 of 1979 in our opinion, was not designed or issued to induce the appellants to import PVC resin. Admittedly, the said Notification was not even intended as an incentive for import. The notification on the plain language of it was con-ceived and issued on the Central Government 'being satisfied that it is necessary in the public interest so to do. ' Strictly speaking, therefore, the Notification cannot be said to have extended any representation' much less a 'promise' to a party getting the benefit of it to enable it to invoke the doctrine of promissory estoppel against the state. It would bear repetition that in order to invoke the doctrine of promissory estoppel, it is necessary that the promise which is sought to be en-forced must be shown to be an unequivocal prom-ise to the other party intended to create a legal relation ship and that it was acted upon as such by the party to whom the same was made. A notification issued under Section 25 of the Act cannot be said to be holding out of any such unequivocal promise by the Government which was intended to create any legal relationship between the Government and the party drawing benefit flowing from the said Notification. It is, therefore, futile to contend that even if the public interest so de-manded and the Central Government was satisfied that the exemption did not require to be extended any further it could still not withdraw the exemption.
This latest pronouncement of the Apex Court makes it abundantly clear that the plea of promissory estoppel put forward by the learned Counsel for the petitioner in abstract will have no application at all to the present case and this contention cannot be sustained.
30. It was next contended that the impugned action is violative of principles of natural justice. The plea of violation of principles of natural justice will have no application at all to legislative function. The duty to afford a fair hearing arises only, if the function is judicial or quasi-judicial but not if it is legislative whether plenary or delegated. The proposition that rules of natural justice are not applicable to legislative function extends to both, (a) plenary legislation i.e., by the legislature as well as, (b) subordinate leg-islation i.e., by rules made by an administrative body subordinate to the legislature by virtue of legislative power delegated by the legislature.
31. In G. Govinda Rajulu v. The Andhra Pradesh State Construction Corporation Ltd. : [1987]2SCR841 , the court held thus:
5. The second observation we wish to make is legislative action, plenary or subordinate, is not subject to rules of natural justice. In the case of parliamentary legislation the proposition is self-evident. In the case of subordinate Legislation, it may happen that parliament may itself provide for a notice and for a hearing there are several instances of the legislature requiring the subordi-nate legislating authority to give public notice and a public hearing before say, for example levying a municipal rate, in which case the substantial non-observance of the statutorily prescribed mode of observing natural justice may have the effect of invalidating the subordinate legislation. The right here given to rate payers or others is in the nature of a concession which is not to detract from the character of the activity as legislative and quasi-judicial. But, where the legislature has not cho-sen to provide for any notice or hearing, no one can insist upon it and it will not be permissible to read natural justice into such legislative activity.
Following the said pronouncement of the Apex Court the second contention raised by the learned Counsel for the petitioner also has to be rejected.
32. The learned Counsel further contended that the withdrawal notification is discriminatory, and offends under Article 14. Except merely raising such a contention, the learned Counsel did not elaborate as to how the deletion of Clause (c), Rule 34 is discriminatory or violative of Article 14. Agarbathi is a class by itself and it cannot be contended that the action of the rule making authority, which is delegated function of the first respondent, bringing on Agarbathis within the purview of Packaged Commodities Rules, 1977, is discriminatory or arbitrary nor it could be suggested that it is violative of Article 14. In fact by introduction of Clause (c) to Rule 34 Biddies and Agarbathi were exempted from the rules and subsequently the entire Sub-clause (c) has been omitted. Even assuming that Biddies are jjll exempted, it cannot be contended that deletion Agarbathi in Clause (c) to Rule 34 is discriminatory, as Agarbathi is a class? by itself and the plea of violation of Article 14 also cannot be sustained.
33. The last of the contentions raised by the learned Counsel being that the impugned notification is beyond the rule making power and hence ultra vires of the Act, besides it was also contended incidentally that the power exercised is wholly unguided or arbitrary and unreasonable. This contention has been raised out of frustration. As already pointed out Section 83 of the Standards of Weights and Measures Act, 1976 enabled the Central Government to frame rules for carrying out the provisions of the Act. By exercise of powers conferred under the said provision, the Central Government had framed 'The Standards of Weights and Measures (Packaged Commodities) Rules, 1977. The enactment namely, the Principal Act 60 of 1976 falls under Entry '50' and '51' of Schedule VII, List I. The entry reads thus:
50. Establishment of standards of weights and Measures
51 Establishment of standards of quality for Goods to be exported out of India or transported from one State to another.
Thus it cannot be contended that the impugned en-actment and rules framed thereunder is ultra vires. The legislature by the specific provision has enabled the Central Government to frame rules. It cannot be contended that the deletion of 'clause (c)' to Rule 34 is beyond the rule making power. When only in terms of Rule 34 'incense sticks' i.e. Agarbathis the applicability of the (Packaged Commodities) Rules had been made in-applicable, it is equally well open to the first respondent to delete the clause and make the rules applicable to Agarbathis. The learned Counsel has merely raised a contention that the exercise of rule making power is arbitrary and unreasonable and had not cited any authority in support of his contention. By the deletion of 'clause (c)' to Rule 34 Agarbathis had been brought under the purview of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and it cannot be contended that the notification is beyond the rule making power nor it could be contended that it is ultra vires of the provisions of the Act. such a contention has been raised out of frustration. All the four contentions raised by the learned Counsel for the petitioner cannot be sustained and they are all rejected.
34. For the foregoing reasons, the writ petitions are dismissed. Consequently, W.M.P. Nos. 25598 and 25599 of 1997 are also dismissed.