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2011 DIGILAW 566 (ALL)

Hardayal Milk Products Private Ltd. & others v. Milk Commissioner/Prescribed Authority & Ors

2011-03-07

KASHI NATH PANDEY, SUNIL AMBWANI

body2011
Sunil Ambwani and Kashi Nath Pandey, JJ.— We have heard Ms. Nandita Bharti for the petitioners. Shri C.S. Singh, Additional Chief Standing Counsel appears for the respondents. 2. The petitioners are aggrieved by an order of the District Magistrate, Etah dated 21.7.2010 passed in pursuance to the directions issued by this Court on 28.6.2010 in Writ Petition No. 36999 of 2010 (M/s Hardayal Milk Products Pvt. and others vs. District Magistrate and others), rejecting the petitioner's representation to de-seal the machines and equipments of M/s Lalkant Milk Dairy, Agra Road, Etah run by petitioner no.2. 3. In an inspection carried out by the Sub Divisional Magistrate, Etah on 21.5.2010, it was found that M/s Lalkant Milk Dairy did not have the registration under the Milk & Milk Product Order 1992 (in short the Control Order-92), made by the Central Government in exercise of powers conferred upon it by Section 3 of the Essential Commodities Act, 1955. The Sub Divisional Magistrate sealed the two storage tanks; one chiller; one dump tank; one weighing machine; six milk pumps; complete pipeline; two compressors; generator sets; one over hand tank/tubewell; three road milk tankers and two milk van (tankari). A Case Crime No. 177 of 2010 under Section 3/7 of Essential Commodities Act was registered against the dairy. The District Magistrate sent a letter to the State Registering Authority/Milk Commissioner, Dairy Development Department, U.P. Lucknow asking for clarification, on the objections taken by the petitioner no. 2, that under an agreement between petitioner no.1 and 2, M/s Lalkant Milk Dairy run by petitioner no.2, was validly entered into the expanded registration certificate of M/s Hardayal Milk Products Private Ltd-a private limited company, registered with the Central Registering Authority under the Control Order-92. 4. It is submitted by Ms. Nandita Bharti, that under the agreement dated 24.9.2009 between M/s Hardayal Milk Products Private Ltd. and M/s Lalkant Milk Dairy, Agra Road, Etah through Shri Lal Kant Yadav, the later was to run a unit for collection and chilling of Milk for M/s Hardayal Milk Products Private Ltd. An application was made by M/s Hardayal Milk Products Pvt. Ltd. to the Assistant Commissioner (DD), Food Safety and Standard Authority of India to revise the list of Milk Chilling Centres in the Registration Certificate No. 363/R-MMPO/2008. The application dated 26.12.2009 included M/s Lal Kant Milk Chilling Centre, Agra Road Etah, at item No. 4 of the six Chilling Centres, as a running unit. The necessary entry in the registration certificate was recorded on 26.5.2010. Prior to the making of the entry, under the agreement dated 24.9.2009 M/s Lal kant Milk Dairy, Agra Road, Etah was working as the unit for collecting and chilling the milk for M/s Hardayal Milk Products Private Ltd. The Milk Commissioner clarified this arrangement by his letter dated 27.8.2010 to the District Magistrate, Etah. He informed that the registration certificate has been amended, expanding the area of the collection of milk including four Chilling centres and that M/s Lalkant Milk Chilling Centre had entered into an agreement with M/s Hardayal Milk Products Private Ltd and an entry to that effect was made in the certificate of registration. 5. It is submitted by Ms. Bharti that though the District Magistrate, Etah had asked the Milk Commissioner to give information by his letters dated 16.6.2010 and 13.7.2010, without waiting for a reply, which was sent by the Milk Commissioner, U.P., on 27.8.2010, the District Magistrate passed the order rejecting the petitioner's application on 21.7.2010, to de-seal the chilling plant. 6. It is not necessary for us to go into the questions raised by learned counsel for the petitioner namely whether the Sub Divisional Magistrate had the powers of inspection and whether the entire milk centre could be sealed along with the machinery and apparatus by the Sub Divisional Magistrate, on the ground that he did not have delegated authority of the Milk Commissioner to do so. While leaving these questions open, we find it suffice to observe that under the Control Order 1992, and under Section 6-A of the Essential Commodities Act, 1955; the power to seizure is confined to the offending essential commodity; any package, covering or receptacle in which such essential commodity is found; and any animal, vehicle, vessel or other conveyance used in carrying such essential commodity. The milk containers used for the purposes of storage of milk for chilling and the plant and machinery used for chilling milk, do not fall in any of the items mentioned under Section 6A. The milk containers used for the purposes of storage of milk for chilling and the plant and machinery used for chilling milk, do not fall in any of the items mentioned under Section 6A. The plant and machinery of the chilling plant cannot be treated as package, covering or receptacle under Section 6A (b), and animal, vehicle, vessel or other conveyance in sub section (c). 7. We also find that there is no object to be achieved in sealing the entire plant and machinery specially after M/s Lalkant Milk Chilling Centre, Agra Road, Etah has been recorded in the registration certificate of M/s Hardayal Milk Products Private Ltd, for which agreement was entered into and applications were made on 24.9.2009 and 26.12.2009, respectively. The petitioner no. 2 was collecting milk and chilling it on behalf of petitioner no. 1 .The certificate of registration of petitioner no. 1 was valid and effective on the date of inspection. The District Magistrate could have waited a little longer to receive clarification from the Milk Commissioner, who is the competent authority to grant registration for limited quantity under the Control Order 1992, and exercises the delegated authority of the Central Government. 8. Shri C.S. Singh submits that the iron and plastic used in the chilling plant did not meet the prescribed standards, and that the milk stored in the tanks failed to meet the tests. 9. We make it clear that we are not entering into the merits of the prosecution under Section 3/7 of the Essential Commodities Act and Prevention of Food Adulteration Act, 1954. We are only concerned with the action taken by the Sub Divisional Magistrate, Etah and District Magistrate, Etah to seal the entire plant and machinery of the milk collection and chilling plant. 10. The desealing of the chilling plant will not permit petitioner no.2 to operate the business of collecting and chilling the milk, until and unless the registering authority is satisfied with regard to standards of plant and machinery prescribed under the Control Order 1992, and any order issued by the registering authority to that effect. The quantities of milk, which must have been spoiled by now, will be destroyed, and the plant and machinery will be allowed to be upgraded, if the registering authority requires the petitioners to do so. 11. The writ petition is allowed. The quantities of milk, which must have been spoiled by now, will be destroyed, and the plant and machinery will be allowed to be upgraded, if the registering authority requires the petitioners to do so. 11. The writ petition is allowed. The orders dated 21.5.2010 sealing M/s Lalkant Milk Dairy, Agra Road, Etah and the order of the District Magistrate dated 4.10.1994 rejecting the representation to deseal the plant are set aside. The seal put on the M/s Lalkant Milk Dairy, Agra Road, Etah shall be removed. The petitioner will, however, be permitted to operate and run M/s Lalkant Milk Dairy, Agra Road, Etah only after due inspections carried out by the Registering Authority or the delegated authority of the Registering Authority under the Control Order 1992, and after the Registering Authority records satisfaction of the prescribed standards, maintained by the respondent no.2. The Registering Authority will carry necessary inspections within six weeks. The prosecutions under Section 3 read with Section 7 of the Essential Commodities Act, 1955, and the Prevention of Food Adulteration Act, 1954, will be concluded in accordance with law, without being affected by any observations made in this judgment.