ORDER
V.V.S. Rao, J.
Introduction
1. The petitioners in these writ petitions (73 petitioners in Writ Petition No. 14791 of 2004 and 244 petitioners in Writ Petition No. 15938 of 2004) initially filed these writ petitions praying this Court the following relief.
For the reasons stated in the accompanying affidavit, it is hereby prayed that this Hon'ble Court may be pleaded to issue a Writ, Order, or Direction more particularly one in the nature of writ of mandamus declaring the reservation order in S.O.557(C), dated 26.7.1996 issued under sub-section (1) of Section 3 of the Handlooms (Reservation of Articles for Production) Act, 1985, as illegal, and unenforceable and issue a consequential direction to the first respondent to reconstitute the Committee under Section 4 of the Act with adequate representation from Powerloom Industry and pass such other order or orders as may deem fit and proper in the circumstances of the case.
2. This Court admitted the Writ Petition No. 14791 of 2004 on 20.8.2004 and passed interim orders directing stay of all further proceedings in respect of the petitioners. Respondents 3 to 6 filed an application being W.V.M.P.No.2610 of 2004 to vacate the interim order on 3.9.2004. Two organisations and two individuals filed an application being W.P.M.P.No.21433 of 2004 seeking impleadement on 9.9.2004. That application was ordered and they were impleaded as Respondents 7 to 10. Similarly, Writ Petition No. 15938 of 2004 was admitted on 7.9.2004 and passed orders directing stay of all further proceedings including search and seizure operations at petitioners' premises. Respondents 3 to 6 filed an application being W.V.M.P. No. 2887 of 2004 to vacate the interim order on 22.9.2004. In this writ petition also the two organisations and two individuals filed an application being W.P.M.P. No. 21566 of 2004 seeking impleadment on 14.9.2004. Said application was ordered and they were impleaded as Respondents 7 to 10.
3. The impleaded respondents filed counter-affidavit inter alia stating that the issue raised is no more res Integra and that the same is covered by the judgment of the Supreme Court in Parvej Aktar v. Union of India, : [1993]1SCR803 ,(hereafter Called, Parvej Aktar case). Presumably for this reason the petitioners moved application being W.P.M.P. No. 23126 of 2004 and W.P.M.P. No. 23127 of 2004 in both the cases under Order VI, Rule 17 of Code of Civil Procedure, 1908 praying this Court to permit them to amend the writ prayer on the ground that by inadvertence the relief in this writ petition was not properly framed. As these applications are not opposed this Court allowed the amendment by order dated 1.10.2004, and 30.9.2004 respectively. After amendment, the relief sought by the petitioners in both the writ petitions reads as under:
For the reasons stated in the affidavit it prayed that this Hon'ble Court may be pleased to issue a writ or order or direction more particularly one in the nature of writ of mandamus declaring (1) that the action of the Respondents 1 and 2 in abridging all 22 items reserving for production by Handloom vide order S.O.459 (1) dated 4.8.1986 into 11 items by order S.0.557 (E), dated 26.7.1996 as illegal, and contrary to Sections 3 and 4 of Handlooms Act, 1985 and proviso to Rule 3 of Handlooms (Reservation of Articles of Production) Rules, 1986; (2) Further declare that the search and seizure of Respondents 3 to 6 at the instance of Handloom weavers in the premises of the petitioners powerloom units and foisting false cases on the assumption that the petitioners are violating the order of reservation as illegal, impermissible (3) and also declare that the action of the Advisory Committee constituted on 8.2.2001 by the Ministry of Textiles, in not meeting once in a year to review the list of reserved articles as illegal and contrary to law; (4) and further direct the Respondents 1 and 2 to reconstitute the Advisory Committee by exercising its power under Section 4 of the Handlooms Act, 1985 read with Rule 3 of the Handloom Rules 1986 with adequate members representing powerloom sector as there are only 1 or 2 members out of 29 members of Advisory Committee constituted on 8.2.2001 and pass such other suitable orders as this Hon'ble Court may deem fit and just in the circumstances of the case.
Case of petitioners
4. The fact of the matter as pleaded in both the writ petitions is as follows. There are twenty lakhs powerlooms in India producing 47% of the cloth in 1980- 81, which has increased to 75% now. In the corresponding period, the number of mills in powerloom sector has come down from 20% to 5% and that of handloom sector from 24% to 17%. Millions of weavers depend on powerlooms for their livelihood which is earning substantial foreign exchange by way of exports regulated by Powerloom Development and Export Promotion Council constituted in 1995.
5. The powerlooms manufacture sarees, dhotis, bed-sheets, lungies, towels and it is cheaper to produce cloth on powerlooms. The Government of India enacted Handlooms (Reservation of Articles for Production) Act, 1985 (Central Act No. 72 of 1985, hereafter called, the Act) to protect handloom industry. In exercise of powers under Section 19 of the said Act, the Government of India promulgated Handlooms (Reservation of Articles for Production) Rules, 1984 (for short, the Rules). The Government of India is empowered to reserve items of cloth for exclusive production by handlooom after consulting Advisory Committee constituted under Section 4 of the Act. The Advisory Committee is required to meet once in a year as per Rule 3(2), but it did not meet regularly and first respondent did not constitute the Advisory Committee periodically thereby failed to discharge the obligation. The Advisory Committee constituted in 1985 does not contain adequate representation by powerloom sector and though its contribution is far in excess of handloom sector.
