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Gandhi IrwIn Salt Manufacturers Association and Etc. Etc. Vs. the Government of Tamil Nadu and Etc. Etc. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Food Adulteration
CourtChennai High Court
Decided On
Case NumberWrit Petns Nos. 20443, 20565, 20566, 21283 and 21485 of 1994 and 488 of 1995
Judge
Reported inAIR1996Mad109
ActsPrevention of Food Adulteration Act, 1954 - Sections 2 and 7; Constitution of India - Articles 14, 19(1), 162, 301 and 302; Central Excises and Salt Act, 1944; Gao, Daman and Diu Public Health Act, 1985 - Sections 53(1); Delhi Municipal Corporation Act - Sections 383; Central Excise Tariff Act, 1885; Salt Cess Act, 1953
AppellantGandhi IrwIn Salt Manufacturers Association and Etc. Etc.
RespondentThe Government of Tamil Nadu and Etc. Etc.
Appellant AdvocateA.L. Somayaji Sr. Counsel for;K. Srinivasan,;K.T. Paul Pandian,;R. Viduthalai,;Mr. Gopinath and;R. Ram Mohan, Advs.
Respondent AdvocateN. Jothi, Special Govt. Pleader assisted by ;D. Krishnakumar, Govt. Adv., ;K.R. Thiagarajan, A.C.G.S.S.
Cases ReferredBhagwan Dass v. Municipal Corporation of Delhi
Excerpt:
constitution - legislation - articles 14, 19 and 226 of constitution of india and central excises and salt act, 1944 - appeal challenging government notification - notification prohibits production and use of non iodized salt - impugned notification neither arbitrary nor unreasonable and violative of article 14 or 19 (1) (g) - notification issued in interest of public health in state and for good of people of state - impugned notification valid on all count - prohibition serves purpose of preventing harm and injury to public health preventing to iodine deficiency and thereby inevitably leads people to consume iodized salt - interpretation of social defence legislation cannot be narrowed so as to defeat object of act instead of advancing it - appeal dismissed. - section 16 (1) (c).....order1. since all these writ petitions are filed challenging the notification no. vi/ (2)/206/94 dated 29-8-1994 issued by the director of public health and preventive medicine-cum-state food (health) authority, more or less on similar facts and pleadings, and the counter affidavits filed by the respondents also are similar, these writ petitions are being disposed of by this common order as the questions that arise for consideration are substantially similar.2. briefly stated the facts as pleaded by the petitioners leading to the writ petitions are the following:--the petitioner in w.p. no. 20443/94 is a registered society and the writ petition is filed by the said society represented by its secretary giving the list of its members numbering 207. w.p. no. 21283 of 1994, federation is a.....
Judgment:
ORDER

1. Since all these writ petitions are filed challenging the Notification No. VI/ (2)/206/94 dated 29-8-1994 issued by the Director of Public Health and Preventive Medicine-cum-State Food (Health) Authority, more or less on similar facts and pleadings, and the counter affidavits filed by the respondents also are similar, these writ petitions are being disposed of by this common order as the questions that arise for consideration are substantially similar.

2. Briefly stated the facts as pleaded by the petitioners leading to the writ petitions are the following:--

The petitioner in W.P. No. 20443/94 is a registered society and the writ petition is filed by the said society represented by its Secretary giving the list of its members numbering 207. W.P. No. 21283 of 1994, federation is a registered society represented by its President having a total membership of 553 small scale manufacturers of ordinary common edible salt. Writ Petition No. 21485 of 1994 is filed by P. V. Rajendran, M.L.A., T. V. House, Vedaranyam, Nagapattinam Quaide-e-Milleth District. W.P. Nos. 20565 and 20566 of 1994 are filed by registered societies represented by their Secretaries giving the list of their members as 197 and 123 respectively. W.P. No. 488 of 1995 is filed by the Consumer Protection Council represented by its President which Council also is a registered society.

3. Members of the petitioners-Associations are manufacturers of common edible salt having their salt pans in and around Tuticorin in small areas varying between 2 cents to one acre. Salt is produced by natural process of evaporation by storing salinated water and allowing it to dry by evaporation and thereby producing salt crystals. Not only the members of the petitioners Associations but also several other hundreds of families and small manufacturers are engaged in the production of common salt by the aforesaid process in a small scale in and around Tulicorin. They have been carrying on this manufacturing of common edible salt for the last several decades entirely depending on this occupation, and they have no other trade. They are engaged in the manufacture of common edible salt against difficulties and odds both natural and manual. The climate condusive and congenial in making of salt occurs only for about four months a year between May and August. The average production of salt per year per acre is 200 mt. tonnes. The price per metric tonne is roughly Rs. 250/-. The entire turnover per year is about Rs. 50,000/- per acre. The cost of manufacturing including incidental wastages is around Rs. 25,000/-. Hence only a sum of Rs. 2000/- per month is earned by an average family producing salt having one acre of area for making salt by natural process.

4. The members engaged in the manufacture of salt as aforesaid by dint of persona! labour of the members of the family for several decades have been carrying on the occupation as the only source of livelihood. The salt produced by such persons account for almost 80% of the production of salt in the country. The traders engaged in the sale of salt used to go to the sites of salt manufacturers and take the produce viz., the edible common salt. The sale price also varies from season to season. The lands on which the salt is manufactured lie along the sea shore belonging to the Government and the members are lessees in respect of the said lands granted for the purpose of manufacturing common edible salt for the last several decades.

5. When things stood thus, the Government of Tamil Nadu has issued the impugned order banning sale of edible common salt other than iodised salt. As a result the traders engaged in sale of salt have clearly stated that they will not buy any salt except iodised salt from any one. The Assistant Salt Commissioner at Tuiicorin has also made it clear to the members of the petitioners Associations and all those engaged in manufacture of common edible salt that other than iodised salt cannot be carried on in view of the Government Notification. Copies of the said notification were handed over to the office bearers of the Associations only in the fourth week of October, 1994 along with copy of covering letter of Deputy Salt Commissioner, Madras dated 6-10-1994. It is only then the members became aware of the actual and entire contents of the impugned notification by the end of October, 1994. The petitioners-Associations and other manufacturers protested against the issuance of the impugned notification and made various representations to the respondents over the last two months prior to the filing of the writ petitions. Representations were made pointing out the various difficulties which will be caused to the small salt manufacturers and also about the illegality in the issuance of the impugned notification, but the respondents have not cared to consider any of the representations.

6. It is submitted that if the iodised salt is to be manufactured by any one, it involves huge expenditure, in that the machinery for iodising the salt to the required volume will cost about Rs. 2 lakhs which cannot be kept and stored and operated except in a big enclosure of pucca nature with the facility of electrical power. The iodine which is used in the manufacture of iodised salt is not indigenously manufactured in India. It is imported primarily from United States of America at a very high cost. Hence an ordinary and average salt manufacturer cannot afford either the money or other requirements needed for the manufacture of iodised salt. It is only very big companies that can afford to these. Further enough number of machineries for the manufacture of iodised salt have also not been produced in the country. In view of all these it is simply impossible for the small salt manufacturers like the members of the petitioners-Associations to manufacture iodised salt. In other words unless they are allowed to continue to manufacture ordinary common salt their enterprise will the out immediately and they will be put out of their occupation.

7. The impugned order by itself does not contain any reason for prohibiting the sale and consumption of common edible salt other than iodised salt in the State of Tamil Nadu. The Notification issued under S. 7(iv) of the Prevention of Food Adulteration Act, 1954 (for short, the Act) is issued purposely. The power to prohibit the sale of any commodity under the said section can be exercised only when the particular commodity is shown to be injurious or harmful to human health. Otherwise there is no power to issue such a notification under the said provision. If a notification is issued for the purpose for which it can be issued, it will amount to a reasonable restriction on the sale of a particular commodity, if not it will not only be unreasonable but also impermissible in law, besides it is ultra vires of the provision itself. It is not the claim of the respondents in any of the notifications or communications or even the propaganda material that the intake of non-iodised common edible salt is injurious or harmful to health. Hence neither themanufacture nor sale of such salt can be prohibited by virtue of the impugned notification under the provisions of the Act.

