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Judgment
K.A. Swami, C.J.—In all these petitions, the Petitioners have sought for a Writ in the nature of Mandamus directing the Respondents, i.e.,
the Union of India and the Textiles Commissioner, Bombay to refrain from applying the Notification issued by the Textiles Commissioner, Bombay
in Notification No. CER/(23)/90-CLB dated 29.3.1990 to the Petitioner mills and pass such further or other orders as may be deemed fit in the
fact and circumstances of the case.
The Textiles (Control) Order, 1986 (hereinafter referred to as ""1986 Control Order"") was issued u/s 3 of the Essential Commodities Act, 1955,
for the purpose of maintaining supply of essential commodities and securing equitable distribution. Clause 16(1)(e) of the said Order empowered
the Textiles Commissioner to issue direction as to the manner of packing of yarn in hanks, cones or in any other form and in such proportion as he
may consider necessary or expedient. The said Clause was challenged before the High Court of Andhra Pradesh and the same was upheld.
Nevertheless, the matter was taken to the Supreme Court in G.T.N. Textiles Ltd. and another Vs. Assistant Directors, R.O.T. Commr. and
others, in which the decision of the High Court of Andhra Pradesh has been approved. It is necessary to refer to the relevant portions of the
judgment of the Supreme Court in order to consider the contentions put forth by Mr. C.S. Vaidyanthan, learned Senior Counsel appearing for the
Petitioners and Mr. V.T. Gopalan, learned Senior Central Government Standing Counsel, for the Respondents. The relevant portions of the said
judgment are as follows:
The Appellants are the Spinning and Weaving Mills in the State of Andhra Pradesh. The Cotton yarn manufactured by the Mills is of different
varieties. It is classified on the basis of counts. Yarn with 1 to 40 counts is coarse, 40 to 60 medium, between 60 and 100 fine and anything above
100 counts is described as very fine. There are two methods of packing the yarn. One is the cone form packing which is used in power loom and
hosiery industry. The others is hank form packing which is exclusively consumed by the handloom industry. Spinning and packing are the two
stages of manufacturing yarn. Raw cotton has to pass through the process of blow-room, carding, drawing simplex and finally the ring frame to
complete the process of spinning. The process of packing starts thereafter. For the cone form packing the ring frame cops are fed to the winding
machines and for the hank form packing the cops are fed to the reeling machines. According to the Appellants they are packing the yarn in cone
form. They have not in stalled the reeling machines and as such it is not possible for them to pack the yarn in hank form.... The textiles industry
consists of three sectors namely, Mill sector, Powerloom Sector and Handloom Sector. The primary product in the industry is yarn. It is produced
only by the Mill Sector. The powerloom and handloom Sectors manufacture fabrics and they depend upon the Mill sector for yarn. The yarn is
packed in two forms namely, cone form and hank form. The cone form is consumed entirely by the powerloom sector and the hank form by the
Handloom sector. The handloom industry is the largest cottage industry in India. Nearly one third of the country''s requirements of cloth is met by
this Sector. As per the National Handloom Census, 1987-88 there were 3.9 million handlooms spread all over the country out of which three
million were engaged in production of cotton cloth. The handloom sector provided direct employment to 8.4 million during 1988-89 and in direct
employment to millions of people. The production target for handloom Sector for the Seventh Plan was 4600 million mts. In order to achieve the
said production target a minimum of 460 million kgs. of hank was required. The employment generated in the three sectors during the year 1988
was 84-22,50.95 and 11.81 lakh person in Hand-loom Sector, Powerloom Sector and Mill Sector respectively. The production of cloth for
Handloom Sector during the Eighth Plan has been targeted at 7000 million mts. out of which cotton cloth is 5610 million mts. In order to achieve
this target 561 million kgs. of hank yarn is required. Against the said requirement only 355 million kgs. of cotton yarn is being packed in hank form.
According to the Respondents there is a big gap between the demand and supply. This causes scarcity of yarn in the market and results in spiralling
of prices. It further results in unemployment in Handloom Sector. In order to make available sufficient quality of hank yarn at reasonable prices and
also for the sustenance of handloom workers, it became necessary to reserve hank yarn for handloom Sector by making it obligatory on the part of
the manufacturers of yarn to pack a certain percentage of their production packet for civil consumption in the form of hanks....