6. The Government of India issued notification S.O. No. 99(E), dated 11.7.1986 reserving certain items for production by handlooms. Subsequently, by S.O. No. 459(E), dated 4.8.1986 Government of India in Ministry of Textiles reserved items for handloom sector. Thereafter, till 26.7.1996 the same was not revised. In notification S.O. No. 557(E), dated 26.7.1996 (hereafter called, Reservation Order), 22 items which were reserved in earlier notification were reduced to 11 items. But, there is no change in items reserved. The said exercise is de hors the provisions of the Act and no item of textiles/cloth is left for the manufacture by the powerloom sector. If the notification dated 26.7.1996 is implemented the powerloom sector has to close their activity depriving the livelihood of millions of weavers. The notification in S.O.No.557(E) was issued based on the recommendations of the Advisory Committee constituted in 1985 in violation of the mandatory provisions of Rule 3 of the Rules. As there is no subsequent review of the Reservation Order, the same has become unenforceable. All these years the respondents did not strictly implement the notification in S.O. No. 557 (E), dated 26.7.1996 and did not resort to any stringent measures. Recently, Respondents 3 to 6 have started operations for search and seizure under Sections 8 and 9 of the Act alleging that petitioners contravened the Reservation Order. Such search operations are being conducted ignoring ground realities. In the absence of periodical review of the reservation Order, action of respondents is illegal and untenable in law.
7. The petitiohers have also filed two additional affidavits, one on 3.10.2004 and 13.10.2004 raising certain additional issues. In first additional affidavit, petitioners state that in this case their grievance 'is only with regard to sarees. It is their allegation that the respondents are conducting illegal searches at the behest of handbom weavers and foisting false cases against petitioners. In the additional affidavit filed on 13.10.2004, all the details of the petitioners whose premises were searched and the respondents allegedly cut the warps/zari are given.
Case of respondents 1 and 2
8. The Assistant Director (Technical) in Regional Office of the Development Commissioner for Handlooms (Enforcement Wing), Chennai, filed a counter-affidavit on behalf of Respondents 1 and 2. The averments therein are as follows. There are 1,72,000 handlooms in the State of Andhra Pradesh. Many people depend solely on the handloom industry. To protect their interest and ensure adequate means of livelihood, Government of India enacted the Act for reservation of certain varieties for exclusive production by handlooms. By Handloom Reservation Order only certain items are reserved for exclusive production by handlooms and if petitioners are resorting to manufacturing these items they have to be prosecuted under the Act because every new powerloom puts out of action six handlooms thereby affecting the families which are traditionally engaged in the handloom sector. The contention of the petitioners that Advisory Committee constituted in the year 1985 is being continued is not correct. First Advisory Committee was constituted vide S.O.No.523(E), dated 21.6.1985 with twenty eight members and reconstituted vide S.O.No.359(E), dated 2.6.1986 and subsequently again reconstituted vide S.O.No.493(E), dated 12.6.1989. After the judgment of the Supreme Court in Parvej Aktar case (supra) the Advisory Committee was reconstituted vide S.O. No. 634(E), dated 18.8/1993 to review the reserved items in terms of provisions of Section 4(2) of the Act. The Advisory Committee conducted elaborate field study through five zone-wise sub-groups and after reviewing 22 items' reserved for handlooms made recommendations reducing to 11 items. The recommendations were accepted and first respondent notified these items vide S.O.No.557(E), dated 26.7.1986. The Advisory Committee was again reconstituted vide S.O.No.1240, dated 22.4.1997. The present Advisory Committee was reconstituted vide S.O.No.112 (E), dated 8.2.2001 in supersession of S.O.No.1240. Further, the reconstitution of new Advisory Committee is under process and shall be notified soon. The mere delay in reconstituting Advisory Committee does not amount to violation of the Act and the Rules nor the Reservation Order is rendered illegal and unenforceable.
9. The Committee meetings were held on 5.6.1998, 9.12.1998, 29.11.1999, 1.2.2002 and 28.1.2003 to review the Reservation Order in view of recommendations received from powerloom sector. Based on the recommendations of the Advisory Committee from time to time the Central Government amended the Handloom Reservation Order in S.O.No.557(E), dated 26.7.1996 and amended the Reservation Order by S.O.No.408(E), dated 2.6.1999 and S.O.No.405(E), dated 25.4.2000. Therefore, the allegation of the petitioners that first respondent has not undertaken deep study is not correct. The allegation that practically there is no change in the reservation vide S.O.No.557 (E), dated 26.7.1996 from the previous Reservation Order dated 4.8.1986 is also not correct. Items like, kota doria saree, shirting, crepe fabrics, table cloth, duster, basta, bukram cloth and low reed pick cloth were deleted. Therefore, the contention of the petitioners that there are no items left for powerloom industry is misconceived as lot of items can be produced on powerloom without violating the provisions of the Act. Textile articles with certain technical parameters specified in the Reservation Order are only reserved for handlooms and textile articles beyond these parameters are exempted from the purview of the Reservation Order which can be manufactured by powerloom/mill sector. There is no blanket ban on the manufacture of textile items reserved under the Handloom Reservation Order. For example, though saree is reserved article only those sarees with specified technical parameters are reserved and sarees other than these technical parameters are open for production by powerloom (The textiles articles left out for production of powerlooms are also mentioned in Annexure-VI to the counter-affidavit).
