**Note 2:-In diversified jute bags under direct purchase by the
procuring agencies from the mills or open market."
Office Memorandum dated 14-08-2024. The meeting and the
".... .... ....
12. After taking into account the deliberations and the facts
submitted before the Committee, the SAC recommended
the following commodity-wise reservation norms under
the JPM Act, 1987: -
This results in the latest Notification issued on 22-04-2025. It reads
**Note 2:- In diversified jute bags under direct purchase by the
procuring agencies from the mills or open market."
11. The subject petition is preferred and an interim order is
granted staying the notification. The interim order so granted on
2024. The entire spectrum of these submissions was projected
before the Division Bench. The Division Bench by the following
nature. The judgment of the Division Bench, in appeal, is as
4. Assailing the impugned interim order staying the
Notifications, learned Additional Solicitor General for India Mr. K.
Arvind Kamat for appellant-Union of India, prefacing his
submissions, took the Court through the scheme of the Jute
Packaging Materials Act, 1987 to submit that the Act was
enacted to provide for compulsory use of jute packaging
material in supply and distribution of certain commodities. The
law was enacted, it was submitted, in order to protect the
interest of persons engaged in the raw jute production and the
jute industry, which industry occupies significant position in
national economy. The validity of the JPM Act, 1987 has been
upheld by the Apex Court in Dalmia Cement (Bharat) Ltd. v.
4.1 It was highlighted that Section 4 of the JPM Act deals
with the constitution of Standing Advisory Committee by the
Central Government to give advice in the matter and while
indicating its recommendations, the factors and considerations
mentioned in sub-section (2) of Section 4 of the JPM Act are
taken into account. Section 3 of the Act deals with the power to
specify commodities which are required to be packed in jute
packaging material. Section 5 is another statutory prescription
which contemplates prohibition of packing in any material other
than the jute packing material.
4.1.1 Following contentions were raised by learned
Additional Solicitor General for India for the appellant,
(i) The Notifications are in the nature of policy decisions, and
administrative act. The Notifications are issued by complying
with, and under the provisions of the Jute Packaging Materials
(Compulsory Use in Packing Commodities) Act, 1987.
(ii) The Minutes of 31st meeting of the Standing Advisory
Committee (SAC) held on 26th May 2023, show that the
stakeholders including the petitioner-Sugar Mills Association
were heard for their suggestions and inputs and that they were
even considered by the Committee. The demand supply aspect
of jute bags was revisited with by the SAC, as found in
paragraph 5 of the Minutes of the meeting. The Notification
dated 26th December 2023 was issued pursuant to
recommendation by Advisory Committee in its 31st Meeting.
(iii) The Advisory Committee in its Minutes discussed the
availability of jute material and other attendant aspects, for
which paragraph 5 and 9 to 11 of the Minutes were relied on.
The Advisory Committee recommended that 100% food grains
and 20% of the sugar production may be reserved for packaging
in jute bags.
(iv) The packaging in jute bags is prescribed for certain
categories only. The bulk consumers are exempted.
(v) The exercise of issuing Notification is statutory exercise
based on the recommendation of the Standing Advisory
Committee which decides on the basis of material and that it is
an expert body. The scope of judicial review is extremely
limited.
4.2 Learned Senior Advocate Mr. Mitra Abhrajit Mitra with
learned Advocate Mr. Shravan Lokre for respondent No.2 Indian
Jute Mills Association supported and adopted the submission
made on behalf of Union of India. He additionally submitted that
the impugned Notifications are continuation of the previous
Notifications of 31st March 2023 and subsequent, in which it was
similarly stipulated as consistent policy that 20% sugar
production should be packed in the jute bags, however the
earlier Notifications have not been questioned.
4.3 Learned Senior Advocate Mr. Udaya Holla proceeded
to elaborate his submissions raising the following aspects to
justify the impugned order,
(i) The recommendations of the SAC has to base on the
matters provided in sub-clauses (a) to (g) of Section 4 of the
JPM Act. They are disregarded. The 29th and 30th Meetings of
Advisory Committee favoured exemption of sugar from jute
packaging. The 31st Meeting distracted in its recommendations
and its recommendations had no nexus with the matters
considered by it.
(ii) The reservation of 20% sugar to be packed in the jute
bags as contemplated in the impugned Notification is not backed
by any reasons and is a departure from earlier
recommendations. The 31st Meeting recommendation the
reservation of 20% after a gap of two years without application
of mind. The consideration of shortage of jute bags ought to
have gone into the decision of the Committee. Para 6 of the
Minutes of 30th Meeting was relied on, in which it was stated
that demand of jute bags was more than supply and that there
was no change in that position.
(iii) The other commodities like cement and fertilizer have
been excluded. The jute packaging material has acted as barrier
to the technological advancement and product diversification,
although it might have created assured demand for jute
packing. Report by the Commission of Agricultural Cost and
Prices, Department of Agriculture and Farmers Wealth,
Government of India supports the view.
(iv) Importance of sugar industry in the national economy
was highlighted to submit that the demand for sugar has
increased which is to be met by surplus energy to be produced
by the industry. Use of jute bags has the effect of escalation in
the total cost of the sugar. Reliance was placed on the report of
the Committee on Regulation of Sugar Sector in India-the way
forward (Annexure-C in the main petition).
(v) The use of jute batching oil in the jute bags has carcinogenic
consequential effects. Investigative report of Lund University
was relied on. Jute bags has also tendency of absorbing the
moisture.
(vi) All the above factors operate adverse. The Notifications
dated 26th December 2023 and 28th June 2024 are unwarranted
and illegal exercise by the Ministry of Textile.
4.4 Learned Senior Advocate Mr. Dhyan Chinnappa for
the newly impleaded respondent-Indian Sugar Mills Association
submitted that except Standing Advisory Committee, none
wants that the sugar should be packed in the jute bags. Every
study has shown, it was submitted, the minus points for packing
the sugar in the jute bags. It was next submitted that three
aspects namely moisture absorption, health consideration and
weight of the bags are relevant but not considered by the
Advisory Committee. Learned Advocate then relied on the
Minutes of the 30th Meeting of the Advisory Committee, relied on
paragraphs 5, 7 and 8 thereof to submit that the providence of
20% cap is unjustified on facts. He also wanted to highlight the
figures of the production and supply of the jute bags. He
highlighted the objections raised by the respondent impleaded
herein before the Committee in 31st Meeting.
apply its mind afresh every year and the last year's jute policy
cannot be followed mechanically.
5. For examining the challenge to the interim order of
learned Single Judge staying the Notifications dated 26th
December 2023 and 28th June 2024, this court prima facie
considered the facts involved, the kind and nature of the
controversy and the rival submissions advanced as above.
5.1 Certain aspects needs to be noticed. The JPM Act has
an object to provide compulsory use of jute packaging material
in the supply and distribution of certain commodities in the
interest of production of raw jute and jute packaging material,
to further encourage the livelihood sources of the persons
engaged in the production thereof, and other matters
connected. The sugar is an essential commodity defined in the
Act which could be subjected to packing in the bags made of
jute material.
5.2 Section 3 of the Act gives a power to specify
commodities which are required to be packed in the jute
packaging material. It will be useful to notice Section 3, reading
as under,
3. Power to specify commodities which are
required to be packed in jute packaging material.--(1)
Notwithstanding anything contained in any other law for the
time being in force, the Central Government may, if it is
satisfied, after considering the recommendations made to it
by the Standing Advisory Committee, that it is necessary so
to do in the interests of production of raw jute and jute
packaging material, and of persons engaged in the
production thereof, by order published in the Official
Gazette, direct, from time to time, that such commodity or
class of commodities or such percentage thereof, as may be
specified in the order, shall, on and from such date, as may
be specified in the order, be packed for the purposes of its
supply or distribution in such jute packaging material as
may be specified in the order: Provided that until such time
as the Standing Advisory Committee is constituted under
section 4, the Central Government shall, before making any
order under this sub-section, consider the matters specified
in sub-section (2) of section 4, and any order so made shall
cease to operate at the expiration of three months from the
date on which the Standing Advisory Committee makes its
recommendations.
(2) Every order made under sub-section (1) shall be
laid, as soon as may be after it is made, before each House
of Parliament, while it is in session, for a total period of
thirty days which may be comprised in one session or in two
or more successive sessions, and if, before the expiry of the
session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any
modification in the order or both Houses agree that the
order should not be made, the order shall thereafter have
effect only in such modified form or be of no effect, as the
case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of
anything previously done under that order.
5.2.1 Section 4 deals with the constitution of Advisory
Committee. Section 4(1) provides that the Central Government
with a view to determine the commodity or class of commodities
in respect of which the jute packing material shall be used in the
packing, shall constitute a Standing Advisory Committee.
Section 4 reads as under,
4. Constitution of Standing Advisory
Committee.--(1) The Central Government shall, with a
view to determining the commodity or class of commodities
or percentages thereof in respect of which jute packaging
material shall be used in their packing, constitute a
Standing Advisory Committee consisting of such persons as
have, in the opinion of that Government, the necessary
expertise to give advice in the matter.
(2) The Standing Advisory Committee shall, after
considering the following matters, indicate its
recommendations to the Central Government, namely:-- (a)
the existing level of usage of jute material; (b) the quantity
of raw jute available; (c) the quantity of jute material
available; (d) the protection of interests of persons engaged
in the jute industry and in the production of raw jute; (e)
the need for continued maintenance of jute industry; (f) the
quantity of commodities which, in its opinion, is likely to be
required for packing in jute material; (g) such other matters
as the Standing Advisory Committee may think fit.
