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K.A. Swami, C.J.—In W.P. Nos. 751 and 752 of 1993 the Petitioner is common whereas W.P. No. 13020 of 1990 is filed by Dunlop India Limited. In W.O. No. 751 of 1993, the Petitioner has sought for quashing of G.O. Ms. 547, Agriculture/AM (III) dated 29.7.1989 on the grounds that it is void, without the authority of law and unconstitutional and also to issue a writ in the nature of Mandamus to refund the market fee collected pursuant to the impugned Government Order.
In W.P. No. 752 of 1993, the Petitioner has sought for a declaration that the provisions of the Tamil Nadu Agricultural Marketing (Regulation) Act, 1987 (Act 27 of 1989) (hereinafter referred to as the Act) do not apply to rubber. In W.P. No. 13020 of 1991, the Petitioner has sought for quashing the order in No. B/7286/91 dated 22.8.1991 passed by the second Respondent and other to direct Respondents 1 and 2 not to interfere with the movement of raw rubber by the Petitioner from Kanyakumari District.
Having regard to the contentions urged on both sides, the points that arises for consideration in these writ petitions are as follows:
(1) Whether G.O. Ms. No. 547 Agriculture/Am(III) dated 29.7.1989 is unconstitutional?
(2) Whether it can be declared that the provisions of Tamil Nadu Agricultural Marketing (Regulation) Act, 1989 (Act 27 of 1989) do not apply to rubber?
(3) Whether the relief sought for in W.P. No. 13020 of 1991 can be granted?
Point No. (3): We take up the last point first. The relief sought for in W.P. No. 13020 of 1991 cannot at all be granted, having regard to a Division Bench decision of this Court in W.P. No. 2429 of 1992 and other connected writ petitions dated 28.4.1994. A Division Bench of this Court has, in the aforesaid decision, has held the various provisions of the Act as valid and constitutional. Section 24 of the Act also has been held to be valid. In so far as Sub-section (5) to Section 24 of the Act is concerned, it has been held that the said provision does not apply to producers of notified agricultural produces. Accordingly, the writ petitions have been decided in the following terms:
For all the reasons stated above, we see no merit in this batch of writ petitions and therefore, all the writ petitions are liable to be dismissed. Accordingly, all the writ petitions are dismissed subject to our observation with regard to applicability of Section 24(5) of the Act only to traders and not to producers of agricultural commodities. However, there will be no order as to costs.
So far as the implementation of the notified agricultural produce is concerned, it has been specifically considered in paragraphs 31 to 35 of the judgment. Following the said decision W.P. No. 13020 of 1991 is liable to be dismissed. Point No. 3 is answered accordingly.
Point No. (1): It is contended that the provisions of Sections 22 and 37 of the Act came into force on 5.7.1989, whereas in the other provisions of the Act as enacted ''rubber'' was not included in the schedule, that it came to be included by the impugned Notification dated 29.7.1989, that the power to amend the schedule could have been exercised only on the coming into force of Section 64 of the Act which came into force on 1.2.1991,as the said Notification dated 29.7.1989, amending the schedule by including rubber as one of the agricultural produce, was not valid and that Section 6 of the Tamil Nadu General Clauses Act was not available to the State Government, inasmuch as, the power u/s 6 of Tamil Nadu General Clauses Act could be exercised only for the purpose of bringing into force the Act and not for the purpose of amending the enactment which was yet to come into force.
On the contrary, it is the contention of learned Government Pleader that ''rubber'' was one of the notified agricultural produces under 1959 Act and it continued to be one of the notified agricultural produces till 1.1.1991, the date on which the Act came into force, that Section 6 of the Tamil Nadu General Clauses Act (for short, General Clauses Act) specifically empowers the State Government to issue such notifications and orders with respect to the application of the Act and such orders or notifications issued shall come into force on the date the Act comes into force. Therefore, the amendment effected to the schedule in exercise of the powers u/s 65 of the Act read with Section 6 of the General Clauses Act is valid and cannot at all be held to be either void or unconstitutional.
Learned Counsel for the Petitioner has placed reliance on the decisions in Usher Barlow 1952 1 All E.R. 205, Minister of Town & Country Planning 1950 2 All E.R. 282, Utah Construction v. Pattky 1965 3 All E.R. 650, Boppanna Venkateswaraloo and Others Vs. Superintendent, Central Jail, Hyderabad State, and Aphali Pharmaceuticals Ltd. v. State of Maharashtra AIR 1989 S.C. 227 whereas learned Government Pleader has placed reliance on the decisions reported in The State of Rajasthan Vs. The Mewar Sugar Mills Ltd., Bhopalsagar, , The State of Madras and Another Vs. S. Padmanabhan etc., and The Gram Panchayat and Others Vs. Government of Andhra Pradesh and Another, .
