Allahabad High Court
Deen Mohammad vs State Of U.P. And 3 Others on 10 September, 2018
Equivalent citations: AIR 2020 (NOC) 57 (ALL), 2019 (2) ALJ 131, (2018) 11 ADJ 682 (ALL), (2018) 131 ALL LR 312, (2018) 6 ALL WC 6248, 2020 (250) AIC (SOC) 10 (ALL)
Bench: Shashi Kant Gupta, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 32 Case :- WRIT - C No. - 53426 of 2017 Petitioner :- Deen Mohammad Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Prabhat Chandra Mishra Counsel for Respondent :- C.S.C. Hon'ble Shashi Kant Gupta,J.
Hon'ble Ajit Kumar,J.
1. The present writ petition has been filed, inter alia, for the following reliefs:-
"(i). Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 03.10.2017 passed by the respondent No.3 (contained as Annexure No.-1 to the writ petition).
(ii). Issue a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioner to run the shop in question pursuant to the License No.12717065000300 dated 28.09.2017, which has been issued to the petitioner and valid upto the 27.7.2018 (contained as Annexure No.5 to the writ petition)."
2. The brief facts of the case as narrated in the writ petition are that the petitioner is resident of Village- Jasoi, Police Station- Titavi, District- Muzaffarnagar and running his meat shop in the aforesaid village. To carry out of the aforesaid business, the petitioner had applied for issuing license before the respondent No.3- Additional Chief Officer, Zila Panchayat, Muzaffarnagar and pursuance to the aforesaid application, respondent No.3 has called detailed report from the concerned Gram Panchayat as well as police station of the area. On 05.09.2017, S.H.O. of Police station Titavi, District- Muzaffarnagar has submitted 'No Objection Certificate' before the respondent No.3 with a recommendation to grant of license to the petitioner. The Secretary/ Village Development Officer, Vikas Kshetra Jasoi, Block Baghara, District Muzaffarnagar has also given 'No Objection Certificate' in respect of the shop of the petitioner. 'No Objection Certificate' given by both the authorities have been annexed as Annexure-3 to the writ petition. It has been further submitted that the petitioner has applied for license for running the meat shop under The Food, Safety and Standards Act, 2006 (in short 'FSS Act, 2006'). Thereupon, the respondent No.4 issued license No. 12717065000300 in the name of M/s. Din Meat Shop on 28.9.2017 and thereafter the petitioner started to run his shop peacefully. It has been further stated in the writ petition that a false complaint was made before the respondent No. 2 by one Vikram Saini alleging that the petitioner is running meat shop illegally in the concerned area without any authority and license. Pursuant to the aforesaid false complaint, the respondent No.2 has called for report from the respondent No.4 and in pursuance thereof, the respondent No.4 submitted report on 25.10.2017 stating that after getting 'No Objection Certificate' from the Secretary, Village Development Officer and concerned Station House Office, the license No. 12717065000300 dated 28.9.2017 was issued to the petitioner which was valid for a period of one year. Thereafter the respondent No.3 has passed the impugned order dated 03.10.2017 stating that since the petitioner has not obtained license from the Zila Panchayat, the petitioner was directed to close the meat shop. Hence, the present writ petition has been filed by the petitioner.
3. Learned counsel for the petitioner has stated that impugned order passed by the respondent No.3 is illegal, arbitrary and against the provisions of FSS Act, 2006. Learned counsel for the petitioner while referring to Section 89 of FSS Act, 2006 and clause (2) and (3) of Section 97 of FSS Act, 2006 has stated that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act and the petitioner having already obtained license in accordance with FSS Act, 2006 issued by the competent authority, the order passed by the 3rd respondent directing for closure of petitioner's meat shop is wholly illegal.
4. Learned counsel for the petitioner while referring sub-regulations (5) and (6) of Regulation 1.2.1 of The Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011 (for brevity 'Regulations, 2011') has contended that Registering Authority and State Licensing Authority have been defined under sub-regulation (5) and (6) of Regulation 1.2.1 of Regulations, 2011. In the present case, State Licensing Authority has given license to the petitioner to carry on the business of meat. It has been further submitted that as provided in sub-regulations(4) of Regulation 2.1.1 of the Regulations, 2011, the petitioner has also obtained 'No Objection Certificate' from the local authority. As such, while referring to the aforesaid fact before this Court, the learned counsel for the petitioner vehemently urged that the impugned order dated 03.10.2017 is null and void being beyond the authority of the 3rd respondent.