Mr. Vaidhyanathan further contended that under the impugned Notification unequals have been treated as equals. According to him different mills
have installed different machinery and have different equipments. The contention is that the impugned Notification is violative of Article 14 as it has
been made uniformly applicable to mills which do not have the same capacity to produce hank yarn. We see no force in the contention. The
Impugned Notification has been made applicable uniformly to all the producers of yarn. The Appellants are required to pack yarn in hank form in
the proportion as provided in the Notification keeping in view the total yarn packed by the mill concerned. In any case the grievance of the
Appellants, has been substantially mitigated by the Press Note dated May 11, 1990 issued by the Textile Commissioner, Bombay.
The relevant part is reproduced hereunder:
The Government have now reinstituted the erstwhile relaxation of getting hank yarn obligation fulfilled by transfer of surplus hank yarn packing of
another producer. Secondly, the Government have also allowed a producer to get hank yarn reeled through another producer having extra reeling
capacity with the permission of the Central Excise authorities and with the arrangements through the State Handloom Corporations and Apex
Handloom Cooperative Organisations in the areas having concentration of handloom weavers.
After 1986 Order, the Central Government issued another Order on 7.12.1992 in exercise of the Powers u/s 3 of the Essential Commodities
Act known as the Textiles (Development and Regulation) Order, 1992 (herein after referred to as 1992 Order). The 1992 Order repealed the
1986 order and also further continued the Orders, Notifications issued under the 1986 Order and also right accrued, penalty incurred or anything
done or deemed to have been done under the 1986 Order as deemed to have been made, issued, accrued, incurred or done under the
corresponding provisions of the 1992 Order. Though 1992 Order was in pari materia with that of 1986 Order, however, Clause 8 of 1992 Order
equivalent to 1986 Order did not contain Sub-clause (e) of Clause 16(1) of 1986 Order empowering the Textiles Commissioner to issue
directions as to the manner of packing of yarn in hanks, cones or in any other form and in such proportion as he may consider necessary or
expedient. We reproduce Clause 8 of 1992 Order:
8(1) The Textile Commissioner may from time to time issue directions in writing to a manufacturer or class of manufacturers or manufacturers
generally, regarding: a) the classes or Specifications of Cotton and Woollen Textiles which each manufacturer or class of manufacturers; shall or
shall not manufacture;
(b) the maximum or minimum quantities of Cotton and Woollen textiles which such manufacturers or class of manufacturers shall manufacture
during such period as may be specified in the Order:
(c) the maximum price ex-factory, wholesale or retail at which any class or specification of cotton and woollen textiles may be sold; or
(d) the principles on which and the manner in which such maximum price may be determined by a manufacturer, provided that in issuing any
direction under this Clause the Textile Commissioner should have regard to:
i) the demand for Cotton and Woollen Textiles,
ii) the needs of the general public;
iii) the special requirement of the industry for such cotton and woollen textiles;
iv) the capacity of the manufacturer or class or manufacturers to manufacturer of cotton and Woollen textiles; and
v) the necessity to make available to the general public of cotton and woollen textiles.
(2) While issuing any direction under Sub-clause (1) the Textile Commissioner may also provide that such direction shall be with reference to the
quantity of cotton and woollen textiles generally during the period specified in the direction.
(3) Where on an application made by any manufacturer or class of manufacturers or otherwise the Textile Commissioner is satisfied that any
direction issued by him under this Clause causes undue hardship or difficulty to any manufacturers or class of manufacturers he may, by order and
for reasons to be recorded in writing direct that the direction shall not apply or shall apply subject to such modifications, as may be specified in the
order, to such manufacturers or class of manufacturers.
Under the 1986 Order, a Notification dated 29.3.1990 was issued by the Textiles Commissioner directing hank packing. The said Notification
is to be in force till 31.3.1995. It provides for packing of yarn in hank as well as in cone. The said Notification came to be further amended on
11.5.1990. Clause 2 and other portions of the Notification dated 29.3.1990 were amended by the Notification dated 11.5.1990. The said two
notifications are as follows:
Hank Yarn Packing:
In exercise of the powers conferred on the by Clause 16 of the Textiles (Control) Order, 1986, I hereby issue the following directions:
(i) These directions shall come into force on the 1st April 1990, and shall continue to be in force till the 31st March, 1995.
