JUDGMENT
Bhaskar Rao, J.
1. In this Batch of Writ Petitions the constitutional validity of the prohibition imposed against addition of flavouring, matter to tea is questioned.
2. Appendex B to Prevention of Food Adulteration Rules. 1955 (hereinafter referred to as ‘the Rules’) refers to certain items of food and defines the standards of their quality. Item A-14 of the Appendit defines ‘tea’ and lays down the spcifications therefor. Before imposition of prohibition against the addition of flavouring matter, the specifications prohibited addition of any colouring matter besides prescribing other standards. However, through GSR 848 (E) dt. 19-11-1988 the Central Government by virtue of its powers conferred by S. 23 of the Prevention of Food Adulteration Act. 1954 (hereinafter referred as ‘the Act’) brought in an amendment to item A-14 and extended the prohibition to the addition of any flavouring matter also to tea. It is this amendment that has been attacked in this batch.
3. Firstly, it is contended that the petitioners were not afforted with a substantial opportunity of hearing by the Central Committee for food standards thereinafter referred to as the Committee’) constituted under S. 3 of the Act to advise the Central Government to bring in the impugned amendment. To appreciate this contention, it is necessary to refer to the process that preceded before the impugned amendment is brought in. As already noted Appendix-3, a supplement to R. 5 defines the standards of quality of various items of food. On 15-11-1980 through the Gazette of India. Part-II, the Central Government made a notification proposing to bring in several amendments to Appendix-B. one such being amendment to item A-14, in the following terms :
“(x) in items A-14 and 14.01 in the last sentence after the words “It shall not contain any added colouring matter” the words “or added flavour” shall be substituted.”
The notification also invited objections or suggestions from any person with respect to the proposed amendment. Objections were filed by a number of traders including the petitioners herein on 13-4-1981 and 20-10-1981. On 30-11-1981 a notice also was given to the petitioners to represent their case before the Committee on 5-11-1981 at Jaipur. Accordingly, the petitioners advocate appeared before the Committee and put forth the case of the petitioners in detail before the Committee. This was in fact admitted by the petitioners. The Comtnittee having heard the objections and considering the other material before it including the views of the Sub-Committee concluded in November 1981 that addition of flavour to tea is not desirable in the interests of Public in Indian market. But in so far as tea meant for export to foreign market is concerned, the Committee having had consultations with the Central Food Technological Research Institute. Mysore and Tea Board, Calcutta, besides considering the views of Technological experts that
“Flavoured teas are in vogue all the world over and vast quantities are being imported into USA. These have sustained an excellent growth potential in the U.K. and German markets …..”
It suggested permitting flavoured tea for export abroad but under special licensing conditions of export. The extract from the minutes of the 28th meeting of the Committee held in November 1981 reads thus :
“(iii) Use of flavour in tea :
The members pointed out that the tea has its value for the natural flavour and any further addition of flavour may not be necessary. However, the demand of the importing Countries for flavoured tea also was taken into consideration and it suggested that under special conditions of licensing the export of flavoured tea may be permitted. As far as the manufacture for domestic consumption is concerned, the Committee did not consider it desirable to allow a blanket use of flavours in tea as it may encourage the spurious manufacturers to use inferior or sub-standard tea for this purpose.”
This extract of the minutes clinches the issue that the Committee after considering the objections and hearing the counsel, admittedly, of the petitioners, the Committee in so far as domestic consumption is concerned negatived the case for use of flavours in tea. However, it suggested permitting of flavour to tea meant for export to foreign market. Since the processing and the decision that resulted in had made a distinction in regard to addition of flavour to tea, prohibiting it for indigenous market and permitting it for foreign market, the amendment proposed to be brought in to item A-14 by the notification published in the Gazette dt. 15-11-1980 did not meet the requirement by itself by reason of the fact that it intended a total prohibition irrespective of its intendment for domestic consumption or for purposes of export to foreign maket. It is purely this technical situation that seems to have prompted the authorities to include in another noification in the Gazette dt. 9-8-1982 through GSR 517 (E), the proposal to amend besides other rules, items A-14 of appendix-B as under :
“(ii) In item A-14 – in clause (a) for the figures and words.