5. Per contra, Sri Vinod Kumar Rai, learned counsel appearing for the 3rd respondent has defended the impugned order passed by Zila Panchayat and stated that according to the bye-laws made by the Zila Panchayat and in pursuance of the power conferred under clause (2) of Section 239 read with Section 197 of U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (for brevity 'Adhiniyam, 1961'), Zila Panchayat is fully entitled to pass the impugned order. Since, the license was not granted to the petitioner by the Zila Panchayat to carry on the meat shop in question, the petitioner is not entitled to run the meat shop under the territorial jurisdiction of the concerned Zila Panchayat. To buttress the argument, he has referred to the ordinance dated 29th October, 2018 whereby Section 197 has been deleted from the Statute and the license claimed by the petitioner being dated 28th September, 2017 on that date, the 3rd respondent had the competence, being the local authority.
6. Heard Sri Prabhat Chandra Mishra, learned counsel for the petitioner, Sri Manish Goyal, learned Additional Advocate General appearing for the State, Vinod Kumar Rai, learned counsel appearing for the respondent No.3 and perused the record.
7. Only question for consideration is whether the Zila Panchayat is well within its right to direct the petitioner to close down the food business of running a meat shop (a retail business) on the ground that he has not obtained license from the Zila Panchayat.
8. In order to find answer to the question as to whether Zila Panchayat, Muzaffarnagar has authority to pass the impugned order or in other words the petitioner is liable to seek license to run the meat shop from the Zila Panchayat, Muzaffarnagar, it is necessary to go through the relevant provisions of FSS Act, 2006 as well as the relevant provisions of Adhiniyam, 1961.
9. It is necessary to examine the scheme of the FSS Act, 2006 that has been framed in order to achieve the laudable objectives behind the same i.e. to consolidate the business relating to the food meant for human consumption and providing guidelines for those who are involved in manufacturing, storage, distribution, sale, import and supply of such food and at the same time also to maintain uninterrupted supply and easy access to quality food by the people. The licensing for manufacturing of food products, its sale and supply, therefore, were required to be regulated by a comprehensive law.
10. The entire regime, therefore, of the existing law came to be repealed with the enforcement of the FSS Act, 2006 and by virtue of Section 89 of the FSS Act, 2006, it has been given overriding effect in following terms:-
"89. Overriding effect of this Act over all other food related laws.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
11. For the purposes of licensing to regulate the production, supply, sale of the food and food products and the food business has been defined thus:
"3 (j). "food" means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, to the extent defined in clause (ZK) genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances:
Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality;
(n) "food business" means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food, import and includes food services, catering services, sale of food or food ingredients;"
12. In view of the definition clause any substance which is processed or unprocessed but is meant for human consumption shall be food and any work or task that is carried out relating to the activities of manufacturing, processing, packaging etc. including sale, means food business.
13. Section 31 of the FSS Act, 2006 relates to the licensing and registration of food business which is reproduced hereunder :-
"31. Licensing and registration of food business.- (1) No person shall commence or carry on any food business except under a licence.
(2) Nothing contained in sub-section (1) shall apply to a petty manufacturer who himself manufactures or sells any article of food or a petty retailer, hawker, itinerant vendor or a temporary stall holder or small scale or cottage or such other industries relating to food business or tiny food business operator; but they shall register themselves with such authority and in such manner as may be specified by regulations, without prejudice to the availability of safe and wholesome food for human consumption or affecting the interests of the consumers.
(3) Any person desirous to commence or carry on any food business shall make an application for grant of a licence to the Designated Officer in such manner containing such particulars and fees as may be specified by regulations.
(4) The Designated Officer on receipt of an application under sub-section (3), may either grant the licence or after giving the applicant an opportunity of being heard and for reasons to be recorded in writing, refuse to grant a licence to any applicant, if he is satisfied that it is necessary so to do in the interest of public health and shall make available to the applicant a copy of the order:
Provided that if a licence is not issued within two months from the date of making the application or his application is not rejected, the applicant may start his food business after expiry of the said period and in such a case, the Designated Officer shall not refuse to issue a licence but may, if he considers necessary, issue an improvement notice, under section 32 and follow procedures in that regard.
