IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWELVETH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI and THE HON'BLE MR JUSTICE P.V.SANJAY KUMAR WRIT APPEAL NO : 1114 of 2002 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 26/03/2002 in WP NO : 20700 OF 2000 on the file of the High Court.) Between: The Edible Oil Dealers Welfare Association (Regd) Hyderabad rep.by its President G.Narayan Rao ..... APPELLANT AND 1 The Govt. of India rep.by its Secretary MInistry of Consumer Affairs and Public Distribution Krishi Bhavan New Delhi 2 The Government of Andhra Pradesh rep.by its Ex- Officio Prl.Secretary Food Civil Supplies and Consumer Affairs (CS.III) Department, Hyderabad 3 The Commissioner of Civil Supplies & Consumer Affairs Civil Supplies Bhavan, Somajiguda, Hyderabad - 82 4 The Director Institute of Preventive Medicine Public Health Laboratories and food (Health) Administration Narayanaguda, Hyderabad 5 The Controller Legal Metrology Dept., Gandhinagar, Hyderabad 6 Consumer Care Centre, rep.by its Secretary Smt.Rajan Ganeshan 3-5-273, Vittalwadi Narayanaguda, Hyderabad .....RESPONDENTS Counsel for the Appellant: MR.N.SIVA REDDY Counsel for the Respondent: MR.R.REKHA PRASAD WRIT PETITION NO : 23626 of 2000 Between: 1 G.Narendra Kumar, S/o. Gulabchand, R/o. Adoni, Kurnool District. (All are Merchants) 2 Ramarathan Rathi, S/o. Nathmal Rathi, R/o. Yemmiganur, Kurnool District. (All are Merchants) 3 G.M.Chenna Veeranna, S/o. Chinna Sarabanna, R/o. Yemmiganur, Kurnool District. (All are Merchants) 4 G.M.Santhi Veeranna, S/o. Chinna Sarabanna, R/o. Yemmiganur, Kurnool District. (All are Merchants) 5 E.Veeraiah Setty, S/o. Venkatramaiah Setty, R/o. Yemmiganur, Kurnool District. (All are Merchants) 6 T.Mallikarjuna, S/o. Bhoomanna, R/o. Yemmiganur, Kurnool District. (All are Merchants) 7 Satanur Mahabali, S/o. Siva Moorthy, R/o. Yemmiganur, Kurnool District. (All are Merchants) 8 S.Mallikarjuna, S/o. Siva Murthy, R/o. Yemmiganur, Kurnool District. (All are Merchants) 9 J.Alla Baksh, S/o. Nabi Sab, R/o. Yemmiganur, Kurnool District. (All are Merchants) 10 E.Venkaiah Setty, S/o. Pandurangaiah Setty, R/o. Yemmiganur, Kurnool District. (All are Merchants) 11 K.M.Satyanarayan Setty, S/o. Hanumanthaiah, R/o. Yemmiganur, Kurnool District. (All are Merchants) 12 K.M.C.Seshaiah Setty, S/o. Hanumanthaiah Setty, R/o. Yemmiganur, Kurnool District. (All are Merchants) 13 M. Anwar Baig, S/o. Sodader Baig, R/o. Yemmiganur, Kurnool District. (All are Merchants) 14 M.Mohammed Ghouse, S/o. Sukur Saheb, R/o. Yemmiganur, Kurnool District. (All are Merchants) 15 T.K.Khaja Hussain, S/o. Haji Ranjam Saheb, R/o. Yemmiganur, Kurnool District. (All are Merchants) 16 B.A.Mallikarjuna, S/o. Kottebasappa, R/o. Adoni, Kurnool District. (All are Merchants) 17 N.Sreenath Goud, S/o. Sivam Goud, R/o. Adoni, Kurnool District. (All are Merchants) 18 N.Lakshmanna, S/o. N.Seshanna, R/o.Adoni, Kurnool District. (All are Merchants) 19 A.Nagaraju, S/o. Ramaiah, R/o.Adoni, Kurnool District. (All are Merchants) 20 B.Venkaiah, S/o. Yellaiah, R/o.Adoni, Kurnool District. (All are Merchants) 21 S.Yousuff, S/o. Abdul Rahiman, R/o.Adoni, Kurnool District. (All are Merchants) ..... PETITIONERS A N D 1 The Government of India, Rep. by the Secretary, Ministry of Food and Consumer Affairs, Department of Sugar and Edible Oils, New Delhi. 2 Government of Andhra Pradesh, Rep. by its Secretary to Government, Food, Civil Supplies and Consumer Affairs (CS.III) Department, Secretariat, Hyderabad. 3 The Commissioner of Civil Supplies, Andhra Pradesh, Hyderabad. 4 Domestic Helpline Society, (Regd.4718/00) Rep.by its President T.Anniraju, S/o. Appa Rao, R/o. Hyderabad. (R4 is impleaded as per Court Order in WPMP 1960/2001 dt. 19-12-2002) .