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2004 DIGILAW 419 (GAU)

Eggs Dealers Association v. State of Nagaland

2004-06-22

B.LAMARE

body2004
JUDGMENT B. Lamare, J. 1. Heard Mr. B. Devnath, learned Counsel for the Petitioners and also Mr. Chuba Jamir for the Respondents. 2. The Petitioner No. 1 is an Association of Eggs Dealers of New Market, Dimapur and the Petitioners 2,3,4 and 5 are the dealers of Eggs in New Market, Dimapur. The Respondent No. 4, the Additional Director. Veterinary and Animal Husbandry. Nagaland issued the impugned letter dated 17.5.2001 to the Deputy Director (M and D) Vety and AH. Dimaur revising the token fee for birds, pigs and other livestock for meat purpose to be collected at the check gates on entry to the State, hi the said letter item No. 6 Eggs is shown for collection at the rate of Rs. 2/- per cartoon of 6 plates. The Petitioner in this writ petition is aggrieved by this fee imposed on Eggs which according to the Petitioner the Respondents have no authority to impose fee on eggs which is not a meat. The impugned letter issued by the Respondent No. 4 was purported to have been issued under the provision of the Nagaland Livestock and Poultry Contagious Disease Act, 1980 (for short the Act). 3. Before coming to the merits of the case, it would be proper to look into the judgment and order dated 14.6.02 passed by this Court in W.P. (C) No. 74(K) of 2001. M the said judgment and order the same letter dated 17.5.01 was upheld with regard to the collection of tolls from the animal transported into the State. The learned Single Judge of this Court has come to the conclusion that there is no case of restriction of freedom of business as such as alleged by the Petitioner. It was also decided that the Petitioner has foiled to show any illegality in collection of token fees for the livestock transported into the State at the check post. It was also held that there was no case of double taxation apparently on the basis of which or for that matter is no case of unreasonable restraint on which Court can interfere. On the basis of the above findings, this Court has dismissed the writ petition. But in the instant case, the Petitioner has sassailed the imposition of fee on the eggs transported into the State. 4. In order to appreciate the matter, it would be better to look into the provision of the Act. On the basis of the above findings, this Court has dismissed the writ petition. But in the instant case, the Petitioner has sassailed the imposition of fee on the eggs transported into the State. 4. In order to appreciate the matter, it would be better to look into the provision of the Act. Sub-section (i) of Section 2 of the Act define animal as follows: (i) "Animal" means any domesticated animal or bird or any animal or bird kept in confinement, the young one of these species of both sexes and such other domesticated animals as may be prescribed. 5. Sub-section (ii) of Section 3 authorized the state to establish quarantine stations for the inspection and detention of such animal along the routes appointed under Sub-section (i). Sub-Section 4(i) of the Act authorize the authority to vaccinate and mark the animals in the manner that may be prescribed. Section 6(i) and (ii) makes the person who transported the animals into the State liable to pay the dues to the State for the purpose of vaccination and marking. Section 6(i) and (ii) reads as follows: 6(i) The person in charge will pay all dues in respect of detention of animal in a quarantine station including such fees as may be prescribed for vaccination and marking. (ii) If such dues are not paid, the Veterinary Officer of the Station may seize as many animals as will in his opinion, fuffice to defray the dues leviable under Sub-section one (i) and such incidental charges in connection with the seizure and sale and forthwith report the fact to the Deputy Commissioner or such other officer as may have been appointed by the Deputy Commissioner in his behalf. 6. Sub-sections (iii) and (iv) of Section 6 authorized the Deputy Commissioner or other Officers so appointed to realize the dues payable to the State under Sub-sections (i) and (ii) of Section 6. Section 8 of the Act states that no person importing animal into any area during a season and by route appointed for such area under Section 3 shall pass beyond a quarantine station unless he holds a permit under Section 7 in respect of the animal under his charge. 7. Section 8 of the Act states that no person importing animal into any area during a season and by route appointed for such area under Section 3 shall pass beyond a quarantine station unless he holds a permit under Section 7 in respect of the animal under his charge. 