5.3 A first hand analysis of the above provisions would go
to show that Section 3 makes it legislatively incumbent on the
Central Government to specify commodities as may be classified
to be packed in the jute packing material. The exercise has been
undertaken by the statutory expert Standing Advisory
Committee constituted under Section 4 of the Act. Whereas
Section 3 is a kind of plenary mandate, sub-clauses (a) to (g) of
sub-Section (2) of Section 4 indicate the matters to be
considered by the Standing Advisory Committee while making
recommendations.
5.3.1 In other words, the exercise of issuance of
Notification stipulating any commodity or class of commodity to
the packed in the jute bags is statutory as well as an exercise in
the expert domain. The Standing Advisory Committee is an
expert body which makes recommendations after taking into
account the relevant factors and the considerations.
5.3.2 Section 16 of the Act is a power to exempt. If the
Central Government is of the opinion that it is necessary or
expedient in public interest, it may exempt person or class of
persons supplying or distributing any commodity or class of
commodities from operation of an order made under Section 3
of the Act.
5.4 It could be well countenanced, atleast as a prima
facie view, the submission on behalf of the Union of India when
it was submitted that the decision arrived at under the Act by
invoking section 3 read with Section 4 and the consequential
issuance of Notification specifying the commodity or the extent
of commodity to be packed in the jute bags, is a policy decision.
The factors relevant in the realm on the policy in relation to the
subject matter have gone into consideration of the decision
makers who function as an expert Advisory Committee.
5.5 Looking at the decisional exercise by the Standing
Advisory Committee, it could be noticed from the contents of
the Minutes of the Meeting both 30th as well as 31st Meeting and
as a matter of fact, from the previous meeting minutes, that the
considerations which went into the decision making process
leading to the notifying the prescription to pack 20% sugar
production in the jute bags were relevant aspects and relevant
considerations based on the material. In paragraph 6 of the
Minutes of the 30th Meeting dated 21st July 2022 (page No.122
of the compilation), the Jute Committee figures were considered
and it was noted that demand of jute bags was more than
supply. At that stage, it was contemplated to exempt the sugar.
It was decided to keep out of purview of reservation under the
Act, the packaging of the export commodities, the small
consumer packs of 10 kilograms and below for food grains and
bulk packaging of more than 100 kilograms.
5.5.1 In the 31st Meeting of the Standing Advisory
Committee subsequently held on 26th May 2023 the aspects
were again discussed threadbare, they were highlighted with
reference to the facts and figures available, in paragraph 5 of
the Minutes (page No.200). It is to be noted that the
stakeholders including Indian Sugar Mills Association had
submitted their objections and suggestions which were taken
into account.
5.5.2 After deliberations, the Committee made
recommendations commodity-wise, as per paragraph 11 (page
No.202), They are expert recommendations after seeking
objections and participation from the stakeholders, reproduced
herein for ready reference,
"11. After taking into account the deliberations and
the facts submitted before the Committee, the SAC
recommended the following commodity wise reservation
norms under the JPM Act, 1987:-
Thereafter, Notification dated 28th June 2024 was issued and the
stipulation for packing 20% sugar production in the jute bags
came to be extended till 30th September 2024.
5.7 The impugned Notifications issued by the Ministry of
Textile, Union of India is a policy making exercise translated into
statutory function under the Act. The decision is of the expert
Advisory Committee under the statute. The various grounds
raised by the respective respondents to question the issuance of
Notifications and the stipulation therein about the mandate of
packing the sugar in the jute bags, are essentially and for all
purposes, objections in relation to the policy decision. They are
in the nature of pros and cons in respect of policy. Indeed, the
reasons given by learned Single Judge in para 6 of the interim
order exceeds the parameters and the circumstance of judicial
review, and also travels into policy issues.
5.7.1 The scope and ambit of judicial review as well as
the parameters to be applied would remain extremely limited for
the Court, when it comes to examining the policy of the State or
the decisions which are in the policy realm. Whether the policy
decision is outrightly unreasonable, arbitrary or is based on
thoroughly irrelevant considerations, and for that purposes may
fall within the permissible parameters and purview of judicial
review, is the question needs to be examined by going in detail
into the relevant aspects and the principles in law governing on
that score. It is not possible to come to an immediate conclusion
which would justify the stay of the policy Notifications, when the
challenge thereto is at large in the writ petitions, still to be
considered on merits.
5.8 On all the aforesaid counts, it is entirely possible to
take a view that what is contended on behalf of the appellant-
Union of India makes out a prima facie case for them to
successfully call in question the interim order of stay of the
Notification.
6. All the above aspects highlighted in paragraphs 5.1
onwards, which were, although considered prima facie by this
Court, at this stage, are material aspects. They were ought to
have been considered and given due regard by learned Single
Judge, however they came to be overlooked and the interim
order of the kind and nature above was passed staying the
Notifications.
7. In Assistant Collector of Central Excise, Chandan
Nagar, West Bengal Vs. Dunlop India Ltd., & Others
(1985) 1 SCC 260, the Hon'ble Supreme Court observed,
"...Interim orders must be made under Article 226 against
public authorities where gross violations of the law and
injustices are perpetrated or are about to be perpetrated,
or where denial of interim relief may lead to public
mischief, grave irreparable private injury or shake a
citizen's faith in impartiality of public administration. But
since the law presumes that public authorities function
properly and bona fide with due regard to the public
interest, a court must be circumspect in granting interim
orders of far-reaching dimensions of orders causing
administrative, burdensome inconvenience or orders
preventing collection of public revenue for no better
reason than that the parties have come to the court
alleging prejudice, inconvenience or harm and that a
prima facie case has been shown. There can be and there
are no hard and fast rules. But prudence, discretion and
circumspection are called for." (Para 5)
8. It is also to be noted that Notification dated 31st May
2023 was issued providing similar stipulation about the
packaging of sugar in the jute bags which was valid upto 30th
June 2023. On 14th June 2023, by another Notification, the
Ministry of Textiles extended the same upto 30th September
2023. On 26th September 2023, Notification was issued
extending the period upto 31st December 2023. Thereafter, the
impugned Notifications dated 26th December 2023 and 28th June
2024 came to be issued continuing the requirement.
9. Another aspect which has a bearing on the grant of
interim stay of Notifications deserves to be noticed. Notification
dated 26th December 2023 is challenged. It was valid upto 30th
June 2024. Further Notification which is also under challenge is
dated 28th June 2024, whereby the period of validity of the
Notification came to be extended upto 30th September 2024.
The writ petition was filed on 22nd August 2024, in other words,
the petition came to be filed after the expire of validity of
Notification dated 26th December 2023. The petitioner had no
grievance till that date. Subsequent extending Notification dated
28th June 2024 was issued. The petitioner had no grievance
even upto that date.
9.1 When the petition was filed on 22nd August 2024 little
more than a month was left as the Notification dated 28th June
2024 contemplated extension of period upto 30th September
2024. The petitioner thus sat tight and were never serious since
from the date when Notification dated 26th December 2023 was
issued. The validity period of the said Notification was already
expired and new Notification dated 28th June 2024 was already
issued when the petition was filed on 22nd August 2024. This
lethargical approach itself would have disentitled the petitioner
to get any interim stay.
10. In addition to all the above reasons and
considerations, a weighty principle of law is disregarded by the
learned Single Judge in granting interim stay of the
Notifications. The very Notifications dated 26th December 2023
and 28th June 2024 are prayed to be set aside as a principal
relief in the petition. It is well settled principle that interim relief
in the nature of principal, cannot be granted by the Court. In
the present case, granting of interim stay against the
Notification tantamount to granting of the main relief prayed for
in the petition.
"...We reiterate that normally at an interlocutory stage no
such relief should be granted that by virtue of which the
final relief, which is asked for and is available at the
disposal of the matter is granted."
"Time and again this Court has deprecated the
practice of granting interim orders which practically give the
principal relief sought in the petition for no better reason
than that a prima facie case has been made out, without
being concerned about the balance of convenience, the
public interest and a host of other considerations. [See:
Assistant Collector of Central Excise, West Bengal v. Dunlop
India Ltd. (1985) 1 SCC 260 at P. 265 : (AIR 1985 SC 330
at P. 333) State of Rajasthan v. M/s. Swaika Properties
(1985) 3 SCC 217 at P 224 : (AIR 1985 SC 1289 at P.
1292), Relied on.]"
The present petitioners challenge it before the Apex Court. The
2. The Special Leave Petition is, accordingly, dismissed.
3. However, some priority may be given to take up the
main proceedings for hearing."
12. Jurisprudence is replete with the Apex Court and various
High Courts considering the issue from time to time.
12.1. The Apex Court in the case of DALMIA CEMENT
(BHARAT) LIMITED v. UNION OF INDIA1, considered an
identical circumstance, where such provisions of respective
enactments identical to the Act were questioned and held that they
are not violative of Articles 14 and 19(1)(g) of the Constitution of
India. The Apex Court holds as follows:
".... .... ....
2. We have had the advantage of hearing a galaxy
of learned Senior Counsel with their forensic legal skills
to assail the constitutionality of Sections 3 to 5 of the Act
and the orders issued by the Central Government on the
anvil of Articles 14, 19(1)(g) and 301 of the Constitution
and their repudiation with equal vehemence by the
counsel appearing for the respondents. The petitioners'
fundamental premise is that their right to carry on trade
and business guaranteed by Article 19(1)(g) and free
flow of trade and commerce throughout the territory of
India under Article 301 has been impeded by operation of
the Act, the Rules and the orders issued by the Central
Government. The restriction by way of compulsory
packing of their finished products with gunny bags is an
unreasonable restriction; further, it is not in the interests
of general consumer public. The word 'general' qualifies
the whole public; in other words, the restriction must be
(1996) 10 SCC 104
in the interest of the entire general public, namely, the
consumers of diverse goods. It must not merely be a
small section of the public, namely, the producer of jute.