The decision in State of Kerala Vs. Attesee (Agro Industrial Trading Corporation), it is not on the point. Hence, it need not be considered in details.
In Venkateswaraloo''s case (cited above) the Supreme Court considered the provisions contained in Section 22 of the General Clauses Act, 1897 (central) which is equivalent to Section 6 of the Tamil Nadu General Clauses Act, 1897. That was a case in which an order of detention was extended. It was held that only orders of general nature alone could be passed and not the orders relating to substantive rights. In paragraph 5 of the judgment it has been specifically held thus:
This section corresponds to Section 37 English Interpretation Act of 1899. It is an enabling provision, its intent and purpose being to facilitate the making of rules, bye-law and orders before the date of the commencement of an enactment in anticipation of its coming into force. In other words, it validates rules, bye-laws and orders made before the enactment comes into force provided they are made after the passing of the Act and as preparatory to the Act coming into force. It does not autrhorize or empower the State Government to pass substantive orders against any person in exercise of the authority conferred by any particular section of the new Act. The words of the section "with respect to" prescribe the limit and the scope of the power given by the Section. Orders can only be issued with respect to the time when or the manner in which anything is to be done under the Act. An order for the extension of detention made under the purported exercise of the powers conferred by any of the provisions of the new Act is not an order with respect to the time when or the manner in which anything is to be done under the Act. Such an order could only be made under the Act and after the Act had come into force and not in anticipation of its coming into force. The Act having no restrospective operation, it cannot validate an order made before it came into force. It seems to us that the expression "order" is the Section means an order laying down directions about the manner in which things are to be done under the Act and it is an order of that nature that can be issued before the Act comes into force but it does not mean that a substantive order against a particular person can be made before the Act comes into force.
(Emphasis supplied)
In the instant case, the order issued by the State Government does not relate to any substantive right of any particular person or persons, but relates to the subject matter which has relevance with regard to application and bringing into force, of the Act, in conformity with the situation that was prevailing on the date, the Act was brought into force. Apart from holding that Section 22 of the General Clauses Act (Central Act) does not authorise to pass any substantive order against a particular person it has been specifically held in that decision that orders can be issued only with respect to time when or the manner in which anything is to be done under the Act. Therefore, applying the said test it has been held that the order extending the detention made in exercise of the powers conferred by the new Act was not an order with respect to the time when or the manner in which anything was to be done under the Act and that such an order could only be made under the Act and after coming into force of the Act and not in anticipation of its coming into force.
In R. v. Minister for Town and Country Planning (1950) 2 All E.R. 282, the effect on the pending proceedings of the repealing of the Town and Country Planning Act, 1944 by the Town and Country Planning Act, 1947 was considered. Having regard to the provisions contained in Schedule X, para 16 of the Town and Country Planning Act, 1947 and the provisions contained in Section 37 of the Interpretation Act 1889, the order passed by the Minister for Town and Country Planning to continue the proceedings even after the repeal of 1944 Act was held to be valid. The relevant portion of the judgment is as follows:
In any view, Section 37 applies to the present case. It clearly gives power to take the necessary steps to set up the machinery for bringing the Act of 1947 into operation as well as for doing such an act as appointing a day for the Act to come into operation. The words in Section 37 dealing with regulations, byelaws, notices prescribed forms, and so forth, make it, I think, clear that matters of that kind may be dealt with under the provisions of Section 37 so that the necessary machinery will function as soon as the Act conies into operation and things shall not come to a stand still by reason of the repeal of an existing Act. In the present case, these applications were pending under S.I. of the Act of 1944. I think that that is just the kind of thing which is contemplated by Section 37 of the Interpretation Act, 1889, and that, having regard to the provisions of para 16 of Schedule X, the order contained in the letter of June 16, 1948, was a valid order although it was made before the appointed day.
Therefore, it is clear that the said decision is not on the point.
In Usher Bartow (1952)1 All E.R. 205, it was held that Section 37 of the Interpretation Act, 1889 was not confined to exercise between the passing and coming into operation of an Act of powers without which the Act could not come into operation at all, but was apt to authorise the making of such rules as the Designs Rules, 1949, as affording material on which the Act could operate and so being "expedient for the purpose of bringing the Act into operation at the date of the commencement thereof", and, therefore, these rules were valid. Thus, it was also a case wherein the Rules were framed under the new enactment before the Act came into force. It was held that having regard to the provisions contained in Section 37 of the Interpretation Act, 1889, it was permissible as such Rules were necessary for bringing the Act into effective operation at the date prescribed or at the time at which the Act came into operation. This decision also cannot be held to help the Petitioner in any manner, nor is it possible, on the basis of the principles laid down in this decision, to hold that the impugned notification, which must be deemed to have come into force on the date the Act came into force, is valid.