8. The reasons contained in the Government propaganda material for introduction of iodised salt is that certain areas of Tamil Nadu particularly the foot hills are 'goitre-endemic'. In other words a clinical condition known as 'goitre' which occurs if there is iodine deficiency in the diet of an individual is prevalent in these areas. Consequently people living in such areas developed a disease called 'goitre'. The propaganda material further says that due to iodine deficiency another condition called 'kretmism' also occurs in children. The claim of the Government is that introducing iodised salt compulsorily will prevent such disease caused by iodine deficiency. It is submitted that salt is not the only medium through which iodine is to be given. It can also be given to the people in the form of tablets and capsules who need iodine. Nothing prevents the Government from subsidising the manufacture and sale of such produce containing iodine.

9. Assuming that iodised salt is needed to meet effectively the iodine deficiency, both the common edible salt as well as iodised salt may be made available, without compulsorily putting the salt manufacturers out of the business. There is no positive or scientific evidence that there is iodine deficiency in the entire State of Tamil Nadu. In fact the Slate of Tamil Nadu had not been notified as 'goitre endemic', even by the earlier notification issued by the Government of India pursuant to a study and research undertaken by experts. It recognises only the Districts of Nilgiris and Tiruchirapalli that too only in parts of these two districts. The impugned notification is not supported by statistics to demonstrate that unless iodised salt alone is allowed in Tamil Nadu there will be the epidemic of 'goitre and 'kritinism.

10. It is claimed that the impugned order is issued to benefit a few monopoly salt manufacturers who have big money power to manufacture and market iodised salt. The policy of the Government has been framed upon collateral considerations at the behestof private vested interests such as Tatas who want to have a monopoly created in their favour in respect of salt business to the exclusion of others The impugned notification affects the rights oi the members engaged in manufacture of common edible salt, and it also affects the citizens who are consumers inasmuch as they have to pay more for iodised salt when compelled having no choice for purchasing common edible salt. Either under the Act or Rules, nowhere common edible salt has been described as harmful or injurious to health. Hence it cannot be eliminated from the market. The impugned notification really leads to permanent closure of the manufacture and sale of common salt other than iodised salt which is not permissible, as the Act and Rules do not provide for a total ban of commodity, i.e., the common salt. The Notification issued by the Executive in the absence of any such power vested in them is violative of Articles 19(1)(g), 301 and 302 of the Constitution of India.

11. It is submitted that the use of common edible salt is not intended only for human consumption. It has got varied uses. It is commonly used as a preservative in maintaining fish from being affected by the atmosphere, in tanning industries, and also as a preservative in the chemical, fertilizer industries. For treating the common salt with iodine huge amount of investment is necessary and it may not be practically possible for small manufacturers to buy the equipments at the huge cost of Rs. 6 lakhs. On account of the same the small farmers are to depend on the big manufacturers of salt and they may not be able to get a fair price.

12. The petitioners contend that the impugned order is violative of Art. 19(1)(g) of the Constitution of India as it takes away the fundamental right of the members of the petitioners-Associations and other small manufacturers to carry on their occupation, trade and business in the manufacture of edible common salt, and puts them completely out of business as the restriction imposed is unreasonable and irrational. In effect the impugned notification does not impose a restriction but leads to destructionof the trade and business of the members of the petitioners-Associations. The impugned order is also violative of Article 21 of the Constitution as it takes away the only source of livelihood of the members engaged in manufacture of common edible salt. It is also opposed to Art. 14 of the Constitution. As a result of the pressure from the powerful vested interests in order to create & monopoly in their favour in respect of salt business the impugned order is issued.

13. It is ultra vires of the provisions of the Act. Under S. 7 of the Act, manufacture and sale of common edible salt could not have been prohibited as it is not shown to be or even claiming to be injurious or harmful to public health as an adulterant within the meaning of the said Act. The impugned order is violative of the principles of natural justice as large number of persons who are engaged in the manufacture of common edible salt have not been given any opportunity to make representation. It is also detrimental to the public interest and welfare as the common man and consumer is compelled to pay more price for a particular variety of edible common salt. Under S. 7(iv) there could not be a blanket ban for manufacture and sale of common edible salt forever. Thus 'the impugned notification is ultra vires of the section itself.

14. A counter affidavit is filed on behalf of respondents 1 and 2 in W.P. No. 20443 of 1994, contending that the Government of Tamil Nadu are very keen in implementing the National Iodine Deficiency Disorder Control Programme ail over the State by banning the sale of non-iodised salt for human consumption. Year after year due to floods and rains, the surface of the soil gets eroded and it becomes deficient in iodine which is required as a micro nutrient in small quantities through dietary intake in maintaining health. Iodine deficiency leads to goitre, mental retardation, abortion, etc. Surveys conducted by the Public Health Department in Tiruchirapalli and Nilgiris Districts revealed that 'goitre' as an endemic disease is quite common due to the iodine deficiency. Therefore the Director of PublicHealth and Preventive Medicine, Madras who is the State Food (Health) Authority, has issued the notification banning the use of common edible salt in the above two districts in order to promote the use of iodine salt only in the Tamil Nadu Government Gazette Notification dated 5-5-1993.

15. The random survey conducted in selected Districts of Madurai, Dmdigul, Salem and Dharinapuri revealed that 'goitre' was found to be prevalent in Tamil Nadu and the easier method of providing iodine is to use the iodised salt in the piace of common salt, to prevent the disorder due to iodine deficiency. Hence the Government of Tamil Nadu have decided to ban sale of non-iodised salt throughout the State with effect from 1st January, 1995. It is also decided to take Field Surveys after a few years to assess the health status and take suitable action accordingly. The provision of iodised salt involves mixing a small quantity of potassium iodate with common salt by one or more processes. The process does not involve huge cost or problems as contended by the petitioners. The continuous spray mixing process requires a plant which costs about Rs.75,000/- to Rs. 90,000/-, for an installed capacity of 10 to 15 tonnes per hour. The plant could be worked either with the help of a diesel engine or electricity, and could be made mobile by mounting the chassis on pneumatic wheels. The plant is made by two fabricators in Tuticorin itself. There is no need for a pucca structure to use the mobile plant, and when not in use it could be protected by covering with a tarpauline.

16. It is admitted that iodine is imported for want of indigenous source, not only for conversion into potassium iodate used for the production of iodised salt but also for the production of other pharmaceutical preparations like iodex etc. Iodine is imported mainly from Japan and not from the United States of America. It is denied that the companies run by Tatas have the licence to import iodine for production of iodised salt. Iodine is imported by as many as 20 companies in Gujarat, Tamil Nadu and Pondicherry who convert such imported iodine into potassium iodate andsupply to the iodised salt producers. None of these companies have any relation with Tatas. It is also denied that enough number of machines for the manufacture of iodised sail have not been produced in the country. There are as many as 15 fabricators of iodisation plants who can supply any number of plants needed. As a matter of fact India has been exporting salt iodisation plants to several other countries. Tamil Nadu itself has five fabricators of salt iodisation plants of which two are in Tuticorin itself.