7. From the above provisions of the Act, it is clear that the State Respondents have the authority to make certain restriction and also to imposed a fee on the entry of such animal through the specified area. The learned Single judge of this Court in the judgment and order dated 14.6.2002 has rightly held that by imposing such fee there is no double taxation imposed by the State and that there is no illegality in the collection of fees by the authorities for the animal transported into the State. 8. In the instant case, the Petitioner has specifically assailed the fee imposed on Eggs at serial No. 6 of the impugned letter dated 17.5.2001. In the letter dated 31.5.90 (Annexure-A in W.P. (C) No. 74 (K) 2001) the authority has imposed a fee in the cadre of Cattle, Goat/Sheep and Pig and Poultry birds. However, in the impugned letter dated 17.5.2001, some other animals like Elephant, Horse, Fulo, Pig, Dog, Pigeon, Day-old chick and Eggs have been added. With regard to the adding of Elephant and Day old chick these items falls within the definition of animal in Sub-section (i) of Section 2 of the Act. Therefore, the adding of Elephant, Dog and Day-old chick this Court is of the view that the said items falls within the definition of animal. 9. Now, the question to be seen is about the imposition of fee on eggs. On scrutiny of Sub-section (i) of Section 2 it is seen that the egg is not included. The Special Bench of this Court has had an occasion to deal with the imposition of tax under the Assam Sales Tax Act 1947 (for short the 1947 Act.) One of the items assailed in that writ petition was the item of eggs where Sales Tax Act was levied under the 1947 Act. That case was decided by the special Bench of this Court in Shri Nalini Ranjan Sirkar, Petitioner v. The Superintendent of Taxes, Dibrugarh and Ors. Respondents reported in 19861 GLR186. That case was decided by the special Bench of this Court in Shri Nalini Ranjan Sirkar, Petitioner v. The Superintendent of Taxes, Dibrugarh and Ors. Respondents reported in 19861 GLR186. In the said decision, the Special Bench of this Court has defined Egg as under: 8. Let us take each edible and decide whether it is meat? A. Whether egg is meat within the meaning of item 11 of schedule III? An egg is spheroidal body produced by a female bird reptile or insect containing germ, of new individual especially that of domestic fowl for eating. In common parlance or in popular sense in the State of Assam or as a matter of that in India, egg is never considered as 'flash'. Even if we assume that flesh of domestic birds is meat we cannot accept that embryo enclosed in a shell produced by a hen, reptile or insect contains any flesh. It is the common knowledge that the fleshy substance between the skin and bones of animal bodies are known as flesh. Eggs do not contain any flesh. We cannot accept the proposition that an egg in due course of time shall turn out to be a bird, reptile or insect and as such it should be treated as a shell containing flesh to be. Before the High Court of Punjab and Haryana it was claimed that live animals, which is known in the Army vocabulary as 'meat on hoof, was 'preserved meat', the preservation being the natural carton consisting of the skin of the animal. The contention was accepted by the High Court, but turned down by the Supreme Court Defadar Bhagat Singh and Sons v. Joint E and T. Commissioner (1976) 37 STC 527 : AIR 1976 SC 2544 by observing thus: that the skin cover covering the flesh of the animal preserves its life; to think that the skin is a carton for the flesh, which can be used for food after the animal is slaughtered, goes against common sense. We similarly hold that it goes against common sense and logic to conclude that an egg in due course might turn out to be a bird, reptile or insect and therefore, it should be treated as 'flesh'. We hold that the essential attribute of meat is absent in egg. There is no flesh content in egg. 10. We similarly hold that it goes against common sense and logic to conclude that an egg in due course might turn out to be a bird, reptile or insect and therefore, it should be treated as 'flesh'. We hold that the essential attribute of meat is absent in egg. There is no flesh content in egg. 10. From the above decision of the Special Bench, it is clear that egg is not a meat and it cannot be treated as meat as there is no flesh in the egg. This decision of the Special Bench is in conformity with the Sub-section (i) of Section 2 of the Nagaland Livestock and Poultry Contagious Diseases Act, 1980. 11. In view of the aforesaid decision of the Special bench of this Court and of the provisions of the Act, this Court is of the opinion that Egg is not a meat and does not fall within the definition of animal as defined in Sub-Section 1 of Section 2 of the Act. 12. For the aforesaid reason, the imposition of tax of Rs. 2/- per carton of 6 plates of Eggs is not tenable in law and liable to be set aside and quashed. Consequently, the impugned letter dated 17.5.2001 with regard to item No. 6 Eggs is hereby struck out. The petition is allowed and the rule is made absolute. Petition is disposed of.