(a) “5.0 to 8.0” the figures and word “4.0 to 8.0” shall be substituted;
(b) after the words “colouring matter”, occourring at the end. the following shall be inserted namely :
“and added flavouring matter, Provided that tea for export may contain aaded flavour under proper label declaration as provided under Rule 42(y) :
Provided further that the tea used in the manufacture of flavoured tea shall conform to the standards of tea.”
No doubt, the notification also invited objections from the concerned persons. But, it needs to be borne in mind that this notification dt. 9-8-1952 is not one exclusively meant for the impugned amendment, but a composite one taking in instant coffee-chicory mixture also.
4. The petitioners again filed their written objections to this second notification. The complaint of the petitioners is that before bringing in the impugned amendment as a consequence of this second notification. they were not heard and therefore the amendment is bad being violative of the principles of natural justice. Firstly, it needs to be noted that the very issue of the second notification in respect of item A-14 is itself the resultant of a pure technicality. as noted supra. Secondly, in its 28th meeting itself the Committee has concluded to prohibit flavouring of tea for domestic consumption after considering the objections, put in and hearing, admittedly. the counsel for the petitioners and other concerned. Further, the objections filed in response to the second notification are mere reiteration of the earlier ones, the only addition being, that the prohibition of flavouring for local market while permitting it for export to foreign market is discriminatory. The Committee in its meeting held in December 1982 reiterated, after considering the objections and the other material, its earlier view that flavour should not be allowed in tea meant for domestic consumption as tea in our country is consumed for its own natural aroma; and flavour if allowed in tea, there is a possibility of inferior type of the tea being passed to the consumer as flavoured tea. Even earlier also in its 28th meeting dt. 5/7 November 1981, the Committee did not consider it desirable to allow use of flavours in tea as it may desirable the spurious manufacturers to use inferior or sub-standarad tea for this purpose. In this background of the matter which is evident from the file produced some time after about three months subsequent to the closure of the arguments before us by the Standing Counsel for the Central Government, We do not think that the petitioners were not given substantial opportunity and that the principles of natural justice are violated in issuing the impugned amendment.
5. Further, the amendment as brought in by the Central Government in exercise of its powers of delegated legislation conferred by S. 23 of the Act and it is beyond the realm of dispute that functions legislative in nature are immune from attack on the ground of violation of the principles of natural justice. In Rameshchandra K. Porwal v. State of Maharashtra. the argument before the Supreme Court was that when a market yard was disestablished at one place and established at another, place, it was the duty of the concerned authority to invite and hear objections lest it would be bad being vi-violation of the principles ‘of natural justice. The incidental submission therein was that even as there was express provision for inviting and hearing objections before a ‘Market area’ was declared so should be objections invited and heard before a ‘Market Yard’ was established at any particular place. Dealing with this contention, the Supreme Court held :
“We are unable to agree. We are here not concerned with the exercise of a judicial or quasi-judicial function where the very nature of the function involves the application of the rules of natural justice, or of an administrative function affecting the rights of persons, therefore, a duty to act fairly. We are concerned with legislative activity; we are concerned with the making of a legislative instrument, the declaration by notification of the Government that a certain place shall be a principal market yard for a market area, upon which declaration certain statutory provisions at once spring into action and certain consequences prescribed by statute follow forthwith. The making of the declaration, in the context, is certainly an act Legislative in character and does not oblige the observance of he rules of natural justice. In Bates v. Lord Hailsham, (1972) 1 WLR 1373 Megarry, J., pointed out that the, rules of natural justice do not run in the sphere of legislation primary or delegated, and in Tulsipur Sugar Co. v. Notifified Area Committee. our brothers Desai and Venkataramaiah. JJ., approved what was said by Magarry, J., and applied to the field of conditional legislation too. In Paul Jackson’s Natural Justice (Second Edn.) it has been pointed out (at p. 169)
“There is no doubt that a Minister, or any other body, in making legislation for example, by statutory instrument or by law, is not subject to the rules of natural justice.”
Prof. HWR Wades has similarly pointed out in his Administrative Law (4th Edn.) : “There is no right to be heard before the making of legislation, whether primary or delegated, unless it is provided by statutes.”