17. The impugned notification does not prevent manufacture of common salt. The petitioners or others can also produce common salt after 1st January, 1995, and they can supply such salt for industrial or other non-edible use such as manufacture of caustic soda, soda ash, water softening, refrigeration, fish curing, tanning, agriculture, etc. Only when the manufacturer wants to sell the salt for edible use it has to be iodised. The aim of the Government is to prohibit the sale of common edible salt to protect the common people in general. Otherwise due to deficiency of iodine contents in the salt, (1) the children will be affected by (i) lowered I.Q., (ii) impaired learning and pre-school performance, (iii) mental retardation, (iv) delayed motor development, and (v) growth failure of stunting, lack of energy, muscular disorders, paralysis, speech defects, hearing defects, and (2) adults will be affected by (i) lack of energy, (ii) tire easily, and (iii) reduced productivity. Further the pregnant women would be very much affected by spontaneous abortions, still births, infant deaths, interference with brain development of foetus. The Government has carefully considered the above facts before prohibiting the sale of common edible salt.

18. Universal iodisation of salt which is both preventive and corrective measure for iodine deficiency is a vital necessity in India today. In fact India is one of the major endemic iodine deficient countries in the world. No State in the country is free from the ill effects of iodine deficiency. The highest consultative body at the national level is the Central Council for Health and Family Welfare which has discussed about theimportance of iodisation of salt and found that iodine deficiency disorders is a major health problem in India. Salt has been accepted as the most suitable medium for introduction of iodine into other diet for a number of reasons. It is one of the few commodities that comes closest to bring universally consumed daily by all sections of society irrespective of economic level.

19. It is submitted that there are more than 500 salt iodisation units in the entire country producing over 30 lakh tonnes of iodised salt. Tata is one among them producing 1.5 lakh tonnes. All the remaining plants are set up and worked by individual salt manufacturers, traditional salt traders and co-operative societies. Out of them 150 are by small scale salt producers. Even in Tamil Nadu out of 52 plants already functioning, 17 plants are set up by co-operative societies of small scale salt manufacturers. Hence the petitioners' apprehensions are baseless.

20. It is denied that the impugned notification affects the occupation, trade and business of the small manufacturers of common edile salt. They can continue to produce common salt and supply it for non-edible use even after 1st January, 1995. The petitioners' statement that iodised salt is sold at Rs. 7.00 to 6.00 per kilogram is incorrect. Even the refined and free flowing varieties of iodised salt like 'Captain Cook', 'Kristal1, Sprinkle' etc. are available at retail price not exceeding Rs. 2.00 to Rs. 2.50 per kilogram. The impugned notification is not violative of Article 19(1)(g) of the Constitution as the sale of iodised salt does not affect the fundamental right of the petitioners. Sale of common edible salt alone is prohibited in the interest of public health. Manufacture of common salt is not prohibited as it can be used for other purposes like chemical industries etc.

21. S. 7(iv) of the Act authorises the competent authority to ban the sale of common edible salt as an item of food in the interest of public health. The impugned notification is not violative of the principles of natural justice. The Government need not call for any representation from the manufacturersif it affects the very health of common people, in general and so the Government has taken a policy decision and published the Notification after a careful consideration of all the facts in view of the compelling circumstances. It is denied that the impugned Notification was issued upon oblique and irrelevant consideration. It was issued with the sole aim of protecting the people in the interest of public health.

22. In May, 1990 the fourth World Health Assembly passed a resolution commending the Governments, Inter Governmental and bilateral agencies and non-Governmental organisations for their efforts to prevent and control iodine deficiency disorders. The Assembly decided to aim at ehminating idoine deficiency disorders as a major health problem in all countries by the year 2000. In Sept. 1990 the historic World Summit for Children convened by United Nations adopted a plan of action in this regard. The Government of India's commitment to universalise iodisation of salt by 1995 and eradication of idoine deficiency disorders by the year 2000 was reflected in the South Asian Association for Regional Co-operation Conference held in Colombo in Sept. 1992. It is also stated that the petitioners and the members of the association had all the opportunity to ask the authorities for assis-tance if they wish to go in for production of iodised salt. In fact they were given such opportunities twice. Thus according to the respondents 1 and 2 the petitioners cannot make any grievance and hence the writ petitions have no merits and they are liable to be dismissed.

23. The Deputy Salt Commissioner, the third reepondent in W.P. No. 20443 of 1994 has filed a counter affidavit stating that there will not be a total ban on sale of common salt, and the ban is only in respect of selling common salt meant for edible purpose. He is not aware of the details and particulars and the constitution of the petitioner society. It is learnt that the lease of the land held by the petitioner and members of the association he represents has expired in June, 1983 and therefore they have no lawful right to the land they arc using for salt manufacturewhich is a prime criterion for enjoying exemption from the requirement of obtaining a licence under the Central Excise and Salt Act, 1944.

24. It is denied that the climatic conditions conducive to manufacture of salt occur only for about four months in a year i.e., from May to August. It is correct in the case of rain prone areas in West Bengal, Orissa, Maha-rashtra, Karnataka and North Tamil Nadu, but in Tuticorin area of Chidambaranar District where the petitioners -- Association members are having their salt pans the climatic condition remains dry for almost ten months. The concession granted by the Government of India with regard to small scale salt manufacturers as a sequel to the Gandhi Irwin pact is greatly abused in and around Tuticorin. Several of the so-called small scale salt manufacturers are in fact holding areas in excess of the area exempted from the purview of licensing under the Central Excises and Salt Act. Several so called small scale salt manufacturers are engaged in exports of salt to foreign countries and the total output from the non-licensed sector far exceeds than from the licensed sector, particularly in Tuticorin area.

25. It is submitted that Tamil Nadu Government's intention to ban the sale of non-iodised salt for edible purposes through out the State was expressed by the Chief Minister in the third week of July, 1994 and the said statement was widely published in all the newspapers in Tamil Nadu. Immediately after the issue of necessary notification by the Tamil Nadu Government on 29-8-1994 the Salt Commissioner to the Government of India who is the Nodal agency for ensuring the production of the required quantity of iodised salt in the country convened a meeting of all the salt manufacturers including the non-licensed salt manufacturers at Tuticorin on 4th Sept. 1994 at which he exhorted the salt manufacturers and the traders dealing in salt meant for edible use, to help the State Government by producing and marketing ony iodised' salt for edible purpose with effect from 1st January, 1995. The Sail Commissioner also assured them of all possibleassistance and requested them to come up with the type of assitance they needed, but they did not come up with any concrete proposals except protesting Government's public health policy in the matter of eliminating iodine dificiency disorders.

26. It is not correct to say that converting of common salt into iodised salt involves machinery costing Rs. 2,00 lakhs and cannot be operated except in a big enclosure of pucca nature with the facility of electric power. The fact is production of iodised salt invoke mixing a small quantity of potassium iodate with common salt by one or more of the following processes, viz.,

(a) The continuous spray-mixing process requires a plant which costs about Rs. 75,000/- to Rs. 90,000/- for an instaiied capacity of 10-15 tonnes/hour. The plant could be worked either with the help of a diesel engine or electricity and could be made mobile by mounting the chassis on pneumatic wheels. The plant is made by two fabricators in Tuticorin itself. There is no need for pucca structure to house the mobile plant and when not in use, it could be protected by covering with a tarpauline.

(b) A batch type of spary-mixing plant costs around Rs. 50,000/- depending on the capacity.

(c) A submersion process plant involves brick-masonry tanks which could be constructed at much lower price.

(d) A drip-feed system for production of iodised salt involves an additional expenditure of only about Rs. 500/-, provided the concerned common salt producer already has a crushing mill/grinder, which costs about Rs. 35,000/-.

27. A number of salt manufacturers bothin the licensed and non-licensed sectors and traders are already producing iodised salt at Tuticorin and other places in Tamil Nadu by adopting one of the above processes. It is ture that iodine is imported by India for want of an indigenous source, not only for conversion into potassium iodate used for the productionof iodised salt, but also for the production of other pharmaceutical preparations like iodex, erithromycine etc. from Japan and not from United States of America as alleged. With regard to the allegation that company run by Tatas will have monopoly, the stand of this respondent is similar to the stand of respondents 1 and 2 stated in their counter affidavit.