10. The allegation made by the petitioners that there is no adequate representation to powerloom industry is denied. It is stated that while constituting Advisory Committee care is taken that members are drawn from all sectors for equitable and balanced growth of handloom and powerloom sectors of textile industry. As per Rule 3(1) of the Rules, the Advisory Committee consists of thirty members including Chairman and care is taken to have members from handloom and other sectors. In the last Committee, members included Secretary (Textiles) as Chairman of the Advisory Committee, the Textile Commissioner, Mumbai, State Directors of Handlooms and Textiles, the Secretary General, Indian Cotton Mills Federation, the Chairman, Powerloom Development and Export Promotion Council, Mumbai, and other non-official members who are experts in technical matters.
11. Respondents 3 to 6 are duty bound to implement the provisions of the Act in the State of Andhra Pradesh. The violation of the provisions of the Act were rightly investigated by the respondents and legal action was initiated against wrongdoers. Petitioners with mala fide intention and to thwart respondents from enforcing/ implementing the law have come forward with unfounded allegations in the writ petitions. The contention that every conceivable textile item is reserved for handloom is not correct. Silk fibre is not a reserved item and the Reservation Order does not prohibit the powerloom sector from manufacturing fabric other than the eleven articles reserved exclusively for handloom industry. Out of eleven articles three articles, namely, saree at SI.No.1, dhoti at Sl.No.2, and dress material at Sl.No.7 which are reserved, if made in cotton or silk or combination thereof that too with certain specific technical parameters of extra warp and/or extra weft design in saree, and dhoti and dress material. The powerloom sector therefore is free to produce silk and cotton sarees and dhotis without extra warp and/or extra weft design in border and/or body, and in case of cotton and silk dress material, without extra weft design. Besides this, the Handloom Reservation Order provides exemption for production of crepe, chiffon, chinon, georgettes and cotton voile sarees by powerloom sector. Sarees made in blends or union of cotton or silk with more than 45% by weight of man-made fiber are also exempted. Variety of silk has no relevance to the Handloom Reservation Order and therefore powerloom sector can produce a variety of sarees and dhotis without encroaching upon the Handloom Reservation Order.
12. The Government of India reconstituted Advisory Committee properly after giving proper recognition to powerloom sector. The Handloom Reservation Order as it stands is properly reviewed taking into consideration all the prevailing conditions and circumstances. The allegation that powerloom weaving is put to great hardship is denied. The Act is a beneficial legislation which ordains to protect millions of handloom weavers and their families who are depending entirely on the handlooms for their livelihood. The comparative hardship of the handloom sector clearly outweighs that of the affluent powerloom sector and if respondents are restrained as prayed from conducting search and seizure under Sections 7 and 8 of the Act, millions of handloom weavers would face starvation and consequential loss of life.
Case of respondents 3 to 6
13. Respondents 3 to 6 are officials of the Government of Andhra Pradesh entrusted with the duty of enforcing the Act made by Parliament and the Rules made by the Government of India. A counter-affidavit is filed on their behalf by the Deputy Director (Enforcement) Regional Deputy Director, Handlooms and Textiles, Tirupati. All the allegations made by the petitioners with regard to constitution of Advisory Committee and allegations of adequate representation to powerloom sector are denied. It is stated that after coming into force of the Act, first Advisory Committee was constituted by orders in S.O.No.523(E) dated 21.6.1985 with 28 members. The same was reconstituted vide S.O.No.359(E) dated 2.6.1986 and again by S.O.493(E), dated 12.6.1989. After the judgment of the Supreme Court in Parvej Aktar case the Advisory Committee was reconstituted on 18.8.1993 vide S.O.No.634(E), to review the reserve items in terms of Section 4(2) of the Act. The said Committee held series of meetings during the period between October, 1993 to October, 1995 and discussed the 22 items reserved for handlooms and made recommendations in November, 1995 to Central Government to reduce the 22 items to 11 items. Accepting the said recommendation, Government of India issued revised Reservation Order in S.O.No.557(E), dated 26.7.1996. As per Rule 3(2) of the Rules, discretion is given to the Central Government to reconstitute Advisory Committee at any time after initial period of three years. Any delay in reconstitution of the Advisory Committee does not render the Reservation Order in S.O.No.557(E), dated 26.7.1996 illegal and unenforceable. The Rules made do not restrict the power of the Government in implementing the Act. By S.O.No.1240, dated 22.4.1997 the Advisory Committee was reconstituted, which held its meeting on 5.6.1998 for reviewing the Reservation Order.
14. The Government of India so as to conduct elaborate field status constituted five zone-wise sub-groups for extensive field studies. The Advisory Committee after careful consideration of the recommendation of the sub-groups made official recommendations in November, 1995 which were accepted by the Central Government. The allegation that powerloom sector left with no articles/items for manufacturing is denied. It stated that many items are leftover for production by powerloom sector. The allegation that there is no adequate representation to powerloom sector is denied and it is stated that out of 38 persons of the Advisory Committee there are adequate number of representations from powerloom sector, including the Chairman of the Powerloom Development and Export Promotion Council.
