1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.03.2011 CORAM: THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.(MD)No.1698 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 M/s.Parag Foods (P) Ltd., Rep. by its Authorised Signatory K.Muthusami : Petitioner Vs. The Deputy Registrar, Dairying, SASR Complex, Thuvarai Kalam, Near State Bank, Theni. : Respondent Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order of the respondent dated 09.02.2011 passed under M.M.P.O.92 and quash the same. For Petitioner : Mr.T.V.Sivakumar For Mr.M.Karthikeya Venkatachalapathy For Respondent : Mr.K.A.Nandagopan Additional Government Pleader ORDER The petitioner challenges the order dated 09.02.2011 on the file of the respondent, whereby and whereunder their milk procuring depot was sealed. THE FACTS: 2. The petitioner is doing business in procuring milk and effecting sales in the States of Maharastra, Andra Pradesh and Tamil Nadu. The petitioner obtained licence from Government of India for the purpose of procuring milk in various places in the States of Andhra Pradesh and Tamil Nadu. The petitioner, on the basis of the said licence, opened procuring depots in Theni, Vadamadurai, Palani, Dharapuram, Naidumangalam, Arani, Walaja, Madhanur, Hosur and Thiruthani in the State of Tamil Nadu. The petitioner used to procure milk from 08.00 a.m. to 11.00 a.m. and 08.00 p.m. to 10.00 p.m. everday and the milk so procured would be kept in a chilled tank. The procured milk will be sent to the dairy on the next day. 3. The milk procuring unit of the petitioner, which is the subject matter of this Writ Petition is situated at Balakrishnapuram Village in the district of Theni. 4. The said unit was inspected by the respondent and notice was issued to the petitioner to produce the relevant documents. The petitioner appears to have submitted their reply, wherein it was indicated that they https://hcservices.ecourts.gov.in/hcservices/ 2 have already obtained licence from the Food Safety and Standards Authority of India, (Ministry of Health and Family Welfare), New Delhi, besides No Objection Certificate from the concerned local authority. However, without considering the explanation, the respondent passed an order on 09.02.2011, directing closure of the milk procuring unit. Feeling aggrieved, the petitioner is before this Court. 5. The respondent, in its counter-affidavit, justified the action taken against the petitioner. According to the respondent, the petitioner has to comply with certain statutory requirements as a condition precedent for running a milk procuring unit. The petitioner was expected to maintain the testing lap as per Milk and Milk Product Order, 1992. However, there was no such facility. Though the petitioner was called upon to produce necessary documents evidencing the grant of permission by the statutory authorities, no such documents were produced. Therefore, the respondent was constrained to pass an order of closure. SUBMISSIONS: 6. The learned counsel for the petitioner contended that the required licence has already been obtained by the petitioner from Government of India. According to the learned counsel, the respondent has no authority to inspect the premises and as such, the very order was without jurisdiction. The learned counsel further contended that the respondent was not justified in passing an order of closure without passing an order of suspension of licence. 7. The learned Additional Government Pleader justified the order passed by the respondent. DISCUSSION: 8. The Central Government, in exercise of powers conferred under Section 3 of the Essential Commodities At, 1955, framed the Milk and Milk Product Order, 1992. The control order contains detailed provisions regarding registration, maintenance of high standards of sanitary and hygienic conditions with respect to manufacture of Milk and milk products, inspection, the power of the authorities to enter, inspect and seize the articles, suspension or cancellation of registration, appeal to the Controller and all other regulations controlling the procurement, manufacture and sale of milk and milk products. 9. Clause 5 of the order deals with registration. Clause 5(B)(a) provides that the plant set up shall not be allowed to be commissioned unless an inspection has been carried out to ascertain sanitary and hygienic condition as specified in the Fifth Schedule and as per the instructions issued by the Central Government from time to time. Clause 5 (B)(b) provides conduct of inspection by a team of experts. 10. Clause 15 gives authority to the Registering Authority or any other officer authorized by it to carry out periodic inspection of any premises in which manufacturing process, or business in milk or any milk product is carried on, with a view to ensure compliance with the provisions of the order. Clause 16 provides for suspension or cancellation of registration, in the event of contravening any of the provisions of the https://hcservices.ecourts.gov.in/hcservices/ 3 order. Clause 18 permits the aggrieved to file an appeal before the Controller. Clause 22 provides further appeal to the Central Government. 