(5) Every licence shall be in such form and subject to such conditions as may be specified by regulations.
(6) A single licence may be issued by the Designated Officer for one or more articles of food and also for different establishments or premises in the same area.
(7) If the articles of food are manufactured, stored, sold or exhibited for sale at different premises situated in more than one area, separate applications shall be made and separate licence shall be issued in respect of such premises not falling within the same area.
(8) An appeal against the order of rejection for the grant of licence shall lie to the Commissioner of Food Safety.
(9) A licence unless suspended or cancelled earlier shall be in force for such period as may be specified by regulations:
Provided that if an application for a renewal of licence is made before the expiry of the period of validity of the licence, the licence shall continue to be in force until orders are passed on the application.
(10) The licence shall subsist for the benefit of the deceased's personal representative or any other member of his family, until the expiry of-
(a) the period of three months beginning with his death; or
(b) such longer period as the Designated Officer may allow."
14. From the bare perusal of the aforesaid provisions, it is quite explicit that the FSS Act, 2006 differentiates the licensing from registration of food business. Sub-section (2) of Section 31 carves out a class of petty manufacturer who are either manufacturing or selling any article of food or a petty retailer, hawker etc. or is involved in small scale or cottage industry, shall not be required to have a license. Sub-section (3) of Section 31 provides for application for grant of a license to be placed before the Designated Officer and sub-section (4) of Section 31 authorizes the Designated Officer to grant or refuse the license.
15. Section 36 of the FSS Act, 2006 provides for Designated Officer to be appointed by the Commissioner of Food Safety and such officer is required to be not below the rank of Sub-Divisional Officer. What is pertinent to notice is that the Designated Officer who under Section 31 of FSS Act, 2006 is to entertain the application for license and grant of license is to be one which is provided for under Section 36 of FSS Act, 2006. Section 36 of the FSS Act, 2006 also provides for grant of license and not of registration. Sub-section (2) of Section 31 of the FSS Act, 2006, therefore, provides for registration of petty manufacturers involve in sale or manufacture of food etc. with such registering authority as may be specified under the relevant regulations to be framed.
16. Section 92 of the FSS Act, 2006 empowers the food authority to make regulations consistent with the Act and Rules made thereunder but with the prior approval of the Central Government. Section 93 of the FSS Act provides for the regulations so framed to be placed before the each House of the Parliament and it is after nod of the Parliament, such regulations shall be given effect to. Thus, the Regulations, 2011 having acquired necessary approval as contemplated under Section 92 of the FSS Act, 2006 came to be in force vide notification dated 1st August, 2011.
17. Sub-regulation (4) of Regulation 1.2.1 of Regulations, 2011 defines Petty Food Manufacturer as under :-
"4. "Petty Food Manufacturer" means any food manufacturer, who-
(a) manufactures or sells any article of food himself or a petty retailer, hawker, itinerant vendor or temporary stall holder; or distributes foods including in any religious or social gathering except a caterer; or
(b) such other food businesses including small scale or cottage or such other industries relating to food business or tiny food businesses with an annual turnover not exceeding Rs 12 lakhs and/or whose-
(i) production capacity of food (other than milk and milk products and meat and meat products) does not exceed 100 kg/litre per day or
(ii) procurement or handling and collection of milk is up to 500 litres of milk per day or
(iii) slaughtering capacity is 2 large animals or 10 small animals or 50 poultry birds per day or less."
18. Sub-regulation (5) of Regulation 1.2.1 of Regulations, 2011 defines the Registering Authority as under:-
"1.2.1: 5. "Registering Authority" means Designated Officer/ Food Safety Officer or any official in Panchayat, Municipal Corporation or any other local body or Panchayat in an area, notified as such by the State Food Safety Commissioner for the purpose of registration as specified in these Regulations."
19. From the perusal of the above regulations, it is very much clear that petty food manufacturer is the person who is involved in manufacture of, or sale of article of food and includes a person who is involved in small scale industry and cottage industry of which annual turnover is less than Rs.12,00,000/- and such person is also petty food manufacturer.
