Mava Vyapar Sangh (Delhi) & Anr. vs Lieutenant Governor Of Delhi & ...
2008 Latest Caselaw 1860 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         LPA No.21 of 2000


%                                      Date of decision: 21.10.2008


MAVA VYAPAR SANGH (DELHI) & ANR.      ...APPELLANTS
                  Through: Mr. Rajeev Avasthi, Advocate.


                                   Versus


LIEUTENANT GOVERNOR OF DELHI & ORS.   ...RESPONDENTS
                  Through: Ms. Avnish Ahlawat, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?           Yes

2.        To be referred to Reporter or not?            Yes

3.        Whether the judgment should be
          reported in the Digest?                       Yes

SANJAY KISHAN KAUL, J. (Oral)

1. The appellants are aggrieved by the impugned

judgement of the learned single Judge of this Court dated

23.12.1999 upholding the amendment to the Schedule of

the Delhi Agricultural Produce Marketing (Regulation) Act

1976 (hereinafter referred to as the said Act) whereby

milk products were also included in the Schedule. The

appellants are also aggrieved by the consequent action

taken under the said Act on account of a notification

issued declaring the intention to regulate the marketing

of Mawa/Khoya as agricultural produce in the National

Capital Territory of Delhi which plea has also been

rejected by the impugned judgement.

2. In order to appreciate the aforesaid challenge, it would

be appropriate to first discuss the aims and objects as

also the relevant provisions of the said Act. The

preamble to the said Act reads as under:

"An Act to provide for the better regulation of the purchase, sale, storage and processing of agricultural produce and the establishment of markets for agricultural produce in the Union territory of Delhi and for matters connected therewith or incidental thereto."

3. The Section 2 the said Act is the definition section and

Administrator has been defined to mean the

Administrator of Union Territory of Delhi appointed by the

President of India under Article 239 of the Constitution of

India. Thus, the Lieutenant Governor is the Administrator

as per Section 2(a) of the said Act. The definition of

agricultural produce is given in Section 2(b) of the said

Act and reads as under:

"2. Definitions.

....

(b) "agricultural produce" means such produce (whether processed or not) of agriculture, horticulture, forest, animal husbandry, apiculture or pisciculture as are specified in the Schedule;

4. The aforesaid provisions, thus, show that the agricultural

produce includes not only what in common parlance is

understood by the expression but even includes products

which are processed.

5. Section 3 of the said Act provides for a notification of

intention of regulating of marketing agricultural produce

in the specified area, which has to be done by the

Administrator. On a declaration being made by the

Administrator of his intent of regulating the marketing of

such agricultural produce, the same is published in a

newspaper of the regional language stipulating the time

for inviting any objections or suggestions. On

consideration of the objections and suggestions Section 4

of the said Act provides for the declaration of an area to

be a market area.

6. The only other provision necessary to be discussed for

the present controversy is Section 66 which deals with

the power of the Administrator to amend a schedule and

reads as under:

"66. Power of Administrator to amend schedule. - The Administrator may, after consulting the Board and Market Committees concerned, by notification, include in the Schedule any item of agricultural produce or amend, or exclude, any of the items of the agricultural produce specified in the Schedule."

7. The admitted position is that a notification dated

9.9.1984 was issued including "milk and milk products"

in the schedule to which challenge was laid by the

appellants by amending the writ petition. The appellants

also challenge the notification dated 30.8.1996 declaring

the intention of the respondents to regulate the

marketing of mawa/khoya of the agricultural produce in

the whole of the National Capital Territory of Delhi and

inviting objections within thirty-five (35) days. The last

notification is dated 11.4.1997 whereby the declaration

under Section 4 of the said Act was made. The appellant

No.1 is the association of the traders dealing with such

mawa/khoya and appellant No.2 is the Secretary of the

said association.

8. The first plea sought to be advanced by learned counsel

for the appellants is that the amendment to the schedule

by the impugned notification dated 9.9.1984 was not in

accordance with law since the Lieutenant Governor did

not have the power to amend the schedule. This plea on

the face of it cannot be entertained in view of provisions

of Section 66 of the said Act read with Sections 2(a) &

2(b) of the said Act. The Administrator has been

specifically conferred the power to amend the schedule

after consulting the Board and Marketing Committees by

notification and to include in the schedule any item of

agricultural produce or amend or exclude any item of

agricultural produce specified in the schedule. A linked

question raised by learned counsel for the petitioner was

that at the relevant time there was no Board or

Marketing Committee in existence but if that be so then

the exercise of power by the Lieutenant Governor cannot

be faulted. The definition of Administrator in Section 2(a)

of the said Act clearly stipulates as to who is an

Administrator and there is no dispute that the Lieutenant

Governor is the Administrator. Similarly the definition of

agricultural produce is wide. In any case insofar as the

plea raised by the appellants is concerned, suffice to say

that the power under Section 66 of the said Act is to

amend the schedule in respect of any item of agricultural

produce.