6. In this light of the decision, we do not find any substance in the contention that the principles of natural justice were violated particularly when the impugned amendment was the resultant of a function discharged under powers of delegated legislation.”
7. The learned counsel for the petitioners drew our attention to a passage in Administrative Law by HWR Wades (5th Edn.) at page 766, which reads;
“Hearing of objections :
In the case of rules and orders which are clearly legislative as opposed to administrative there is no room for the principle of natural justice which persons affected to a fair hearing in advance. But orders for such things as housing and planning schemes although they may affect numerous people, are for this purpose treated by Parliament, and also by the Courts as matters of administration and not legislation.”
8. The learned counsel submits that the function of laying down the standards of quality also comes under administrative nature and therefore hearing the objections is mandatory. Even accepting this submission, there is absolutely no violation since admittedly the petitioners were heard through counsel on 5-11-1981 at Jaipur by the Committee. In the circumstances stated and for the reasons assigned, there does not appear to be any mandate for a second round of hearing.
9. It is next contended by the learned counsel for the petitioners that the imposition of prohibition against addition of flavouring matter to the tea for domestic consumption while permitting the said addition for export to foreign market is discriminatary and not founded upon an intelligible rational in relation to the object sought to be achieved and therefore, the impugned amendment is violative of Art. 14 of our Constitution. It needs to be noticed that tea has its value for its natural favour and aroma. The apprehensions that permitting addition of flavour has the danger of camouflaging the inferior type of tea, encourages the spurious manufacturers to use inferior or sub-standard tea, etc. more so in relation to or as against the illiterate rural masses – the major section of consumers of tea in our country – cannot he said to be unrealistic or unwarranted. Further, considerations in prescribing the standards for local market differ from those for foreign market. As regards the export quality control there are legislations made. For example, the Export (Quality Control and Inspection) Act, 1963 provides for establishment of an Export Inspection Council to advise the Government regarding the measures to be adopted for the enforcement of quality control and inspection, for the checks as regards maintenance of standards with reference to the specifications, for appropriate penalties for contravetion of the provisions, and for prohibition against export unless accompanied by a certificate that the commodity satisfies the conditions relating to quality control and inspection. One more factor is that flavoured tea has been in use throughout the world and heavy quantities were being imported by USA, UK, Germnay, etc. Further, there is no machinery at present in so far as indigenous market is concerned for so many checks and inspections as regards the quality.
10. The Supreme Court in Ram Krishna Dalmia v. Justice Tendolkar, dealing with the question of constitutional validity of a statute under Art. 14 has evolved five classes into one other the statute can be brough under so as to decide the question. One such class, relevant for the instant matter, is (at P. 548, of AIR) “(1) A statute may itself indicate the person or things to whom its provisions are intended to apply and the basis of the classification of such persons on things may appear on the face of the statutes on may be gathered from the circumstances known to or brought to the notice of the Court. In determining validity or otherwise of such a statute a Court has to examine whether such classification is or can be reasonabely regarded as based upon some differentia which distinguishes such persons or things grouped togather from those left of the group and whether diffierentia other reasonable relation to the object sought to be achived by the statute, no matter whether the provisions of the statute are intended to apply only particular persons or things or only to a certain class of person of things.”
11. In the instant case the differentia is as regards addition of flavoured matter to tea between the indigenous market and foreign market. The object sought to be achieved by the differentia is to prevent the possible camouflaging of the inferiour tea and to discourage the spurious manufactures to use inferior or sub-standard tea, while at the same time to keep up and further more exports to foreign markets like USA, UK, Germany, ect. The prohibition of addition against indigenous market is keeping in view of the lacking machinery for checks and inspections in so far as the indigenous consumers are concerned vis-a-vis the legislation and efficient mechanism available for checks and inspections in regard to tea for export to foreign market. The differentia has thus a reasonable nexus to the aforesaid object sought to be achieved by the statute and therefore the provision cannot be struck down on the ground that it violates Art. 14 more so when the supreme Court laid down that when once the question of nexus is satisfied it matters nil even if the provision applies only to a particular person or thing or to a certain class of persons or things.
