TMI Blog2003 (11) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... ekumar, Sunil Murarka, Antony Domnic, Ms. Shyjatha, Ms. Deepa S., Ms. Sangeeta Mandal, Kapil Chaudhary, Ms. Jayashree Singh, Ms. Vineeta Bhardwaj, Ms. Swati Sinha, A.T.M. Sampath, V. Balaji, Ms. Aarti Radhakrishnan and P.N. Ramalingam for the parties. Senior Advocates: V.R. eddy for the parties. Additional Solicitor-General of India: Altaf Ahmed for the parties. R.C. LAHOTI, J. -Challenge to the constitutional validity of the Tamil Nadu Scheduled Articles (Prescription of Standards) Order, 1977 (hereinafter referred to as the Order , for short), in its application to tea having failed, the appellants are in appeal by special leave. The crux of the controversy centres around the question whether tea can be included within the meaning of foodstuffs listed as sub-clause (v) of clause (a) of section 2 of the Essential Commodities Act, 1955 (hereinafter, the EC Act , for short), which defines essential commodity . 2.. The EC Act was enacted to provide, in the interest of the general public, for the control of the production, supply and distribution of, and trade and commerce, in certain commodities. The phrase essential commodity is defined by clause (a) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government in this behalf; (2) that before making an order relating to any matter specified in the said clauses (a), (e) or (f) or in regard to distribution or disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuff, under the said clause (d), the State Government shall also obtain the prior concurrence of the Central Government; and (3) that in making an order relating to any of the matters specified in the said clause (j) the State Government shall authorise only an officer of Government. (emphasis supplied) 5.. Exercising the power delegated by the Central Government by the abovesaid notification, the State of Tamil Nadu promulgated the Tamil Nadu Scheduled Articles (Prescription of Standards Order), 1977, in the interest of toning up the supply and availability of certain essential articles, as also for maintaining and raising the standards of quality of supply and sale of such articles. The Order embraced within the sweep of its applicability the several articles specified in Schedule I, entry 19, in Schedule I is tea . Some of the provisions of the Order in so far as relevant for the purposes of this ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh soluble in boiling distilled water-Not less than 40.00 per cent of total ash. (c) Ash insoluble in HCL-Not more than 1.0 per cent. (d) Extract obtained by boiling dry tea (dried to constant weight at 1000C) with 100 parts of distilled water for one hour under reflux-Not less than 32 per cent. (e) Alkalinity of soluble ash-Not less than 1.0 per cent and not more than 2.2 per cent expressed as K.O. (f) Crude fibre determined on tea dried to a constant weight at 1000C. Not more than 18 per cent. It shall not contain any added colouring matter. 7 to 15. . . . (underlining by us) 6.. The Order makes provisions for the prohibition of supply or sale of scheduled articles not according to the prescribed standards, prohibition from possession of adulterants, attempts to contravene the Order and forfeiture of offending scheduled article or adulterant. The competent officers under the Order are conferred with the powers of food inspector, powers of entry, seizure, search, etc., and so on. 7.. On June 9, 1978, the Central Government superseded the notification dated June 20, 1972, and instead issued a fresh notification which reads as under: Ministry of Agricul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the constitutional validity of the Order in so far as its applicability to tea is concerned. Several other writ petitions by other tea manufacturers/dealers were filed laying a similar challenge. All the writ petitions were heard together and disposed of by a common judgment turning down the challenge, which judgment is impugned herein by the appellants only. 10.. We have heard Shri V.R. Reddy, learned Senior Counsel for the appellants, Shri Altaf Ahmed, the learned Additional Solicitor General for the Union of India, Shri A.T.M. Sampath, learned counsel for the State of Tamil Nadu, and other counsel appearing in the matter. The principal submission of Shri Reddy has been that tea is not foodstuff and that the State of Tamil Nadu could not have, in exercise of the delegated power, issued a Control Order embracing tea within the sweep of its applicability. The details of the submission and merits thereof are dealt with hereunder. 11.. The EC Act defines essential commodity and one of the meanings is foodstuffs, including edible oilseeds and oils . The terms essential commodity and foodstuffs are by themselves ambiguous terms. Clause (a) of the interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by section 2 of the Tea Act, 1953 (No. 29 of 1953), which came into force on April 1, 1954. It provides- it is hereby declared that it is expedient in the public interest that the Union should take under its control the tea industry . 13.. We would first examine whether tea is a foodstuff . The term foodstuff (including edible oilseeds and oils) is not defined by the EC Act. Resort shall have to be had to the meaning of the term foodstuff in common parlance, in the commercial world and amongst the consumers-where tea is sold, purchased and consumed. Food- stuffs and tea are commonly sold and bought in the market and are consumer items. We will have to see whether tea is considered a foodstuff in the market frequented by its dealers and consumers. 