(ii) These directions shall be complied with by all producers of Yarn.
Every producer of yarn shall pack yarn for civil consumption in hank form in each half-yearly period commencing from April-September 1990,
period and in every subsequent half yearly period in proportion of not less than fifty per cent of total yarn packed by him during each half-yearly
period for civil consumption:
Provided that not less than eighty per cent of the yarn required to be packed in hank form shall be of counts 40s. and below in regard to category-
1 at Annexure-1 to this Notification: Provided further that the obligation to pack hank yarn pertaining to a particular half-yearly period can be
fulfilled before the end of the month succeeding such period to which the obligation pertains.
3.(a) Explanation. I.
Yarn"" for the purpose of this Notification shall mean yarn spun from not less than 90% viscose fibre and/or 90% cotton, but does not include the
following:
(i) Hosiery Yarn,
(ii) Sewing thread,
(iii) Industrial yarn like type, card multiple yarn (more than 2 plies) etc.
(iv) Mixed yarn reeled off from cop bottoms of various counts and yarn comprising single count reeled off from cop bottoms having loose ends or
knots at short lengths of singles years.
(v) Cellulosic Non-cellulosic filament yarn for metallic yarn
(b) Explanation-II.
The expression ""Yarn packed for civil consumption"" shall
(i) in the case of producer producing both cloth and yarn mean yarn packed for sale in India in excess of yarn actually used for weaving of cloth in
his own weaving shed in the factory premises; and
(ii) in the case of producer producing year only mean the entire quantity of yarn packed by him for sale in India.
Further, in exercise of powers, conferred on the by Clause 21 of the Textiles (Control) Order, 1986, I hereby direct that every producer of yarn
as referred to under Clause 2 above shall furnish to the office of the Textile Commissioner, Bombay, and to the concerned Regional Office of the
Textile Commissioner under whose jurisdiction such producer of yarn is located, true and accurate information regarding packing of yarn in
compliance with Clause 2 above as per form attached hereto at Annexure-I, so as to reach the said officers on or before the 10th of the second
month after expiry of each half yearly period.
The Notification No. CER (12)/86-CLB dated 25.2.1987, issued by the is superseded with the commencement of this notification.
Provided that, anything done, penalty incurred, right accrued or any informations called for under the earlier Notifications issued from time to time,
before the commencement of this Notification, shall notwithstanding their supersession, be and shall be deemed always to have been validly done,
incurred, accrued or called for as the case may be and nothing in this notification shall affect any such action or making.
Notification:
No. CER/(24)/90-CLB dated 11.5.1990.
Hank Yarn Packing Amendment
In exercise of powers conferred on the by Clause 16 of the Textiles (Control) Order, 1986, I hereby issue the following Notification to amend
Hank yarn packing notification of even number dated the 29th March, 1990:
This Notification may be called the Hank Yarn Packing (Amendment) Notifications, 1990.
It shall come into force with immediate effect.
In exercise of the powers conferred on the by Clause 16 of the Textiles (Control) Order, 1986, I hereby issue the following amendment, to the
Hank Yarn Packing Notification No. CER(23)/90-CLB dated the 29th March 1990;
1) In Clauses 2, 4, and Annexure-1, ""Half-yearly period"" shall be replaced by ""Quarterly period.
2) In Clause 2 of the said notification ""April-September"" 1990 shall be replaced by ""April-June 1990.
3) For Proviso to Clause 2, the following shall be substituted;
Provided that:
i) Not less than eighty per cent of the yarn required to be packed in hank form shall be of counts 40s. and below in regard to category 1 at
Annexure-1 to this Notification.
ii) if a condition of more than fifty per cent for hank yarn packing is already imposed on the producer by the Central Government or the Textile
Commissioner, then that higher percentage of obligation will continue to apply under this Notification on Quarterly basis.
iii) a producer of yarn who does not have reeling capacity to fulfil the obligation and till such time as the same is installed by him and becomes
operational, the obligation may be fulfilled, in either of the following ways;
(a) A producer of yarn with the written permission of the concerned Central Excise authority through the State Handloom Corporation or Apex
Co-operative Organisation nominated for this purpose by the concerned State Government of Union Territory Administration, as the case may be,
in the area (S) having concentration of handloom weavers may get the reeling done by another producer having reeling facilities, and produce a
certificate in the following form to the concerned Regional Office of the Textile Commissioner along with the quarterly statement for the period as
at Annexure-I.