The restriction also must be for the advancement of, or to
the benefit of the society as a whole. Packing with jute
bags made compulsory irrespective of costs, suitability,
availability, consumers' non-preference and hosts of
other relevant factors, is arbitrary. Executive priority or
preference to the jute sector at the cost of and in total
disregard of the interests of other sectors like cement,
sugar or alternative industry or general public would be
unreasonable, arbitrary and a total prohibition.
Therefore, the Act is illegal and void. No law should
impose restriction for the benefit of a small section of the
public at the detriment of an overwhelmingly large
majority of the people. The Act intends to benefit only a
small section of the society as is disclosed by the
Statement of Objects and Reasons, namely, vague and
indeterminate 4 million rural agricultural families and 2.5
lakh industrial workers in the jute industry in comparison
with general consumers' community for whose benefit
the Essential Commodities Act, 1955 and the orders
issued thereunder was made for regulating the equitable
distribution of the essential commodities at a reasonable
price.
... ... ...
23. From this perspective, let us consider the
constitutionality of the provisions of the Act. The Statement of
Objects and Reasons and the Preamble of the Act, would, in
unmistakable terms, indicate that it intends to provide livelihood
to nearly 4 million rural agricultural families and 2.5 lakh
industrial workers. The ancient agro-based jute industry
occupied a significant position in our national economy, in
particular in the economy of the North-Eastern region of the
country. It is an agro-based and labour-intensive industry. It is
also an export-oriented one and its raw material is based
entirely on indigenous jute produced by the above agricultural
families. Parliament avowedly intended to protect the interests
of the persons involved in jute production; jute industry,
therefore, requires protection.
24. A balanced view of the developments in the national
economy requires to be taken into consideration to protect the
interests of the farmers who produce jute or any other
agricultural produce and in the interests of agro-based industry
of the country and workers who deliver finished products. With
that objective in view, the Act was made for compulsory use of
jute packaging material in the supply and distribution of certain
commodities in the interest of production of raw jute and jute
packaging material and the persons engaged in the production
thereof for the matters connected therewith. Sections 3, 4 and 5
read thus:
"3. (1) Notwithstanding anything contained in any
other law for the time being in force, the Central
Government may, if it is satisfied, after considering the
recommendations made to it by the Standing Advisory
Committee, that it is necessary so to do in the interests of
production of raw jute and jute packaging material, and of
persons engaged in the production thereof, by order
published in the Official Gazette, direct, from time to time,
that such commodity or class of commodities or such
percentage thereof, as may be specified in the order, shall,
on and from such date, as may be specified in the order, be
packed for the purposes of its supply or distribution in such
jute packaging material as may be specified in the order:
Provided that until such time as the Standing
Advisory Committee is constituted under Section 4, the
Central Government shall, before making any order under
this sub-section, consider the matters specified in sub-
section (2) of Section 4, and any order so made shall cease
to operate at the expiration of three months from the date
on which the Standing Advisory Committee makes its
recommendations.
(2) Every order made under sub-section (1) shall be
laid, as soon as may be after it is made, before each House
of Parliament, while it is in session, for a total period of
thirty days which may be comprised in one session or in two
or more successive sessions and if, before the expiry of the
session immediately following the session or the successive
sessions aforesaid, both Houses agree in making any
modification in the order or both Houses agree that the
order should not be made, the order shall thereafter have
effect only in such modified form or be of no effect, as the
case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of
anything previously done under that order. (emphasis
supplied)
4. (1) The Central Government shall, with a view to
determining the commodity or class of commodities or
percentages thereof in respect of which jute packaging
material shall be used in their packing, constitute a
Standing Advisory Committee consisting of such persons as
have, in the opinion of that Government, the necessary
expertise to give advice in the matter.
(2) The Standing Advisory Committee shall, after
considering the following matters, indicate its
recommendations to the Central Government, namely--
(a) the existing level of usage of jute material;
(b) the quantity of raw jute available;
(c) the quantity of jute material available;
(d) the protection of interests of persons engaged in the
jute industry and in the production of raw jute;
(e) the need for continued maintenance of jute industry;
(f) the quantity of commodities which, in its opinion, is
likely to be required for packing in jute material;
(g) such other matters as the Standing Advisory Committee
may think fit.
5. Where an order has been made under Section 3
requiring any commodity, class of commodities or any
percentage thereof to be packed in jute packaging material
for their supply or distribution, such commodity, class of
commodities or percentage thereof shall not, on and from
the date specified in such order, be supplied or distributed
unless the same is packed in accordance with that order:
Provided that nothing in this section shall apply to
the supply or distribution of any commodity, class of
commodities or percentage thereof for a period of three
months from the aforesaid date if immediately before that
date such commodity, class of commodities or percentage,
thereof were being packed in any material other than jute
packaging material."
... ... ...
26. Sub-section (1) of Section 3, with a non-
obstante clause, excludes the operation of any other law
for the time being in force and, regulates use of jute or
jute packaging material in supply and distribution of
certain commodities. It gives power to the Central
Government, on being satisfied, on consideration of the
recommendations made to it by the Standing Advisory
Committee empowered to issue directions from time to
time for use of the packing material. The primary purpose
and object of such directions is to protect the interests of
producer of raw jute and jute packaging material. The
Central Government is enjoined to protect the interests of
persons engaged in the production thereof. Such orders
should be published in the Official Gazette. The orders
need to be passed from time to time. From the date of
such order specified therein, such commodity or class of
commodities or such percentage thereof, as specified in
the order, should be packed with jute packaging material
specified in the order for the purpose of supply or
distribution of such commodity or commodities. Under
the proviso, until the Standing Advisory Committee is
constituted under Section 4, the Central Government
should consider, before making any order, the matters as
specified in sub-section (2) of Section 4. The Central
Government may make an order thereunder which shall
cease to operate at the expiration of 3 months from the
date of the recommendations of the Standing Advisory
Committee.
... ... ...
30. The question, therefore, is whether directions
issued by the Central Government for the compulsory
packing of the commodities with jute packaging material,
(in respect of sugar 100% use of the gunny bags and at
varying percentage for other commodities) is
unconstitutional? As stated earlier, the Act aims to accord
socio-economic justice to the tillers of the soil by
protecting the cultivation of raw jute and employment of
the workmen engaged in the jute manufacturing industry.
Jute is being produced and manufactured in North-
Eastern States, West Bengal and Andhra Pradesh etc. as
mentioned in the affidavit. A reading of the debates on
the floor of Parliament on the Bill, does establish, cutting
across the party lines, that all the members have spoken
in favour of directing compulsory use of jute packaging
material (gunny bags) for supply and distribution of the
commodities. As stated earlier, the object of the benign
measure primarily is to protect the interests of growers
of agricultural produce, who cultivate raw jute.
Incidentally, the manufacturers and the workmen get
benefit therefrom. Agricultural economy accords to the
grower socio-economic justice to provide dignity of
person, equality of opportunity to have his produce used
in industry, etc. Agriculture is treated as industry on a
par with any other industry. The State should provide, by
legislative or executive measure, all facilities and
opportunities to get them due price for their products and
have them marked for use in industry. The orders passed
by the Central Government are made subject to
parliamentary control and subject to modification by both
Houses.
31. Equally, the competing right to carry on trade or
business guaranteed to a citizen or person is also to be
protected. In the clash of competing rights of socio-
economic justice of the producers of the agricultural
commodities and of the individual right of a citizen to
carry on trade or business, the latter yield place to the
paramount social right. However, as rightly pointed out
by the counsel, a balanced view has to be struck by the
Central Government in directing use of jute packaging
material at the percentage of the jute bags to be used for
compulsory packing of the commodities which is subject
to parliamentary control and approval. Parliament is the
spokesman of the people where the need is felt most
acute. When the orders passed under Section 3 are
subject to modification by Parliament, Parliament
preserved to itself a great salutary control over executive
exercise of power under Section 3(1). It is such a
valuable public protection and safeguard kept with
Parliament itself. Parliament would be the best judge to
discuss in each House as to what extent competing
interests of the agricultural industry and the industry
involved in commercial products need to be protected and
would guide the Central Government appropriately by
resolution or otherwise. When Parliament debates on the
subject, it focuses its attention on all its constituents and
it would be open to debate on the subject by participants
from all the members of Parliament and political parties
and of shades of opinion. Parliament is entitled to direct
the Central Government to place on the floor of each
House the necessary factual material for discussion. They
are the best judges to direct the Central Government to
act on their advice in a particular way, based on the
existing factual material. Parliament is empowered to
overrule the order of the Central Government under
Section 3(1) by disapproval.
32. It is a question of fact, to be considered in each
case, as to what percentage is required to be used; it is
primarily for the Central Government to decide as
executive policy. The Central Government is guided by
the material placed before it and the advice tendered to it
by the Standing Advisory Committee constituted under
Section 4 of the Act. It depends upon the availability of
jute and its products in the market, the quantum of raw
jute produced by the agriculturists, its demand in the
market and its capability for diversification into other
industries for ancillary use of the jute material and hosts
of other factors enter into the decision-making process.
The exercise is required to be undertaken from time to
time. The Act, the Rules and the material placed before it
by the Committee and the advice tendered by the expert
body form the basis. The decision taken and directions
issued cannot be said to smack of arbitrariness.
Guidelines are available under the Act and the Rules
made in this behalf. They are parliamentary control.
Paramount public interest is to provide economic security
and equality and justice to the producers of raw jute and
the workers engaged in manufacturing jute packaging
material.