20. According to sub-regulation (5) of Regulation 1.2.1 of Regulations, 2011 any authority who is Designated Officer/ Food Safety Officer or any official in Panchayat, Municipal Corporation or any other local body or Panchayat in an area, notified as such by the State Food Safety Commissioner shall be the registering officer. Thus, any authority who is so designated in any Panchayat or local body and is notified as such by the State Food Safety Commissioner can only be the registering authority.
21. Sub-regulation (6) of Regulation 1.2.1 of Regulations, 2011 defines the "State Licensing Authority" as such the Designated Officers are appointed under Section 36(1) of the Act by the Food Safety Commissioner of a State or Union Territory. It would be noticeable at this stage that the list of food business which has not been provided for under Schedule 1, license for such food business shall be granted only by the competent authority of a State or Union Territory who are notified as Licensing Authority vide sub-regulation (4) of Regulation 2.1.2 of Regulations, 2011. The reference is being given to the said regulations here only for the purpose that in case if a person who is involved in small scale food business and if at all is required to have license then he shall not be given license by the Central Licensing Authority but by the State Licensing Authority or such authority notified by Union Territory in case of Union Territory.
22. Now, we have come to the Chapter II of the Regulations, 2011 that deals with licensing and registration of food business which is very well relevant here. Regulation 2.1 of Regulations, 2011, with its various sub-regulations, is reproduced hereunder:-
"2.1 Registration and Licensing of Food Business All Food Business Operators in the country will be registered or licensed in accordance with the procedures laid down hereinafter;
2.1.1 Registration of Petty Food Business (1) Every petty Food Business Operator shall register themselves with the Registering Authority by submitting an application for registration in Form A under Schedule 2 of these Regulations along with a fee as provided in Schedule 3.
(2) The petty food manufacturer shall follow the basic hygiene and safety requirements provided in Part I of Schedule 4 of these Regulations and provide a self attested declaration of adherence to these requirements with the application in the format provided in Annexure-1 under Schedule 2.
(3) The Registering Authority shall consider the application and may either grant registration or reject it with reasons to be recorded in writing or issue notice for inspection, within 7 days of receipt of an application for registration.
(4) In the event of an inspection being ordered, the registration shall be granted by the Registering Authority after being satisfied with the safety, hygiene and sanitary conditions of the premises as contained in Part I of Schedule 4 within a period of 30 days.
If registration is not granted, or denied, or inspection not ordered within 7 days as provided in above sub regulation (3) or no decision is communicated within 30 days as provided in above sub regulation (4), the petty food manufacturer may start its business, provided that it will be incumbent on the Food Business Operator to comply with any improvement suggested by the Registering Authority even later.
Provided that registration shall not be refused without giving the applicant an opportunity of being heard and for reasons to be recorded in writing.
(5) The Registering Authority shall issue a registration certificate and a photo identity card, which shall be displayed at a prominent place at all times within the premises or vehicle or cart or any other place where the person carries on sale/manufacture of food in case of Petty Food Business.
(6) The Registering Authority or any officer or agency specifically authorized for this purpose shall carry out food safety inspection of the registered establishments at least once in a year.
Provided that a producer of milk who is a registered member of a dairy Cooperative Society registered under Cooperative Societies Act and supplies or sells the entire milk to the Society shall be exempted from this provision for registration."
23. From the perusal of the aforesaid Regulation, it transpires clearly that the procedure regarding registration provided hereinabove in respect of the petty food business, a separate class created under Section 31 (2) of the FSS Act, 2006, is distinguished from the licensing procedure. What is required, therefore for petty food business operator who are excluded from the clutches of Section 31(1), are only required to be registered. They have to apply with the registering authority who shall issue a registration certificate in terms of grant of registration on a prescribed format which is provided as Form A of the Schedule II within 30 days. Sub-regulation (4) of the said Regulation clearly provides that in case if registration is not granted within 30 days and no decision is communicated either of grant or of refusal, the petty food manufacturer may start its business, however, he may have to comply with any improvement that could be suggested by the Registering Authority. Thus, the procedure for having sanction to carry on food business for petty food operator or small scale industry business has been made easier and convenient.
24. Regulation 2.1.2 of Regulations, 2011 prescribes the procedure for license for food business and very opening clause (1) of the aforesaid Regulation clearly provides as under:-
"2.1.2 License for food business (1) Subject to Regulation 2.1.1, no person shall commence any food business unless he possesses a valid license.