28. It is further submitted that the common salt has not been banned becuse it is harmful or injurious to health, but the Government, in wider public health interest wants the public to consume iodised salt in the place of common salt. Iodised salt is nothing but the same common salt to which a small quantity of potassium iodate is added to a level of 50 parts per million parls of salt so as to provide a much needed essential micro nutrient 'idoine'to the population. The third respondent has also given the details of iodine deficiency disorders. Further UNlCEF's report entitled 'The State of World's Children, 1994' is quoted which is as follows:--

'It is now estimated that nearly 1.6 billion people in over 110 Nations are at risk and that some 300 millions suffer from lowered mental ability. Some 566 million -- about 10% of world's population and more than double the previous estimate -- suffer from goitre, the telltale swelling of the thyroid gland at the throat.'

'Because their mothers lack iodine, at least 30,000 babies are still-born every year and over 120,000 are born cretins mentally retarded, physically stunted, deaf-mute or paralysed. Many more have 1. Qs. at least 10 points below their potential. Even when bom normal, young children whose diets are low in idoine are held back by reduced intelligence, and live out their lives trapped in mental dullness and apathy. In this way, the lack of idoine locks entire communities into poverty and under-development, less able to learn in their childhood, less able to earn in their adulthood.'

'The solution --iodizing all salt supplies -- is relatively simple and costs only about 5cents per person per year. Within a year of iodised salt becoming the norm, no more cretins are born and goitres begin to shrink. Children develop energy and perform better at school' (Panel 8, p. 26).

29. The third respondent also states about the global decisions aiming at eliminating Iodine Deficiency Disorder (I.D.D.) as a major health problem in al! countries by the year 2000, and the Government of India's policy of 'Health for all by 2000 A.D.' The common salt has come to be considered as the best, cheapest and sure way of dietary supplementation of iodine, inasmuch as it is the only item of food consumed by all Sections of the population every day and in fairly regular quantities. About 120 countries of the world have been implementing the salt iodi-sation programme. It is submitted that in countries where the level of ignorance and illiteracy among the population is high, it is impossible to achieve the desired results in eliminating iodine deficiency disorders, if both varieties of salt is made available in the market as suggested by the petitioners.

30. The impugned notification is based on sound medical advice that consumption of iodised salt even by those not needing additional iodine is not harmful. It is neither necessary that every Doctor should agree with the iodised salt programme nor it is the case that all Doctors have full knowledge of the subject. Allergic reactions to iodised salt are extremely rare either in India or abroad. The fears voiced by the petitioners in this regard are unfounded and are only meant to frustrate the weil-intentioned health policy of the Government. The Government of Tamil Nadu's action in introducing ban is in the interest of the public health and has no oblique or collateral reasons as alleged by the petitioner. It is emphatically denied that the Government of India or the Government of Tamil Nadu have introduced the salt iodi-sation programme to create a monopoly in salt business. The stand of this respondent is similar to the stand of respondents 1 and 2 in this regard.

31. It is stated that the petitioners' contention that the impugned Notification affectsthe occupation, trade and business of the members of the petitioners-associations is not correct. They can continue to produce common salt and supply it for non-edible uses even after 1-1-1995. The Government's 'intention in issuing the Notification is only to make available to the entire population the same common salt mixed with micro nutrient like iodine to prevent iodine deficiency disorders.

32. The impugned notification issued by the Government of Tamil Nadu is perfectly legal and valid based on the interest of public health. The impugned notification does not take away the rights of the petitioners or their members to continue to manufacture common salt. It only urges them to blend the common salt with iodine compound before supplying for edible purposes. Similarly it does not take away the source of their livelihood. If they do not wish to set up iodisation plants for reasons of their own they can sell the common salt produced by them to any one of the 30 old plants set up by traders in Tuticorin area who will handle the iodisation themselves, or the common salt may be supplied for industrial use. The provisions of the Act authorise the competent authority to ban the sale of common salt as an item of food in the public health interest, and allow, in its place the sale and distribution of only iodised salt which is more beneficial to the public health.

33. In India 18 States and 4 Union Territories have completely banned non-iodised salt, and a partial ban exists in three States. No untoward effects of years of consumption of iodised salt have been reported from these States. In fact the States who have hitherto imposed a partial ban have expressed their intention to cover the whole of their territories by the ban in early 1995. Hence the apprehensions voiced by the petitioners are unfounded. Thus on the statements made in the counter affidavit the third respondent has prayed for dimissal of the writ petition.

34. Respondents 3 and 4 i.e., the Deputy Salt Commissioner and Assistant Salt Commissioner have filed counter affidavit inW.P. No. 20565 of 1994 which is similar to the one filed by respondent No. 3 in W. P. No. 20443 of 1994.

35. The respondents produced amended Notification published in Tamil Nadu Government Gazette Extra-ordinary, published on 12th January, 1995. In the said Notification it is stated that in the impugned notification dated 29th August, 1994 the duration of the said prohibition of sale of common edible salt other than iodised salt in the State of Tamil Nadu was not indicated, and the said amendment to the Notification is issued to limit the said prohibition between the period from 1st January, 1995 to 31st Dec. 1999, and in all other respects the impugned notification is retained.

36. Shri K.T. Pal Pandian, the learned senior counsel for the petitioner in W.P. No. 20443 of 1994 nreued that,

(i) The impugned order being unreasonable as it does not stand the test of reasonableness under Art. 19(1)(g)(6) of the Constitution, the said order is violative of Art. 19(1)(g) seriously affecting the rights of the petitioners;

(ii) The manufacture, supply and distribution of salt and control and regulation thereof by private agencies fall in Entry 58 of List I of seventh schedule whereas the Food Adulteration Act has been enacted with reference to Entry 18 of the concurrent list. Hence the Prevention of Food Aulteration Act cannot control or in any manner encroach upon the subject matter provided in Entry 58 of List 1. Therefore the impugned order is void. Further manufacture, supply and distribution of salt is governed by the Central Excise and Salt Act, 1944 and the Salt Cess Act, 1953 which are traceable to Entries 58 and 84 of List 1. The rights of ordinary proprietor of existing salt works as well as rights of manufacturing salt is recognised under the said Act. The rules framed thereunder require licence for manufacturing natural salt. Now by virtue of Central Excise Tariff Act, 1885, excise duty on salt has been abolished. Thus the right to manufacture, supply and distribution of common salt is a recognised right in every citizen. Such a rightcannot be abrogated or eclipsed or suspended by the impugned order, the object of which is to make provision for prevention of adulteration of food stuffs.

(iii) In any event, under Section 7(iv) of the Prevention of Food Adulteration Act, 1954 (for short, the Act), the power to prohibit manufacature and sale of common salt cannot be spelt out. The said Section contains six limbs. Sub-sections (i), (ii), (iii), (v) and (vi) deal with specific heads. If under the rules the sale of an article of food is prohibited, the prevention thereof will be covered by clause (v). As such there is no scope for invoking Section 7(iv). Hence the intendment of Section 7(iv) should be somelhing other than what is contemplated under Section 7(i), (ii) (iii) (v) and (vi). If an article of food is dangerous or harmful or injurious to public health, it may be prohibited for the time being by the food (Health) Authority under Section 7(ii) of the Act. If considered in the proper perspective the power to prohibit the sale of salt cannot be traced to Section 7(iv). However, if under any extraordinary and exceptional circumstances it is found that any production will get contaminated or polluted by reason of natural or other calamities, in that event the sale will be prohibited. Even there what is to be prohibited is not common salt, but will be a produce other than common salt mixed with common salt.