15. As per Sections 7 and 8, the authorised officers are duty bound to implement the Act and they cannot be restrained from conducting search and seizure operations. If the officers do not conduct search and seizure operations, millions of handloom weavers will be thrown out of employment. The Act is a beneficial legislation intended to protect the handloom weavers. The comparative hardship of handloom sector outweighs that of affluent powerloom sector which is better placed in all respects. The counter- affidavit also refers to orders of this Court in Writ Petition No. 28707 of 1998 as well as the order of the High Court of Judicature, at Chennai in Writ Petition No. 7639, 12455 and 12587 of 1998.
Case of respondents 7 to 10
16. On behalf of Respondents 7 to 10 a common counter-affidavit is filed by 9th respondent. Their case in brief may be noticed. Handloom sector produces 25% of total production of cloth and had 75% of employees in textile industry. Most of the handloom weavers are poor and do not have proper equipment. The powerloom and mills sector with modern machinery are developing at a fast pace in urban as well as rural areas. It has became threat to handloom industry which is already straggling for survival of its weavers. After several agitations by handloom weavers Parliament has enacted the Act. As per the recommendations of the Advisory Committee initially 22 articles are reserved for exclusive production by handloom sector by S.O.No.459(E) dated 4.8.1986. The same was re-promulgated in S.O. No. 557(E), dated 26.7.1996 reducing 22 reserved articles to 11 articles, though some of the articles are abridged restricting the scope and deleting some of the articles. There is no arbitrariness or illegality in the said notification.
17. As the Reservation Order is not strictly enforced, powerloom sector is producing articles reserved for handloom sector with the active support of political parties. This illegal production of reserved articles to powerloom sector causes great hardship to the weavers. The powerloom sector is not paying sales tax and excise duty and besides this, they are getting 20% subsidy from 'the Government. All the petitioners are not owners of single powerloom. Most of them own a large number of powerlooms and they cannot compare themselves with the handloom weavers. In Ananthapur there are about four lakh handloom weavers in Hindupur and Dharmavaram Villages and they are entirely depending on handloom weaving. Due to abnormal increase of powerloom sector, handloom industry is facing threat and most of the weavers are loosing their livelihood. This resulted in the handloom weavers resorting to agitations. The District Collector conducted separate meetings and instructed powerloom owners not to produce reserved articles. They were given 48 hours time to stop production of reserved articles which was further extended. In spite of extension of the time, the petitioners violated the Reservation Order and directions issued by the District Collector. The petitioners on that ground are seeking to challenge the Reservation Order after lapse of eight years though such Reservation Order has been upheld by the Supreme Court in Parvej Aktar case. The earlier writ petitions filed by petitioners and others are already dismissed and therefore this writ petition is liable to be dismissed.
Submissions of Counsel
4(2)
4
19. The learned Counsel appearing for Respondents 1 and 2, Respondents 3 to 6 and Respondents 7 to 10 would argue that the writ petition having regard to the decision of the Supreme Court in Parvej Aktar case is not maintainable. They would urge this Court to dismiss the writ petitions as all the questions raised herein are squarely covered by judgment of the Supreme Court. Refuting the allegations made by the petitioners that the Respondents 3 to 6 are resorting to arbitrary search and seizure, they would contend that a duty is cast on Respondents 1 to 6 to enforce the provisions of the Act and Rules as well as Reservation Order. If the petitioners violate the Reservation Order, they are liable to be punished under the provisions of the Act and therefore no illegality can be attributed to the actions of the Respondents 1 to 6, if they conduct search and seizure of the premises of the petitioners. The learned Additional Standing Counsel for Central Government appearing for Respondents 1 and 2 has taken this Court through various Government notifications to show that from time to time the Advisory Committee has been duly constituted and its recommendations have been duly considered. He would also contend that the Advisory Committee met on 28.1.2003 and made further recommendations for amending the Reservation Order issued vide S.O. No. 557(E) dated 26.7.1996, but the same would not be notified due to administrative reasons. The learned Standing Counsel has placed minutes of various Advisory Committee meetings before this Court.
Points for consideration
20. The petitioners prayed for declaration that the action of the first respondent in reserving 11 items by abridging 22 items for exclusive production by handloom sector is illegal and arbitrary. They also prayed for declaration that the search and seizure conducted by Respondents 3 to 6 is illegal and for declaration that the action of the first respondent in Ministry, of Textiles in not reconstituting the Advisory Committee is illegal and contrary to law and for a direction to reconstitute the Advisory Committee. With reference to these reliefs, three points would fall for consideration.
(i) Whether the action of the first respondent in abridging 22 items into 11 items and reserving those items for production by handloom sector is illegal and arbitrary and contrary to the provisions of Sections 3 and 4 of the Act;
(ii) Whether it is illegal on the part of the first respondent in not reconstituting and convening the meeting of Advisory Committee; and
(iii) Whether the search and seizure conducted by Respondents 3 to 6 is illegal and arbitrary.
