- (1.) THESE two writ petitions challenge the validity of the U. P. Milk and Milk Products Control Order, 1974, petitioners 1 and 8 in writ petition No. 2285 of 1974 are Halwais who prepare Rubree, Khoa and Paneer from milk and use them in preparing sweets and sell these goods at their respective shops whereas petitioners 2 to 7 are manufacturers of Khoa from milk. The two petitioners in writ petition No. 2531 of 1974 carry on the business of manufacturing ghee and butter after extracting cream out of milk. All the petitioners of these two writ petitions carry on their respective trade in the district of Moradabad which is one of the districts to which the aforesaid order has been made applicable. A portion of the order which will be relevant for purposes of deciding the various points raised in the present writ petitions is reproduced below : "In pursuance of the provisions of clause (3) of Article 348 of the Constitution the Governor is pleased to order the publication of the following English translation of notification No. 1116-C (4)/XII-CB-13-74, dated April 2, 1974. No. 1116-C (4)/XII-CB-13-74. WHEREAS THE State Government is of opinion that it is necessary and expedient so to do for maintaining the supplies of liquid milk and for securing its equitable distribution and availability in certain areas : Now, THEREFORE, in exercise of the powers under Section 3 of the Essential Commodities Act, 1955 (Act No. 10 of 1955) read with Government of India, Ministry of Food, Agriculture, Community Development and Co-operation (Department of Food) Order No. G.S.R. 1111, dated July 24, 1967, as amended by G.S.R. No. 284, dated February 9, 1968 and with the prior concurrence of the Central Government, the Governor is pleased to make the following order, namely; U. P. MILK AND MILK PRODUCTS CONTROL ORDER, 1974. 1. Short title, extent and commencement. (i) This order may be called the U. P. Milk and Milk Products Control Order, 1974. (ii) It extends to the areas covered by the Districts of Lucknow, Bara Banki, Rae Bareli, Hardoi, Sitapur, Sultanpur, Etawah, Fatehpur, Dehradun and Moradabad. (iii) This Order shall come into force with effect from April 2, 1974 and shall remain in force till August 14, 1974 unless withdrawn earlier. 2. Definitions. In this order, unless the context otherwise requires- (a) "Controlling Officer" means any officer appointed as such by the State Government and different controlling officers may be appointed for different districts : (b) "export" means to take or cause to be taken, by any means whatsoever, out of any place within the areas to which this order extends to any place outside those areas; (c) "milk" means the normal, clean and fresh secretion obtained by milking of the udder of a cow, buffalo, goat or sheep and includes milk with or without fat, butter milk, standardised milk, toned milk, double toned milk or milk prepared from milk powder, but does not include the article commonly known as dried milk or milk powder or condensed milk. 3. Prohibition of manufacture, sale, service, supply, export of milk and milk products. No person shall- (a) use milk of any kind for the manufacture of cream, casein, skimmed milk, khoa, rubree, paneer or any kind of sweets in the preparation of which milk or any of its products except ghee is an ingredient; or (b) export milk of any kind; or (c) sell, serve, supply or export or cause to be sold, served, supplied or exported cream, casein, skimmed milk, khoa, rubree, paneer, or any kind of sweets in the preparation of which milk or any of its products (including dried milk or milk powder or condensed milk), except ghee, is an ingredient. Provided that nothing in this clause shall apply- (i) to the use of milk for the manufacture of and to the sale, service, supply or export of ice cream, kulfi or kulfa, in the preparation of which no khoa, rubree or cream is used; (ii) to the conversion of milk, which becomes unfit for consumption as fluid milk, into cream and casein by such persons who may be engaged in the processing of fluid milk on scientific lines into any of the above products and who hold a permit to that effect from the controlling officer."