... ... ...
44. In Municipal Corpn. of the City of Ahmedabad v. Jan
Mohd. Usmanbhai [(1986) 3 SCC 20] a Constitution Bench of
this Court held that normally the legislature is the best judge of
what is good for the community but the court should not shirk
its duty to determine the validity of the law. In determining the
reasonableness of the restriction imposed by the law under
Article 19(6), the court cannot proceed on a general notion of
what is reasonable in the abstract or even on a consideration of
what is reasonable from the view of the person or persons on
whom the restrictions are imposed. The court has to consider
whether the restrictions are reasonable in the interest of the
general public. The question of the interest of the general public
is of wide import comprehending public order, economic welfare
of the public, public security, morals and the objects mentioned
in the Directive Principles. The test of reasonableness has to be
viewed in the context of the issues which faced the legislature.
In constructing such laws and judging their validity, courts must
approach the problem from the point of view of furthering the
social interest which is the purpose of the legislation to promote.
They are not in these matters functioning in vacuo but as part of
society which is trying, by the enacted law, to solve the
problems and further the moral and material progress of the
community as a whole.
... .. ...
47. The next question is whether the prohibition of
100% use of gunny bags by sugar industry and 70% by
the cement industry is reasonable? It is true that the
Committee constituted by the Government had
recommended to phase out use of gunny bags on the
ground that in a free market economy, now sought to be
introduced, the restriction is not justified primarily to
encourage free market. It is seen that the State has not
abandoned and cannot abandon the mixed economy and
power of regulation as mandated by constitutional policy.
Parliament and the Executive are bound by the
Constitution. The Act was made in implementation of
socio-economic equality and policies. Even a private
industry by operation of Directives contained in Part IV,
is bound to adopt them, implement them and the
Government policies to establish an egalitarian social
order. The Committee in its free market frenzy became
oblivious of the policy resolution of the Eighth Five Year
Plan, the trinity, Preamble, Fundamental Rights and
Directives. The executive policy of the State should be
cognizant to these mandates which should always bind
the Government and all agencies including private
agencies. As seen, the Advisory Committee constituted
under Section 4 has recommended 100% use of packing
the sugar with gunny bags. On consideration of the
report, the Government had acted upon the same. The
economic policy to render socio-economic justice to the
growers of raw jute and the workmen is based on the
above constitutional policy. Lest the report of the
Committee on the basis of a free market economy would
be in negation of the Preamble, the Directive Principles
and the Fundamental Right to economic justice to the
agriculturists. So the contention is clearly unsustainable.
The Standing Advisory Committee, therefore, had
properly advised and the Government obviously has
taken decision to continue the policy of compulsory
packing of commodities or class of commodities with jute
bags, regulated under Section 3 of the Act. Parliament did
not negate the same.
48. The further contention that on account of the
regulation, HDPE industry has become unviable and is on the
brink of liquidation and the Act tends to create monopoly in
favour of private industry which does not get protection under
Article 19(6), is untenable. This Court declines to examine the
relative economic viability of the respective industries. It would
be for the Central Government and Parliament and not for this
Court to take into consideration the declaration of the Act as
void. The Court has to see whether the Act serves the public
purpose and the restrictions are reasonable. The Advisory
Committee goes into factual details. The Government examines
and takes policy decision. It lays the order on the table of both
the Houses. Parliament controls exercise of power over
executive policy. Restrictions are inbuilt and self-evident."
[Emphasis supplied]
12.2. The Apex Court, a little later, in the case of KRISHNAN
KAKKANTH v. GOVERNMENT OF KERALA2, holds that
infringement of fundamental right under Article 19(1)(g) must have
a direct impact on the restriction of freedom to carry on trade and
(1997) 9 SCC 495
not ancillary or incidental to the said trade. The Apex Court holds
as follows:
".... .... ....
34. It has already been indicated that in Viklad
case [(1984) 1 SCC 619: (1984) 1 SCR 657] it has been held by
this Court that infringement of fundamental right under Article
19(1)(g) must have a direct impact on the restriction on the
freedom to carry on trade and not ancillary or incidental effects
on such freedom to trade arising out of any governmental
action. It has also been held in that case that unless the trader
or merchant is not wholly denied to carry on his trade, the
restriction imposed in denying the allotment of wagon in favour
of such trader or merchant to transport coal for carrying out
trading activities does not offend Article 19(1)(g) of the
Constitution. No restriction has been imposed on the trading
activity of dealers in pumpsets in the State of Kerala including
northern region comprising eight districts. Even in such an area,
a dealer is free to carry on his business. Such dealer, even in
the absence of the said circular, cannot claim as a matter of
fundamental right guaranteed under Article 19(1)(g) that a
farmer or agriculturist must enter into a business deal with such
trader in the matter of purchase of pumpsets. Similarly, such
trader also cannot claim that the Government should also accept
him as an approved dealer of the Government. The trading
activity in dealership of pumpsets has not been stopped or even
controlled or regulated generally. The dealer can deal with
purchasers of pumpsets without any control imposed on him to
carry on such business. The obligation to purchase from
approved dealer has been fastened only to such farmer or
agriculturist who has volunteered to accept financial assistance
under the scheme on various terms and conditions.
... ... ...
36. To ascertain unreasonableness and
arbitrariness in the context of Article 14 of the
Constitution, it is not necessary to enter upon any
exercise for finding out the wisdom in the policy decision
of the State Government. It is immaterial whether a
better or more comprehensive policy decision could have
been taken. It is equally immaterial if it can be
demonstrated that the policy decision is unwise and is
likely to defeat the purpose for which such decision has
been taken. Unless the policy decision is demonstrably
capricious or arbitrary and not informed by any reason
whatsoever or it suffers from the vice of discrimination or
infringes any statute or provisions of the Constitution,
the policy decision cannot be struck down. It should be
borne in mind that except for the limited purpose of
testing a public policy in the context of illegality and
unconstitutionality, courts should avoid "embarking on
uncharted ocean of public policy".
[Emphasis supplied]
13. The 3 Judges Bench of the Apex Court in DALMIA
CEMENT's case supra elaborately considering interplay between
freedom of trade and the Act, clearly holds that the subject Act
which was called in question before the Court was not violative of
Article 14 of the Constitution of India. The Apex Court was
considering whether 100% usage of gunny bags by sugar industry
which was then the norm and 70% by the cement industry was
reasonable or otherwise. The Apex Court has held that
recommendation of 100% usage by the sugar industry by the
Advisory Committee constituted under Section 4 of the Act has led
to Government acting upon the same. The economic policy to
render socio-economic justice to the growers of raw jute and the
workmen is based upon the constitutional policy ordained in Part-IV
of the Constitution i.e., the Directive Principles of State Policy. The
Apex Court further holds that the Standing Advisory Committee had
appropriately advised the Government to take a decision to
continue the policy of compulsory packing. The aforesaid
observation of the Apex Court was considering the very enactment
when the usage of jute bag stood at 100% in the sugar industry
and 70% in the cement industry.
14. In KRISHNAN KAKKANATH's case supra, the Apex
Court holds that right to carry on trade and business are always
subject to reasonable restrictions. It would not become arbitrary for
the mere say of it by a person who brings the challenge. The Apex
Court holds that to ascertain arbitrariness and unreasonableness in
the context of Article 14 of the Constitution, it is not necessary to
enter upon any exercise of finding the wisdom of the policy. It must
be palpable and demonstrable, failing which the Courts would be
entering into or embarking upon uncharted ocean of public policy.
Therefore, the enactment where the imposition was 100% on sugar
industry being affirmed would leave the challenge qua 20% in the
subject petition to the oblivion.
15. Respective learned senior counsel for the petitioners have
relied on certain judgments touching upon the issue.
15.1. The Apex Court in the case of SIDHARTHA SARAWGI
v. BOARD OF TRUSTEES FOR THE PORT OF KOLKATA3, has
held as follows:
".... .... ....
4. There is a subtle distinction between delegation of
legislative powers and delegation of non-
legislative/administrative powers. As far as delegation of power
to legislate is concerned, the law is well settled: the said power
cannot be sub-delegated. The legislature cannot delegate
essential legislative functions which consist in the determination
or choosing of the legislative policy and formally enacting that
policy into a binding rule of conduct [HarishankarBagla v. State
of M.P., AIR 1954 SC 465 at p. 468, para 9: 1954 Cri LJ 1322 :
(1955) 1 SCR 380 at p. 388; Agricultural Market
Committee v. Shalimar Chemical Works Ltd., (1997) 5 SCC 516
at p. 524, para 24] . Subordinate legislation which is generally
in the realm of rules and regulations dealing with the procedure
on implementation of plenary legislation is generally a task
entrusted to a specified authority. Since the legislature need not
spend its time for working out the details on implementation of
the law, it has thought it fit to entrust the said task to an
agency. That agency cannot entrust such task to its
subordinates; it would be a breach of the confidence reposed on
the delegate.
5. Regarding delegation of non-
legislative/administrative powers on a person or a body
to do certain things, whether the delegate himself is to
perform such functions or whether after taking decision
as per the terms of the delegation, the said agency can
authorise the implementation of the same on somebody
else, is the question to be considered. Once the power is
(2014) 16 SCC 248
conferred, after exercising the said power, how to
implement the decision taken in the process, is a matter
of procedure. The legislature may, after laying down the
legislative policy, confer discretion on an administrative
agency as to the execution of the policy and leave it to
the agency to work out the details within the framework
of that policy [Khambhalia Municipality v. State of
Gujarat, AIR 1967 SC 1048 at p. 1051, para 7]. So long as
the essential function of decision making is performed by
the delegate, the burden of performing the ancillary and
clerical task need not be shouldered by the primary
delegate. It is not necessary that the primary delegate
himself should perform the ministerial acts as well. In
furtherance of the implementation of the decision already
taken by the primary delegate as per the delegation,
ministerial or clerical tasks may be performed by
authorised officers. The complexity of modernday
administration and the expansion of functions of the
State to the economic and social spheres have made it
necessary that the legislature gives wide powers to
various authorities when the situation requires it. Today's
governmental functions are a lot more complex and the
need for delegation of powers has become more
compelling. It cannot be expected that the head of the
administrative body performs each and every task
himself."
