- (1.)The petitioners in this application under Article 226 of the Constitution are three Partners of M/s. Biswanath Sreemany and Haripada Sreemany, a partnership firm having its office or principal place of business at no. 9, Ramkumar Rakshit Lane, Calcutta. The respondents are the State of West Bengal, the Milk Commissioner, the Controlling Officer, West Bengal Milk Trade Control Order. 1965 and the Milk Commissioner, the Controlling Officer, West Bengal and the Union of India. It is the case of the petitioners the petitioners carry on business of buying and selling of ?Ghee?. The petitioners have two godowns, i.e., at Nos. 1, Meerbahar Ghat Street and 9, Ramkumar Rakshit Lane, both in Calcutta and the petitioners procured the said ?Ghee?. According to the petitioners, from M/s. Lakhmidas Premji, Calcutta who imports the same from Andhra Pradesh. It is the definite case of the petitioners that the petitioners' products are all from outside the State of West Bengal and no ghee made with any mild or milk product of West Bengal were or are dealt wit by the petitioners. It is further the case of the petitioners that in 1974 the petitioners were served with a notice making demand for licence for sale and dealing with ghee and the petitioners submitted a form in Form No. A purporting to be an application for licence under the Milk Trade Control Order 1965. The petitioners, further, state that the petitioners were then under a misapprehension that the petitioners were liable to pay licence fee for dong business in ghee and by mistake paid sums of Rs. 156/- and Rs. 636/- being the licence fee for 200 Kgs. and 800 Kgs. of ghee respectively for the year 1973-74 as demanded by the respondents. The petitioners state that the petitioners paid the said amount under misapprehension. The petitioners further state that a news item appeared is the Amrita Bazar Patrika on October 21, 1974, wherein it was reported that the High Court had ruled that the order was applicable to only milk products manufactured within West Bengal and not to any product which might be imported into the State. In view of the said news the petitioners state that the petitioners informed the respondent no. 3 being the Controlling Officer, West Bengal, Milk Trade Control Order, 1965 and Milk Commissioner, West Bengal that he petitioners were not required to take any licence under the aforesaid order in as much as all the products that were handled by the petitioners were imported from other States and not products of West Bengal. It is, further, the case of the petitioners that after the issue of the said letters no demands were made by the respondents for the year 1974-75, 1975-76, 1976-77 and 1977-78. On the 25th of April, 1978 the petitioners alleged that they received certain demand notices particulars whereof have been set out in paragraph 6 of the petition. The said demand notices were issued under the Essential Commodities Act, 1955 read with West Bengal Milk Trade Control Order, 1965. According to the said notices the respondents had demanded from the petitioners sums of Rs. 156/- and Rs. 636/- for each of the said years as the licence fees alleged to be due and payable by the petitioners. Thereafter, the petitioners made several representations to the respondents stating that the petitioners were not liable to pay any such licence fees. However, petitioners were directed to pay the amounts by the dates mentioned in paragraph 8 of the petition.
(2.)It is the case of the petitioners that on the 12th of October, 1965 stating to be a notification an order was published in the Calcutta Gazette Extraordinary dated 15th of October, 1965 whereunder it was stated that in exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955 read with Government of India, Ministry of Food and Agriculture Order G. S. R. 1154 dated 4th of December, 1968 and order No. G. S. R. 888 dated 28th of June, 1961 and subsequently amended the Governor had been pleased with the concurrence of the Central Government to pass an order which is known as West Bengal Milk Control Order, 1965. The said order indicated that it extended to demarcated areas as specified is Schedule 1 and to such other demarcated area or areas as might be specified by the Government by notification in the Official Gazette. It was indicated that the said order would come into force from the 1st of November, 1965. Regulation 2 of the said order provided the definitions and Regulations 3 was as follows :- ?3. Regulation or procurement, processing, manufacture, sale of transport of milk or with products in a demarcated area. No person shall carry on the business of procurement, processing manufacture, sale or transport of milk or milk products in a demarcated area except under and in accordance with the terms and conditions of a valid licence save and except the quantity be allowed, from time to time, by the Controlling Officer to be procured, processed, manufactured, sold to or transported without a licence.?
(3.)Under the said order there is no definition of ghee. But there is definition of milk, milk products and milk solids. The said definitions are as follows :- (g) ?milk? means the lacteal secretion of bovine specifies including buffaloes : (i) ?milk products? means any products containing milk solids and includes chhana; (j) ?milk solids? means the constituents of milk excluding water; According to the petitioners the definition of milk does not and could not include ghee with which the petitioners deal. It is the case of the petitioners that by the reason aforesaid ghee could never be considered to be a milk product within the purview of the said order. Therefore, the petitioners contended that the petitioners do not come under the Essential Commodities Act, 1955 in asmuch as the said product ghee has not been listed as an essential commodity.