Certified that the following cone yarn produced by this mill during the quarter...has been not reeled into hank yarn in terms of hank yarn packing.
Notification through M/s...with due permission of the Central Excise Authorities and to their satisfaction.
Counts of Yarn. Quantity (in kgs).
40s and below
40s and above
( ) ( )
Signature of the superintendent of Signature of the Director of the
Central Excise Department. Mills.
b) The shortfall in respect of one producer of yarn for a particular quarter may be met by another producer after fulfilling his own hank yarn
obligation to the satisfaction of the concerned Regional Office of the Textile Commissioner.
The following Sub-clause shall be added to Clause No. 4: Each producer of yarn shall provide a list of dealers of his yarn to the Collector of the
concerned district, where such dealer is located, and shall ensure that all such dealers maintain a register giving details of the stock of hank yarn in
different counts and their retail prices, in addition to the requirements, of Clause 20 of the Textiles (Control) Order, 1986.
The Notification dated 29.3.1990 was further amended by another Notification dated 17.5.1990 wherein Annexure 1 to Notification dated
29.3.1990 was substituted. The Central Government has again issued another order which holds the field now u/s 3 of the Essential Commodities
Act known as Textiles (Development and Regulation) Order, 1993 (hereinafter referred to as ""1993 Order""). Clause 2 of the said Order which
relates to repeal and savings reads thus:
Repeal and Savings: The Textiles (Development and Regulation) Order, 1992 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the order so repealed or under the Textiles (Control) Order, 1986
repealed by that order, shall be deemed to have been done or taken under the corresponding provisions of this order.
Thus, 1993 Order repealed 1992 Order. Clause 8 of 1993 Order is substantially similar to Clause 16 of 1986 Order. Thus, it is clear that 1986
Order held the field till 6.12.1992, from 7.12.1992, 1992 Order held the field till 1.4.1993, and from 2.4.1993, 1993 Order has been holding the
field. After the issuance of 1993 Order dated 7.5.1993, public notice has also been issued inviting the attention of all those concerned to Clause 2
of 1993 Order and also to the Notifications which were continued to be in force. Notification dated 29.3.1990 is one which is mentioned in the
said public notice which reads thus:
Public Notice:
No. TDROPCLB/93 MISC/1 dated 7.5.1993. Attention of all concerned is invited to Clause 2 of the Textiles (Development & Regulation)
Order, 1993 as per which anything done or any action taken under the Textiles (Development & Regulation) Order, 1992 and Textiles (Control)
Order, 1986 (both repealed) shall be deemed to have been done or taken under the Corresponding provisions of the Textiles (Development and
Regulation) Order, 1993, Accordingly, the following Notifications (as amended from time to time) issued under the Textiles (Control) Order, 1986
are deemed to have been issued under the provisions of the Textiles (Development & Regulation) Order, 1993 mentioned against each:
S. No.Notification No.Corresponding Remarks
and date Clause of the
Textiles (Devi. &
Regulation Order,
1993
CER/(18)/88- 9 Consumer
CLB dt. 7.3.88 Protection
Regulation
CER/(23)/90- 8 Hank Yarn
CLB obligation
CER/(11)/86- 8 Production
CLB Regulation
15(1)/88-CLB 13(1) (a) Statistical Returns
dt. 9.9.88
CER/(35)/92- 8(1) (c) Nylon Filament
CLB dt Yarn Prices
9.4.1992
5(1)/86-CLB 21 Delegation of
dt. 21.8.86 Powers Officials
We have already pointed out that notification dated 29.3.1990 has been amended by subsequent two Notifications dated 11.5.1990 and
17.5.1990.