[Emphasis supplied]
The Apex Court elucidates about the legislative policy regarding
delegation of non-legislative and administrative powers on a body
and holds that today's governmental functions are lot more
complex and the need for delegation of powers has become more
compelling and every task cannot be expected that the head of the
administrative body perform itself. The learned senior counsel have
placed reliance upon the judgment to buttress the submission that
once the Standing Advisory Committee recommends, it has to be
accepted and the recommendation here is to do away imposition of
jute qua sugar industry.
15.2. Earlier to the aforesaid order passed by the Apex Court,
the High Court of Gujarat in the case of GUJARAT STATE SUGAR
FEDERATION LIMITED v. UNION OF INDIA4, has observed as
follows:
".... .... ....
14. All the aforesaid views given by different constituents
of the committee made a stream of strong view and was
culminated as advised by this Statutory constituted Committee.
This advice has been brushed aside by the Central Government
while issuing impugned notification keeping in mind extraneous
factors.
(v) Adverse impact of batching oil used in jute packaging
material:
It has been stated in detail by the Jute Commissioner
(Annexure "I" to the memo of the petition) that batching oil
used in jute packaging material contaminates edible
products through contact with packaging material resulting
in direct impact upon the health of the persons who are
consuming food grains and sugar. In monsoon seasons also,
it absorbs moisture and contaminates the edible products
packed in jute packaging material. In response to this, it is
stated by the learned advocate for the respondentUnion of
India that recently the Government has restricted 3% usage
2006 SCC OnLine Guj 564
of batching oil in the production of jute packaging material.
Therefore, there will not be any contamination. Looking to
the facts and circumstances of the present case, I am of the
opinion that the jute packaging material contains batching
oil and it affects the health of the people at large and it
contaminates food grains. For export of the food grains and
sugar, jute packaging material is not compulsory, meaning
thereby, for the citizens and residents of this country, jute
packaging material, though it contaminates food products,
100% of total production is required to be packed in a jute
packaging material. This is not in the public interest.
(vi) Scope of judicial review:
It is repeatedly contended by the learned Counsel for
the respondent Union of India that the decision taken by the
Central Government vide notification dated 24.07.2006 is a
policy decision and is a legislative action and as the said
decision is a legislative decision in nature, it is not amenable
to judicial review. This contention is not accepted by this
Court for the reason that the decision taken by the Central
Government is not a policy decision but it is a decision
taken in pursuance of the parent Act, namely The Jute
Packaging Materials (Compulsory use of Packaging
Commodities) Act, 1987. It is not even a legislative Act.
While taking decision under Sub-section (1) of Section 3 of
the Act of 1987, the Central Government must keep in mind
the factors required to be considered as per Sections 3 and
4 of the Act of 1987. If the decision taken by the Central
Government is dehors the Act of 1987, this Court has ail
power to check correctness of the decision making process
and to check whether the factors referred to in the Act of
1987 have been considered or not. If extraneous factors
have been considered while taking the decision under
Section 3(1) of the Act of 1987, this Court can judicially
review the said decision and can quash the same. It has
been decided by the Hon'ble Supreme Court in the case
of Indian Express Newspapers (Bombay) Private
Ltd. v. Union of India, reported in (1985) 1 SCC 641 : AIR
1986 SC 515 and more particularly in Paragraphs 71 and 73
as under:--
"71. We shall assume for purposes of these cases
that the power to grant exemption under Section 25 of the
Customs Act, 1962 is a legislative power and a notification
issued by the Government thereunder amounts to a piece of
subordinate legislation. Even then the notification is liable to
be questioned on the ground that it is an unreasonable one.
The decision of this Court in Municipal Corporation of
Delhi v. Birla Cotton. Spinning and Weaving Mills, Delhi,
(1968) 3 SCC 251; AIR 1968 SC 1232, has laid down the
above principle. In that case Wanchoo, C.J. while upholding
certain taxes levied by the Corporation of Delhi under
Section 150 of the Delhi Municipal Corporation Act, 1957
observed thus:
"Finally there is another check on the power of the
Corporaton which is inherent in the matter of exercise of
power by subordinate public representative bodies such as
Municipal Boards. In such cases if the act of such a body in
the exercise of the power conferred on it by the law is
unreasonable, the Courts can hold that such exercise is void
for unreasonableness. This principle was laid down as far
back as 1898 in Kruse v. Johnson, 1898 (2) QBD 91."
73. A piece of subordinate legislation does not carry
the same degree of immunity which is enjoyed by a statute
passed by a competent legislature. Subordinate legislation
may be questioned on any of the grounds on which plenary
legislation is questioned.In addition it may also be
questioned on the ground that it docs not conform to the
statute under which it is made. It may further be
questioned on the ground that it is contrary to some other
statute. That is because subordinate legislation must yield
to plenary legislation. It may also be questioned on the
ground that it is unreasonable, unreasonable not in the
sense of not being reasonable, but in the sense that it is
manifestly arbitrary. In England, the Judges would say
"Parliament never intended authority to make such rules.
They are unreasonable and ultra vires." The present
position of law bearing on the above point is stated by
Diplock L.J. In Mixnam Properties Ltd. v. Chertsey
U.D.C., 1964 (1) QB 214 thus:--
"The various grounds upon which subordinate
legislation has sometimes been said to be void.... can, I
think, today be properly regarded as being particularly
applications of the general rule that subordinate legislation,
to be valid, must be shown to be within the powers
conferred by the statute. Thus the kind of unreasonableness
which invalidates a bye-law is not the antonym of
"reasonableness" in the sense of which that expression is
used in the common law, but such manifest arbitrariness,
injustice or partiality that a Court would say: Parliament
never intended to give authority to make such rules: they
are unreasonable and ultra vires...' If the Courts can declare
subordiante legislation to be invalid for 'uncertainty', as
distinct from unenforceable...this must be because
Parliament is to be presumed not to have intended
authorise the subordinate legislative authority to make
changes in the existing law which are uncertain...."
(Emphasis supplied)
... ... ...
"32. It is also contended by the learned Counsel for the
respondent Union of India that Standing Advisory Committee's
report is merely an advice and is not binding to the Central
Government. It. is true that the report given by the statutory
committee appointed under Section 4 of the Act of 1987 is not
binding to the Government, but the question before this Court is
whether extraneous factors have been considered by the Central
Government for fixing 100% (by brushing aside advice given by
SAC) of total production in food grains and sugar industries to
be packed in jute packaging material. Looking to the reasons
given by the Central Government for brushing aside the advice
given by the Standing Advisory Committee, namely their
commitment to UPA Government and Jute policy of the year
2005, I am of the opinion that they are extraneous
considerations. None of them prescribes 100% usage of Jute
packaging material. Looking to the Provisions of Section 3(1) of
the Act of 1987, every year is a separate year, therefore, what
is just, for last year, on the basis of last year's Jute Policy,
cannot be mechanically followed for the current year i.e., 2006-
2007, but need of 100% ought to be evaluated independently of
last year's percentage or policy. Every year, the whole exercise
is to be undertaken afresh, as stated in Section 4 of the Act and
thereafter, final decision can be taken under Sub-section (1) of
Section 3 of the Act of 1987. Therefore, it is rightly observe in
Paragraphs 31 and 32 of the judgment in the case of Dalmiya
Cement (Bharat) Ltd. v. Union of India, reported in (1996) 10
SCC 104 as under:--
"31. Equally, the competing right to carry on trade or
business guaranteed to a citizen or person is also to be
protected. In the clash of competing rights of socio-
economic justice of the producers of the agricultural
commodities and of the individual right of a citizen to carry
on trade or business, the latter yield place to the paramount
social right. However, as rightly pointed out by the Counsel,
a balanced view has to be struck by the Central
Government in directing use of jute packaging material at
the percentage of the jute bags to be used for compulsory
packing of the commodities which is subject to
parliamentary control and approval. Parliament is the
spokesman of the people where the need is felt most acute.
When the orders are passed under Section 3 are subject to
modification by Parliament, Parliament preserved to itself a
great salutary control over executive exercise of power
under Section 3(1). It is such a valuable public protection
and safeguard kept with Parliament itself. Parliament would
be the best judge to discuss in each House as to what
extent competing interests of the agricultural industry and
the industry involved in commercial products need to be
protected and would guide the Central Government
appropriately by resolution or otherwise. When Parliament
debates on the subject, it focuses its attention on all its
constituents and it would be open to debate on the subject
by participants from all the members of Parliament and
political parties and of shades of opinion. Parliament
isentitled to direct the Central Government to place on the
floor of each House the necessary factual material for
discussion. They are the best judges to direct the Central
Government to act on their advice in a particular way,
based on the existing factual material. Parliament is
empowered to overrule the order of the Central Government
under Section 3(1) by disapproval."
(Emphasis supplied)
Similarly in Para 32 of the said judgment, it has been observed
as under:--
"It is a question of fact to be considered in each case
as to what percentage is required to be used; it is primarily
for the Central Government to decide as executive
policy.........."