In Re Point No.(i)
21. After agricultural sector, the handloom sector creates large employment potential. A handloom is a family industry and the encroachment of powerloom sector on handloom sector is disastrous. It is said that a new powerloom would put out of action six handlooms in the country. Since early days after independence, it has been the national policy to support expansion of rural industry and handloom industry in order to give more employment in the rural sector. It was realized that the encroachment of mill sector and powerloom sector into the areas, traditionally occupied by handloom sector can be prevented by reserving certain items of cloth and textiles exclusively for handlooms. Since 1963, there have been various Committees and special groups looking into this issue. As a result, in exercise of the powers under Section 3 of the Essential Commodities Act, 1955, the Government of India made Cotton Textile (Control) Order, 1948. Under this order, the reservation of certain articles for production of handloom continued, though powerloom sector challenged the said control order unsuccessfully. So as to bring handloom sector under protective umbrella of parliamentary enactment, the Act was enacted. This was, inter alia, intended to obviate the possibility of further litigation, which may seriously affect the implementation of Reservation Orders.
22. Sub-section (1) of Section 3 of the Act empowered the Central Government to reserve any article or class of articles for exclusive production by handlooms, after considering the recommendations of Advisory Committee constituted under Section 4 of the Act. Subsequently, as recommended by the Advisory Committee, the Government of India notified Handloom Reservation Order dated 4.8.1986 under Section 3(1) of the Act. Under the said order, as many as 21 items like saree, dhoti, angavastra etc., are exclusively reserved for production by handlooms.
23. The Act and Handloom Reservation Order, 1986 were challenged before the Supreme Court under Article 32 of the Constitution of India in Parvej Aktar case. It was contended that the Act and Handloom Reservation Order are violative of Articles 14 and 19(1)(g) of the Constitution of India, that the meeting of the Advisory Committee once in year as required under Rule 3(5) of the Rules was not held, and that the Act and Handloom Reservation Order imposed unreasonable restrictions, which are not in public interest. It was also contended that while notifying the articles or items for exclusive production of handloom sector, the authority under Section 3 of the Act must have regard to overall textile industry and that the Handloom Reservation Order is ultra vires the Cotton Textile (Control) Order, 1948 and that the Advisory Committee constituted under Section 4 of the Act does not contain adequate representation of powerloom sector. The Supreme Court repelled all the contentions and dismissed the writ petition. It was held that Act and Handloom Reservation Order imposed restrictions which are reasonable and justified, having regard to the Directive Principles of State Policy adumbrated in Articles 43 and 46 of Constitution of India. It was ruled that classification has nexus with objects sought to be achieved and handloom sector forms a distinguishable class separate from powerloom sector or mill sector and that the Act and the Handloom Reservation Order have nexus with the object sought to be achieved. The following principles may be culled out from the decision of the Supreme Court in Parvej Aktar case (supra).
(i) Most of the handlooms in the country produced 'bread and butter item' such as grey dothis sarees, towels and plain household fabrics, which have suffered on account of creating competition from powerlooms. Therefore, the reservation of certain items for handlooms acquires importance.
(ii) The impugned Act is traceable to Entry 24 and 27 of List II and Entry 33 of List III of the VII Schedule of the Constitution of India and therefore handloom industry has been taken out of Industries (Development and Regulation) Act, 1951.
(iii) The Act is not ultra vires the Essential Commodities Act and Cotton Textile (Control) Order as the control order deals with finished products, which is one of the items mentioned in Entry 33 of List III of the VII Schedule of Constitution of India whereas the order issued under Section 3 of the Act is only for the protection of development of handloom industry and the said order does not run counter to Cotton Textile (Control) Order.
(iv) The Act and the Handloom Reservation Order do not create any monopoly in favour of handloom industry. Though certain kinds of textiles are reserved to handloom industry still there are number of items available for powerloom owners, which they can manufacture.
(v) Only those items, .which have traditionally been manufactured on handlooms have been reserved for this sector. The Handloom Reservation Order left out textiles generally manufactured in the mill and powerloom sector from reserved items.
(vi) The Handloom Reservation Orders in favour of handlooms have been on the statute books from 1950. This has not deterred the growth of powerloom sector for the last four decades.
(vii) When powerloom sector started producing the items traditionally manufactured on handlooms, jeopardizing handloom industry, the Government of India stepped in reserving certain items for exclusive production by handloom industry. This does not however mean that powerlooms sector is totally prohibited from manufacturing other items of textiles.
(viii) Even if the restrictions imposed by the Act and Handloom Reservation Order result in total exclusion of powerloom sector that could be upheld as reasonable and powerloom sector cannot have any complaint.
24. In the considered opinion of this Court, every facet of the argument sought to be made by the learned Senior Counsel for the petitioners stands concluded against the petitioners by reason of the judgment of the Supreme Court. Indeed as held by the Supreme Court, even if the Reservation Order made in exercise of powers under Section 3(1) of the Act results in total exclusion of powerloom sector with reference to a particular item of cloth or textiles, the same cannot be invalidated on any ground much less on the ground that it violate Articles 14 and 19(1)(g) of the Constitution of India. The illegality or arbitrariness alleged has to be sustained by the petitioners only with reference to the provisions of the Act and the Rules. The petitioners have miserably failed to sustain such challenge. Indeed the learned Senior Counsel candidly agrees that the lis in this case is only with reference to the manufacture of 'sarees' by the petitioners. According to the learned Counsel, the sarees manufactured by the petitioners do not in any manner violate Reservation Order and that technical parameters of the sarees manufactured by the petitioners are altogether different from the variety of sarees, which are specifically reserved for the handloom sector. This argument is met by the learned Counsel for opposite side contending that whether the petitioners have not violated the Reservation Order by manufacturing sarees which are excluded in the Reservation Order is a question which is to be determined by the Authorised Officer at the time of search and seizure and if necessary by sending the sample of the seized cloth to a testing laboratory set up by the Central Government or State Government or to the institutions recognised by the Central Government and State Government. The mere allegation of the petitioners that they are manufacturing sarees, which are not reserved for handloom sector cannot be crucial to exonerate the petitioners.
