ORDER N.D. Ojha, J.
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) real 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 AM) 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This Order shall come into force with effect from April 2, 1974 and shall remain in force till August 14, 1974 unless withdrawn earlier.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 apointed 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 w,as 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. 2385 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 Bam 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.
3. 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/- 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,
4. 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 Dal-patpur 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. 22"5 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.
5. It was then urged that the impugned order was in violation of Article 19 of the Constitution. A similar argument was raised and repelled by the Supreme Court in the case of S. Ajit Singh, Writ Petn. No. 187 of 1966, D/-24-2-1967 (SC) (supra). It was held that if with -a view to maintain adequate supplies of milk, which is essential to the life of the community, restrictions are imposed against the manufacturer of commodities mentioned in the Order it cannot be said that the restrictions are unreasonable. The observations made in the aforesaid case apply equally to the instant case also and the submission made by learned counsel in this behalf must fail.
6. Learned counsel for the petitioners then submitted that the impugned order was beyond the power conferred on the State Government by Section 3 of the Essential Commodities Act which is the section under which the said order purports to have been issued. It was pointed out that the powers conferred by Section 3 can be exercised only if it is necessary or expedient to do so for maintaining or increasing supplies of any essential commodity or for securing its equitable distribution and availability at fair prices. It was pointed out that if liquid milk was the essential commodity to maintain the supply and securing the equitable distribution of which the order was issued, a provision could be made only in regard to liquid milk. Since the impugned order prohibits sale not of liquid milk but of the various products of liquid milk, it was invalid. According to learned counsel, the various products of liquid milk, for instance cream or khoa, could not be treated as liquid milk and no restriction as such could be placed in regard to the sale of these products. The argument even though attractive is on the face of it untenable. In Crystal Dairy Products v. Union of India, 1968 All LJ 740 at p. 741 the validity of Delhi, Meerut and Bulandshahr Milk and Milk Products Control Order, 1968, had been challenged. The said order, was held to be valid by this Court. After referring to the decision of the Supreme Court in the case of S. Ajit Singh, Writ Petn. No. 187 of 1966, D/- 24-2-1967(SC) (supra) it was held :
"It cannot be disputed that milk is an essential commodity and it is a very important item of food. In the judgment of the Supreme Court upholding the validity of the Punjab order, it was observed :
'In India and especially amongst the people who either do not eat non-vegetarian food or cannot afford it milk is the best of animal protein.' It is well known that liquid milk is essential for growing children and for the old and infirm people. It is also an admitted fact that the production of natural milk goes down considerably during summer months. It also cannot be disputed that if fresh liquid milk is diverted for use in the manufacture of milk products like cream, casein, skimmed milk, khoa, rubree, paneer or sweetmeats the availability of fresh liquid milk would be seriously affected."
7. If no prohibition was made in regard to diversion of liquid milk for purposes of manufacturing various milk products enumerated in the order the purpose of the order would have been defeated. Sections 3(1) and 3(2)(d) of the Essential Commodities Act make it clear that the power contained in the said section can be exercised for regulating or prohibiting the production, supply and distribution of the essential commodity and trade and commerce therein as also for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity. The power contained in Section 3 is very wide and could be legitimately used for imposing the restrictions contained in the impugned Order with a view to promote the purpose of the order. In Narendra Kumar v. Union of India, AIR 1960 SC 430 it was held :
"It is clear therefore that when Section 3 confers power to provide for regulation or prohibition of the production, supply and distribution of any essential commodity it gives such power to make any regulation or prohibition in so far as such regulation and prohibition do not violate any fundamental right granted by the Constitution of India."
It has already been held above that none of the fundamental rights which the petitioners claim to have been violated has been really violated by the impugned order. It cannot, therefore, be said that the impugned order has been issued be yond the powers conferred by Section 3 of the Essential Commodities Act.
8. It was then urged that at all events the order was bad in so far as the prohibition contained in Clause 3 (c) of the said order is concerned. In this connection it was pointed out that even though there was no prohibition contained in the said order in regard to the import 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, a prohibition in regard to sale, service or supply of the various milk products referred to above was imposed. According to learned counsel, there was no justification for making this prohibition inasmuch as if the various milk products mentioned in the aforesaid Sub-clause (c) were imported from any of the districts to which the impugned order was not applicable and were sold, served or supplied in the district of Moradabad it will in no way have any effect on either the supply or equitable distribution of liquid milk.