In Utah Construction v. Pattaky (1965)3 All E.R. 650, the expression "manner of carrying out" was interpreted and it was held that such expression did not justify a regulation imposing an absolute duty of protecting the drive and tunnel or an absolute duty of ensuring the safety of persons employed in the drive or tunnel. Thus, it is clear that this decision is not on the point.
In The State of Rajasthan Vs. The Mewar Sugar Mills Ltd., Bhopalsagar, in exercise of the powers conferred u/s 22 of the General Clauses Act (Central Act) Rules were published prior to the coming into force of the Act which also amended the Act. It was held that by reason of Section 22 of the General Clauses Act (1897), read with Section 29 of the Sales Tax Act, the Rules published in the Gazette must be held to have been validly made in exercise of the Rule making power under the Sales Tax Act. Similar is the view expressed in The State of Madras and Another Vs. S. Padmanabhan etc., In that case, the State Government made an order in March in anticipation of the coming into force of the Madras General Sales Tax Act, 1959 on April, 1959. It was held that a Notification be published in the Fort St. George Gazette on April, 1959 declaring the exemptions which would be granted u/s 17 of the Act in supersession of all the previous Notifications issued u/s 6 of the Act of 1939 valid as it was actually promulgated on the date, the Act came into force. The there fact that it bore an earlier date was of no consequence.
In The Gram Panchayat and Others Vs. Government of Andhra Pradesh and Another, the Andhra Pradesh Urban Areas (Development) Act received the assent of the President on 20-1-1975 and was published in the Andhra Pradesh Government Gazette on 27.1.1975. Sub-section (3) of Section 1 of the Act provided that the Act shall come into force on such date as the Government may by Notification in the Gazette appoint. By order dated 25.9.1975 in G.O. Ms. No. 409 published in the Gazette dated 29-9-1975 the Government fixed 1.10.1975 as the date on which the Act was to come into force. G.O. No. 411 dated 27.9.1975 under Sections 2(0) and 13(1) declaring certain area as urban area and development area was published in the Gazette on 1.10.1975. The order dated27.9.1975 was challenged in the writ petition on the ground that it could not have been made before the Act came into force on 1.10.1975. Following the decision of the Supreme Court in Boppanna Venkateswaraloo and Others Vs. Superintendent, Central Jail, Hyderabad State, it was held that as long as the Notification was published on 1.10.1975 and was to come into force on that day, the State Government had acted well within its power having regard to the powers contained in Section 6 of the Andhra Pradesh General Clauses Act. We may also point out here that the decisions reported in All England Reporter cited supra, relied on by Learned Counsel for the Petitioner, have also been considered in this decision.
In the case on hand, as already pointed out "rubber" was one of the agricultural produces under the 1959 Act. Though rubber was included in the Bill, but by mistake or otherwise, the word "rubber" was not included in the Schedule. Before the Bill was passed into an Act, it was pointed out that the schedule could be amended at any time before the Act comes into force in exercise of the powers u/s 6 of the General Clauses Act, once the Bill is passed in to an enactment and before it is brought into force. We have only referred to these proceedings to show that "rubber", which ought to have been included as one of the agricultural produces in the schedule, was not included by mistake or otherwise.
12.1. Section 65 of the Act specifically empowers the State Government to amend the scheduled to include in it any agricultural produce or to exclude therefrom any agricultural produce or to alter the description of any agricultural produce therein. Sub-section (2) therein specifically provides that when the Schedule is so amended, any reference to the schedule in the Act, shall be construed as a reference to the scheduled as so amended. Section 6 of the General Clauses Act, 1897 (State Act) Specifically provides, "whereby, an Act to which this Chapter applies and which is not to come into force immediately on the passing thereof, a power is conferred on Government or other authority to make Rules, or to issue orders, with respect to the application of the Act or with respect to appointment of any officer thereunder, such power may be exercised at any time after the passing of the Act, but Rules or Orders so made or issued shall not take effect till the commencement of the Act."
No doubt, in the instant case, unlike the decisions referred by us earlier, the Notification does not say that, it shall come into force on 1.2.1991 and it is also published prior to the coming into force of the Act Having regard to the specific provision contained in Section 6 of the Tamil Nadu General Clauses Act, 1891 that such Notification will come into force only on the date the Act comes into force, omission to mention the date on which the Notification would come into force and also the publication of it prior to 1.2.1991, in our view, should not make any difference. The whole object of the notification is to continue the "rubber" as one of, the notified agricultural produces under the repealed Act It is because of that only, the impugned notification specifically amends the schedule. Above all complete answer to the contention of the Petitioners is that as such a Notification is operative only from the date the Act came into force, the State Government was competent to issue such Notification on the date the Act came into force. Therefore, there is no substance in the contention. The amendment effected to the schedule is as follows:
No. 34 Madras, Wednesday, August 30, 1989 Aavani 14, Sukla, Thiruvalluvar Aandu 2020.