Again In Srinivasa Enterprises v. Union of India, it is laid down by the Supreme Court that reasonable classification wins solution from the charge of discrimination if the differentia has a nexus with the statutory object. We have already held that the differentia has a nexus to the object sought to be achieved and therefore the classification is reasonable so as to win absolution from the charge of discrimination.
12. The learned counsel endeavoured to fortify their contention in the light of Art. 14 by submitting that even for indigenous market articles like biscuits, chocolates, milk etc., are free from the prohibition against addition of flavour. Further, the reports of the Analysts also do not recite that flavoured tea is injurious to health. It should be borne in mind that the prohibition was not on the ground that flavoured tea is injurious to health, but on the ground that tea in our country is consumed for its own natural aroma, and addition health, but on the ground that tea in our country is consumed for its own natural aroma, and addition to flavour if allowed may encourage the spurious manufacturers to use inferior or sub-standard tea. In so far as biscuits, chocolates, milk, etc., are concerned the considerations differ and it is left to the specialists and technical experts in the field. Again, it is not the case of chocolates, milk etc. have their inherent flavour or aroma in their nature form. Therefore, this cannot be an analogy to invoke the principle of discrimination under Art. 14 of the Constitution.
13. The next contention of the learned counsel for the petitioners is that the impugned amendment is hit by the doctrine of promissory estoppel since the amendment operates in absolute prejudice to their interests resulting in compelled closure of the tea industry. It must be noticed that manufacture of tea as such is not prohibited nor there is prohibition against addition of flavour in the tea for export to foreign market. Thus, factually the contention is not founded correctly. As regards the prohibition against the addition of flavour in the tea for indigenous market, it is to be seen, it is the resultant of a function under the delegated legislation. It is well settled that there cannot be any estoppel against the government in exercise of its sovereign, legislative or executive functions. It is exactly to the effect the decision of the Supreme Court in Exercise Commissioner v. Ram Comer, .
14. Again in M/s. Jit Ram Shiv Kumar v. State of Haryana. the Supreme Court has summed up the scope of the plea of doctrine of promissory estoppel against the government thus :
“(1) The plea of promissory estoppel is not available against the exercise of the legislative functions of the State.
(2) The doctrine cannot be invoked for preventing the Government from discharging its functions under the Law …..”
15. Pausing for moment her it is to be noticed that the impugned amendment has also sustained the parliamentary check since the rule as amended was placed before the Parliament during the budget session of 1984 as per sub-section (2) of S. 23 of the Act. This is clear from the averments in paragraph 29 of the counter. While sub-section (1) of S. 23 empowers the Central Government to make rules may be after consultation with Committee constituted under S. 3 and after previous publication by notification in the official Gazette. Sub-section (2) thereof mandates laying of the rules so made or amended before the Parliament so as to enable the Parliament to consider whether the rules so made or amended need to be modified or annulled in toto.
16. It is then contended lastly for the petitioner that the impugned amendment, if permitted to be carried out in operation would adversely affect their right to carry on the trade, occupation and business in tea and is thus violative of Art, 19(1)(g) of the constitution. It needs to be borne in mind that Art. 19(5) permits imposition of reasonable restrictions on the exercise of the right conferred by Art. 19(1)(g) in the interests of the general public. It is contended for the Central Government that in fact no new restrictions were imposed and that the petitioners can carry out their business in manufacture and sale of the tea conforming to the standards prescibed by the Rules. Even if the prohibition against the addition of flavour is one in the nature of restriction still since it is a reasonable one and imposed in the interests of general public the restriction is sustainable under Art. 19(6). Further, as already stated manufacture and trading in tea as such, if conforms to the rules is not prohibited and for that matter even flavoured tea is permitted if it is for export to foreign market.
