Madras High Court
Aathi Jeganathan vs The Government Of Tamil Nadu on 11 August, 2017
Bench: K.K.Sasidharan, G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.08.2017 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN and THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN W.P.(MD)No.12658 of 2017 and W.M.P.(MD)Nos.9765, 10505 and 11491 of 2017 Aathi Jeganathan : Petitioner Vs. 1.The Government of Tamil Nadu, Rep. by its Principal Secretary, Co-operation, Food and Consumer Protection Department, Secretariat, Fort St. George, Chennai. 2.Tamil Nadu Civil Supplies Corporation, Rep. by its Managing Director, Kilpauk, Chennai. 3.Commissioner of Civil Supplies and Consumer Protection, Elizhagam, IV Floor, Chepauk, Chjennai-600 005. 4.Senior Regional Manager, Civil Supplies Corporation, Kuruvikkaran Salai Near Aravind Hospital, Anna Nagar, Madurai. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari, to call for the records of the first respondent relating to the impugned G.O.Ms.No.33 Co-operation, Food and Consumer Protection (F1) Department, dated 06.03.2017 insofar as permitting the second respondent to procure masoor dal for distributing the same to general public through Special Public Distribution System, quash the same and pass such further or other orders as this Court may deem fit and proper in the circumstances of the case. !For Petitioner : Mr.M.Saravanan, For Mr.R.Subramanian ^For Respondents : Mr.B.Pugalendhi, Additional Advocate General, Assisted by, Mr.T.S.Mohammed Mohideen, Additional Government Pleader :ORDER
[Order of the Court was made by K.K.SASIDHARAN, J.] The petitioner filed this Writ Petition in pro bono publico challenging the Government Order in G.O.Ms.No.33, Co-operation, Food and Consumer Protection (F1) Department, dated 06 March, 2017, permitting the Tamil Nadu Civil Supplies Corporation to procure Masoor Dhal for distribution to the general public through special Public Distribution System.
FACTUAL MATRIX:
2. It is the case of the petitioner that the Government of Tamil Nadu, taking into account the recommendation made by the District Collector, Karur, took a decision to withdraw the supply of Masoor Dhal from the Nutritious Meal Programme and Anganwadi Centres and supply Toor Dhal in its place. The order was notified in G.O.Ms.No.28, Social Welfare and Nutritious Meal Programme (NMP.3) Department, dated 01 March, 2007. However, in violation of the decision taken earlier, the Government has now permitted supply of Masoor Dhal and consequently, the Civil Supplies Corporation has issued a tender notification. According to the petitioner, Masoor Dhal invariably would contain Kesari Dhal and as such, it would be injurious to health.
CONTENTION OF THE GOVERNMENT:
3. The Principal Secretary to Government, Co-operation, Food and Consumer Protection Department in the counter-affidavit contended that Masoor Dhal is cost effective and has high protein nutritive value. The presence of Kesari Dhal in Masoor Dhal alone made the Government to take a decision earlier not to supply Masoor Dhal under Nutritious Meal Scheme and to the Anganwadi Centres. However, there was no prohibition of Masoor Dhal.
According to the Government, modern technologies for grading and sorting pulses are now available and as such, it would be possible to procure and supply Masoor Dhal free from ingredients, like Kesari Dhal. The Government assured that quality checks would be conducted at various levels and only after adhering to strict protocol, Masoor Dhal would be brought in supply chain.
4. The Principal Secretary -cum- Managing Director, Tamil Nadu Civil Supplies Corporation filed a counter-affidavit on the same line. According to the second respondent, it was only on consideration of the adverse effect of Kesari Dhal, which is the weed plant growing with Masoor Dhal, the Government has earlier decided not to supply Masoor Dhal. However, while deciding to procure Masoor Dhal, now, it has been prescribed that even 0.01% Kesari Peas would be treated intolerant. He would further contend that strict quality check would be conducted before supplying Masoor Dhal to the public.
SUBMISSIONS:
5. The learned counsel for the petitioner contended that it is difficult to separate Kesari Dhal from Masoor Dhal, which was the reason for issuing Government Order dated 01 March, 2007. Since there is no change of circumstance now, the distribution of Masoor Dhal must be discontinued.
6. The learned Additional Advocate General, by placing reliance on the counter-affidavit filed by the first respondent, contended that Masoor Dhal was not prohibited at any point of time. Its procurement was stopped on account of the difficulty at that point of time to separate Kesari Dhal. According to the learned Additional Advocate General, in view of the development of technology, it is now possible to separate Kesari Dhal from Masoor Dhal. The learned Additional Advocate General produced the photographs of trichromatic camera colour sorters for separating Kesari Dhal from Masoor Dhal. According to him, the State would check the sample before it is sent for public distribution. The learned Additional Advocate General further contended that a similar Writ Petition filed by a Trader was dismissed by the Principal Bench, by order dated 28 July, 2017 in W.P.No.18913 of 2017.