25. After coming into force of the Act Vide notification G.S.R. 505(E) dated 10.3.1986 published in the Gazette of India (Extraordinary) No. 133 dated 17.3.1986, the Government of India appointed 31.3.1986 as the date on which the Act shall come into force., the Government of India issued notification being S.O.99(E) dated 11.3.1986 reserving 21 articles or class of articles specified therein for exclusive production by the handlooms. The same was done after considering recommendations made by the Advisory Committee constituted under Section 4 of the Act. Items 1, 2 and 3 relate to sarees and they read as under:
--------------------------------------------------------------------------------Sl. Item Range reserved for Production by HandloomsNo.--------------------------------------------------------------------------------1. Saree: Saree is a cloth in any weave either in grey or bleached or piece-dyed or woven with coloured yarn with extra weft, which is also jointly characterized by the following:
(i) is characterized by its woven borders and/or headings containing coloured yard orgrey or bleached yarn or zari or any other metallic/metallised yarn or a combinationof these;
(ii) has a width ranging between 70 cms and 140 cms (inclusive of salvedges);
(iii) has a lengh ranging from 2.5 metres to 9,5 metres;
(iv) is commonly known by that name/distinguished by different names in different partsof the country; and
(v) is made from any natural or man-made fibre (including synthetic fibre) or in anycombination thereof.
Border:
Border may be defined as any pattern different from that of the body of the fabricwoven length-wise class to the selvedges using grey, bleached, mercerized and/orcoloured yarn including silk, art silk, zari or any other metallic/metallised yarn.
Heading/Cross Border:
Can be defined as any pattern different from that of the body of the fabric wovenwidth-wise with grey, bleached, mercerized or coloured yarn including silk, art silk,zari or any other metallic/metallised yarn.
2. Kotah Doria Kotah Doria Saree is a plain woven cloth either grey or bleached which is also jointlySaree characterized by the following :-
(i) is manufactured wholly from cotton or predominantly cotton along with combinationof any other fibre;
(ii) has corded effect obtained by cramming either the warp or weft threads or both orby using threads of different counts to form stripe pattern warp-way or weft-way;
(iii) has a width ranging from 90 cms to 140 cms (inclusive of selvedges);
(iv) has length ranging from 5 metres to 8.5 metres; and
(v) is commonly known by that name.
3. Tie and Dye Tie and Dye fabrics are made by dyeing the yarn used in manufacture of the fabrics inSaree and different colours by tying the yarn in knots separately for each colour both weft-wisematerial: and warp-wise and is manufactured from any fibre or in combination of fibres.--------------------------------------------------------------------------------
26. The Government of India again issued S.O.No.459(E) dated 4.8.1986 after considering recommendations made by Advisory Committee in supersession of its earlier order in S.O.No.99(E). This time 22 articles or class of articles specified in the table given below the notification were reserved for exclusive production by handlooms. Items 1 to 3 deal with sarees. There is no difference in the description of sarees given in S.O.99(E) and in this notification. The important feature, however, is the specific and clear exclusion mentioned under Item 1 in the notification. As per these exclusionary classes, nothing in the S.O. will apply to sarees made out of 100 per cent synthetic fibre i.e., Polyster, Nylon yarn etc., or in any combination thereof and nothing in the notification will apply to sarees made in blends or union with more than 45 per cent by weight of man-made fibre yarn (including viscose rayon) in combination with any natural or man-made fibre/yarn. Again the Government of India issued yet another order being S.O.No.557(E) dated 26.7.1996 wherein only 11 articles or class of articles specified in the table under the notification were reserved for exclusive production by handlooms. Be it noted that S.O.No.459 was specifically challenged unsuccessfully in Parvej Aktar case. The description of 'saree' in three classes as saree, kotah, dhoria saree and tie and dye saree and material as mentioned in earlier two notifications has been brought under one class as saree under Item 1. In S.O.557(E), saree is described as under:
--------------------------------------------------------------------------------Sl. Item Range reserved for Production by HandloomsNo.--------------------------------------------------------------------------------1. Saree (a) A saree is a fabric made out of cotton or silk or in any combination thereofirrespective of count of yarn and dimensions, which is commonly known by thatname and is characterized by the following:
(i) has extra warp and/or extra weft design in the border and/or heading and/or bodyincluding buttas containing any coloured or grey or bleached yarn or zari or anyother metallic/metallised yarn or in combination thereof;
and/or
(ii) has a solid coloured woven border
(b) Tie and dye saree, warp-wise and/or weft-wise made out of cotton or silk or artsilk or in any combination thereof irrespective of count of yarn and dimensionswith or without extra warp or extra weft solid woven border.
NOTE
(i) Nothing in this direction shall apply to sarees made out of 100% synthetic fibre/yarn i.e., Polyster, Nylon etc., or in any combination thereof.