(iv) The term 'public health' occurs in Entry 6 of List II of the Constitution of India. Under Section 7(iv) of the Act 'public health' would be read in contra distinction with Entry 6 of the State List. In this view, 'public health' contemplated under Section 7(iv) of the Act cannot be anything other than that which is injurious to public health.

(v) The impugned order being unreasonable is violative of Art. 19(1)(g) of the Constitution. It is submitted that the right to manufacture, sale and distribution of common salt is regulated under the Central Excise and Salt Act, 1944 (for short, 1944 Act), and Salt Cess Act, 1953 (for short, 1953 Act). The right is assured to all citizens. It cannot be held that the restriction now placed by the impugnd order is reasonable because one setof enactments permit and allow manufacture and sale of common salt, and under another enactment it is made impermissible. He also placed reliance on the decision in 'Dinesh Chandra Jamnadas Gandhi v. State of Gujarat/ : 1989CriLJ889 .

37. Shri A:L. Somayaji, the learned Senior Counsel for the petitioner in W.P. Nos. 20565 and 20566 of 1994 also urged that the impugned Notification offends Article 19(1)(g) of the Constitution; The prohibition of sale of common edible salt imposed under the said Notification is an unreasonable restriction; it being arbitrary is violalive of Art. 14 of the Constitution. According to him no proper investigation was done before such a measure was adopted. Under Section 7(iv) the prohibition could not have been imposed for sale of edible common salt other than iodised salt for an indefinite period; if at all such a prohibition could be imposed, it could be only lor a limited period to serve a definite purpose.

38. Shri R. Viduthalai, learned counsel for the petitioner in W.P. No. 21283 of 1994, while adopting the arguments of Shri K.T. Pal Pandian, the learned senior counsel, supplemented stating that,

(i) The State Government or its Officers are not competent to prohibit the sale of common edible salt since it falls under the exclusive rule making power of the Central Government;

(ii) Section 7(iv) of the Act is not an enabling provision for issuing the impugned notification prohibiting sale of a food article; the section is only penal in nature; and no substantive power to issue notification is contained in that section. Section 16(1)(a)(i) also fortifies this submission. In this regard he cited the decision viz. 'Bhagwan Dass v. Municipal Corporation of Deihi : AIR1995Delhi17 ;

(iii) The impugned Notification is opposed to the doctrine of legitimate expectation and hence it is arbitrary and violative of Art. 14 of the Constitution of India. He placed reliance on the cases viz., (i) : AIR1993SC1601 ; (ii) AIR 1994 SCW 3482 and (iii) : 1992(60)ELT674(SC) ;

(iv) The impugned Notification is violative of An. 19(1)(g) of the Constitution of India; restrictions could be imposed by law and not by an executive instruction; restrictions are not reasonable; and when a total ban is imposed the onus is on the State to justify. He also cited two decisions relating to the test of reasonableness.

(v) The impugned notification is arbitrary and ultra vires of Art. 14 of the Constitution inasmuch as no proper preliminary investigation was done in accordance with law, and no provision for appeal against the order of the Food (Health) Authority is provided. In this regard he cited : [1960]2SCR375 and : [1985]3SCR614 .

The other carried counsel for the petitioners while adopting the above arguments, reiterated the grounds raised in the writ petitions, and argued in support of those grounds.

39. Shri N. Jothi, the learned Special Government Pleader argued in support and justification of the impugned order on the basis of the counter affidavit filed on behalf of respondents I and 2. He explained under what circumstances the impugned Notification was issued and how it was in the interest of the public health. At the hearing he also produced amendment to the impugned Notification published in the Tamil Nadu Government Gazette, Extraordinary, dated 12-1-1995 under which the period of prohibition of the sale of edible common salt other than iodised common salt in the State of Tamil Nadu is limited to the period from 1st January, 1995 to 31st Dec. 1999.

40. The learned Special Government Pleader also produced some papers prepared by the Director of Public Health, Government of Tamil Nadu, and Deputy Salt Commissioner, Government of India, as well as by the Salt Department, Ministry of Industry with the support from UNICEF to highlight about the national idoine deficiency disorder control programme and on banningof sale of edible non-iodised salt as an urgent measure, copies of which were also given to the learned counsel for the petitioners. He submitted that almost all the States and Union Territories in the country have issued Notifications like the impugned Notification except a few states and few union territories. It is a measure taken in the interest of the public health.

41. He further submitted that the Notification does not prevent manufacture of common salt. The petitioners and others can also produce common salt and supply such salt for industrial or other non-edible use such as manufacture of caustic soda, soda ash, water softening, refrigeration, fish curing, tanning, agriculture etc. Only when the manufacturer wants to sell the salt for edible use it has to be iodised. The aim of the Government is to prohibit sale of common edible salt to protect the common people in general. The production of iodised salt involves mixing of a small quantity of potassium iodate with common salt by the one or more processes. The process does not involve huge cost or problems. Universal iodisation of salt is both preventive and corrective measure for iodine deficiency. In fact India is one of the major endemic iodine deficiency countries in the world. He submitted that the impugned Notification does not affect the occupation, trade and business of the small manufacturers of common edible salt like the petitioners. They can continue to produce common salt and supply it for non-edible use. Section 7(iv) of the Act authorises the competent authority to ban the sale of common edible salt as an item of food in the interest of public health. The impugned Notification is not unreasonable. It is also not violative of the principle of natural justice. The Government need not call for any representation from the manufacturers if it affects the very health of common people and so the Government has taken a policy decision and published the impunged notification after careful consideration of all aspects in view of the compelling circumstances.

42. He further submitted that there was no oblique motive in issuing the impugnednotification. It did not aim at creating a monopoly as alleged by the petitioners in favour of anyone big industry. He submitted that there is no conflict between the provisions of the Act, 1944 Act and 1953 Act. These acts operate in the respective fields. He fairly submitted the only source of power for the impugned Notification is Section 7(iv) of the Act. Thus he submitted that the impugned notification which is issued under Section 7(iv) of the Act, in the interest of the Public Health of the State cannot be dubbed as either unreasonable or violative of Art. 14 or 19(1)(g) of the Constitution of India,

43. Shri K. R. Thiagarajan, learned Additional Central Government Standing Counsel appearing for the respondents 3 and 4 urged that there will not be a total ban on sale of common salt and the ban is only in respect of selling of common salt meant for edible purpose. The Sait Commissioner to the Government of India who is a Nodal agency for ensuring the production of the required quantity of iodised salt in the country convened a meeting of all the salt manufacturers including non-licensed salt manufacturers at Tuticorin on 4th Sept. 1994 and appealed to help the State Government by producing and marketing only iodised salt for the edible purpose with effect from 1st January, 199*5, He also submitted that converting common salt into iodised salt does not involve machinery costing two lakhs rupees and he denied that it cannot be operated except in a big enclosure of pucca nature with the facility of electric power.

44. He further submitted that number of salt manufacturers both in the licensed and non-licensed sectors and traders are already producing iodised salt at Tuticorin and other places in Tamil Nadu. The impugned Notification issued is based on the sound medical advise; the consumption of iodised salt even by those not need any additional oidine is not harmful. He stated that in India 18 States and four Union territories have completely banned non-iodised salt, and a partial ban exists in three States. The States who have hitherto imposed a partial ban have expressedtheir intention to cover the whole of their reitories. On other aspects he adopted the submissions of the learned Special Government Pleader.

45. I have carefully considered the submissions made by the learned counsel for the parties.

46. From the respective pleadings of the parties and rival submissions of the learned counsel for the parties, broadly speaking the following two points arise for consideration:-

i. Whether Section 7(iv) of the Act did not authroise the competent authority- to issue the impugned Notification?

ii. Whether the impugned notification violates and offends Arts. 14 and 19(1)(g) of the Constitution of India.

47. I have given my anxious consideration to the materials available on record and the submissions made relating to the questions raised above.

