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TMI Blog2003 (11) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... HOK BHAN JJ. Other Advocates: C.N. Sreekumar, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such directions, if any, as may be issued by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Agriculture and Irrigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alidity 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 themselv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;. "Tea " cannot be included in clauses (c), (d) and (e) of entry 33. It can be covered under clause (a). The declaration contemplated by clause (a) is avail- able as 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od" may include not only solid substances but also a drink. Still the fact remains that whether a solid or a liquid, the substance called "food" should possess the quality to maintain life and its growth; it must have nutritive or nourishing value so as to enable the growth, repair or maintenance of the body. 17. The New Encyclopaedia Britannica (15th edition, Volume 25, page 49) states the 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 some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uices, soft drinks, beer, wines, or spirits. In general, these are appreciated more for their taste or for their effect than for their nutritive value. Fruit juices are, of course, useful for their vitamin C content and good sources of potassium while low in sodium. Coffee and tea by themselves are of no nutritive value, except that coffee contains some niacin and tea contains fluoride and manganese, but they may be a vehicle for intakes of sugar, milk, or lemon." 19.. It will 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serves for purposes of growth, work or repair and for the maintenance of the vital processes.' Then follows this explanation: 'Animals differ greatly from plants in their nutritive processes and require in addition to certain inorganic substances (water, salts, etc.) and organic substances of unknown composition (vitamins) not ordinarily classed as foods (though absolutely indispensable to life and contained in greater or less quantities in the substances eaten) complex organic substances which fall into three principal groups, proteins, carbohydrates 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vour, taste and its quality as a stimulant. The stimulating effect is caused by the presence of caffeine therein. "Tea" neither nourishes the body nor sustains or promotes its growth. It does not have a nutritional value. It does not help formation of enzymes nor does it enable anabolism. Tea or its beverage does not go into the preparation of any foodstuff. In common parlance, any one who has taken tea would not say that he has taken or eaten food. Thus, "tea" is not "food". It is not understood as "food" or "foodstuff" either in common parlance or by the opinion of lexicographers. 24.. The Central Government can delegate any of its statutory power 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the opinion, as recorded vide paragraph 16 of the impugned judgment, that-in this country it is too well-known that many a poor man who live under the poverty line take a cup of tea more as a food as it keeps them active for sometime and enables them to work. We cannot agree. It is a wrong assumption to say that many a poor man in the country take a cup of tea more as a food. The High Court has confused a mere stimulant with an article of food or foodstuffs. We have already dealt with in detail the issue that a drink or beverage which acts merely as a stimulant is not food. 29.. As we have held that the State of Tamil Nadu could not have promulgated an order under section 3 of the EC Act in the purported exercise of the power delegated by the Central Government to make an order applicable to tea, by wrongly assuming tea to be a foodstuff, the several provisions of the Tamil Nadu Scheduled Articles (Prescription of Standards) Order, 1977, must be held to be ultra vires the power of the State Government to the extent to which it makes provisions in relation to tea. The said order cannot apply to tea. 30.. In view of the abovesaid finding, it is not necessary to deal with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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