- (1.) Heard the counsel for the parties.
(2.) The petitioner is a Cooperative Milk Marketing Federation carrying on the business of manufacturing and selling its products, which according to the respondents, are the milk or the milk products and are covered under the Entry No.9 of Clause 8 of the Schedule appended to the Bihar Agricultural Produce Markets Act, 1960, describing the commodity falling under Section 2(1)(a) of the Act of 1960 as all the products of the petitioner are either milk as such or milk products, which falls under the category of animal husbandry products. The petitioner's contention is that the State Government issued one notification on 21.8.1984 and excluded the "liquid milk" from the 'milk', the Entry No.9 under the heading of the 'Animal Husbandry Products', therefore, the liquid milk stands excluded. However, the petitioner's all products are not liquid milk and are specific products and when these products as such, by their names, were not in the Schedule referred above, the State of Bihar introduce some of the petitioner's products by their trade name in the Schedule by notification, which is issued on 10.04.2001. Before this notification, out of the State of Bihar, the State of Jharkhand was created and it may be true that the Bihar Agricultural Produce Markets Act, 1960, was adopted by the State of Jharkhand, but the notification dated 10.04.2001 neither could have been adopted nor it was adopted. It is submitted that the notification to include the certain products in the Schedule of the Act of 1960 is the legislative Act and after creation of the State of Jharkhand, only the State legislature could have taken a decision to amend, alter or modify any statutory Schedule. A decision taken by the State of Bihar to add and include some products in the Schedule was within their legislative competence of the legislature of the State of Bihar. Therefore, that notification has no force in the State of Jharkhand. Learned counsel for the petitioner further submitted that when an Entry is not in any Schedule and is sought to be introduced by way of notification, then, that means that in original Schedule that product was not included. Therefore, according to the learned counsel for the petitioner, the issuance of the notification by the State of Bihar clearly indicate that the products of the petitioner were not included in the Schedule. Learned counsel for the petitioner also submitted that in the Schedule the "milk" is a specific entry and the petitioner's products are having distinct and specific names and they have their own specific uses, like the 'Amul Spray' is baby food and a milk powder meant only for infants and in the same way, where other products are prepared, they are having their own specific uses and their names are known and therefore, they are required to be in the Schedule by their own name (trade name, generic name or commercial name) in view of the fact that even the State legislative wisdom in the State of Bihar intended to include the products of the petitioner's own company, then it included the petitioner's product by their own commercial name.
(3.) Learned counsel for the petitioner, Mr. Subhro Sanyal also submitted that after creation of the State of Jharkhand, the Entry of "milk", though may be in the Schedule, but that has not been again notified under Sections 3 and 4 after creation of new State, therefore, entry in schedule as such cannot create any liability without declaration under Sections 3 and 4. Learned counsel for the petitioner also submitted that the Hon'ble Supreme Court in case of Belsund Sugar Co. Ltd. Versus State of Bihar, 1999 9 SCC 620has considered the facts of the case of one another manufacturer of the baby food in the trade name of "Lactodex' and "Raptakos" and after seeing all ingredients of those products, Hon'ble Supreme Court clearly declared that those two products are not covered under the category of the "milk" or the "milk products", and therefore, held that no market fee can be levied. Learned counsel for the petitioner also submitted that the said judgment was considered in the case of Krishi Upaj Mandi Samity, Narsinghpur Versus Shiv Shakti Khansari Udyog and Others, 2012 9 SCC 368and the ratio of the said judgment has been again approved by the Hon'ble Supreme Court. Learned counsel for the petitioner has also relied upon the judgment of the Division Bench of the Bombay High Court delivered in case of Indian National Shipowners Association Versus Union of India,2009 14 STR 289 in support of its earlier arguments that if there is a introduction of the new entry and inclusion of certain services in that entry presupposes that there was no earlier entry covering the said service.;