48. Before I proceed to discuss on the aforementioned points. 1 think it is appropriate to give briefly the background leading to the issue of the impugned notification, on the basis of the papers placed on record, for a proper appreciation in the proper perspective as to the controversies raised:-

(i) Iodised salt is nothing but the same common salt which we have been eating for centuries now, but blended with a very small (Conld. on col. 2)amount of Potassium lodate, in the ratio of 50 parts of the Iodine compound in ten lakh parts of common salt. Thus the iodine compound added to salt is a small quantity that will have no effect on the colour, smell or taste of salt.

(ii) Among the elements that are needed by the human body, iodine is one. It is one of the approximately 50 'nutrients' needed by the human body 'for optimal growth, development and maintenance of its celluar mass'.

(iii) An essential part of the human body, the Thyroid Gland lies in the neck region. It produces two important hormones, Thy-roxine (T-4) i.e., Tetra-ldo Thyronine, and Tri-Iodo Thyronine (T-3) which contain four and thre atoms of Iodine respectively. For the synthesis of these hormones Iodine is essential. In fact the foetal Thyroid Gland develops from the 12th weeks of gestation and begins to concentrate Iodine at about 18 weeks, and needs a regular supply of maternal iodine. Thus the pregnant woman needs extra iodine for her thyroid to function properly, but also to be able to supply iodine to the foetus. Non supply of the required iodine could result in disaster.

(iv) A low availability of Iodine to the Thyroid gland through the natural and adventitious sources is held to lead to several disorders, called as 'Iodine Deficiency Disorders (I.D.D.). The following table gives the spectrum of I.D.D.:--

Foetus...Abortions Stillbirths Congenital Anomalies Increased Perinatal Mortality Increased Infant Mortality Neurological Cretinism - - menial deficiency - deaf-mutism - spastic diplegia - quint Myxedemalous Cretinism - - dwarfIsm - mental deficiency Psychomotor defectsNeonate...Nconated Goitre Neonatal HypothyroidismChild & Adolescent...Goitre Juvenile Hypothyroidism Impaired Mental function Retarded Physical developmentAdult...Goiire with its complications Pynothyroidism Impaired mental function.

(v) The single major natural sources of Iodine is the Sea. Every year large quantities of Iodine escape into the atmosphere and is brought back to the earth by rains. Such iodine gets trapped in the top soil. Food crops absorb iodine from the soil and provide us our daily requirements. But where the area is subject to heavy rains and floods, Iodine gets leached away and the soil becomes Iodine deficient. Excessive use of chemical fertilizers and deforestation also cause iodine defin-ciency. Indirect sources of iodine includes health foods, cough mixtures, antacids, medi-cinalvitaman capsules which are available only to the popluation with a higher standard of living. The vast majority of population to depend on the natural source. The best and effective common source is iodised salt for edible purpose day-to-day.

(vi) Goitre (an enlargement of the Thyroid Gland), most common physical manifestation of Iodine deficiency, is there since a very long time. But the knowledge of the cause of I.D.Ds. is of recent origin.

(vii) Goitre prevalence surveys revealed that no State in the country is free from I.D.D. Consumption of iodised salt by all is the most suitable, long term and sustainable solution to prevent the wide spectrum of I.D.D.

(viii) The strategy of iodisation of salt has been adopted by the Government of India for prevention of I.D.D. since early 1960s, but the decision to adopt legal measures in the form of issuing ban notifications was started during the 1970s.

(ix) The Government of India launched the national Goitre Control Promgramme in1962. Till the mid 1970s consumption of iodised salt was mandatory only in the State of Jammu and Kashmir, Himachal Pradesh and one or more districts in each of the States of Haryana, Punjab, Utter Pradesh, Bihar and West Bengal. As surveys progressed more areas were found to be endemic to goitre. Ai this time it came to be recognised the world over that the goitre was not the only result of idoine deficiency but in fact was responsible for various other disorders. The teclinical Goitre Control Review Committee of the Government of India advised that every State in India was prone to I.D.D. The Government decide to go in for a universal salt iodisation programme to fight the I.D.Ds. in phases by 1995.

(x) The world summit for children convened by the United Nations in Sept. 1990 committed to give high priority to the rights of children, and elimination of I.D.D. was one of the goals in the action plan adopted by the said summit, and India is a signatory to the said resolution. The SAARC Conference on Children held in Colombo in Sept. 1992 declared 'Universal access to iodised salt by 1995' as one of the goals of the participating countries including India.

49. Section 7 of the Act reads thus:-

'7. Prohibition of manufacture, sale etc. of certain articles of food. -- No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-

(i) any adulterated food;

(ii) any misbranded food;

(iii) any article of food for the sale of whicha licence is prescribed, except in accordance with the conditions of the licence;

(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health;

(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder; or

(vi) any adulterant.'

The said section prohibits manufacture for sale or store, sale or distribution of articles of food enumerated thereunder.

50. As per Section 2(v) of the Act 'food' means any article used as food or drink for human consumption other than drugs and water and includes-

(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,

(b) any flavouring matter or condiments, and

(c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act.'

It is also not disputed by the petitioners that salt is included within the meaning of food. According to Section 2(vi) of the Act, 'Food (Health) Authority' means the Director of Medical and Health Services, or the Chief Officer in charge of Health Administration in a State, by whatever designation he is known, and included any officer empowered by the Central Government or the State Government by notification in the Official Gazette, to exercise the powers and perform the duties of the Food (Health) Authority under this Act with respect to such local area as may be specified in the Notification. It is also not the case of the petitioners that the impugned notification was issued by an authority not competent to do so.

51. In clear terms of Section 7, the sale of edible common salt other than iodised salt isprohibited with effect on and from 1st January, 1995. The argument of the learned counsel for the petitioners advanced at one stage that the impugned notification could have been issued for the time being limiting to a particular period, in the absence of limiting the period for which the prohibition was imposed, it was bad, no more remained available in view of the amendment issued to the said notification No. Vl/(2)/208/94 dated 29-8-1994 by amended Notification No.VI(2)/13(a)/95 (R. No. 5896/PFA.SI-91) dated 12-1-1995 by the second respondent -- Director of Public Health and Preventive Medicine and State Food (Health) Authority, published in the Tamil Nadu Government Gazette Extraordinary dated 12-1-1995 limiting the period of prohibition between the period from 1st January. 1995 to 31st December, 1999.

52. From the stand of the respondents, as indicated in the counter-affidavits filed, and the submissions made on their behalf, that there is no blanket or total ban for manufacture or sale of common salt. What is prohibited under the impugned notification is only the sale of edible common salt other than iodised salt in the State of Tamil Nadu. In other words the manufacture and sale of common salt for other industrial and other purposes is not prohibited.

53. It is stated that converting of common salt into iodised salt does not involve a machinery costing rupees two lakhs, and that it cannot be operated except in a big enclosure of pucca nature with the facility of electric power is denied. As a matter of fact, production of iodised salt involves mixing of small quantity of potassium iodate with common salt by one or more of the following processes as stated in the counter-affidavit of the third respondent filed in W.P. No. 20443 of 1994:--

(a) The continuous spray-mixing process requires a plant which costs about Rupees 75,000/- to Rupees 90,000/- for an installed capacity of 10-15 tonnes/hour. The plant could be worked either with the help of a diesel engine or electricity and could be made mobile by mounting the chassis on pneumatic wheels. The plant is made by two labricatorsin Tutichorin itself. There is no need for pucca structure to house the mobile plant and when not in use, it could be protected by covering with a Tarpauline.

(b) A batch type of spray-mixing plant costs around Rs. 50,000/- depending on the capacity.

(c) A submersion process plant involves brick-masonry tanks which could be constructed at a much lower price.