ANALYSIS:
7. The decision taken by the Government of Tamil Nadu before procuring and supplying Masoor Dhal is opposed by the petitioner on account of the earlier Government Order in G.O.Ms.No.28, Social Welfare and Nutritious Meal Programme (NMP.3) Department, dated 01 March, 2007, withdrawing Masoor Dhal from Nutritious Meal Programme and Anganwadi Scheme. The substantial reason for the withdrawal of Masoor Dhal from the supply chain was on account of the presence of Kesari Dhal.
REASON FOR ISSUING G.O.Ms.No.28, DATED 01 MARCH, 2007:
8. The State in its counter-affidavit explained the circumstances under which supply of Masoor Dhal was discontinued earlier in the following words:
"5. I respectfully submit that it was only on the basis of a report by the Collector, Karur District, the Government vide G.O.(Ms)No.28, Social Welfare and Nutritious Meal Programme (NMP.3) Department, dated 01 March, 2007 have permitted to supply Toor Dal instead of Masoor Dal to the Nutritious Meal Programme with immediate effect. Moreover, in the event of supplying Toor Dal in place of Masoor, the additional expenditure for a year was hardly around Rs.1.21 Crore. It is also worth mentioning that at the same time, Special Public Distribution System was also launched with Toor dal as major component and the replacement of Masoor dal with Toor dal was also felt administratively convenient. Based on the above order, Tamil Nadu Civil Supplies Corporation had stopped purchasing Masoor Dal for Noon Meal Programme Scheme only."
9. The Government Order dated 01 March, 2007 indicates that Kesari Dhal is a weed plant and it grows mostly with Masoor Dhal. Since the size of Kesari Dhal is similar to Masoor Dhal, it would be very difficult to remove the said Dhal from Masoor Dhal. Therefore, with a view to prevent the sale of Masoor Dhal containing Kesari Dhal, the Government has taken a decision not to supply Masoor Dhal.
10. The Government has now taken a decision to procure and supply Masoor Dhal through special Public Distribution System.
11. The core question, therefore, is whether the Government is correct in procuring Masoor Dhal for public consumption, notwithstanding the earlier decision withdrawing its supply on health reasons.
KESARI DHAL - DANGEROUS WEED:
12. The Kesari Dhal is a weed plant. It would grow along with Masoor Dhal plants. Its size is very small and it is very similar to Masoor Dhal. The Kesari Dhal is a prohibited nutrient as it is a dangerous Dhal. In view of its small size and resemblance, it would be difficult to remove manually Kesari Dhal from Masoor Dhal.
FOOD SAFETY AND STANDARDS (PROHIBITION AND RESTRICTIONS ON SALES) REGULATION, 2011:
13. The Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 contain detailed provisions on use of certain ingredients in the preparation of any article of food intended for sale.
14. Clause 2.2.1.(b) of the Regulations banned the use of Kesari Dhal and its products as as ingredient in the preparation of food articles meant for sale.
POSITIVE FACTORS OF MASOOR DHAL:
15. It is the case of the State that Masoor Dhal is having high protein nutritive value. The State in paragraph No.6 of counter-affidavit indicated the positive aspects of Masoor Dhal:
"6..............The Masoor Dal as such is having high protein nutritive value. Masoor Dal has good source of cholesterol lowering fiber. It cooks quickly resulting in saving of fuel cost. Masoor Dal is most economic when compared with other dal. Consumption of Masoor Dal reduces breast cancer. Thus, Masoor Dal has more nutritive value and is widely consumed in various States. The total consumption of Masoor dal in the country is of the order of 10 Lakh MT.
7. I respectfully submit that the averments made in para 7 of the affidavit are denied. Masoor Dal consumption prevents rapid aging, effective for weight loss, effective for diabetic patients, reduces risk of cancer, high protein content, rich in minerals, rich source of dietary fiber, strengthens bones and teeth, healthy for eyes, reduces inflammation, boosts immunity, improves digestion and protects heart. Further, the Masoor Dal is also good for skin lightening, removal of tan and dry skin therapy. Moreover, consumption of Masoor dal has never been prohibited. Masoor dal is grown in more than 9 major States including Uttar Pradesh, Madhya Pradesh, Bihar, West Bengal, Rajasthan, etc., and the overall production is around 10 Lakh MT."