(ii) Nothing in this direction shall apply to sarees made in blends or union with morethan 45% by weight of man-made fibre/yarn (including viscose rayon) in combinationwith any natural or man-made fibre/yarn.
(iii) Nothing in this direction shall apply to crepe, chiffon, chinon, georgettes and cottonvoile sarees.
(iv) Nothing in this direction shall apply to grey/bleached silk sarees having a border inextra warp design.--------------------------------------------------------------------------------
27. As per S.O.No.459, as mentioned above, there are only two excluded categories of sarees, namely, sarees with 100 per cent synthetic fibre and sarees made in blends with more than 45 per cent by weight of man-made fibre. When the Government of India issued S.0.557, after considering the recommendations of the Advisory Committee, the scope of excluded articles was enlarged. 100 per cent synthetic fibre sarees, blended sarees with more than 45 per cent by weight of man- made fibre, the sarees made of crepe, chiffon, chinon, georgette and cotton voile sarees and grey/bleached silk sarees having a border in extra warp design were also excluded. Therefore, the number of articles or class of articles especially saree articles reserved for handloom sector got reduced. The Supreme Court Upheld S.O.No.459(E) when only two varieties of sarees were excluded. Therefore, there is no strong reason to agree with the submission that S.O.No.557(E) dated 26.7.1996 insofar as it reduces 22 items into 11 items is illegal and arbitrary. Indeed the amended S.O. No. 557(E) is far more beneficial to powerloom sector and the point urged is misconceived. As rightly submitted by the learned Additional Central Government Standing Counsel for Respondents 1 and 2, large variety of articles are left out of the Reservation Order for manufacture by powerloom sector and mill sector. Therefore, the challenge to S.O.No.557(E) on any ground must fail. Indeed original relief prayed and the prayer one in the amended relief are almost similar. The submission is made only with regard to sarees and this Court does not find any substance in the submission that abridging 22 class of articles into 11 articles is arbitrary and illegal.
28. The Supreme Court in Pervej Aktar case held that most of the handlooms in the country produce 'bread and butter item' such as grey dhotis, sarees, towels and plain household fabrics, which have suffered on account of competition with powerlooms. The Apex Court also held that even if some, more items of textiles are reserved for exclusive production by handlooms, the same would not be unreasonable. The historical fact is that in India till the advent of powerloom in the later part of eighteenth century, the entire cloth required by the nation was woven by the village weavers and not the powerloom sector. This historical fact was the main force behind the Act and the Rules. This cannot be lost sight of when one considers the rationality of Reservation Order. As seen from three Reservation Orders so far issued, in fact number of varieties of saree items reserved for handloom sector is getting reduced. Therefore, there is no substance in the submission that no item is left out for powerloom sector. Therefore, the Point No.(i) is answered against the petitioners.
In Re Point No.(ii)
29. The submission of the learned Counsel is two-fold. It is contended that as required under Section 4 of the Act the Advisory Committee constituted from time to time does not have adequate representation to powerloom sector and that the Advisory Committee failed to meet once in a year to revise the articles or class of articles reserved for handlooms. Both the submissions are devoid of any merit. The Act came into force on 33.3.1986. After that, the Advisory Committee has been constituted from time to time. The following table would show these particulars.
SI. S.O.No. Dated Published in Number ofNo. Gazette of India on Members1. 523 (E) 21.6.1985 12.7.1985 282. 359 (E) 2.6.1986 16.6.1986 313. 493 (E) 12.6.1989 29.6.1998 294. 634 (E) 18.8.1993 25.8.1993 30[as amendedby S.O.702(E)]5. 702 (E) 12.9.1993 20.9.1993 316. 1240 22.4.1997 10.5.1997 317. 112 (E) 8.2.2001 8.2.2001 29
30. A perusal of the various notifications constituting Advisory Committee under Section 4 would show that the powerloom sector was given adequate representation. The submission that the contribution made by powerloom sector with regard to employment, foreign exchange and potential there should have been more representatives from powerloom sector in the committee is misconceived. The adequacy of representation does not depend on majority of members. Again it should be remembered that the Act is intended to protect the social, cultural and economic interests of handloom weavers and Advisory Committee is constituted for making recommendation to the Central Government regarding articles or class of articles being produced by handlooms for mass-consumption and other related matters. The Committee is not intended to make recommendations to exclude the articles or class of articles traditionally manufactured by handlooms to enable the powerloom sector to take up production. The adequacy of representatives depends on the duties assigned to the Advisory Committee. Having regard to Section 4 of the Act, it is not possible to accept the contention that presence of one or two or three members in the Advisory committee is inadequate.
31. The submission that as required under Rule 3, the committee constituted failed to meet once in a year and therefore the Reservation Order must be held arbitrary must fail for two reasons. Rule 3 contemplates a tenure of three years for constitution of Advisory Committee under Section 4(1) of the Act. Sub-rule (5) of Rule 3 is to the effect that the Advisory Committee may meet at such place and at such times as may be determined by the Chairman. Proviso thereto lays down that the Advisory Committee shall meet at least once in a year to review the list of reserved articles. Section 4 or for that matter any provision of the Act does not contemplate any such periodical meeting. What is contemplated is to reserve articles for handloom sector after considering the recommendations made to the Central Government. The recommendations made by the Advisory Committee have no binding nature. Therefore, the proviso to sub-rule (5) of Rule 3 cannot be interpreted as mandatory provision. Merely because the Advisory Committee has not met once in a year it cannot be a ground to invalidate the Reservation Order. When once Reservation Order is in force, and the Central Government decides not to review the said order, there is no compulsion for the Advisory Committee to meet once in a year.