(d) A drip-feed system for production of iodised salt involves an additional expenditure of only about Rs. 500/- provided the concerned common salt producer already has a crushing mill/grinder, which costs about Rs. 35,000/-.

54. Number of salt manufacturers both in licensed and non-licensed sectors and traders are already producing iodised salt at Tuli-corin anci other places in Tamil Nadu by adopting one of the above processes. The impugned Notification does not take away the righls of the petitioners or their members to continue to manufacture common salt. It only in sists to blend common salt with iodine compound before supplying for edible purposes. Thus it does not take away the source of their livelihood. If they did not want to set up iodisation plant for their own reasons, they can sell the common salt produced by them to any one of the 30 and odd plants set up by the traders in Tuticorin area who will handle iodisation. The impugned Notification is one made in the interest of public health.

55. The learned counsel for the respondents state that the respondents have even conic forward to help and assist such of the petitioners and their members who would like to set up iodisation plant or in taking steps to convert common salt into iodised salt by any one of the above processes. As to the allegation of creating monopoly in favour of a big industrialists it is stated that there are more than' 500 salt iodisalion units in the entire country producing over 30 lakhs tonnes of iodised salt. Tata is one among them producing 1.5 lakh tonnes. All the remaining plants are set up and worked by individualsalt manufacturers, traditional salt traders and co-operative societies. Out of them 150 are by the small scale salt producers. Even in Tamil Nadu out of 52 plants already having, 17 plants are set up by co-operative societies of small scale salt manufacturers. Hence the contention of the petitioners in this regard has to be rejected.

56. The UNICFF's report is quoted by the Ihird respondent in its counter-affidavit which reads thus: --

'It is now estimated that nearly 1.6 billion people in over 110 Nations are at risk and that some 300 million suffer from lowered mental ability. Some 566 million -- about 10% of world's population and more than double the previous estimate -- suffer from goitre, the telltale swelling of the Thyroid Gland at the throat.'

'Because their mothers lack iodine, at least 30,000 babies are still-born every year and over 1,20,000 are born cretins, mentally retarded, physically stunted, deaf-mute or paralysed. Many more have I.Qs. atleast 10 points below their potential. Even when born normal, young children whose diets are low in iodine are held back by reduced intelligence, and live out their lives trapped in mental dullness and apathy. In this way, the lack of iodine locks entire communities into poverty and under-development, less able to learn in their childhood, less able to earn when adulterated.'

'The solution iodizing all salt supplies is relatively simple and costs only about 5 cents per person per year. Within a year of iodised salt becoming the norm, no more cretins are born and goitres begin to shrink. Children develop energy and perform better at school' (panel 8, p. 26).

57. Common salt has come to be considered as the best, cheapest and sure way of dietary supplementation of iodine, inasmuch as it is the only item of food consumed by at! sections of the population every day and in a fairly regular quantities. The argument of thelearned counsel for the petitioners that even if there is iodine deficiency that could be supplemented by other sources is not acceptable having regard to what is stated above.

58. The validity of Section 7 of the Act is not questioned in these writ petitions. When the impugned notification is issued by the competent authority prohibiting the sale of non-iodised salt in the interest of the public health under Section 7(iv) of the Act, it is to be held as valid. Most of the States in the country have issued similar Notifications under Section 7(iv) of the Act.

59. Now, the question to be considered is whether the impugned Notification issued under the Act relating to the subject in entry 18 in the concurrent list (List III of 7th Schedule to the Constitution) is in conflict in any way with the legislations enacted under entry 58 of the Union List. In my opinion, the provisions of the 1944 Act or 1953 Act relating to entry 58 in the first list are in no way conflicting or inconsistent with Section 7(iv) of the Act under which the impugned Notification is issued. The three Acts operate in their respective fields. The Notification issued is one under the Prevention of Food Adulteration Act, 1954. That is the subject relating to which there is a specific entry in entry 18 in List III.

60. The argument that violation of Section 7(iv) may give rise to penal action, but it does not authorise to issue a Notification for prohibition of sale of common edible salt other than iodised salt cannot be accepted. There is a specific power to prohibit under the said provision for sale of an article of food. Added to this in spite of such prohibition, if there is a violation, that shall entail penalty.

61. As already stated above, manufacture, sale and distribution of common salt is not prohibited under the impugned Notification. What is prohibited is only sale of non-iodised edible common salt other than iodised salt in the State. The manufacture, sale and distribution of common salt, even though is recognised, under the Central Excise and Salt Act, and Salt Cess Act, is only for the purpose of those Acts, even if the rules permit underthe Act allowing the use of common salt. Under the impugned Notification there is no blanket or total ban for use of common salt for other non-edible purposes. Under the circumstances when under the impugned Notification, some restriction is placed on the sale of edible common salt other than the iodised salt, it cannot be said to be either unreasonable or arbitrary. In other words the impugned Notification is neither violathc of Article 14 nor 19(1)(g) of the Constitution. The argument on the ground of legitimate expectation has also to be rejected. When the Statute permits issuing of the impugned Notification there cannot be any legitimate expectation against the interest of the public health in the State.

62, The Supreme Court in the case of 'Municipal Corporation of The City of Ahmedabad v. Jail Mohammed Usmanlihai, : [1986]2SCR700 , dealing with the validity of the law imposing prohibition on carrying of a business or profession, in paragraph 17 has stated thus:--

'Clause (6) of Art. 19 protects a law which imposes in the interest of general public reasonable restrictions on the exercise of the right conferred by sub-clause (g) of clause (1) of Art. 19. Obviously it is left to the Court in case of a dispute to determine the reason-ableness of the restrictions imposed by the law. In determining that question the Court cannot proceed on a general notion of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of view of the person or persons on whom the restrictions are imposed. The right conferred by sub-clause (g) is expressed in general language and if there had been no qualifying provision like clause (c) the right so conferred would have been an absolute me.

To the persons who have this right any restriction will be irksome and may well be regarded by them as unreasonable. But the question cannot be decided on that basis What the Court has to do is to consider whether the restriction imposed are reasonable in the inlerest of general public. In the Slate of Madras v. V. G. Row, : 1952CriLJ966 this Court laid down the testof reasonableness in the following terms:

'It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at that time, should all enter into the judicial verdict.'

63. In the case of 'Pathumma v. State of Kerala, : [1978]2SCR537 the Supreme Court has stated that the Court should interpret the Constitutional provisions against the social setting of the country. Paragraph 5 of the said judgment reads (para 5):

'Before however taking up the other two points raised by counsel for the appellants which were pressed before us in this Court it may be necessary to set out the approach which a Court has to make and the principles by which it has to be guided in such matters. Courts interpret the constitutional provisions against the social selling of the country so as to show a complete consciousness and deep awareness of the growing requirements of the society, the increasing needs of the nation, the burning problems of the day and the complex issues facing the people which the legislature in its wisdom, through beneficial legislation seeks to solve. The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid. It must take into consideration the changing trends of economic thought, the temper of the times and the living aspirations and feelings of the people. This Court while acting as a sentinel on the qui vive to protect fundamental rights guaranteed to the citizens of the country must try to strike a just balance between the fundamental rights and the larger and broader interests of society, so that when such a right clashes with the larger interest of the country it must yield to the latter. Emphasising the rule of Courts in such matters this Court in the case of Jyti Pershad v.Administrator for the Union Territory of Delhi, : [1962]2SCR125 observed as follows:-- 'Where the legislature fulfils its purpose and enacts laws, which in its wisdom, is considered necessary for the solution of what after all is a very human problem the tests of 'reasonableness' have to be viewed in the context of the issues which faced the legislature. In the construction of such laws and particularly in judging of their validity the Courts have necessarily to approach it from the point of view of furthering the social interest which it is the purpose of the legislation to promote, for the Courts are not, in these matters, functioning as it were in vacuo, but as parts of a society which is trying by enacted law to solve its problems and achieve a social concord and peaceful adjustment and thus furthering the moral and material progress of the community as a whole.'