14.. Let us first have the opinion of lexicographers. When a word is not defined in the Act itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. However, in selecting one out of the various meanings of a word, regard must always be had to the context as it is a fundamental rule that 'the meaning of words and expressions used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functions of food as under: Functions of food: Food serves three functions in most living organisms. First, it provides materials that are metabolised either by oxidative or by fermentative processes to supply the energy required for the absorption and translocation of nutrients, for the synthesis of cell materials, for motility and locomotion, for excretion of waste products, and for all other activities of the organism. Second, food supplies the electron donors (reducing agents) required for the formation of the reduced coenzymes (enzyme components) necessary for the synthetic processes that occur within the cell. Third, food provides the materials from which all of the structural and catalytic components of the living cell can be assembled by processes sometimes called anabolism. The three roles of food are not mutually exclusive; energy-yielding substances in many organisms may function in all three ways, and essential nutrients, if present in excess, may frequently be metabolized to supply energy. The essential precursors (i.e., the substances from which other substances are formed) of cell materials can be divided into two groups-non-essential nutrients, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be useful to make a reference to some decided cases brought to our notice. The most appropriate case in point is a Kings Bench decision in Hinde v. Allmond [1918] 87 LJKB 893. The accused was charged and convicted for possessing in her dwelling house considerable quantities of tea in violation of the Food Hoarding Order, 1917. The judgment of conviction appealed against held that tea was a food. Darling J. opined that food is ordinarily understood as something which is eaten as distinguished from something which is drunk. The Food Hoarding Order did not contain any reference to drink. The Order defined the expression article of food to include every article which is used for food by man, or which ordinarily enters into the composition or preparation of human food. The accused was in possession of dried leaves from which a drink can be made. No one sits down to eat tea, and it is not accurate to say that any one drinks tea. What one drinks is, not the tea, but the water which is passed through the tea leaves so as to make an infusion which is known as tea. His Lordship opined that tea is not at all a food and one would have to strain the meaning of the word food to make it ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bohydrates and fats.' Next is given a special definition for legal purposes, namely: 'As used in laws prohibiting adulteration, etc., food is generally held to mean any article used as food or drink by man, whether simple, mixed or compound, including adjuncts such as condiments, etc., and often excluding drugs and natural water.' The definition given of 'foodstuff' is- 1.. Anything used as food, 2.. Any substance of food value as protein, fat, etc., entering into the composition of a food. 21.. The decision in Virkumar Gulabchand Shah's case [1952] 3 SCR 877 was followed in K. Janardhan Pillai v. Union of India [1981] 2 SCC 45. 22.. In Collector of Central Excise v. Parle Exports (P.) Ltd. [1989] 1 SCC 345; [1989] 75 STC 105, the question for consideration before this Court was whether non-alcoholic beverage base is either food product or food preparation . Their Lordships noticed with approval a decision by the Andhra Pradesh High Court in Brooke Bond (India) Ltd. v. Union of India [1980] 6 ELT 65, wherein answering the question whether coffee/chicory blend was a food product, a learned Judge of the High Court had held that coffee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to the State Government, if permitted by law. Three things should be clearly understood, as stated by Wade and Forsyth in Administrative Law (Eighth edition, 2000 at page 322): (i) since in practice Government demands a great deal of delegation, this has to be authorised by statute, either expressly or impliedly; (ii) a statutory power to delegate functions, even if expressed in wide general terms, will not necessarily extend to everything; and (iii) implied power to delegate is not commonly found in peacetime legislation. 25.. Section 5 of the EC Act provides as under: 5. Delegation of powers.- The Central Government may, by notified order, direct that the power to make orders or issue notifications under section 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also by- (a) such officer or authority subordinate to the Central Government, or (b) such State Government or such officer or such authority subordinate to a State Government, as may be specified in the direction. 26.. The delegation by the Central Government can be in relation to such matter , etc., as may be spec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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