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the provisions of the Edible Oils Packaging (Regulation) Order, 1998 and the G.O.Ms.No.42, Food, Civil Supplies and Consumer Aﬀairs Dept. Dt.17.5.2000 and G.O.Ms.No.66, Food, Civil Supplies and Consumer Aﬀairs Dept. dt.11.8.2000 of the Government of A.P., as illegal, arbitrary and violative of Article 14, 19 (1) (g) and 300-A of the Constitution of India and pass such other order or orders as the Hon'ble Court fit and proper. Counsel for the Petitioner: MR.V.MALLIK Counsel for the Respondent : MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Division Bench of this Court made the following common judgment from 2nd page: (contd. 2 Page) THE HONOURABLE SMT. JUSTICE T. MEENA KUMARI AND THE HONOURABLE SRI JUSTICE P.V. SANJAY KUMAR WRIT APPEAL NO. 1114 OF 2002 AND WRIT PETITION NO. 23626 OF 2000 COMMON JUDGMENT : ( Per the Hon’ble Smt.Justice T.Meena Kumari) Writ Appeal No.1114 of 2002 is ﬁled by the Edible Oil Dealers’ Welfare Association (Registered), Hyderabad, represented by its President, Mr.G.Narayana Rao, against the common order passed by the learned single Judge in WP.No.20700 of 2000 and batch, dated 26-3-2002, wherein the learned single Judge dismissed the same holding that under Article 256 of the Constitution the executive power of every State shall be so exercised as to ensure compliance with the law made by Parliament and any existing laws made by the Parliament apply for the whole of the country and the State Government is bound to enforce them and the eﬀect of mandamus which is sought would be compelling the Government to ignore the Control Order made by the Central Government. 2. Writ Petition No.23626 of 2000 is ﬁled by the petitioners, who are various merchants, traders and dealers dealing in Edible Oil business, seeking mandamus to declare the provisions of the Edible Oils Packaging (Regulation) Order, 1998 and the G.O.Ms.No.42, Food, Civil Supplies and Consumer Aﬀairs Department, dated 17-5-2000 and G.O.Ms.No.66, Food, Civil Supplies and Consumer Aﬀairs Department, dated 11-8-2000 of the Government of Andhra Pradesh, as illegal, arbitrary and violative of Article-14, 19 (1) (g) and 300-A of the Constitution of India and to pass such other and further suitable orders as this Court may deems ﬁt and proper in the circumstances of the case. 3. Before the learned single Judge, the petitioners have contended that the Central Government has issued the Edible Oils Packaging (Regulation) Order, 1998 and section 3 of the Essential Commodities Act. The Government of Andhra Pradesh have also adopted the said scheme by virtue of the orders in GO.Ms.No.42, Food, Civil Supplies and Consumer Aﬀairs (CS.III) Department, dated 17-5-2000. But even according to the petitioner, the said order has not been implemented immediately. 4. By a common judgment, the learned single Judge has heard all the writ petitions, as the issue involved in all those writ petitions are one and the same and the petitioners are various Oil millers Association, Edible Oil Millers Association or Retail Kirana and General Merchants Associations and others. 5. It is stated that the members of the petitioner association carry on the business of extracting edible oils from the seeds and sell the same to dealers and other consumers. Most of the consumers will purchase edible oils in small quantities like 50 grams, 150 grams etc., for their daily consumption. As the Central Government issued Control Order under section 3 of the Act to ensure availability of edible oils at fair prices and to provide for distribution, use and consumption in the consumers interest. Such order was issued purportedly on the ground that there are incidents of oil adulteration. It is stated that the millers, dealers and retailers made representations to the Government and, therefore, the Government decided to postpone the implementation of the Control Order. By reason of GO.Ms.No. 66, dated 11-8- 2000, the same is being implemented in the State of Andhra Pradesh. The Control Order is not intended for maintaining or increasing supplies or for securing equitable distribution and availability at fair prices. As there is no control for manufacture distribution or sale of these edible oils, merely because there were certain incidents of adulteration, the Central Government cannot promulgate such a Control Order, which has far reaching