9. The Delhi, Meerut and Buland-shahr Milk and Milk Products Control Order, 1968, which had been challenged in the case of Crystal Dairy Products, 1968 All LJ 740 (supra) before this Court had also been challenged before the Delhi High Court in Civil Writ No. 250 of 1969 (Deep Chand v. Union of India) decided on 9-5-1969 (Delhi). A similar argument was raised before a Division Bench of that Court and H.R. Khanna, J. (as he then was) speaking for the Court, held:
"Lastly it has been argued that even if it was necessary to ban the manufacture of khoa and other milk products in the areas covered by the Order, there was no justification for banning the sale of sweats prepared with khoa after importing it from places like Jaipur, Alwar, Agra, M-athura, Aligarh, Muzaffarnagar, Moradabad, In this respect we find that the affidavit of Shri Santokh Singh shows that the districts of Meerut and Bulandshahr are the main sources of supply of khoa for Delhi and that Jaipur, Alwar, Agra, Mathura, Aligarh, Muzaffarnagar and Muradabad supply insignificant quantities of khoa that too occasionally. Be that as it may, there is one aspect of the matter which cannot be lost sight of. In case the sale of sweets manufactured with khoa imported from places outside the area covered by the impugned order was allowed, it would be difficult to enforce the provisions of the order and is bound to result in large scale circumvention of its provisions. The reason for that is that the khoa imported from outside places would not have any special mark to distinguish it from the khoa manufactured in Delhi. The restriction in those marginal cases would thus have to be upheld in order to ensure effective enforcement of the provisions of the impugned order. We may in this context refer to the case of Manoharlal v. The State of Punjab, AIR 1961 SC 418, wherein it was observed while upholding the validity of the provisions of the Punjab Trade Employees Act, "It may be pointed out that acts innocent in themselves may be prohibited and that the restrictions in that regard would be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with the character of unconstitutionality as being unreasonable. The provisions could, therefore, be justified as for securing administrative convenience and for the proper enforcement of it without evasion."
In view of the observations made above, with which I respectfully agree, the submission made by the petitioners' counsel in this behalf cannot be accepted. It was argued that the Supreme Court in Manohar Lal's case AIR 1961 SC 41S (supra) laid emphasis on "reasonable margin" and those observations could not be applied to the facts of the present case inasmuch as it cannot be said that the present case also is of reasonable margin. Suffice it to point out in this behalf that the Division Bench of the Delhi High Court held that cases in respect of which the restriction had been placed to be marginal cases and I have no reason to take a contrary view.
10. It was then urged that by using the word "serve" in Clause 3 (c) of the order a prohibition was made even in regard to service of the various milk products by a house-holder to the members of his family which in any view of the matter cannot be said to be reasonable. Firstly, the challenge to the impugned order by the petitioners who are carrying on the trade in various milk products is not on this ground. Secondly, the word "serve" has to be read in the context in which it has been used namely "sell, serve, supply or export or cause to be sold, served, supplied or exported." In my opinion, if a resident of Moradabad imports any of the milk products mentioned in Clause 3 (c) and uses it for his consumption and the consumption of his family members he will not be committing any breach of the order.
11. Learned counsel appearing for the petitioners in Writ Petition No. 2531 of 1974 made two more submissions, firstly, that no opinion had been formed by the State Government as contemplated by Section 3 of the Essential Commodities Act before issuing the said order. The argument cannot be accepted for the simple reason that there is no averment in this behalf in the writ petition so that the respondents could be called upon to furnish, details in respect of the formation of the opinion. As is apparent from the preamble to the order the requisite opinion had been formed and since no material has been placed by the petitioners to justify taking of a contrary view, the submission in this behalf must be repelled.
12. Secondly, it was urged that the order contained a prohibition only in regard to the preparation of butter or ghee from cream and since the petitioners were preparing these two items after extracting cream from milk, they have been virtually prohibited from carrying on their trade whereas no such prohibition has ibeen made in regard to those who were manufacturing butter or ghee by first preparing 'dahi' and then churning it. This argument also is devoid of any force. Firstly, the petitioners also can manufacture butter or ghee by preparing 'dahi' and churning it and secondly, as observed in the case of Crystal Dairy Products, 1968 AH LJ 740 (supra), "It may well be that the Central Government did not totally prohibit the manufacture of butter as the manufacture of butter by methods other than from cream did not significantly affect the availability of liquid milk and that it prohibited the manufacture of cream and, consequently, of butter through cream as a large proportion of liquid milk was ibeing used in the extraction of cream. It is true that the prohibition on the manufacture of cream seriously affects the rights of the petitioners and some others to manufacture butter out of cream, but the restriction is in the interest of general public for making liquid milk available to it. I am unable to hold that the impugned Order offends Article 19(1)(g) of the Constitution."
13. The various submissions made in their support having failed, both these writ petitions are dismissed but in the circumstances of the cases there will be no order as to costs.