Allahabad High Court
Harishchandra vs State Of U.P. And 2 Others on 13 January, 2020
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 10 Case :- WRIT - C No. - 10704 of 2018 Petitioner :- Harishchandra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sanjeev Kumar Khare Counsel for Respondent :- C.S.C. Hon'ble Vivek Kumar Birla,J.
Rejoinder affidavit filed today is taken on record.
Heard learned counsel for the petitioner, learned Standing Counsel for the State-respondents and perused the record.
Present petition has been filed for quashing the order dated 07.11.2017 passed by the Commissioner of Food Safety, Lucknow in Appeal No. F.S.D.A./Khadya-09/2017 (Harishchandra Versus Food Safety Officer, District-Jaunpur and order dated 18.07.2017 (cancellation of Licence NO.22714410002254) passed by the Food Safety Officer, Jaunpur.
At the very outset, learned counsel for the petitioner submits that the present petition is squarely covered by the judgment of this Court passed in Writ-C No.10692 of 2018 (Om Prakash Vs. State of U.P. and 2 others) dated 27.05.2019. The same is quoted as under:-
"Heard Sri Niraj Tiwari, learned counsel for the petitioner and learned Standing Counsel for the State.
The petitioner is manufacturer of Dohra and for the said purpose, he is registered under the Food Safety and Standards Act, 2006 (herein-after referred to as 'Act, 2006') bearing registration no.22717859000023.
It transpires from the record that an inspection was conducted in the premises of the petitioner on 01.07.2017 and the sample of Dohra was not found upto the standard. The report dated 01.07.2017 reads as under:-
"Sample contains tobacco and fungal spores and mycelia, tobacco is injurious to health which is harmful for human consumption. Hence the sample is unsafe."
The petitioner was given improvement notice on 20.06.2017. Thereafter, the license of the petitioner was suspended by the licensing authority i.e. Food Safety Officer, District Jaunpur, respondent no.3 by order dated 10.07.2017, whereby he was granted 20 days time to improve the quality of Dohra as per standard given under the Act, 2006. Before the expiry of 20 days time as provided in the suspension order, the respondent no.3 by order dated 18.07.2017 cancelled the license of the petitioner under Regulation 2.1.8(4) of Food Safety and Standards (Licensing and Registration of Food Business) Regulations, 2011 (herein-after referred to as 'Regulations, 2011').
Feeling aggrieved by the order of the licensing authority, respondent no.3, the petitioner preferred appeal no.FSDA/Khadya-08/2017 before the respondent no.2 contending therein that the order of cancellation of license is in violation of principles of natural justice inasmuch as the petitioner was not afforded any opportunity of hearing by the respondent no.3 before passing the order. The appeal of the petitioner was also dismissed by the respondent no.2 by order dated 07.11.2017. The order of licensing authority dated 18.07.2017 and order of appellate authority dated 07.11.2017 are impugned in the present writ petition.
Challenging the aforesaid orders, learned counsel for the petitioner has contended that the order of cancellation of license is in violation of principles of natural justice as no opportunity of hearing was afforded by the respondent no.3 to the petitioner before passing the said order which is in the teeth of Regulation 2.1.8(3) of Regulations, 2011. He further contends that the suspension order was passed on 10.07.2017 granting 20 days time to the petitioner to improve his products and before expiry of 20 days, the respondent no.3 has cancelled the license of the petitioner and thus, from the aforesaid fact it is evident that the petitioner was not afforded any opportunity of hearing. Further, submission is that the appellate authority has also ignored the plea of violation of natural justice raised by the petitioner and the authority concerned has failed to record any finding on this issue. Thus, the orders impugned are not sustainable in law.
Per contra, learned Standing Counsel would contend that the sample of the petitioner was found sub-standard and further, the petitioner was afforded opportunity of hearing, therefore, the order passed by the licensing authority is just and proper.
I have considered the submissions of the parties and perused the record.
The inspection of the premises of the petitioner was conducted on 01.07.2017 and the report of inspection is extracted above. Further it is not in dispute that the license was suspended by order dated 10.07.2017 wherein the petitioner was granted 20 days time to improve his product and before 20 days time could expire, the respondent no.3 cancelled the license of the petitioner by order dated 18.07.2017.
Regulation 2.1.8(3) of Regulations, 2011 clearly stipulates that before cancellation of license, a reasonable opportunity of hearing is to be afforded to the manufacturer. The facts narrated above clearly establishes that the order of the licensing authority dated 18.07.2017 is in violation of principles of natural justice as opportunity of hearing was not afforded to the petitioner and thus, the said order is in the teeth of Regulation 2.1.8(3) of Regulations, 2011.
The appellate authority has also committed same illegality inasmuch as though the petitioner had taken a specific plea that the order passed by the licensing authority is in violation of principles of natural justice but the authority failed to record any finding on the said issue. In view of the said fact, the order of the appellate authority is also not sustainable.
Both the orders dated 07.11.2017 and 18.07.2017 passed by the respondents no.2 and 3 respectively are set aside. The matter is remanded back to the licensing authority to pass a fresh order after affording opportunity of hearing to the petitioner within a period of three months from the date of production of certified copy of order.
The writ petition is allowed."
Learned Standing Counsel could not dispute the same.
Accordingly, the present petition is allowed in terms of the judgment of this Court passed in Writ-C No.10692 of 2018 (Om Prakash Vs. State of U.P. and 2 others) dated 27.05.2019 and the impugned orders dated 07.11.2017 and 18.07.2017 are hereby quashed and the matter is remanded back in terms of the judgment as quoted above.
Order Date :- 13.1.2020 SK Goswami