consequences in the oil industry. The Central Government has no such power to issue the Control Order under section 3 of the Act. The Control Order results in automatic increase in the rates of edible oils by 30% which would be detrimental to the interests of the poor people. A packing machine costs about Rs.30 lakhs and it will be diﬃcult for each of the miller to purchase the same. The oil millers or dealers would be forced to close down their business, as they cannot compete with the large scale industry. The Control Order imposes unreasonable restrictions on enjoyment of fundamental right under Article 19 (1) (g) of the Constitution of India. 6. It is the contention of the respondents in the counter-aﬃdavit that in the Hyderabad city, a market survey was conducted on 10-11-2000, which shows that loose reﬁned sunﬂower oil was sold between Rs.28/- and Rs.30/- per Kg (Rs.25 to Rs.27/- per litre). When compared to this, brands of reﬁned sunﬂower oil such as sun-rich, Sheetal Drop, Gold Drop and Real Gold in packets are sold around Rs.28/- to Rs.30/- per litre. The State Government only implements the Control Order issued by the Central Government and the petitioners are not entitled for any relief in the writ petition. A counter- aﬃdavit has also been ﬁled on behalf of Respondent No.6 before the learned single Judge contending that the Control Order is not ultra vires and is in accordance with the Act. Therefore, the Control Order promulgates reasonable restrictions permissible under Article 19 (6) of the Constitution of India. The learned single Judge has held that under clause 3 of the Control Order empowers the State Government to exempt for speciﬁed period any edible oil from the provisions of the Control Order in public interest and for speciﬁc period by notiﬁcation in the Oﬃcial Gazette. By virtue of GO.Ms.No.89, dated 30- 10-2001 whereunder Mustard Sesame (Gingelli) and Niger Oils were exempted from the purview of the said Control Order. The learned single Judge has relied upon the case laws in BIHARILAL MUDUGAL V/s. SECRETARY OF STATE reported in 1986 (2) ALT-241, VRAJILAL M. & CO. V/s. STATE OF M.P., reported in AIR 1970 SC-129, STATE OF MADRAS V/s. G.G. ROW reported in AIR 1954 SC-728, MINERAL DEVELOPMENT LIMITD V/s. STATE OF BIHAR reported in AIR 1960 SC-468, COLLECTOR OF CUSTOMS V/s. NATHELLA SAMPATHU CHETTY reported in AIR 1960 SC-316, LAXMI KHANDSARI V/s. STATE OF U.P., reported in AIR 1981 SC-873, SANJEEV COKE MFG. CO. V/s. M/s. BHARATH COKING COAL LIMITD reported in AIR 1983-SC 239, SAGIR AHMAD V/s. STATE OF U.P., reported in AIR 1954 SC 728, STATE OF BIHAR, STATE OF BOMBAY V/s. F.N. BALSARA reported in AIR 1951 SC 318, BIJOY COTTON MILLS V/s. STATE OF AJMER reported in AIR 1955 SC-33, FATEHCHAND V/s. STATE OF MAHARASHTRA reported in AIR 1977 SC-1825. After going through the case laws, the learned single Judge held that the Court cannot consider the reasonableness from the view of the person or persons on whom restrictions are imposed and who are likely to suﬀer hardship. The Court is concerned with the interest of the general public. The interest in the general public is not what the Court perceives but it is the interest of the general public in relation to the underlying purposes of the restriction, the extent and urgency, the evil sought to be remedied, the disproportion of the imposition and prevailing conditions at the time when legislation was made. 7. The learned single judge while relying on a decision in MRF. LTD. V/s. INSPECTOR, KERALA GOVT ., reported in (1998) 8 SCC-227, Kerala Industrial Establishments (National and Festival Holidays) (Amendment) Act, 1990 was challenged as imposing unreasonable restriction and violating Article 19 (1) (g) of the Constitution. The learned single Judge referred the principles for testing the reasonableness of restrictions as laid down by the Supreme Court, which are as follows: 1) While considering the reasonableness of the restrictions, the court has to keep in mind the Directive Principles of State Policy. 2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public. 