(Emphasis supplied)
33. Thus, what may be true for one year infixing the
percentage of usage of jute bags may not be true for the
next year. Every year, this percentage has to be fixed by
the Central Government keeping in mind parameters as
stated in Sections 3 and 4 of the Act of 1987 and keeping
in mind the aforesaid observations in Paragraphs 31 and
32 of the judgment, as stated hereinabove. Wherever,
there is a total prohibition, more care and need for strict
scrutiny by the Court is required. Looking to the advice
given by most of the members of the Standing Advisory
Committee and looking to the percentage suggested by
the Standing Advisory Committee, namely, 70% and 75%
for sugar and food grains, it was a suggestion by most of
the departments in Standing Advisory Committee to
reduce percentage of usage of jute bags. Looking to the
decision taken by the Central Government and note for
Cabinet Committee on Economic Affairs dated 26.06.2006
for mandatory use of jute in packing for the jute year
2006-2007, the only reason given in Paragraph 8 is
commitment to UPA Government and in continuation of
the policy laid down during the last jute year. The report
given by the Standing Advisory Committee was brushed
aside and 100% of the total production of food grains and
sugar was ordered to be packed in jute packaging
material. These two factors have been considered which
are not at all referred in Sections 3 and 4 of the Act of
1987. Therefore, they are extraneous considerations.
Thus, whenever delegated legislation is running against
the parent Act, always such decisions are amenable to
judicial review and in view of these facts, I hereby quash
and set aside the notification dated 24.07.2006 which is
at Annexure "A" to the memo of the petition."
[Emphasis supplied]
This is again to buttress the submission that the report given by the
Standing Advisory Committee cannot be brushed aside, as it is the
duty of the Standing Advisory Committee to look into all aspects
and submit its opinion/recommendation. It is a statutory body.
Several other judgments are relied on only to buttress the
submission with regard to arbitrariness in the directions so issued
right from the judgment in the case of INDIAN EXPRESS
NEWSPAPERS (BOMBAY) (P) LIMITED v. UNION OF INDIA5,
up to COIMBATORE DISTRICT CENTRAL CO-OPERATIVE BANK
v. COIMBATORE DISTRICT CENTRAL CO-OPERATIVE BANK
EMPLOYEES ASSOCIATION6.
16. There can be no qualm about the principles so laid down
by the Apex Court with regard to arbitrariness. The issue is that the
very enactment had fallen for consideration before the Apex Court
in the case of DALMIA CEMENT, a three Judge Bench decision. All
the submissions now projected with regard to arbitrariness,
infringement of fundamental rights, free trade and all other
judgments that the learned senior counsel for the petitioners have
sought to place reliance upon, bear consideration in the case of
DALMIA CEMENT; the law up to date on which the judgment was
rendered, barring a few which have come about at a later point in
time.
(1985) 1 SCC 641
(2007) 4 SCC 669
17. The Apex Court in the judgment of DALMIA CEMENT at
paragraph 21 has held as follows:
".... .... ....
21. Article 38 of the Constitution enjoins the State
to strive to promote the welfare of the people by securing
and protecting, as effectively as it may, the social order
in which justice -- social, economic and political -- shall,
inform all the institutions of the national life striving to
minimise inequalities in income and endeavour to
eliminate inequalities in status, facilities, opportunities
amongst individuals and groups of people residing in
different areas or engaged in different avocations. As
stated earlier, agriculture is the mainstay of rural
economy and empowerment of the agriculturists.
Agriculture, therefore, is an industry. To the tiller of the
soil, livelihood depends on the production and return of
the agricultural produce and sustained agro-economic
growth. The climatic conditions throughout Bharat are
not uniform. They vary from tropical to moderate
conditions. Tillers of the soil being in unorganised sector,
their voice is scarcely heard and was not even remotely
voiced in these cases. Their fundamental right to
cultivation is as a part of right to livelihood. It is a
bastion of economic and social justice envisaged in the
Preamble and Article 38 of the Constitution. As stated
earlier, the rights, liberties and privileges assured to
every citizen are linked with corresponding concepts of
duty, public order and morality. Therefore, the jural
postulates form the foundation for the functioning of a
just society. The fundamental rights ensured in Part III
are, therefore, made subject to restrictions i.e., public
purpose in Part IV Directives, public interest or public
order in the interest of the general public. In enlivening
the fundamental rights and the public purpose in the
Directives, Parliament is the best Judge to decide what is
good for the community, by whose suffrage it comes into
existence and the majority political party assumes
governance of the country. The Directive Principles are
the fundamentals in their manifestos. Any digression is
unconstitutional. The Constitution enjoins upon the
Executive, Legislature and the Judiciary to balance the
competing and conflicting claims involved in a dispute so
as to harmonise the competing claims to establish an
egalitarian social order. It is a settled law that the
Fundamental Rights and the Directive Principles are the
two wheels of the chariot; none of the two is less
important than the other. Snap one, the other will lose its
efficacy. Together, they constitute the conscience of the
Constitution to bring about social revolution under rule of
law. The Fundamental Rights and the Directives are, therefore,
harmoniously interpreted to make the law a social engineer to
provide flesh and blood to the dry bones of law. The Directives
would serve the court as a beacon light to interpretation.
Fundamental Rights are rightful means to the end, viz., social
and economic justice provided in the Directives and the
Preamble. The Fundamental Rights and the Directives establish
the trinity of equality, liberty and fraternity in an egalitarian
social order and prevent exploitation."
[Emphasis supplied]
The Apex Court observes, striking of a balance and the duty
enjoined on the State to strive to promote the welfare of the people
by securing and protecting, as effectively as it may, the social order
in which justice, social, economic and political are protected. The
Apex Court further observes that tillers of the soil being in
unorganized sector, their voice is scarcely heard and was not even
remotely voiced in these cases. Their fundamental right to
cultivation is a part of right to livelihood. It is a bastion of economic
and social justice envisaged in the Preamble and Article 38 of the
Constitution. The Apex Court holds that the Fundamental Rights
and Directive Principles are two wheels of the chariot; none of the
two is less important than the other. You snap one, the other will
lose its efficacy. Together, they constitute the conscience of the
Constitution to bring about social revolution under rule of law.
18. Though the afore-quoted judgment was rendered in the
year 1996, lot has changed today. The farmers may have grown on
a higher pedestal, but still remain as voices unheard. The tillers of
the soil are still in soil. To the benefit of commercial enterprise, the
Standing Advisory Committee has reduced the imposition from
100% to 20% today and the 3 Judge Bench of the Apex Court has
held that imposition of 100% itself was not arbitrary. When that is
so, it is ununderstandable as to how imposition of 20% becomes
arbitrary. The commercial enterprise is wanting to snatch the
livelihood of jute growers and jute bag manufacturers qua the sugar
industry. Therefore, the submissions sans countenance.
19. The aforesaid enactment and orders issued from time to
time all fall within the realm of policy. The policy, statutory or
otherwise, would not become justiciable in the exercise of
jurisdiction of judicial review under Article 226 of the Constitution of
India, unless it is arbitrary. The key feature of the statute is to
strike a harmony between the Fundamental Rights and Directive
Principles of State policy. The progress of the commercial
enterprise go hand in hand with the progress of livelihood of jute
growing farmers and the jute manufacturing industry, the workmen
and the families involved of the said workmen working in the jute
industry. Therefore, a cycle of harmony is projected through a
statutory policy under the Act. Such a policy is sought to be pointed
towards arbitrariness, while it is not, in the light of the preceding
analysis of the judgment of the Apex Court.
20. The provisions of the Act, which revolve round the realm
of statutory policy, cannot be seen to be interfered with by this
Court, in exercise of jurisdiction under Article 226 of the
Constitution of India. It cannot be forgotten that the policy is only a
course of action to deal with a subject matter. An Authority,
statutory or otherwise, is entitled to choose a course of action that
it thinks necessary or expedient in public interest. The domain of
administration and scope of judicial review is circumscribed and
limited in reviewing policy decisions. The constitutional Courts
would be loathe and show deference to the wisdom of the policy
makers. The Courts have always exercised judicial restraint and
circumspection over the wisdom of the policy of Government or
statutory authorities, save as in circumstances, where such policy
demonstrates caprice, arbitrariness, unreasonableness or is
whimsical, so as to offend the tenets of Article 14 of the
Constitution of India. This is the only parameter that would permit
constitutional Courts to tinker with the policy.
21. In the above circumstances, it becomes germane to
notice what Frankfurter, J., of the U.S. Supreme Court, has in his
dissenting opinion in the case of TROP v. DULLES7 observed. The
learned Judge observed as follows:
".... .... ....
57."......All power is, in Madison's phrase, "of an
encroaching nature". Judicial Power is not immune
against this human weakness. It also must be on guard
against encroaching beyond its proper bounds, and not
the less so since the only restraint upon it is self-
restraint.........
1958 SCC ONLINE US SC 62
58. Rigorous observance of the difference between limits
of power and wide exercise of power - between questions of
authority and questions of prudence - requires the most alert
appreciation of this decisive but subtle relationship of two
concepts that too easily coalesce. No less does it require a
disciplined will to adhere to the difference. It is not easy to
stand aloof and allow want of wisdom to prevail to disregard
one's own strongly held view of what is wise in the conduct of
affairs. But it is not the business of this Court to pronounce
policy. It must observe a fastidious regard for limitations
on its own power, and this precludes the Court's giving
effect to its own notions of what is wise or politic. That
self-restraint is of the essence in the observance of the
judicial oath, for the Constitution has not authorized the
judges to sit in judgment on the wisdom of what
Congress and the executive Branch do".