MEASURES TAKEN TO ELIMINATE KESARI DHAL:
16. The State in Paragraph No.6 of the counter-affidavit explained the measures taken for delivery of Masoor Dhal free from Kesari Dhal in the following words:
"6. Sufficient measures have been taken to ensure delivery of Masoor dal free from such ingredients like Kesari Dal. Modern technologies namely Grader (Separator) and Colour Sorter for grading and sorting for pulses are now available. With these facilities, the presence of Kesari Dal in Masoor can easily be identified and segregated. National Accreditation Board for Laboratories accredited food analytical labs are also available in Tamil Nadu for testing."
QUALITY CONTROL:
17. The State assured that quality control measures would be taken as per protocol. The relevant paragraph of the counter-affidavit would read thus:
"As far as quality controls are concerned, a strict protocol has been put in place by Tamil Nadu Civil Supplies Corporation and commodities would be brought in supply chain only after quality checks. Dal stocks are received at various godowns in Chennai (North) Region as centralized procurement by Tamil Nadu Civil Supplies Corporation and only after complete quality check by quality control officials at various levels from the cadre of Junior Quality Inspector, Assistant Quality Inspector, Quality Inspector, Assistant Manager (Quality Control), Deputy Manager (Quality Control) and Manager (Quality Control), these stocks are moved to various regions in the State. At the time of unloading also, the stocks are super checked on the quality aspect by the concerned Junior Quality Inspector/Assistant Quality Inspector, Quality Inspector of the respective godowns. Therefore, presence of Kesari dal in Masoor dal can be completely ruled out."
18. The earlier order withdrawing Masoor Dhal from Nutritious Meal Scheme was issued on account of the presence of Kesari Dhal in Masoor Dhal and the difficulty to separate the dangerous weed from Masoor Dhal. The Government Order dated 01 March, 2007, makes it very clear that difficulty to remove the Kesari Dhal seed from Masoor Dhal was the sole reason for switching over to Toor Dhal. The State has produced materials to demonstrate that grader (Separation) and colour sorter technology is now available for grading and sorting pulses and it would be possible to identify and segregate Kesari Dhal in Masoor Dhal. There are no contra materials before this Court to arrive at a conclusion that Masoor Dhal even without the presence of Kesari Dhal is injurious to health. The Principal Secretary to Government on the basis of Masoor Dhal samples collected from Market and tested at the Food Analysis Laboratory of King's Institute certified that Masoor Dhal does not contain Beta-N-oxalyl amino alanine.
19. The State has explained in detail the circumstances under which Masoor Dhal was withdrawn from Noon-Meal Scheme, the steps now taken to ensure distribution of Masoor Dhal free from ingredients, like Kesari Dhal and the quality control measures as per protocol. The notification issued by the Civil Supplies Corporation contain a clear indication that even 0.01% of Kesari Peas will be treated intolerant. We are, therefore, of the view that the steps taken by the Government for procurement and supply of good quality Masoor Dhal free from the presence of Kesari Dhal would address the issue and concern raised by the petitioner.
20. In view of the apprehension raised by the petitioner, we deem it fit and proper to issue the following directions to the respondents to ensure that Masoor Dhal is supplied without any mixture of Kesari Dhal:
"(i) The respondents must ensure strict compliance of Clause No.14 of the Tender conditions that the Masoor Dhal supplied is free from colour and presence of Kesari Dhal.
(ii) The samples of Masoor Dhal must be sent to the Accredited Food Analytical Laboratories for testing and only after ensuring that it is free from the presence of Kesari Dhal and is fit for human consumption, the Masoor Dhal should be sent for distribution through the Public Distribution System.
(iii) The Tamil Nadu Civil Supplies Corporation must adopt a strict protocol and the Masoor Dhal should be brought to the supply chain only after conducting quality check to rule out the presence of Kesari Dhal.
(iv) The State must comply with its undertaking given in the counter-
affidavit by ensuring that the Masoor Dhal is fit for human consumption and is free from the presence of Kesari Dhal.
21. The Writ Petition is disposed of with the above direction. No costs. Consequently, the connected miscellaneous petitions are closed.
To:
1.The Principal Secretary, The Government of Tamil Nadu, Co-operation, Food and Consumer Protection Department, Secretariat, Fort St. George, Chennai.
2.The Managing Director, Tamil Nadu Civil Supplies Corporation, Kilpauk, Chennai.
3.The Commissioner of Civil Supplies and Consumer Protection, Elizhagam, IV Floor, Chepauk, Chjennai-600 005.
4.The Senior Regional Manager, Civil Supplies Corporation, Kuruvikkaran Salai Near Aravind Hospital, Anna Nagar, Madurai.
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