9. The second plea of learned counsel for the appellants is

more specific to the matter in issue as the amendment is

stated to be beyond the provisions of the Act and thus,

impermissible. This plea is predicated on the ground that

the schedule especially included the animal husbandry

products as under:

             I.          Animal husbandry products--

                    1.   Butter.               6.      Hides and skins.
                    2.   Cattle.               7.      Milk.
                    3.   Eggs.                 8.      Poultry.
                    4.   Ghee.                 9.      Sheep.
                    5.   Coat.                 10.     Wool.

10. It is, thus, the submission of the learned counsel for the

appellants that only milk, butter and ghee were included

while milk products were not originally included. It is

only by the amendment to item No.7 "milk" vide

notification dated 9.9.1984 that the entry has been

amended to "milk and milk products".

11. We are unable to accept the aforesaid plea of the learned

counsel for the appellants as the definition of agricultural

produce in Section 2(b) of the said Act itself provides for

processed goods to be included. The addition of "milk

products" in the schedule, thus, cannot be said to be

beyond what is stipulated in the definition of agricultural

produce or not in consonance with the original schedule.

The original schedule itself included ghee and butter and,

thus, widening of the entries by introduction of "milk

products" along with milk is in the same direction.

12. Learned counsel for the appellants sought to strongly

rely upon the judgement of the Apex Court in The

Belsund Sugar Co. Ltd. Vs. The State of Bihar & Ors. etc.

JT 1999 (5) SC 422. One of the issues which arose for

consideration was whether baby food could be said to be

covered under a similar Act relating to a different State.

It would be useful to reproduce some of the observations

made by the Supreme Court in that context.

"132. Learned counsel appearing for the appellant vehemently submitted that before the aforesaid two products can be subjected to the regulatory procedure of the Market Act, it must be shown by the respondents that they are agricultural produce. He invited our attention to Section 3 of the Act and submitted that the very first step of the applicability of the Act is the declaration of intention by the State Government for regulating the purchase, sale, storage and processing of agricultural produce as mentioned in the notification. That the said term agricultural produce as defined by Section 2(1)(a) clearly indicates that the agricultural produce which is to be covered by the sweep of the Act has to be one which should be specified in the Schedule. When we turn to the Schedule of the Act framed as per Section 2(1)(a), we find one of the animal husbandry products at item VIII, sub-item 20 as milk except liquid milk. Thus any product consisting of solidified milk, like milk powder, is contemplated by the said item. It was submitted that in the entire Schedule nowhere we find any mention of baby food which may be a substitute for milk or solidified milk. It was, therefore, contended that the appellant which manufactures and sells special infant foods like Lactodex and "Raptakos" cannot be required to take any licence under the Market Act."

.... .... .... .... .... .... .... .... ....

"134. Placing reliance on these ingredients, it was submitted that per 100 milligrams of Lactodex milk fat content is 0.9 gms and that other minerals and

vitamins may also include milk powder. Similarly, Raptakos (Special infant food) also contains proteins and fats. He also contended that even milk which is a complete food may contain vitamins, therefore, it cannot be said that these two products are not milk products or products containing some ingredients of milk. It is difficult to accept this contention for the simple reason that the aforesaid Schedule at sub-item no.20 captioned under the title "Animal Husbandry Products" refers to milk except liquid milk. By no stretch of imagination, tinned baby food containing various ingredients which may include some milk fats or proteins though in powder form can be said to be milk powder simpliciter or whole milk not in liquid form. It is also pertinent to note that there is no item of milk products in the Schedule to the Act under the caption "Animal Husbandry Products". In this connection, it is profitable to contradistinguish this entry in the Schedule with items 14, 15 and 16 under the caption "Cereals" in the very same Schedule. In the listed items under the caption "Cereals", we find "Wheat" separately mentioned at item no.3 as compared to Wheat Atta, Suzi and Maida separately mentioned at items 14, 15 and 16. This shows that basic agricultural produce - "wheat" is treated as a separate agricultural produce as compared to its own products manufactured out of wheat, namely, atta, suzi and maida. Those products of the concerned basic agricultural produce are separately mentioned as "agricultural produce" in the Schedule so far as "cereals" are concerned. But similar is not the scheme in connection with milk. Milk products like baby foods are not separately mentioned. Under the very caption "Animal Husbandry Products", Butter and Ghee are separately mentioned as items 7 & 8 which are wholly manufactured out of milk. It, therefore, becomes clear that save and except butter and ghee no other milk product is sought to be covered by the sweep of the Act as "Animal Husbandry Products" and the basic Animal Husbandry Produce like "milk" only in solid form is sought to be covered by a separate solitary item no.20 as one of the "Animal Husbandry Products". Therefore, any other manufactured product like the present ones, utilising same ingredients of milk powder as one of the ingredients but which are processed by addition of all other extra items with the result that finished products like baby foods emerge as manufactured items for serving as substitute for milk to be fed to infants who cannot digest liquid milk or solidified milk as such, cannot be treated to