(Emphasis supplied)
22. In yet another view Lord Justice Lawton in the case of
LAKER AIRWAYS v. DEPARTMENT OF TRADE8, has held as
follows:
"In the United Kingdom aviation policy is determined by
ministers within the legal framework set out by Parliament.
Judges have nothing to do with either policy-making or the
carrying out of policy. Their function is to decide whether a
minister has acted within the powers given to him by
statute or the common law. If he is declared by a Court,
after due process of law, to have acted outside his
powers, he must stop doing what he has done until such
time as parliament gives him the powers he wants. In a
case such as this I regard myself, as a referee. I can blow
my judicial whistle when the ball goes out of play; but
(1977) 2 ALL ER 182
when the game restarts I must neither take part in it nor
tell the players how to play".
(Emphasis supplied)
The afore-quoted observations of those learned Judges have been
reiterated in plethora of judgments by the Apex Court.
23. In terms of what is laid down hereinabove, what would
unmistakably emerge is, for a Judge in terms of his inputs,
cannot assume the role of a supreme adviser to the
administration of policies governing innumerable activities
of the State, particularly in today's context of over-
expanding horizons, which come into the ken of such policy
making. By taking oath of office as a Judge, an ordinary man
turns himself into a man with magic wand and qualifies
himself to be an unquestionable Authority to advice on
policies is inconceivable. It is further trite that the Court
would not sit in the arm chair of those experts who have
promulgated such policies and overrule them, save as in
circumstances, as narrated hereinabove. In the case at hand,
no such circumstances are brought to the notice of this Court by the
petitioners for the policy to be branded as arbitrary, whimsical,
unreasonable and contrary, to any statutory provisions resulting in
illegality. All that the petitioner contends is that its right under
Article 19(1)(g) of the Constitution of India is taken away. Article
19(1)(g) of the Constitution which gives right to a citizen to practice
any profession or to carry on any trade or business cannot be
construed to be so absolute, as even the fundamental rights are
couched with reasonable restrictions.
24. The parameters of judicial review of policy decisions of
the State can be interfered with only on certain grounds.
24.1. The Apex Court in the case UGAR SUGAR WORKS
LIMITED v. DELHI ADMINISTRATION9, has held as follows:
".... .... ....
18. The challenge, thus, in effect, is to the executive
policy regulating trade in liquor in Delhi. It is well settled that
the courts, in exercise of their power of judicial review,
do not ordinarily interfere with the policy decisions of the
executive unless the policy can be faulted on grounds of
mala fide, unreasonableness, arbitrariness or unfairness
etc. Indeed, arbitrariness, irrationality, perversity and
mala fide will render the policy unconstitutional.
However, if the policy cannot be faulted on any of these
(2001) 3 SCC 635
grounds, the mere fact that it would hurt business
interests of a party, does not justify invalidating the
policy. In tax and economic regulation cases, there are
good reasons for judicial restraint, if not judicial
deference, to judgment of the executive. The courts are
not expected to express their opinion as to whether at a
particular point of time or in a particular situation any
such policy should have been adopted or not. It is best
left to the discretion of the State."
[Emphasis supplied]
24.2. Later, the Apex Court in the case of CENTRE FOR
PUBLIC INTEREST LITIGATION v. UNION OF INDIA10, has
held as follows:
".... .... ....
21. Such a policy decision, when not found to be arbitrary
or based on irrelevant considerations or mala fide or against any
statutory provisions, does not call for any interference by the
courts in exercise of power of judicial review. This principle of
law is ingrained in stone which is stated and restated time and
again by this Court on numerous occasions. In Jal Mahal Resorts
(P) Ltd. v. K.P. Sharma [Jal Mahal Resorts (P) Ltd. v. K.P.
Sharma, (2014) 8 SCC 804], the Court underlined the principle
in the following manner: (SCC pp. 861-62, paras 137-38)
"137. From this, it is clear that although the courts
are expected very often to enter into the technical and
administrative aspects of the matter, it has its own
limitations and in consonance with the theory and principle
of separation of powers, reliance at least to some extent to
the decisions of the State authorities, specially if it is based
on the opinion of the experts reflected from the project
report prepared by the technocrats, accepted by the entire
hierarchy of the State administration, acknowledged,
(2016) 6 SCC 408
accepted and approved by one Government after the other,
will have to be given due credence and weightage. In spite
of this if the court chooses to overrule the correctness of
such administrative decision and merits of the view of the
entire body including the administrative, technical and
financial experts by taking note of hair splitting submissions
at the instance of a PIL petitioner without any evidence in
support thereof, the PIL petitioners shall have to be put to
strict proof and cannot be allowed to function as an
extraordinary and extra-judicial ombudsman questioning
the entire exercise undertaken by an extensive body which
includes administrators, technocrats and financial experts.
In our considered view, this might lead to a friction if not
collision among the three organs of the State and would
affect the principle of governance ingrained in the theory of
separation of powers. In fact, this Court in M.P. Oil
Extraction v. State of M.P. [M.P. Oil Extraction v. State of
M.P., (1997) 7 SCC 592] , at p. 611 has unequivocally
observed that : (SCC para 41)
'41. ... The power of judicial review of the executive
and legislative action must be kept within the bounds of
constitutional scheme so that there may not be any
occasion to entertain misgivings about the role of judiciary
in outstepping its limit by unwarranted judicial activism
being very often talked of in these days. The democratic
set-up to which the polity is so deeply committed cannot
function properly unless each of the three organs appreciate
the need for mutual respect and supremacy in their
respective fields.'
138. However, we hasten to add and do not wish to
be misunderstood so as to infer that howsoever gross or
abusive may be an administrative action or a decision which
is writ large on a particular activity at the instance of the
State or any other authority connected with it, the Court
should remain a passive, inactive and a silent spectator.
What is sought to be emphasised is that there has to be a
boundary line or the proverbial "Laxman rekha" while
examining the correctness of an administrative decision
taken by the State or a Central authority after due
deliberation and diligence which do not reflect arbitrariness
or illegality in its decision and execution. If such equilibrium
in the matter of governance gets disturbed, development is
bound to be slowed down and disturbed specially in an age
of economic liberalisation wherein global players are also
involved as per policy decision."
22. Minimal interference is called for by the courts,
in exercise of judicial review of a government policy
when the said policy is the outcome of deliberations of
the technical experts in the fields inasmuch as courts are
not well equipped to fathom into such domain which is
left to the discretion of the execution. It was beautifully
explained by the Court in Narmada BachaoAndolan v. Union of
India [Narmada BachaoAndolan v. Union of India, (2000) 10
SCC 664] and reiterated in Federation of Railway Officers
Assn. v. Union of India [Federation of Railway Officers
Assn. v. Union of India, (2003) 4 SCC 289] in the following:
(SCC p. 289, para 12)
"12. In examining a question of this nature where a
policy is evolved by the Government judicial review thereof
is limited. When policy according to which or the purpose
for which discretion is to be exercised is clearly expressed in
the statute, it cannot be said to be an unrestricted
discretion. On matters affecting policy and requiring
technical expertise the court would leave the matter for
decision of those who are qualified to address the issues.
Unless the policy or action is inconsistent with the
Constitution and the laws or arbitrary or irrational or abuse
of power, the court will not interfere with such matters."
23. Limits of the judicial review were again reiterated,
pointing out the same position by the courts in England, in G.
Sundarrajan v. Union of India [G. Sundarrajan v. Union of India,
(2013) 6 SCC 620] in the following manner: (SCC p. 646, para
15)
"15.1. Lord MacNaughten in Vacher& Sons
Ltd. v. London Society of Compositors [Vacher& Sons
Ltd. v. London Society of Compositors, 1913 AC 107 :
(1911-13) All ER Rep 241 (HL)] has stated : (AC p. 118)
'... Some people may think the policy of the Act
unwise and even dangerous to the community. ... But a
judicial tribunal has nothing to do with the policy of any Act
which it may be called upon to interpret. That may be a
matter for private judgment. The duty of the court, and its
only duty, is to expound the language of the Act in
accordance with the settled rules of construction.'
15.2. In Council of Civil Service Unions v. Minister for
the Civil Service [Council of Civil Service Unions v. Minister
for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 :
(1984) 3 All ER 935 (HL)] (AC p. 414 : All ER p. 954), it was
held that it is not for the courts to determine whether a
particular policy or particular decision taken in fulfilment of
that policy is fair. They are concerned only with the manner
in which those decisions have been taken, if that manner is
unfair, the decision will be tainted with what Lord Diplock
labels as "procedural impropriety".
15.3. This Court in M.P. Oil Extraction v. State of
M.P. [M.P. Oil Extraction v. State of M.P., (1997) 7 SCC
592] held that unless the policy framed is absolutely
capricious, unreasonable and arbitrary and based on mere
ipse dixit of the executive authority or is invalid in
constitutional or statutory mandate, court's interference is
not called for.
15.4. Reference may also be made of the judgments
of this Court in Ugar Sugar Works Ltd. v. Delhi Admn. [Ugar
Sugar Works Ltd. v. Delhi Admn., (2001) 3 SCC 635]
, Dhampur Sugar (Kashipur) Ltd. v. State of
Uttaranchal [Dhampur Sugar (Kashipur) Ltd. v. State of
Uttaranchal, (2007) 8 SCC 418] and Delhi Bar
Assn. v. Union of India [Delhi Bar Assn. v. Union of India,
(2008) 13 SCC 628] .
15.5. We are, therefore, firmly of the opinion that we
cannot sit in judgment over the decision taken by the
Government of India, NPCIL, etc. for setting up of KKNPP at
Kudankulam in view of the Indo-Russian Agreement."