33. The learned Additional Standing Counsel for Central Government has placed before this Court, Minutes dated 28.1.2003 of the Advisory Committee constituted on 8.2.2001 wherein certain recommendations were made. One of the recommendations is to amend, inter alia the definition of saree. The recommended definition reads as under.
Saree:
A saree is a fabric made out of 100% cotton or 100% silk or in any combination thereof and includes sarees made in blends or union with upto 45% by weight of man-made fibres/yarn in combination with cotton or silk, which is characterized by one or more of the following:
(i) has extra warp and/or extra weft design in the border and/or heading and/or body including buttas containing any yarn, any zari or any other metallic/ metalised yarn or in combination thereof;
(ii) has a solid woven border;
(iii) tie and dye sarees, warp-wise and/or weft-wise.
Note
(i) Nothing in this direction shall apply to crepe, chiffon, chinon, georgettes and cotton voile sarees
(ii) Nothing in this direction shall apply to grey/bleached silk sarees having a border in extra warp design.
34. He also brought to the notice of this Court that the Central Government after considering the same opined re- examination of the recommendation and that it will be placed before the Advisory Committee for recommendation shortly. If the same is again recommended by the Advisory Committee and accepted by the Central Government, the Reservation Order has no application to grey/bleached silk sarees having a border in extra warp design as well, besides other excluded categories as per the Reservation Order in force. For these reasons, I hold on point No.(ii) against petitioners as the Advisory Committee is being constituted periodically and the same is meting regularly to consider various aspects.
In Re Point No.(iii)
35. The submission of the learned Senior Counsel is that though all the petitioners are manufacturing only grey silk sarees which fall in excluded category, Respondents 3 to 6 are conducting illegal search and resorting to seizure in an arbitrary manner. This is denied by Respondents 1 to 3 as well as Respondents 4 to 6. It is well settled that a mandamus shall not issue restraining the officers entrusted with the duty to enforce the Act from discharging their official duty. Under the provisions of the Act and the Rules framed, Authorised Officer can inspect any premises where powerlooms are established, and if he is of the opinion that articles or class of articles reserved for handlooms are being manufactured, he may seize the articles as well as powerlooms. After considering the entire material placed before this Court by Respondents 1 to 6, I am convinced that there is no illegality in the search and seizure conducted by the respondents. Further, in the counter-affidavit filed by Respondents 7 to 10 it is averred that the District Collector has convened meeting and' directed all the powerloom owners to stop manufacturing the articles reserved for handlooms. When the orders of the District Collector were not complied with, then only search and seizures was conducted. This is not specifically denied in any of the affidavits filed on behalf of the petitioners. Be that as it is, if the petitioners allege that the search and seizure is not in accordance with law, the remedy lies elsewhere. In writ petition, no direction can be issued to respondents not to conduct search and seizure merely on the allegation of the petitioners. Whether the petitioners are manufacturing blended silk sarees with more than 45% man-made fibre or whether the petitioners are manufacturing the class sarees excluded from the Reservation Order are matters which are essentially questions of fact and this Court is not equipped to decide these questions.
36. It is now well settled that when an offence is created by a statute, and the person pleads ignorance, such question has to be decided by the competent Criminal Court. Any attempt to contravene the provisions of the Act is also made offence under Section 12 of the Act. Whether the search and the seizure conducted by Authorized Officer on suspicion that the contravener has manufactured articles or class of articles for handlooms is, a question that cannot be decided in proceedings under Article 226 of the Constitution of India. Aggrieved party has to necessarily approach the competent Criminal Court. A reference may be made to Full Bench decision of this Court, to which I was a Member, in Ganesh Traders, Dhermapuri, Karimnagar v. District Collector, : 2002(1)ALD210 (FB).
37. The submission of the learned Senior Counsel cannot be accepted especially when it is conceded that the Authorized Officer has power under Section 8 of the Act to conduct search, and seize any article or class of articles when such Authorised Officer has reason to believe that such articles or class of articles are manufactured in contravention of the Reservation Order. Therefore, on point No.(iii), this Court holds that the writ petition is not proper remedy and as and when the case is filed, the petitioners have to approach the Criminal Court with such grievance.
38. The submission that search and seizure is being done arbitrarily and cases are being booked in high-handed manner is factually incorrect. Respondents 1 to 3 have filed statement of cases of FIRs booked, convictions awarded and pending cases. Though the Act has come into force in 1985 there was stay granted by Supreme Court up to 1993. Therefore, no cases were registered against powerlooms for violating the Reservation Order. During the period from 1994-1995 to 1998-1999 no case was registered against any powerloom owner. During the years 1998-1999 to 2002-2003 only four cases were registered. In most of the cases where searches were conducted, cloth was seized and no further action was taken. From the statement it appears that the Act, the Rules and the Reservation Order are not being implemented in Andhra Pradesh properly. This belies the submission that the cases are being booked arbitrarily.
39. In the result, for the above reasons, the writ petitions are devoid of merit and are accordingly dismissed without any order as to costs. The interim orders shall stand vacated.