17. In T. B. Ibrahim v. Regional Transport Authority. the bus stand for which the appellant therein and the licence resulted in its closure consequent upon its shifting. When this action was challenged one of the contentions was in the light of Art. 19(1)(g). Dealing with that contention the Supreme Court held (at p. 82) :
“It cannot be denied that the appellant has not been prohibited from carrying on the business of running a bus-stand. What has been prohibited is that the bus-stand existing on the particular site being unsuitable from the point of view of public convenience. it cannot be used for picking up or setting down passengers from that stand for out-stations journeys. But there is certainly no prohibition for the bus-stand being used otherwise for carrying passengers from the stand into the town and ‘vice-versa’.
In that context, the Supreme Court observed (at p. 82) :
“…………. There is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interests of general convenience. The restriction may have the effect of eliminating the use to which the stand has been put hithereto but the restriction cannot be regarded as being unreasonable if the authority imposing such restriction had the power to do so ……”
18. In the instant case also the prohibition against addition of flavour to tea though may have the effect of brining in a change in the specifications of standards still it being in the interests of public at large and since the power of the Central Government to bring in the said amendment is beyond the realm of controversy. the prohibition though termed as restriction cannot be branded as unreasonable so as to uphold the contention that it infringes the right of the petitioners under Art. 19(1)(g) of the Constitution. The evil that was sought to be remedied by the impugned amendment was to eliminate the possibility of using the exhausted tea leaves or sub-standard tea by a addition flavouring to it and sold under the guise of flavoured tea. This background, if so considered, would amply satisfy the test of reasonableness of the impugned amendment and accordingly it is immune under Art. 19(6) it is from the onslaughts on the ground of infringement of Art. 19(1)(g) of the Constitution.
19. In Man Singh v. State of Punjab, the complaint of the petitioners was that the Punjab Cycle Rickshaws (Regulation of Licence) Act. 1976 envisaging compulsory plying of the cycle rickshaws by the onwers themselves had resulted in making their conditions much worse for whereas formely they could at least ply the rickshaws on hiring them from the owners for a sum, they were unable to do so by virtue of the said Act and that this has infringed their guaranteed right by Art. 19(1)(g). Considering the contention, the Supreme Court held that the aforesaid legislation cannot be regarded as an unreasonable restriction on the fundamental rights of the rickshaw pullers.
20. No doubt, in Municipal Corporation v. Jan Mohammed, the Supreme Court held that the Court must consider the validity of the law imposing prohibition on the carrying on a business in the light of its direct and immediate effect on the fundamental right of the citizens and also regarding the possibility of the object sought to be achieved by imposing a less drastic restraint. But it is to be borne in mind that the amendment was one brought in after consultation with an expert high-powered technical body which advised the impugned prohibition. As laid down in P. K. Tejani v. M. R. Dange. . Where expertise of a complex nature is expected of exercise of the power by the State in framing rules must be presumed to be valid as a reasonable restriction on the fundamental right of the citizen and judicial review must halt at the frontiers. “The Court cannot re-weigh and substitute its notion of expedient solution. Within the wise judge-proof areas of policy and judgment open to the government, if they make mistakes, correction is not in court but elsewhere. That is the comity of constitutional jurisdictions in our jurispurdence.” No doubt the exception to the above principle is bad faith, influence by extraneous consideration and arbitrariness. There are not the grounds of attack in this matter. No doubt ground of discrimination was advanced and that was already dealt with in the earlier pages. In this view of the matter this contention that Art. 19(1)(g) is infringed is also not tenable.
21. In the result, the writ petitions are dismissed but in the circumstance, we make no order as to costs.
22. Counsel for the petitioners, make an oral request for leave to appeal to Supreme Court under Art. 133 of the Constitution. We do not, however, think that this case involves a substantial question of law of general importance which in our opinion needs to be considered by the Supreme Court. The oral request is, accordingly, rejected.
23. Counsel for the petitioners further say that we may suspend our order for a period of at least two months so as to enable them to approach the Supreme Court. It is pointed out that pending the writ petitions all these years there has been a stay of operation of the impugned Rule. It is submitted by the counsel that unless that operation of the Rule is suspended, the petitioners will have to close down their business immediately. There is also a likelihood of their stocks of flavoured tea being seized all of which is likely to cause grave prejudice to the petitioners’ running business. In the circumstances. we direct that the interlocutory orders made in the writ petitions shall continue for a period of six weeks from today.
23. Petition dismissed.