3) In order to Judge the reasonableness of the restrictions, no abstract or general pattern or a ﬁxed principle can be laid down to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances. 4) A just balance has to be struck between the restrictions imposed and the social control envisaged by clause (6) of Article 19. 5) Prevailing social values as also social needs which are intended to be satisﬁed by restrictions have to be borne in mind. 6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. 8. The learned single Judge has held that in GO.Ms.No.42, dated 17-5-2000, the salient features of the order are to ensure the distribution and sale of edible oil which conforms to the standards of quality as provided in Prevention of Food Adulteration Act, 1954 and PFA Rules. To ensure that and having regard to the breakdown of epidemic Dropsy disease in many parts of the country which was attributed to the sale of loose edible oil, the Government thought to impose a restriction on the sale of edible oil compelling the sale of such edible oil in packed containers duly labeled with necessary particulars. The Control Order presumes that the sale of packed edible oil ensures the distribution and sale of edible oil, which conforms to the standards of quality as per the provision of Food Adulteration Law. The activity of packing oil can only be undertaken if a certiﬁcate of registration is granted by the registering authority. Every registered packer has to comply with the terms and conditions of certiﬁcate of registration in Schedule-III as well as sanitary requirements in Schedule- IV appended to the Control Order. The entire endeavour is to ensure supply of unadulterated and healthy edible oil packed in hygienic conditions without any infection. At the time of grant of certiﬁcate of registration, conditions are also imposed besides other mandatory conditions for establishment of packaging facility. The anxiety of legislation is to ensure the manufacture, distribution and sale of edible oil, which would conform to the quality standards so that the health of the people will not be in jeopardy. The learned single Judge therefore held that the impugned Control Order has a direct and proximate nexus as well as a reasonable connection with the object sought to be achieved for the same. 9. It is also the contention of the respondent in the counter-aﬃdavit before the learned single Judge that it is the policy of the State to ensure availability of unadulterated and quality edible oils. Though the Control Order promulgated in 1998 was to be implemented from 01-8-2000, keeping in view the problems in establishing laboratories and packing machines and after considering the representations of the representatives of trade and commerce, the Government gave ample time of two years for implementing the same. It stated that the consumers never complained about the likelihood of increase in the prices. The consumer representatives repeatedly requested the Government to ensure supply of edible oils in packed form in order to control adulteration and reduce recurrence of events like dropsy in the country. The Government through GO.Ms.No.89, dated 30-10-2000 conﬁned the sale of oils in packed form to groundnut, saﬄower, soya been, sunﬂower and palmolien only. Mustard Sesame (Gingelli) and Niger oils were exempted from the purview of the Control Order. The edible oils are not covered by the Control Order. It is further stated in the counter-aﬃdavit that in the Hyderabad city, a market survey was conducted on 10-11-2000 which shows that loose reﬁned sunﬂower oil was sold between Rs.28/- to Rs.30/- per litre. The Statement Government only implements the Control Order issued by the Central Government and the petitioners are not entitled for any relief in the writ petition. 