(emphasis in original)
24. When it comes to the judicial review of economic
policy, the courts are more conservative as such economic
policies are generally formulated by experts. Way back in the
year 1978, a Bench of seven Judges of this Court in Prag Ice &
Oil Mills v. Union of India [Prag Ice & Oil Mills v. Union of India,
(1978) 3 SCC 459 : AIR 1978 SC 1296 : 1978 Cri LJ 1281]
carved out this principle in the following terms : (SCC p. 478,
para 24)
"24. We have listened to long arguments directed at
showing us that producers and sellers of oil in various parts
of the country will suffer so that they would give up
producing or dealing in mustard oil. It was urged that this
would, quite naturally, have its repercussions on consumers
for whom mustard oil will become even more scarce than
ever ultimately. We do not think that it is the function of
this Court or of any court to sit in judgment over such
matters of economic policy as must necessarily be left to
the government of the day to decide. Many of them, as a
measure of price fixation must necessarily be, are matters
of prediction of ultimate results on which even experts can
seriously err and doubtlessly differ. Courts can certainly not
be expected to decide them without even the aid of
experts."
25. Taking aid from the aforesaid observations of the
Constitution Bench, the Court reiterated the words of caution
in Peerless General Finance and Investment Co.
Ltd. v. RBI [Peerless General Finance and Investment Co.
Ltd. v. RBI, (1992) 2 SCC 343] with the following utterance :
(SCC p. 375, para 31)
"31. The function of the Court is to see that lawful
authority is not abused but not to appropriate to itself the
task entrusted to that authority. It is well settled that a
public body invested with statutory powers must take care
not to exceed or abuse its power. It must keep within the
limits of the authority committed to it. It must act in good
faith and it must act reasonably. Courts are not to interfere
with economic policy which is the function of experts. It is
not the function of the courts to sit in judgment over
matters of economic policy and it must necessarily be left to
the expert bodies. In such matters even experts can
seriously and doubtlessly differ. Courts cannot be expected
to decide them without even the aid of experts."
26. It cannot be doubted that the primary and
central purpose of judicial review of the administrative
action is to promote good administration. It is to ensure
that administrative bodies act efficiently and honestly to
promote the public good. They should operate in a fair,
transparent, and unbiased fashion, keeping in forefront
the public interest. To ensure that the aforesaid dominant
objectives are achieved, this Court has added new
dimension to the contours of judicial review and it has
undergone tremendous change in recent years. The scope
of judicial review has expanded radically and it now
extends well beyond the sphere of statutory powers to
include diverse forms of "public" power in response to
the changing architecture of the Government [ [See
: Administrative Law : Text and Materials (4th Edn.,
Oxford University Press, New York, 2011) by Beatson,
Matthews, and Elliott.]] . Thus, not only has judicial
review grown wider in scope; its intensity has also
increased. Notwithstanding the same,
"it is, however, central to received perceptions of
judicial review that courts may not interfere with exercise of
discretion merely because they disagree with the decision or
action in question; instead, courts intervene only if some
specific fault can be established--for example, if the
decision reached was procedurally unfair [Ibid.]".
27. The raison d'être of discretionary power is that it
promotes the decision-maker to respond appropriately to the
demands of a particular situation. When the decision-making is
policy-based, judicial approach to interfere with such decision-
making becomes narrower. In such cases, in the first instance,
it is to be examined as to whether the policy in question is
contrary to any statutory provisions or is
discriminatory/arbitrary or based on irrelevant considerations. If
the particular policy satisfies these parameters and is held to be
valid, then the only question to be examined is as to whether
the decision in question is in conformity with the said policy."
[Emphasis supplied]
On a blend of the judgments rendered by the Apex Court, the
contention that, imposition of 20% of sugar to be bagged in jute
bags under the Act, does not in any way become arbitrary. The
percentage so projected is to harmonize all the sectors in the
industry. It is economic policy and a policy that would not entail
judicial review under Article 226 of the Constitution of India.
Therefore, in the considered view of this Court, the challenge
mounted by the petitioners does not withstand scrutiny. The
statute under which the impugned notifications are issued
has already weathered constitutional assault before the
Apex Court. Once the compulsion of 100% packaging upon
the sugar industry has been upheld by the Apex Court, the
present grievance against a mere 20% reservation can
scarcely aspire higher favour. The issue is answered
accordingly.
Issue No.2:
(ii) Whether the projection of presence of
carcinogenic material in jute batching oil, has
such authenticity, for this Court to so consider
and direct stoppage of its usage? and
25. The petitioners have endeavoured to clothe their case in
the garb of health concerns and economic hardship, yet upon
careful examination, does not throw sufficient light of evidence to
give them form. This Court, cannot be swayed by apprehensions
untethered to empirical proof nor can they supply legislative
wisdom with judicial preference in matters of economic policy. The
petitioners have for the first time projected before this Court
regarding the alleged carcinogenic effect of jute batching oil.
Certain reports are placed before the Court to buttress the
submission that jute batching oil is carcinogenic and has chances of
causing cancer. A study report of certain journals is placed on
record in support thereof. In furtherance of the said fear of
carcinogenic material, certain legislations are in place in the
respective States, where the usage is restricted to 3% of batching
oil in jute bags. This Court would not now paraphrase all the reports
in the case at hand, for the reason that the said objection or the
said projection of jute batching oil causing carcinoma is for the first
time projected before this Court.
26. The Standing Advisory Committee, in terms of Section 4
of the Act, is required to meet on an annual basis and recommend
percentage of usage of jute bag in every industry including sugar
industry. It is, therefore, for the Standing Advisory Committee to
consider all these reports, analyse with the help of experts as to
whether jute batching oil, to the tune of the percentage that it is
directed to be used or permitted to be used, is carcinogenic and if it
does cause harm in real time, there would be a decision accordingly
in the interest of general public, as sugar is largely consumed by
every citizen. If it is only projected as a commercial in viability, a
decision in that regard also could be taken. These reports are to be
examined by the experts and the Court is not an expert to examine
these reports. I only deem it appropriate to observe that these
reports be placed before the Standing Advisory Committee while a
decision is being taken for the ensuing year.
27. It is not today that jute batching oil is being used for
production of jute bags. The jute batching oil, after its usage, is
again covered by another thin layer to block perforation and
pilferage of sugar or dropping out of sugar causing moisture of
sugar owing to its hygroscopic nature. Since this has been in usage,
all of which can be analysed for the ensuing year by the Standing
Advisory Committee. This Court would hold its hands in declaration
that it is carcinogenic, without the report at the outset, being
placed before the Standing Advisory Committee. This Court holds
that imposition of 20% of jute bags in the sugar industry is neither
arbitrary nor unreasonable. It is in the realm of statutory policy, a
policy in place to harmonize the fundamental rights with Directive
Principles of State Policy.
28. Since the Standing Advisory Committee is to meet to
draw a policy for the ensuing year through its
recommendations/opinion, the Standing Advisory Committee shall
also take note of the reports placed before this Court, with regard
to alleged health hazards of jute batching oil. The petitioners shall
place these materials before the Committee, while the Committee
sits to decide the ensuing policy. This Court has no reason to
disbelieve that the Committee would not look into the reports, its
impact upon the citizens. The issue is accordingly answered.
Issue No.3:
(iii) Whether shortage of jute supply has crippled the
mandate of the Act?
29. The learned senior counsels representing the petitioners
have projected certain reports with regard to acute shortage of jute
production on the soil of this nation and had to import jute from
Bangladesh for the compliance with the rigor of the Act. In effect,
the counsels would project impossibility of compliance due to such
shortage in production. The learned Additional Solicitor General of
India Sri K. Arvind Kamath has taken this Court through the
subsequent reports, to demonstrate that it was only in a particular
year, the supply of jute was in scarcity. To the subsequent years
and today, the supply is in surplus. It is his submission that let not
the commercial enterprises worry about the supply of jute or it
being imported from Bangladesh, it is only that they must follow
the mandate of the notifications issued, in furtherance of the Act.
30. A perusal at the documents appended to the statement of
objections of the 3rd respondent or documents produced before this
Court along with the memo would so indicate and vindicate the
submission of the learned Additional Solicitor General of India and
that of the 3rd respondent that supply of jute was in short only for a
particular year. Even otherwise, this Court again, would not step
into the shoes of the Government of India, act as a trader of jute
and consider the supply being short or in surplus. These are
matters in the realm of administration and for the administrators to
steer clear the shortage of jute, if any, in any particular year. The
reasons so rendered while answering issue No.1, insofar as judicial
review of policies and of administrative action can be permissible,
only if it is arbitrary, arbitrariness being palpable and demonstrable
nor imagined. It is ununderstandable as to how the shortage of
jute be projected by the commercial enterprises to decline
compliance with the mandate of the statute. However, it is for the
Committee in terms of Section 4 of the Act, to consider the entire
spectrum and draw up a notification as is done annually. Again this
Court does not doubt that the Committee will not look into this
aspect as well. Therefore, I decline to accept the submission of the
learned senior counsels for the petitioners that jute is so much in
short supply that they cannot comply with the mandate of the
notifications. The issue is thus answered.
31. Therefore, all the submissions made by the learned
Additional Solicitor Additional Solicitor General of India
Sri. K. Arvind Kamath are overwhelming to the submissions made
in unison by the respective learned senior Counsels appearing for
the petitioners. The armoury, as well, from the arsenal of the
learned ASGI are again overpowering and applicable to the facts
obtaining in the case at hand, over the ones that have fallen from
the repository of the learned senior Counsel appearing for the
petitioners.
32. For the aforesaid reasons, the petition being devoid of
merit stands rejected.
Consequently, pending applications if any, also stand
disposed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:MJ