Having regard to the contentions urged on both sides, the following point arises for determination in these petitions; Whether the Notification
dated 29.3.1990 as amended on 11.5.1990. and 17.5.1990 continues to be in force having regard to the fact that Clause 8 of 1992 Order did not
contain a provision similar to the one contained in Clause 16(1)(e) of 1986 Order and also having regard to the contents of Clause 2 of 1993
Order? We have already pointed out that Clause 16 of 1986 Order has been held valid by the Supreme Court in G.T.N. Textiles Ltd. and another
Vs. Assistant Directors, R.O.T. Commr. and others, Therefore, the Notification dated 29.3.1990 as amended on 11.5.1990 and 17.5.1990
continue to hold the field as a valid Notification. In fact, in G.T.N. Textiles Ltd. and another Vs. Assistant Directors, R.O.T. Commr. and others,
the Supreme Court also referred to the Notification dated 11.5.1990 and approved it. The contention of the Petitioners is that after 1992 Order
dated 7.12.1992, the said Notification dated 29.3.1990 has ceased to be operative, because the provision corresponding to Clause 16(1)(e) of
1986 Order does not find place in 1992 Order. It is true that a Clause similar to Clause 16(1)(e) of 1986 Order is not found in 1992 order. But
the point for consideration is as to whether the absence of such Clause makes any difference. Clause 2 of 1992 Order has continued the
Notification issued under the 1986 Order and consequently, the Notification dated 29.3.1990 and the other Notifications dated 11.5.1990 and
17.5.1990 amending the Notification dated 29.3.1990 have also been continued. Clause 2 of 1992 Order is categorical in terms in this regard.
However as already pointed out, the contention is that, in the absence of a corresponding provision in the 1993 Order to the one contained in
Clause 16(1)(e) of 1986 Order, Clause 2 of 1992 Order will not have the effect of continuing the Notifications.
The contention of learned Senior Central Government Standing Counsel for the Respondents is that the absence of such a provision has not
made any difference, because, the manufacture of textile includes not only spinning of yarn but packing of yarn also. It is submitted that without
packing either in hank or cone form, the manufacture of yarn itself is not complete and it does not become marketable or deliverable to the
purchasers. What all the Notification dated 29.3.1990 directs is that certain per cent of such yarn produced by the mills should be packed in hank
and cone shape. In support of the submission that textile includes yearn also, learned Senior Central Government Standing Counsel places reliance
on a decision of the Supreme Court in Bansidhar v. State of Rajasthan AIR 1986 S.C. 1614. The expression ""Textiles"" includes yarn is not
disputed by learned Senior Counsel appearing for the Petitioners and rightly so, because the legal position is well established. We have only to see
whether the manufacture of textile includes packing of yarn in a particular form; mainly in hank or cone form. In G.T.N. Textiles Ltd. and another
Vs. Assistant Directors, R.O.T. Commr. and others, the Supreme Court has referred to the process of manufacturing of yarn. We have already
reproduced paragraph 3 of the judgment. However, we refer to it all this stage also.
The Cotton yarn manufactured by the mills is of different varieties. It is classified on the basis of counts. Yarn with 1 to 40 counts in coarse, 40 to
60 medium, between 60 and 100 fine and anything above 100 counts is described as very fine. There are two methods of packing the yarn. One is
the cone form packing which is used in powerloom and hosiery industry. The other is hank form packing which is exclusively consumed by the
handloom industry. Spinning and packing are the two stages of manufacturing yarn.
Therefore, it does not require any further consideration to hold that packing of yarn is one of the stages of manufacturing of yarn. Clause 16(1)(e)
of 1986 Order provides the manner of packing of yarn in hanks, cones or in any other form and in such porportions as one may consider
necessary or expedient. When once it is held that the process of manufacturing of yarn includes packing of yarn, the necessity of having a separate
Clause empowering the Textile Commissioner for issuing a direction regarding the manner of packing of yarn in hanks or cones does not arise, nor
does it become necessary. Clauses 8(1)(a) and (b) of 1992 Order had taken care of this aspect of the matter because, they did provide that the
Textile Commissioner may issue directions in writing from time to time to any manufacturer or class of manufacturer or manufacturers generally as
to the classes or specifications of cotton and woollen textiles which each manufacturer or class of manufacturers shall or shall not manufacture.
Clause 8(1)(b) also further empowered the Textiles Commissioner to issue directions regarding maximum or minimum quantities of cotton and
woollen textiles which such manufacturers or class of manufacturers shall manufacture during such period as may be specified in the Order.
