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.1763 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 Tahsildar, Vedasanthur Taluk, Dindigul District. : 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 closure order of the respondent dated 12.02.2011 closing the petitioner's milk procuring unit situated at Opp.Bharani Spinning Mill Unit-II, Dindigul Trichy, N.H., Vadamadurai, Vedasandur Taluk, Dindigul District and quash the same and consequently, direct the respondent to re-open the petitioner's milk procuring unit in the above said address. For Petitioner : Mr.M.Karthikeya Venkitachalapathy For Respondent : Mr.K.A.Nandagopan Additional Government Pleader ORDER The petitioner challenges the order dated 12.02.2011 on the file of the respondent, whereby and whereunder the milk procuring unit of the petitioner 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 the Food Safety and Standards Authority of India (Ministry of Health and Family Welfare), 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 Vadamadurai, Theni, 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. every day 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 near Bharani Spinning Mill Unit-II, Vadamadurai, Vedasandur Taluk in Dindigul District. 4. The unit of the petitioner was inspected by the respondent along with the Managing Director, Avin, Dindigul, Assistant Engineer, Pollution Control Board, Deputy Registrar (Dairy), Dindigul, Sanitary Inspector, Assistant Labour Inspector, Dindigul. On the basis of the said https://hcservices.ecourts.gov.in/hcservices/ 2 inspection conducted on 12 February, 2011, the respondent directed the petitioner to close the unit. Accordingly, the Unit was sealed. Feeling aggrieved by the said order, the petitioner is before this Court. 5. The respondent has filed a counter, wherein it was indicated that he has taken action under Section 133(1) of the Criminal Procedure Code, 1973. According to the respondent, the petitioner was dealing with an essential commodity without any licence and as such, the premises were sealed in public interest. 6. I have heard the learned counsel for the parties. DISCUSSION: 7. The Unit of the petitioner was inspected by the respondent along with other officials and accordingly, orders were passed to close the unit. 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 order. Clause 18 permits the aggrieved to file an appeal before the Controller. Clause 22 provides further appeal to the Central Government. 11. During the course of arguments, the learned Additional Government Pleader maintained that the action taken was only under Section 133 of the Criminal Procedure Code, 1973. Therefore, it is evident that the impugned order was passed not as an authorized officer as provided under Section 15 of the Milk and Milk Product Order, 1992. 12. Section 133 of the Criminal Procedure Code, 1973 provides for passing conditional order for removal of nuisance. In case the District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf receives the report regarding a public nuisance, he should pass a conditional order requiring the person causing https://hcservices.ecourts.gov.in/hcservices/ 3 such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, to remove such obstruction or nuisance or to desist from carrying on, or to remove or to regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed. Section 133(1) clearly provides that the conditional order should indicate that the person against whom such order is passed should either comply with the conditional order or if he objects to do so, he should appear before the Executive Magistrate at a time and place to be fixed by the order and to show cause as to why the order should not be made absolute. 13. Section 134 provides for service of notice. Section 135 provides that the person against whom such order is made shall perform within the time and the manner specified in the order, the act directed thereby or appear in accordance with such order and show cause against the same. 14. Section 138 provides for passing final orders. Section 138(2) gives a clear indication that in case the Magistrate is satisfied that the order as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or as the case may be, with such modification. 15. Section 141 deals with further proceedings after making the order absolute and consequential disobedience. As per the said provision, when order has been made absolute under Section 136 or Section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice. Therefore, in cases wherein the party has not complied with the provisional order and wanted a hearing to be conducted, the Magistrate has to conduct enquiry and pass a final order and the order should be communicated as provided under Section 141 of the Criminal Procedure Code, 1973. 16. The statutory provisions extracted above gives a clear indication that the Executive Magistrate has no authority to pass a final order without passing a provisional order and without giving an opportunity to the parties either to comply with the conditional order to appear for an enquiry to be conducted in the matter. Therefore, it is evident that the action taken by the respondent under Section 133 was not in accordance with the mandatory procedure as prescribed under Chapter X-B of the Criminal Procedure Code, 1973. 17. The matter was argued at length and ultimately, having convinced that the course adopted by him was not as per Section 133 of the Criminal Procedure Code, 1973, the respondent, who was present in Court, made an endorsement indicating that he is recalling the order. 18. The respondent is given liberty to initiate fresh proceedings as per law. The respondent is also given liberty to submit a report to the Commissioner for Milk Production and Dairy Development, Chennai, as the said authority is the State Registering Authority vested with powers to take action against the Milk Units. https://hcservices.ecourts.gov.in/hcservices/ 4 19. Since the respondent is recalling the order, he is directed to pass consequential orders, to hand over possession of the unit to the petitioner without prejudice to his right and to take appropriate action as per law. 20. This order will not preclude the statutory authorities, who have inspected the premises on 12.02.2011 along with the respondent, to take appropriate action against the petitioner on merits and as per law. 21. 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 To The Tahsildar, Vedasanthur Taluk, Dindigul District. +1cc to Mr.M.Karthikeya Venkatachalapathy,Advocate SR.No.10543 +1cc to The Special Govt.Pleader SR.No.10992 Order made in W.P.(MD)No.1763 of 2011 Dated:-01.03.2011 SML PA/23.03.2011/4P/4C https://hcservices.ecourts.gov.in/hcservices/