(2.) THE first ground on which the aforesaid order has been challenged is that it violates Article 14 of the Constitution. It was pointed out that the aforesaid order has been made applicable to only a few districts of the State of Uttar Pradesh including Moradabad where the petitioners carry on their trade and since it has not been made applicable to the remaining districts, those who carry on their trade in the districts mentioned in the order have been discriminated. It was also pointed out that a similar order had been issued in the year 1973 which included the district of Kanpur too but in the order issued this year Kanpur has been deleted and Moradabad and Dehradun have been added. According to learned counsel, there is no rational basis on which only some of the districts are picked up for purposes of the application of the order. In so far as the submission of learned counsel for the petitioners that in the order of the year 1973 Kanpur was included and has been deleted in the order in question, it has been pointed out on behalf of the respondents that the English version of the Gazette seems to have inadvertently omitted Kanpur as one of the districts to which the order is applicable. A copy of the Hindi version of the Gazette was shown to me which includes Kanpur also. Be that as it may, in my opinion the order cannot be struck down on this ground. It is well recognised that a classification made on geographical ground is reasonable. As would appear from the preamble of the order the purpose for issuing it was to maintain the supplies of liquid milk and to secure its equitable distribution and availability in certain areas. In the counter-affidavit filed by Ashok Kumar in writ petition No. 2285 of 1974 it has been stated that the restrictions imposed by the order were with a view to ensure adequate supply of milk to the public during the lean summer months. It would be seen that the order is to remain in force only from April 2, 1974, to August 14, 1974 unless withdrawn earlier. It is apparent that the State Government was of opinion that in the districts to which this order has been made applicable it would not be possible to maintain the supply of liquid milk and to secure its equitable distribution and availability unless the restrictions contained in the order were imposed. In Twyford Tea Co Ltd. v. State of Kerala, (1970) 1 SCC 189 : (AIR 1970 SC 1133) it was held that to be able to succeed in the charge of discrimination a person must establish conclusively that persons equally circumstanced have been treated unequally and vice versa. In Dantuluri Ram Raju v. State of Andhra Pradesh, (1972) 1 SCC 421 : (AIR 1972 SC 828), relying upon the aforesaid case, it was held that burden is on a person complaining of discrimination and for this purpose it is necessary to prove not possible inequality but hostile unequal treatment. The petitioners have not furnished any material to indicate that those who were carrying on similar trade as that of the petitioners in the districts to which the order has not been made applicable were similarly circumstanced, namely that the availability of liquid milk in those districts too was identical to the districts to which the order has been made applicable. Consequently, the complaint of discrimination on this score cannot succeed. It was then urged that proviso (i) to clause 3 of the order makes an exception in regard to ice-cream, kulfi or kulfa and thereby again makes a discrimination as against those who deal in commodities like cream, khoa, etc. An order similar to the one as impugned in the writ petitions had been issued by the Punjab Government, being the Punjab Milk Products Control Order, 1966. The validity of this order was challenged before the Supreme Court in S. Ajit Singh v. The state of Punjab, Writ Petn. No. 187 of 1966, D.00 24-2-1967 (SC). A similar argument had been raised before the Supreme Court but was repelled on the ground that there was no evidence that a large percentage of milk was diverted in the manufacture of these articles. It was further observed that ice-cream is nothing but sweetened milk which has been frozen and it has the same value as liquid milk. In these writ petitions also there is no material to indicate that a large percentage of milk is diverted in the manufacture of ice-cream, kulfi or kulfa. The challenge to the order on this ground also, therefore, must fail.
(3.) ARTICLE 14 was invoked yet on another ground, namely that the impugned order made an exception in regard to the preparation of dried milk or milk powder or condensed milk as was clear from the definition of the word "milk" contained in clause 2 (c) of the order. According to learned counsel, there was a factory in Moradabad known as Dalpatpur Co-operative Milk Factory which manufactured dried milk in huge quantity and that the powdered milk produced by the said factory was known as "Parag" milk which was sold all over India. It was urged that the impugned order had really been issued with a view to help the said factory. In support of this submission also, it is to be seen, that no details have been given in regard to the quantity of milk used by the said factory for purposes of manufacturing dried milk. Relying, however, on paragraph 7 of the counter-affidavit of Ashok Kumar (in Writ Petition No. 2285 of 1974) it was urged that the said factory on the own case of the respondents appeared to be using huge quantity of milk for manufacturing dried milk. It is true that in the said paragraph of the counter-affidavit it has been stated that the said factory was purchasing milk on a large scale. But unless some data was furnished to indicate the entire quantity of milk available in Moradabad as also the percentage of the milk purchased by the said factory it cannot be said that the said factory was using a large percentage of milk so as to defeat the purpose of the order, namely to maintain the supply of liquid milk. That apart, it has been stated in paragraph 9 of the same counter-affidavit that the dried milk is nothing but milk minus water. The dried milk retains all the values of liquid milk and is used as baby food and as such exclusion of dried milk from the order was based on reasonable grounds. The export of dried milk is no doubt not prohibited by the order but there is no material to indicate that the entire dried milk manufactured by the aforesaid factory is exported outside Moradabad. It is quite possible that the residents of Moradabad may themselves be consuming a fair quantity of the dried milk which can be converted very easily into liquid milk by just adding water to it. It cannot, therefore, be said that by the mere fact that the impugned order had not been made applicable to dried milk it either defeats the purpose of the order or is discriminatory. The submission that the order has been issued really to give a fillip to the trade of the aforesaid factory brings in an element of mala fide. It is easy to make such an allegation but very difficult to establish it. In the instant case it has not been stated as to who is responsible for this mala fide action nor has any material been placed on record to substantiate the plea of mala fide. Consequently, the attack to the order on this ground also must fail.;