M.B.S. Hygince Product Pvt. & Ors. vs Union Of India
1998 Latest Caselaw 121 Del

JUDGMENT

Jaspal Singh, J.

1. At one stage the petitioner was engaged in the manufacture/production of sanitary towels/napkins. Admittedly it has since ceased to manufacture them. Its unit stands closed with the machinery also disposed of. It claims that it plans to upgrade the facilities of manufacturing sanitary towels napkins. Its grievance is that since such upgradation will call for an investment of well above Rs. 3 crores and as the manufacture or production of sanitary towels/napkins is reserved for the small scale sector, the proposed investment of well above Rs. 3 crores would take the petitioner Company out of small scale sector. It has thus chosen to challenge the legality of reserving the manufacture/production of sanitary napkins only for small scale sector.

2. The Notification reserving the production of sanitary napkins for manufacturing by small scale sector purports to be in exercise of powers under Section 29B(1) of the Industries (Development and Regulations) Act, 1951 (hereinafter called 'the Act'). The case of the petitioner Company is that the Notification reserving sanitary napkins for manufacture by the small scale sector is not envisaged by Entry No. 24 in the First Schedule of the Act and that consequently the said reservation is bad in law.

3. Since the First Schedule of the Act and more particularly its Item No. 24 holds the key, let me reproduce the same at this stage itself. It runs as under:

"The First Schedule"

(See Sections 2 and 3(i) of I(DR) Act, 1951)

Any industry engaged in the manufacture or production of any of the articles mentioned under each of the following headings or subheadings, namely,

24. PAPER AND PULP INCLUDING PAPER PRODUCTS:

(1) Paperwriting, printing and wrapping

(2) Newsprint,

(3) Paper board and straw board

(4) Paper for packaging (corrugated paper, kraft paper, bags, paper containers and the like)

(5) Pulpwood plup, mechanical, Chemical, including dissolving pulp."

4. It may also be noticed that whereas as per the petitioner Company the Notification reserving manufacture or production of sanitary towels/napkins for manufacture by small scale sector is of July 25, 1991, the respondent claims that the Notification was actually issued on April 26,1978. I am making a mention of this because it was Vehemently argued on behalf of the respondents that the Notification being of 1978; the writ petition was highly belated and deserved to be dismissed on this short ground alone.

5. It may also be noticed that it was also the contention of the respondents that since the petitioner Company had closed down and had stopped not only to manufacture or produce sanitary napkins but had also sold away its machinery, it had ceased to have any interest in the matter and that actually it was only pursuing the writ petition inspired by and at the behest of a multinational Company.

6. It is Entry No. 24 in the First Schedule which in fact witnessed all the fire work. Is the order reserving the sanitary napkins for manufacture by the small scale sector covered by Item No. 24 ? This is the question posed. Whereas, as per Mr. Bhatt, the learned Additional Solicitor General, the sanitary towels /napkins are nothing but paper products and thus covered by the subheading of Entry No. 24 namely, PAPERPULP INCLUDING PAPER PRODUCTS", as per Mr. Shankar Dass, Sr. Advocate for the petitioner, the subheading neither controls nor widens the products itemised as Nos. 1 to 5 in Entry No. 24 and that consequently as sanitary towels/napkins do not find mention in either of those five items, their reservation for manufacture by small scale sector only is beyond the ambit and scope of Entry No. 24 in the First Schedule.

7. Is the impugned Notification of July 25,1991 or of April 26,1978 ? I have gone through both the Notifications namely Notification No. SO 281 (E) issued on April 26, 1978 and Notification No. SO 477(E) issued on July 25, 1991. After having perused both I do tend to,agree with the learned Additional Solicitor General that what was issued on July 25, l991 was not the Notification reserving sanitary napkins for the small scale sector. It in fact, is merely a compilation of all earlier Notifications and thus it has to be taken that the Notification actually reserving sanitary napkins by small scale sector on April 26, 1978. The petitioner Company was issued manufactured/produced sanitary towels/napkins fill the filing of the petition being fully aware of that Notification of 1978 and that too without any demur or protest. Thus for almost 19 long years there was no challenge nor even a protest with regard to the reservation. The petitioner has tried to overcome this delay by trying to take refuge under the Notification of July 25, 1991. But then, the Notification of 1991 being only a compilation of the earlier Notifications, it can be of no avail nor can it be of any assistance to the petitioner as far as the question of delay is concerned. The petitioner is wanting to invoke writ jurisdiction and for that it has to satisfy that it is not guilty of laches or unexplained delay, Rip Van Winkles have no place. Diligence is the price. It is here that the petitioner meets its Waterloo.

8. Let me go back to what I mentioned in the very opening paragraph of the judgment. Admittedly the petitioner is no more manufacturing or producing sanitary towels/napkins. Admittedly again it has closed down its unit. As if all this was not enough, admittedly again, even the machinery stands disposed of. With all these doors closed voluntarily, which door does the petitioner wants me to open7 With no interest left, can the petitioner ask me to do as advisory role and to answer a question for its guidance merely because it may or may not plan to establish a unit, dependent upon the answer provided ? What is its legal right involved now ? The respondents say that the petitioner is merely there at the prompting of a multinational Company interested in setting up its, own unit. It may or may not be so. However, the petitioner having closed the shop I do not think it can ask for the relief which is merely discretionary.

Since the petition fails.for the reasons recorded. above I need not proceed to deal with the ambit and scope of Entry No. 24.

The writ petition is dismissed but with no order as to costs.

Writ Petition dismissed.