Part II - Section 2
Notifications or orders of interest to a section of the public issued by Secretariat Departments.
Notifications by Government.
Agriculture Department Amendment to Schedule to Tamil Nadu Agricultural Produce Marketing (Regulation) Act.
G.O. Ms. No. 547, Agriculture (Am. III), 29th Jury, 1989). No. II(2) AG/4959/89 - In exercise of the powers conferred by Section 65 of the Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987 (Tamil Nadu Act 27 of 1987), read with Section 6 of the Tamil Nadu General Clauses Act, 1897 (Tamil Nadu Act 1 of 1897), the Governor of Tamil Nadu hereby make the following amendment to the schedule to the said Act:
AMENDMENT
In the Schedule, after the entry 2, Palmgur Jaggery in all forms, in column (2) against the entry ''XV. Miscellaneous in column (1) thereof, the following entry shall be added namely:
Raw Rubber in all forms, pale latex crops, sole crops and contrifuged latex rubber manufactures'' Association grades on rubber sheets and estated brown crops grades.
Lattika D. Padalkar, Commissioner and Secretary to Government.
It is also relevant to notice that the aforesaid impugned Notification G.O. Ms. No. 547, dated 29.7.1989, which amended the scheduled to the Act and added "Raw rubber in all its forms...." was published in the Gazette prior to the date the Act came into force. It was tabled before the Legislature even before the Act came into force and the Legislature did not disapprove nor did it modify it. This is disclosed from the records placed before us by the learned Government Pleader. This also shows that the Legislature has impliedly accorded its approval to the addition of'' ''Raw Rubber in all its forms...." as one of the agricultural produces. In addition to this as already pointed out on 1.2.1991 the date on which the Act came into force, the State Government was competent to issue such Notification without taking the aid of Section 6 of General Clauses Act.
The contention of Learned Counsel for the Petitioner is that such issuance of the Notification, apart from the fact that the Act had not come into force on the date the Notification was issued, took away the right of the Petitioner to object to the Notification to be issued for notifying the rubber as agricultural produce after the coming into force of the Act, that the marketing of rubber is also to be notified as per Section 3 of the Act to which also the Petitioner would have been entitled to file objections. It may be pointed out in this regard that as the rubber was one of the notified agricultural produces, Notifications issued under the repealed enactment have been continued under the repealed of the Act. That being so, the contention is devoid of merit, because, rubber continued to be one of the agricultural produces till the date, the Act came into force and it continued to be a notified agricultural produce even after the coming into force of the Act by reason of the impugned Notification G.O. Ms. No. 547, dated 29.7.1989, which must be deemed to have come into force on 1.2.1991. Further, for amending the schedule to the Act, no objection is required to be called for. The schedule can be amended straight away: It is a legislative act conferred on the State Government.
The contention of Learned Counsel for the Petitioner that Section 6 of the Act is not attracted because of non-inclusion of "rubber" into the schedule to the Act, and contra intention of the Legislature is disclosed that rubber should not be continued as agricultural produce. Therefore, without coming into force of the Act, the Notification of the nature should not have been issued. We have already pointed out that Section 6 of the Act squarely applies, because it also covers the orders and the Notifications issued with respect to the application of the Act and such power can be exercised at any time after the passing of the Act and before it is brought into force and in such an event, the orders and Notifications will take effect only on the coming into force of the Act. In addition to this such Notification could have been vary well issued on 1.1.1991. Accordingly point No. 1 is answered in the negative.
Point No. 2: Having regard to the fact that rubber came to be included as one of the agricultural produce in the schedule to the Notification, it is not possible to hold that the provisions of the Act are not applicable to rubber.
16.1. It is contended that having regard to the provisions contained in Section 16 of the Rubber Act, 1947, no law can be passed regulating trading in rubber. It may be pointed out here that the area of operation, and the object of Section 16 of the Rubber Act, 1947 are quite different from the area of operation, and the object of the Act. The Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987 (Act 27 of 1987) has been enacted to make proper provisions for buying and selling agricultural produce and the establishment, and proper administration of markets for agricultural produce in the State of Tamil Nadu. Once, "rubber'' becomes agricultural produce, it comes under the provisions of the Act, irrespective of the provisions contained u/s 16 of the Rubber Act, which, as already pointed out by us, do not cover the area covered by the Act. Accordingly, the second point is also answered in the negative and against the Petitioner.
For the reasons stated above, all the three writ petitions fail and they are dismissed. W.P. No. 13020 of 1991 is dismissed in terms of the orders passed in W.P. No. 2429 of 1992 (Rajapalayam Paruthi Panchu Sangam rep. by Sec. T.P. Bhava The State of Tamil Nadu, rep. by its Commissioner and Secretary to Government, Agricultural Department, Fort St. George, Madras and Ors.) and batch. However, there will be no order as to costs.