11. The Unit of the petitioner was inspected by the respondent on 16.01.2011. The petitioner was issued notice to produce records relating to factory licence and effluent treatment plant, etc. There is nothing on record to show that the petitioner has given a reply to the said show cause notice. 12. The bone of contention of the petitioner pertains to the absence of jurisdiction to the respondent to inspect the premises and to pass the impugned order. 13. The learned Additional Government Pleader has produced a copy of the notice issued by the Commissioner for Milk Production and Dairy Development, Chennai, dated 17.02.2011, calling upon the petitioner to submit their reply within a period of seven days as to why action should not be taken for violating the provisions of Milk and Milk Product Order, 1992. Clause 15 of the Milk and Milk Product Order, 1992 permits either the Registering Authority or any other officer authorized by it to conduct inspection. In view of the statement as contained in the notice dated 17.02.2011, issued by the Commissioner, it cannot be said that the respondent was not vested with powers to inspect the unit. 14. The Commissioner is vested with the authority to ensure that the units maintain high standards of sanitary and hygiene conditions in the manufacture of milk and milk products, establishment, permission or registration of any industry which is relatable to milk product. The petitioner has taken up a contention that there is no manufacturing activity carried on in their unit at Theni. The said argument has no force, inasmuch as the Milk and Milk Product Order, 1992 applies even to an establishment or industry relatable to milk product. Even according to the petitioner, they are procuring milk and it would be kept in their premises and the same would be transported to their dairy at Andhra Pradesh. Therefore, they are expected to adhere to certain standards. The Procurement Centre should comply with the statutory requirements. They should obtain the necessary licences from all the statutory authorities. Merely because no manufacturing activity is carried on, the petitioner cannot be heard to say that the unit will not come under the purview of enactments pertaining to factories. The petitioner is dealing with an essential commodity. The object of passing control order in the name and style of "Milk and Milk Product Order, 1992" appears to be to maintain and increasing the supply of liquid milk of the desired quality in the interest of general public. 15. The petitioner was running a dairy establishment. Clause 2(h) defines "dairy establishment" as any place where milk collection, processing, manufacturing, storage and handling of milk and milk product is carried out and any type of container or vessel which is used for storage and transportation of milk and milk product. The milk collection also would come under the definition "dairy establishment". Therefore, the very definition shows that the business of the petitioner should confirm to the provisions of Milk and Milk Product Order, 1992. https://hcservices.ecourts.gov.in/hcservices/ 4 16. Clause 16 of the Control Order deals with suspension or cancellation of registration. The provision permits registering authority to cancel the licence straight away. Clause 16(2) permits the registering authority to issue an order of suspension in the first instance and thereafter, to pass an order of cancellation, in case the default or failure persists. The provision gives a clear discretion to the statutory authority. Therefore, there is no merit in the contention raised by the learned counsel for the petitioner that the respondent was not justified in passing an order without suspending the licence in the first instance. 17. The show cause notice issued by the Commissioner dated 17.02.2011 gives a clear indication that the petitioner has violated the provisions of the Milk and Milk Product Order, 1992. The continuation of the impugned order or opening the unit would depend upon the ultimate orders to be passed by the Commissioner, after considering the response filed by the petitioner. CONCLUSION: 18. Therefore, I am of the view that no interference is called for in the order impugned in the Writ Petition. The petitioner is granted two weeks time from the date of receipt of a copy of this order to submit their reply to the show cause notice issued by the Commissioner for Milk Production and Dairy Development, Chennai and in the event of giving any such reply, the Commissioner is directed to pass final orders as expeditiously as possible and in any case, within a period of four weeks thereafter. 19. The Writ Petition is disposed of with the above direction. Consequently, the connected miscellaneous petitions are closed. No costs. Sd/- Assistant Registrar (P & A) /True copy/ Sub Assistant Registrar(C.S) To 1.The Deputy Registrar, Dairying, SASR Complex, Thuvarai Kalam, Near State Bank, Theni. 2.The Commissioner for Milk Production and Dairy Development, Chennai. +1 CC to Special Government Pleader, SR.No.12999 +1 CC to Mr. M.Karthikeya Venkitachalapathy, Advocate, Sr.No.10544 SML Order made in W.P.(MD)No.1698 of 2011 Delivered on:-01.03.2011 TR : 08.03.2011 : 4p/5c https://hcservices.ecourts.gov.in/hcservices/