Therefore, it is clear that Clauses 8(1)(a) and (b) of the 1992 Order specifically provided for issuing directions to the manufacturers as to the
packing of yarn and it also prescribed the quantity that should be packed in cone form or in hank form. That being so, in the light of what we have
held as to the scope of Clauses 8(1)(a) and (b) of 1992 Order read with Clause 2 thereof which continues the Notifications issued under 1986
Order, the Notifications dated 29.3.1990, 11.5.1990, and 17.5.1990, must be held to have been continued. Of course, reliance is placed on the
averments made in the counter affidavit by the Respondents in which they have not stated in clear terms regarding the operation of the aforesaid
notifications from 7.12.1992. In this regard, it is sufficient to point out that the fact that the Respondents have expressed doubt about the
continuation of the notification issued under 1986 order on the repeal of it by 1992 Order has no meaning and no effect, because as pointed out
above, 1992 Order contained provisions similar to those contained in the 1986 Order and Clause 2 of the 1992 Order had continued the
notifications issued under the 1986 Order.
Let us now consider the 1993 Order. It is contended that 1993 Order has repealed 1992 Order, but it has not continued the Notifications
issued nor they can be deemed to have been issued under 1992 Order. Further, Clause 2 of 1993 Order does not specifically mention the
Notification.
At this stage, we may also refer to the other contentions advanced by learned Senior Counsel for the Petitioners. It is contended that in the
absence of specific provisions contained in Clause 2 of the 1993 Order as to the continuation or revival of the Notifications issued under 1986
Order, the said notifications cannot be held to have been either continued or revived, because the said Notifications issued under 1986 Order have
lapsed by reasons of the absence of the provisions in 1992 Order, corresponding to Clause 16(1)(e) of 1986 Order. This contention has to be
rejected for the reasons already stated above as the 1992 Order did contain the provisions similar to those contained in the 1986 Order and
Clause 2 of the 1992 Order continued the notifications issued under the 1986 Order. Hence the contention is rejected.
An argument is also constructed that the Sections 6 and 24 of the General Clauses Act do not apply to the Orders, therefore in the absence of
provisions similar to those contained in Section 24 of the Act, in Clause 2 of 1993 Order, the aforesaid Notifications cannot be held to have been
continued even if it were to be held that the said Notifications were continued under 1992 Order also. It is true that Clause 2 of 1993 Order has
not specifically used the expression ""Notification."" Clause 2 relates to repeal and savings. It provides that notwithstanding such repeal, anything
done or any action taken under the Order so repealed or under the Textile Control Order, 1986 repealed by that order shall be deemed to have
been done or taken under the corresponding provisions of 1993 Order. It maybe pointed out here that Clause 2 specifically deals with the effect of
repeal and savings. It specifically states that anything done or any action taken under the repealed order shall be deemed to have been done or
taken under the corresponding provisions of the Order. We have already pointed our that 1993 Order contains Clause corresponding to Clause
16(1)(e) of 1986 Order. In Addition to that, we have also further held that as the word ""Textile"" includes yarn, it was not necessary to provide a
specific Clause regarding yarn in the 1992 order having regard to the contents of Sub-clause (1)(a) and (b) of Clause 8 of 1992 Order. We have
also already held that the Notifications dated 29.3.1990, 11.5.1990 and 17.5.1990 were continued under 1992 Order irrespective of the
repealing of 1986 Order. Therefore, there is no difficulty whatsoever, in holding that the Notifications, issued under the 1986 Order have been
continued by the 1993 Order. In our view the absence of the word ""Notification"" in Clause 2 should not make any difference. Notification is also
an act done under the Order. It is an action taken under the Order of 1986.
Therefore, there is no difficulty whatsoever in holding in the light of the provisions contained in Clause 2 of 1993 Order that the Notifications issued
under the 1986 Order are saved and contained and must be held to have been issued under the 1993 Order, because the said action of issuance
of the Notifications under 1986 Order is deemed to have been done or action taken under the corresponding provisions of 1993 Order. In the
light of the interpretation placed on the 1992 Order, the contention, that the Notifications issued, under 1986 Order lapsed on the coming into
force of 1992 Order does not gain ground. Similarly the contention that what was alive could have been revived and what was dead could not
have been resurrected cannot also be applied to the present case, because we have held that the Notification issued under 1986 Order did not
cease to be operative and it continued to operate under 1992 Order. If that be so, the contention that public notice does not serve the purpose,
because, what is required to be done under Clause 8(1)(a) of 1993 Order is that the Textiles Commissioner has to apply his mind in terms of the
Proviso to Clause 8(1) of 1993 Order and determine certain aspect. Therefore, a mere public notice issued by the Commissioner that those
Notifications will continue to operate does not comply with the requirements of proviso to Clause 8(1) of 1993 Order. Therefore, the Notification
dated 29.3.1990, as amended by Notification dated 11.5.1990 and 17.5.1990 cannot be held to have been continued under the 1993 Order. This
contention also cannot survive in the light of the view taken that the notification dated 29.2.1990 must be deemed to have been continued under the
