PRAKASH SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner, a clearing and sales agent of products of Nestle India Limited (hereinafter referred to as the Company) has filed the present writ application for quashing the notification dated 10th April, 2001 whereby amendment has been made in the Schedule of the Bihar Agricultural Produce Markets Act (hereinafter referred to as the Act) in exercise of power under Section 39 of the Act in so far as the products made by the Company included under item No. VIII of the Schedule captioned as Animal Husbandry Products and notices issued by the Agricultural Produce Markets Committee, Mussalahpur (hereinafter referred to as the Committee) asking the petitioner to take licence and to pay market fee with regard to the said products. At the time of argument, learned Senior counsel appearing for the petitioner confined the challenge to the notification only with regard to two products, namely, lactogen and milkmaid being sub-items Nos. 22 and 25 under heading VIII, Animal husbandry products. Copies of the notification as well as two notices have been annexed as Annexures 1, 2 and 3 to the writ application respectively.

(2.) The case of the petitioner is that the Company has factory in various locations in the country for manufacture of its product. The products manufactured by the Company are milkmaid, everyday, lactogens milk, cereals, nestum, nescafe, noodles, sauces, cubes, tea, Kitkat and other items. The Company has appointed number of clearing and sales agents (hereinafter referred to as C & S Agents) in various parts of the country to whom products are despatched from its factory on stock transfer basis. The C & S Agents clear the said products despatched to them from Rail/Road heads and store the same in their godowns. The Company has also appointed distributor in various parts of the country for distributing the said products to retail dealers. The C & S agents invoice the goods to the distributor of the respondent-company received from the Companys representatives. The Patliputra Cands owned by the petitioner has been appointed as Clearing and Sales Agent of the Company and M/s. Patliputra Trading Company has been appointed as distributor by the Company for distribution of its products in Patna covering the area of Patna Town and M/s. Sarvottam Sales Corporation has also been appointed as distributor within the jurisdiction of Agricultural Produce Markets Committee, falling within Patna City.

(3.) Originally Milk was in the Schedule of the Act. By notification No. S.O. 730 dated 2-5-1977 it was deleted from the Schedule. Subsequently the notification dated 2-6-1977 was cancelled by another notification dated 21-5-1977. Again in 1984 the milk except in liquid form was substituted. In the year 1986, the Bihar Agricultural Produce Markets Board (hereinafter referred to as the Board) took a stand that the petitioner-firm is liable to pay market fee on the various products of the company and a demand was raised towards the market fee by the Committee on all the products sold by the Company through the petitioner. The petitioner challenged, the validity of the aforesaid action taken by the Committee by filing CWJC No. 4133 of 1986. Its claim was that the Act was not applicable with regard to products dealt with by it. The said writ application along with other writ applications was heard and disposed of on 15-12-1987 which is reported in 1988 PLJR 830 (sic). The petitioner in the said writ application challenged that the product marketed by it, namely, milk maid, Lactogen, Nestum Baby Cereal, Cerelac, Nespray milk powder, Lactogen Full Protein Followup Formulas, everyday dairy coffee whitener in powder form, Tomoato Ketchup and Hot and sweet type sauces made from sugar, chilli synthetic vinegar etc. are not covered by the Act. It was held by this Court that Nestum Cerelac, Amulspray, Chocolate, Ketchup, Milkafe and cheese are not agricultural produce but the two products, namely, Lactogen and milkmaid which are subject matter of challenge in this writ application and other products were held to be covered by item No. 9 in Part VIII (Animal Husbandry Products) of the Schedule, Milk. The said judgment was challenged by the petitioner before the Apex court by filing SLP and the Leave was granted in the year 1988 but no stay was granted and the Civil Appeal No. 1216 of 1988 arising out of the aforesaid SLP was dismissed for default on 9th December, 1991.