64. Yet again, in 'Dineshchandra Jam-nadas Gandhi v. State of Gujarat, : 1989CriLJ889 , in the context of Food Adulteration Act -- a legislative measure for social defence, in paragraph 7, the Supreme Court has observed :--

'The object and the purpose of the Act are to eliminate the danger to human life from the sale of unwholesome articles of food. The legislation is on the Topic 'Adulteration of Food Stuffs and other Goods' (entry 18 List III Seventh Schedule). It is enacted to curb the wide spread evil of food adulteration and is a legislative measure for social defence. It is intended to suppress a social and economic mischief, an evil which attempts to poison, for monetary gains, the very sources of sustenance of life and the well-being of the community. The evil of adulteration of food and its effects on the health of the community are assuming alarming proportions. The offence of adulteration is a socio-economic offence. In Municipal Corpn. v. Kacheroo Mal, : 1976CriLJ336 Sarkaria J. said:

'The Act has been enacted to curb and remedy the wide spread evil of food-adulteration, and to ensure the sale of wholesome foodto the people. It is well settled that wherever possible, without unreasonably stretching or straining the language of such a statute, should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention. . . .' The construction appropriate to a social defence legislation is, therefore, one which would suppress the mischief aimed by the legislation and advance the remedy.'

65. The High Court of Andhra Pradesh, in 'The Vi/ianagaram District Huller-Type Rice Millers Association v. The District Collector, Vi/ianagaram', (1983) 2 AWR 313 was considering the scope of Section 6(4) of the Rice Milling Industry (Regulation) Act, and the authority requiring Rice Millers to modernise Rice Mills by installing mini shuller as a condition for renewal of licence, and whether such condition was arbitrary and violative of the freedom of trade and business guaranteed under Article 19(1)(g) of the Constitution. In that case it was held that installation of mini shuller would reduce wastage and increase recovery of rice from the paddy huller. Foodgrains are essential commodities. If for conserving paddy recover more rice, the millers are directed to modernise their rice mills by installation of modern machinery, such direction cannot be said to be arbitrary and violative of fundamental rights guaranteed to a citizen under the Constitution of India.

66. The High Court of Bombay in Smt. Lucy R. D'Souza v. State of Goa, : AIR1990Bom355 considered the validity of Section 53(1)(vii) of the Gao, Daman and Diu Public Health Act, 1985. A common point raised in those petitions was whether the said provision is unreasonable and therefore violative of the rights under Articles 14,19(1)(d) and 21 of the Constitution of India. The said provision empowered to isolate a person who was found to be positive for Acquired Immuno Deficiency Syndrome (AIDS) by serological tests, and the Government may isolate such persons for such periods and on such conditions as may be considered necessary, and in such institutions or ward thereof as may be pres-cribed. Paragraphs 7, 8 and 11 of the said judgment are reproduced below:--

'7. Not that there has been no break through at all in the field of prevention and/or cure. There is virtually unanimity among experts that education and counselling of the patient is the most important and effective weapon to be used in the war against AIDS. The basic question is whether isolation of patient under any circumstance is wholly unscientific or counter-productive.'

'8. Isolation, undoubtedly, has several serious consequences. It is an invasion upon the liberty of a person. It can affect a person very adversely in many matters including economic. It can also lead to social ostraciza-tion. But in matters like this individual rights has to be balanced the public interest. In fact liberty of an individual and public health are not opposed to each other but are well in accord. Even if there is a conflict between the right of an individual and public interest, the former must yield to the latter. That apart isolation is not merely in the interest of the society. In a given case, it may also be in the interest of an AIDS patient, because he may become desparate and lose all' hopes of survival and, therefore, has to be saved against himself. Perhaps, bearing in mind all these factors, the experts have considered isolation as one of the preventive measures.'

'11. It has always to be remembered that matters like this essentially fall in the realm of policy . This policy decision is taken by those who are in charge of advancing public health and who are equipped with the requisite know-how. We find ourselves too ill-equipped to doubt the correctness of the legislative wisdom. Even if there is any doubt about its correctness, its benefit must go in favour of the policy maker. We are quite conscious that Courts are not powerless to examine the correctness of a policy decision. But such power has to be very cautiously exercised, field of exercise being very limited. Settled legal principle is that there is a presumption that the Legislature understands and appreciates the needs of its peoples good faith and knowledge of the existing conditions has also to be presumed in its favour. There is noevidence -- either intrinsic or extrinsic -- on the basis of which the above presumption or the presumption of constitutionality of a stature is rebutted.'

67. The impugned Notification is not a mere executive order or an instruction, but it is one issued under a statutory provision viz., Section 7(iv) of the Act, and under the authority of that provision conferred on the Food (Health) Authority concerned. Hence the attack on the impugned order that it is only an executive order and cannot override the other statutory provision except by instruction is untenable. It may be incidentally noticed that public health and sanitation; hospitals and dispensaries are the topics falling in List II of seventh schedule.

68. The decision in the case of Bhagwan Dass v. Municipal Corporation of Delhi, : AIR1995Delhi17 , in my opinion does not help the petitioners. That was a case where the sale of sugarcane juice was prohibited exercising power under Section 383 of the Delhi Municipal Corporation Act. The Court observed that when the Commissioner acts under Section 383 of the said Act, he must be alive to two legal concepts, viz., (i) that the sale and preparation of any article of food or drink for human consumption forming subject-matter of fundamental right under Article 19(1)(g) of the Constitution is being brought under restriction or prohibition and so it has to withstand the test of Article 19(6); and (ii) that a statutory authority governed by a statute has to act within the four corners of law. A power which for its exercise depends on existence of certain prerequisites cannot be exercised unless the prerequisites exist. On facts in that case the Court found that the prerequisites did not exist in that case. Hence the impugned notice was quashed reserving liberty to the Corporation to carry out survey and conduct scientific investigation and to take action thereafter under Section 383 if only there is a genuine necessity.

69. In the cases with which we are concerned, there is enough material to establish that the survey and sicentific investigation was carried out in various parts on the iodinedeficiencies and disorders, and the suffering of the people with diseases on that account, and about the iodine deficiency having ill effects on public health.

70. In the light of the legal position ex-plained in the various decisions aforementioned and applying them to the facts and circumstances of the present cases, I do not find that the impugned order is either arbi-trary or unreasonable and thereby is violative of Article 14 or 19(1)(g) of the Constitution of India. The impugned notification is issued in the interest of the public health in the Stale and for the good of the people of the State. As already noticed above, the impugned order is not invalid on any count. When the prohibition of the sale of edible common salt other than iodised salt serves the purpose of preventing harm and injury to the public health preventing to iodine deficiency and thereby inevitably leads people to consume iodised salt, the purpose of Section 7(iv) of the Act is well served. Interpretation of a provision of a social defence legislation cannot be narrowed so as to defeat the object of the Act instead of advancing it.

71. Although few more decisions were cited by the learned counsel for the parties, I have not referred to them having regard to other decisions mentioned above directly on the point.

72. In the result, for the reasons stated above, point No. 1 is answered in the affirmative, and point No. 2 in the negative. Thus in view of the conclusions reached on both the points against the petitioners, I hold that the impugned Notification No. VI/(2)/206/94 dated 29-8-1994 published in The Government Gazette Issue No. 38 dated 14th September, 1994 as amended by Notification No. VI/(2)/13(a)/95 in R. No.5896/PFA. SI.91) dated 12th January, 1995 published in the Tamil Nadu Government Gazette Extraordinary of the same date is valid. Consequently the writ petitions are to be dismissed. Accordingly they are dismissed. No costs.

73. Petitions dismissed.


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