be "agricultural produce" as part and parcel of listed "Animal Husbandry Products" mentioned in the Schedule to the Act. Learned senior counsel for the appellant in support of his contentions tried to rely upon specimen copies of printed material affixed to the sealed tins of these manufactured commodities, "Lactodex" and "Raptakos", which, according to him, are substitutes for mother's milk and are to be used to feed infant babies who cannot take milk in its natural form. Learned senior counsel for the respondents tried to repel this submission by contending that this type of printed material was not produced before the High Court. Be that as it may, the undisputed fact remains that these two special infant foods are meant for infant babies who are to be fed by mixing this baby food powder with water to make it a paste as a substitute for mother's milk. In the light of the express provisions concerning the relevant items of the Schedule to the Act to which we have referred, it has to be held that on the material before the High Court in connection with the ingredients of the aforesaid two products of the appellant, it could not be effectively shown by the respondents beyond any doubt that these two products also were "agricultural produce" being Animal Husbandry Products of "milk" in a non- liquid form. Consequently, there was no occasion for the respondent authorities to insist that the appellant for the sale of the aforesaid two products within the market area governed by the Market Act in the State of Bihar was required to take any licence under that Act. It is not the case of the appellant that any market fee was required to be charged from him by the market committee. The only grievance made was that the appellant was required to take licence under the Market Act. Hence the question of refund of any market fee would not survive for consideration in the present case. This appeal will have to be allowed and the Writ Petition filed by the appellant in the High Court also consequently will have to be allowed by quashing the impugned notice calling upon the appellant to take licences under the Market Act."

(emphasis supplied)

13. The aforesaid observation itself makes it clear as to why

the learned single Judge in terms of the impugned order

found that this judgement does not come to the aid of

the appellants. The facts show that the entry was "milk

except liquid milk". There was no entry for "milk

products". It was, thus, observed by the Supreme Court

that save and except butter and ghee no other milk

product was sought to be covered by the sweep of the

Act. The factual position in the present case is

completely to the contrary as milk products have been

specifically included by the amendment and it is in

pursuance thereto that the impugned notifications dated

30.8.1996 and 11.4.1997 seek to regulate mava/khoya

which is under the category of milk products.

14. Our attention has also been invited to the judgement of

the Division Bench of this Court in M/s. Kwality Ice Cream

Company & Restaurant, New Delhi Vs. The Sales Tax

Officers, New Delhi 1975 (XI) DLT 180 where ice cream

was held to be milk product under the Prevention of Food

Adulteration Act.

15. The appellants next seek to contend that the notifications

issued declaring the whole of National Capital Territory of

Delhi to be the market area for regulation of mawa/khoya

have not followed the procedure prescribed by law

inasmuch as the objections filed by the appellants have

not been considered on the technical plea of limitation.

In this behalf we have perused the pleadings of the

parties in the writ petition and counter affidavit. The

appellants seem to be mixing up the factual position

regarding two separate sets of notification. A notice of

intent was initially published on 29.7.1994 in the gazette

to which the appellants filed objections on 5.9.1994. The

objections were to be filed within thirty-five (35) days.

The objections of the appellant were not considered

having been filed beyond time from the date of the

notification in the official Gazette of such intent though it

was within thirty-five (35) days from the date of

publication in the newspaper on 4.8.1994. The

notification under Section 4 of the said Act notifying the

market area was carried on 13.10.1994.

16. There does appear to be substance in the plea of the

appellants in this behalf that the objections were filed

within the stipulated period of thirty-five (35) days from

publication in the newspaper. However, that aspect is

immaterial as the respondents issued a fresh notification

of intent on 30.8.1996 under Section 3 (1) of the said Act

superseding the earlier notification dated 13.10.1994.

The appellants undisputedly did not file any objections to

the same and the notification under Section 4 (1) of the

said Act was issued on 11.4.1997. The appellants cannot

be permitted to plead that the objections filed to the

earlier notice of intent dated 29.7.1994 should be treated

as one under fresh notification dated 30.8.1996 under

Section 3 (1) of the said Act. The plea is, thus, not

sustainable. These facts have been set out since in the

impugned order the only reason given for rejection of the

pleas is that the appellants being an association are not

producer of the products and therefore, not vitally

interested in the impugned notifications.

17. The aforesaid being the only pleas advanced by learned

counsel for the appellants and in view of the same being

without merit, the appeal is dismissed leaving the parties

to bear their own costs.

SANJAY KISHAN KAUL, J.

OCTOBER 21, 2008                            MOOL CHAND GARG, J.
b'nesh