10. A counter has also been ﬁled on behalf of sixth respondent before the learned Judge contending that the sale of edible oils in loose, the traders are indulging in several violations including short weighment. Some of the traders are selling adulterated edible oils to the consumers without any regard to the health. Therefore, the Control Order was issued by the Central Government. The Control Order contains salient features like insisting the manufacturer to display its name, batch number, quantity etc., which will help the consumers to get quality edible oils, which are not available when edible oils are sold in loose. Having regard to the past experience when large scale adulteration of edible oil was reported by reason of loose sales Central Government promulgated the Control Order. Therefore, the Control Order incorporates reasonable restrictions permissible under Article 19 (6) of the Constitution of India. 11. The learned single Judge has held that under clause 3 of the Control Order, the State Government got powers to exempt for speciﬁed period any edible oil from the provisions of the Control Order in public interest and for speciﬁc period by notiﬁcation in the Oﬃcial Gazette. By virtue of GO.Ms.No.89, dated 30-10-2001 whereunder mustard sesame (Gingelli) and Niger oils were exempted from the purview of the Control Order. Further the learned single Judge has relied upon the case laws reported in AIR 1962 SC-171, AIR-1965 SC-40, AIR 1981 SC-1369, 1998 (5) ALT-433, AIR 1956 SC-676, AIR 1959 SC-626, AIR 1971 SC-815, 1986 (2) ALT-241, AIR 1970 SC-129, AIR 1954 SC-728, AIR 1964 SC-925, 1952 SCR 597, AIR 1960 SC-468, AIR 1962 SC-316, AIR 1981 SC-873, AIR 1983 SC- 239, AIR 1954 SC-728, AIR 1951 SC-731, AIR 1951 SC-318, AIR 1955 SC-33, AIR 1977 SC-1825, (1996) 10 SCC-104, AIR 1951 SC-118, AIR 1960 SC-430, (1993) 2 SCC-221, (1986) 3 SCC-20, (1995) 5 SCC-615, (1994) 1 SCC-.301, (1994) 5 SCC-28, (1998) 8 SCC-227, AIR 1964 SC-416, AIR 1960 SC 1080, AIR 1963 SC-812, AIR 1997 SC-610, (1989) 2 SCC-58. After going through the above decisions, the learned single Judge observed that only a Control Order permitting a person to buy or sell certain food stuﬀs without any licence under any order issued by the Central Government or State Government under the Essential Commodities Act. But the impugned order does not deal with the same. The learned single Judge therefore rightly rejected the submission that on coming into force of the 2002 Control Order, the earlier Control Order cannot be given eﬀect to. The learned single Judge also held that under Article 256 of the Constitution, the executive power of every State shall be so exercised as to ensure compliance with the law made by Parliament and any existing laws which apply in that State. The Essential Commodities Act is a law made by the Union Legislation under to Entry 33 of the concurrent list of VII schedule to the constitution. Even if in the State of Andhra Pradesh were to make a law, the same by reason of Article 246 (2) read with Article 254 cannot be contrary to Essential Commodities Act or any Control Order made by the Central Government under section 3 thereof. 12. In view of the above facts and circumstances, we do not ﬁnd any material to set aside the order passed by the learned single Judge. No material has been placed before us to substantiate the contention of the appellant herein that the enactment of the order itself is bad for the reason that it would cause reasonable restrictions. In the absence of any material available on record, we are of the opinion that the order of the learned single Judge needs no interference. We are in agreement with the opinion of the learned single Judge. At last the learned counsel for the appellant requested to make observation for exemption of the appellant-Edible Oil Dealers Welfare Association,. Accordingly liberty is granted to the appellant to make a representation to the authorities concerned seeking exemption, as and when such a representation is made, the same should be disposed of on merits and in accordance with law. 13. The writ appeal and writ petition are accordingly disposed of. No costs. ____________________ JUSTICE T. MEENA KUMARI. ________________________ JUSTICE P V SANJAY KUMAR. 12-8-2008. 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