GUWAHATI: The Gauhati High Court yesterday in its landmark judgment said that Chadar, Mekhela or Phanek manufactured with synthetic yarn such as Polyester, Polypropylene, Modacrylic, Nylon or blends of cotton yarn/silk yarn/artificial silk yarn with synthetic yarns are outside the purview of the Reservation Order dated 03.09.2008. The impugned notices/notifications so issued banning the sale of Mekhela Chadar which do not come with the range mentioned in the Reservation Order dated 03.09.2008 by the Government of India, as indicated and explained above are interfered.
A single bench judge of Gauhati High Court, Justice Devashis Baruah after hearing DK Das as well as H Betala, the counsels appearing on behalf of the Petitioners in the instant batch of writ petitions and D Saikia, the Advocate General of Assam assisted by P Baruah, the counsel appearing on behalf of the State of Assam and R Dhar, the Standing counsel appearing on behalf of the Sericulture Department of the Government of Assam, A Gayan, represented the Union of India.
The Court observed that the petitioners in the instant batch of writ petitions claim that they trade in products which in common parlance are known as “Mekhela Chadar”. The products in question in which the Petitioners’ trade comes within the ambit of HS Codes of Heading 5407: Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404. Another product which the Petitioners trade in comes within the ambit of HS Code of Heading 5210: Woven fabrics of cotton, containing less than 85% by weight of cotton, mixed mainly or solely with man-made fibres, weighing not more than 200 g/m2.
The Harmonised Commodity Description and Coding System, also known as the Harmonised System (HS) of tariff nomenclature is an internationally standardised system of names and numbers to classify traded products. It came into effect in 1988 and has since been developed and maintained by the World Customs Organisation (WCO) (formerly the Customs Co-operation Council), an independent intergovernmental organization based in Brussels, Belgium.
The court observed that it is the specific case of the petitioners that the clothes which the Petitioners trade do not come within the ambit of the Handlooms (Reservation of Articles for Production) Act, 1985 (for short the “Act of 1985”).
However, the Respondent Authorities more particularly, the Assistant Director, Department of Handloom and Textiles, Kamrup vide a notice bearing letter No.ADHT./Work(G)1830/2020-21/72 dated 27.02.2023 had requested all vendors of all textile establishments and commodities in Kamrup district not to sell such Gamochas, Mekhela Chadars, Dakhanas etc. which are produced in power looms of other States within the territory of Assam.
It was further mentioned in the said notice that the vendors of all textile establishments and commodities in Kamrup district were requested to encourage the indigenous weavers and benefit them financially by arranging the sale of hand-woven Gamochas, Mekhela Chadars, Dakhanas etc. manufactured by the indigenous weavers in Assam.
To the said effect, on 03.02.2023, another notice was issued by the Superintendent, Department of Handicrafts and Textiles, Biswanath Chariali thereby informing all the vendors of all textile establishments and commodities in the district of Biswanath Chariali. The Secretary to the Government of Assam, Finance, Handloom, Textiles and Sericulture Department had also issued a communication on 01.03.2023 thereby directing the Deputy Commissioner, Lakhimpur to stop the power loom made Gamocha, Mekhela Chadar etc. in his district.
It was the case of the Petitioners that the said actions of the Respondent Authorities in the State of Assam have infringed upon their rights under Article 19(1)(g) of the Constitution since the materials which are traded by the Petitioners do not come within the ambit of the prohibition under the Act of 1985 read with the Order dated 03.09.2008. It is in the said premises, the instant batch of writ petitions have been filed.
After hearing all sides and observing all the documents, the court said, “The Article “Gamcha” is an Article reserved in Serial No.3(a) for the exclusive production of the handlooms. Under such circumstances, the impugned Page No.# 47/47 notices/notifications whereby there is a ban upon sale of Gamchas/Gamochas/Gamusa manufactured in power looms is not interfered with.”
The Hon’ble Court also took relevant consideration of the fact that the Office of the Development Commissioner for Handlooms, Government of India, Ministry of Textiles pursuant to an RTI application had stated vide a communication dated 25.08.2022 that the items at article No.11 were open for production on any loom using Man Made Filament yarn (MMF).
The Hon’ble Court also relied upon the landmark judgment of Parvej Aktar-vs- Union of India & Ors. reported in (1993) 2 SCC 221 amongst others.
The learned counsel for the Petitioners DK Das, as well as H Betala, further submitted that a perusal of the Order dated 03.09.2008 would show that when the Central Government intended to prohibit Articles made with Man Made Filaments Yarn, it was expressly so done as could be seen from the Articles or class of Articles mentioned at Serial Nos. 2 and 3 of Column No.1 and the Central Government specifically did not include Man Made fibre or synthetic yarn within the ambit of articles mentioned at Serial No.11 of Column 1 of the Order dated 03.09.2008. Therefore, Chadar, Mekhela or Phanek manufactured from cotton yarn/silk yarn/art silk yarn blended with Man Made Filaments Yarn or purely with Man Made Filaments Yarn would not come within the mischief of Articles or class of Articles mentioned in Serial No.11 of Column No.1 of the Order dated 03.09.2008.
The Hon’ble Court of Justice Devashis Baruah accordingly held that “….. all Chadar, Mekhela or Phanek are not exclusively reserved for handloom production save and except those which are manufactured from cotton yarn or silk yarn or art silk yarn or in any combination thereof. Therefore, those Chadar, Mekhela or Phanek manufactured with a synthetic yarn such as Polyester, Polypropylene, Modacrylic, Nylon or blends of cotton yarn/silk yarn/artificial silk yarn with synthetic yarns are outside the purview of the Reservation Order dated 03.09.2008. The impugned notices/notifications so issued banning sale of Mekhela Chadar which do not come with the range mentioned in Column (3) of Article 11 of the Reservation Order dated 03.09.2008 as indicated and explained above are interfered with to that extent.”
The instant batch of writ petitions was thus allowed to the extent indicated therein.
The ban was introduced and enforced before the festive season of Bohag Bihu in April 2023 and had vitally affected the shops which dealt in Mekhala Chadar resulting in heavy losses to them. However, this order of the Hon’ble Court has curtailed the infringement of Article 19(1)(g) of the Constitution of India by the State restoring the fundamental rights enshrined under the Constitution of India