1993 Order.
For the view, we have taken we do not consider it necessary to refer to the decisions in C. Rajagopalachari Vs. Corporation of Madras, ,
Bhawani Cotton Mills Ltd. Vs. State of Punjab and Another, , B. Shama Rao Vs. The Union Territory of Pondicherry, , Deputy Commissioner
and Collector, Kamrup and Others Vs. Durga Nath Sarma, and Hema Raj Jhunjhunwala Vs. State of Bihar and Others, relied on by learned
Senior Counsel for the Petitioners. Similarly, we do not consider it necessary to refer to the decision in B.N. Tiwari Vs. Union of India (UOI) and
Others, relied on by Mr. N. Chandran, learned Senior counsel and also the decision of the Supreme Court in Ameer-un-Nissa Begum and Others
Vs. Mahboob Begum and Others, relied on by learned Senior Central Government Standing Counsel. Learned Senior Counsel for the Petitioners
has also placed reliance on a decision of a Division Bench of this Court in Sri. Rani Lakshmi Ginning, Spinning and Weaving Mills Pvt. Ltd. and
Others Vs. Textile Commissioner, Bombay and Others, . Based on the aforesaid decision and placing reliance on paragraphs 22 and 23 and the
findings recorded therein it is contended that as the said decision related to a similar order, it operates as res judicata. It may be pointed out here
that the Supreme Court in G.T.N. Textiles Ltd. and another Vs. Assistant Directors, R.O.T. Commr. and others, has specifically referred to the
aforesaid decision of this Court and held that in the said decision the Notifications struck down by this Court were issued under Clause 21(5) of
1948 Order and Clause 21(5) of 1948 Order were held to be unconstitutional and as a consequence the Court struck down the Notification dated
29.6.1979. In the present case, the Notification was issued under Clause 16(1) of 1986 Order and unlike Clause 21(5) of 1948 Order it provides
complete guidelines to the Textile Commissioner to issue directions envisaged thereunder. As such, the ground of attack which was available to the
Petitioners in Sri Rani Lakshmi''s case AIR 1986 Mad 66 was not available to them under 1986 Order. Therefore, the contention was rejected.
That being so, it is not possible to apply the principle of res judicata. Consequently we hold that the decision in Sri Rani Lakshmi''s case AIR 1986
Mad 66 has no bearing on the issue involved in the present case.
For the reasons stated above, the point raised for determination is answered as follows:
The absence of the provision in Clause 8 of 1992 Order similar to the one contained in Clause 16(1)(a) of 1986 Order did not make any
difference as Clause 8(1)(a) and (b) of 1992 Order included packing of yarn also. Similarly, the Notifications dated 29.3.1990, 11.5.1990 and
17.5.1990 continued to be in force under 1992 Order in the absence of express provision contained in Clause 8 of 1992 Order similar to Clause
18(1)(e) of 1986 Order. Similarly, the absence of the words similar to Section 24 of the General Clauses Act in 1993 Order do not make any
difference because, the Notifications issued under 1986 Order continued under 1992 Order was an action taken under those orders. Therefore the
same are deemed to have been taken and continued under 1993 Order.
For the reasons stated above, these writ petitions fail and they are dismissed. In the facts and circumstances of the case, there will be no order
as to costs. However, it is necessary to make it clear in the light of the averments made in paragraph 1 of the counter affidavit that the Department
did not enforce the Notification daring the period from 7.12.1992 to 1.4.1993 and did not insist on any mill cither to the any return or fulfil the
hank yarn obligation for the quarterly period, i.e. from 1.10.1992 to 31.3.1993. We make it clear that for the said period, the Respondents shall
not insist upon the Petitioners to comply with the same. Consequently, all the W.M.Ps. are dismissed.