Provided that any person or Food Business Operator carrying on food business on the date of notification of these Regulations, under a license, registration or permission, as the case may be, under the Acts or Orders mentioned in the Second Schedule of the Act shall get their existing license converted into the license/registration under these regulations by making an application to the Licensing/ Registering Authority after complying with the safety requirements mentioned in the Schedule 4 contained under different Parts dependent on nature of business, within one year of notification of these Regulations. In case of difficulty, the licensing authority with the approval of the Food Safety Commissioner in the State will determine the advisability of applying any specific condition keeping in view the need to ensure safety of food and public interest. No license fee will have to be paid for the remaining period of the validity of the earlier license or registration granted under any of the said Acts or Orders. Non-compliance with this provision by a Food Business Operator will attract penalty under section 55 of the Act:
Provided further that any food business operator holding Registration/ License under any other Act/ Order as specified under schedule 2 of the FSS Act, 2006 with no specific validity or expiry date, and other wise entitled to obtain a license under these regulations, shall have to apply and obtain a Registration/ License under these Regulations within one week from the date of notification by paying the applicable fees."
(Emphasis supplied)
25. What further required is that the petty food business operator shall follow the basic hygiene and safety requirements as provided in part (1) of Schedule IV of the said regulations. Part (1) of the Schedule IV deals with sanitary and hygiene requirements of food manufacturer/ processor/ handler in 20 point guidelines and clause (A) of the said regulations provides for 23 point guidelines for sanitary and hygiene requirements for street food vendors and unites other than manufacturing/ processing. The rest part of the Schedule is applicable in respect of those who are to be granted license under Section 31 of the FSS Act, 2006.
26. From the aforesaid scheme of registration and license for food business as we have examined hereinabove, it clearly transpires that for the purposes of petty food business like the present one in question, it is the registration which is only required and not the license. The meat shop owner who is involved in retail meat business, we can safely say, is the one is able to sell retail meat up to of 10 small animals and 2 large animals or 50 poultry birds is a small retailer by virtue of the sub-regulation (4) (b) (iii) of Regulation 1.2.1 of Regulations, 2011 to such business exceed the total turnover of more than Rs.12,00,000/- per annum. So whether he is a petty retailer or reviving small scale industry, he is required to have registration only if business is upto Rs.12,00,000/- per annum.
27. If we examine the Form-A which is prescribed for under the Schedule II of the Regulations, 2011, it clearly transpires that fish/ meat/ poultry shop/ seller are in the kind of the business that are only required registration under the FSS Act, 2006.
28. The legislative intendment behind the enactment is, therefore, to include every possible food, food product for manufacture, processing, distribution, import and sale to ensure secured, safe and quality food. The provisions are aimed at maintaining easy supply of food while at the same time ensuring qualitative and safe from hygiene point of view. The provisions also aim at ensuring hassle-free self employment in terms of retail business, an end of 'License Raj' in respect of petty food business operator ushering a new era.
29. Coming to the facts of the present case, we find that the petitioner who is meat shop owner was granted license by the Designated Officer of the State on 28th September, 2017 but it appears that the petitioner was granted license taking recourse of the provisions of sub-regulation (6) of Regulation 2.1.4 of Regulations, 2011 which is meant for the license for other than petty food business operator and the petitioner deposited fee of Rs.2,000/- for the same and license was granted to him by the Licensing Authority under the State Government notified under the FSS Act, 2006 after 'No Objection Certificates' were furnished by the petitioner. Although under the FSS Act, 2006 as we have discussed above, the petitioner being only a meat shop owner who is involved in retail meat and meat product including poultry was only required to be registered under the FSS Act, 2006 read with Regulations, 2011. Under sub-section (2) of Section 31 of FSS Act, 2006 read with Regulation 2.1.1 of Chapter II of the Regulations, 2011 was granted license by the Licensing Authority.
30. We sought to enquire from the counsels appearing for the respondents as to whether any registering authority has been notified as contemplated under the FSS Act, 2006 and the Regulations, 2011 framed thereunder, all of them drew blank. None at the Bar could ascertain as to whether any registering authority has been notified.
31. The manner in which the petitioner in the present case has been charged for Rs.2,000/- towards license fee (Annexure No.5 to the writ petition) instead of Rs.100/- which is the fee prescribed for registration to run the meat shop, is indicative of the fact position in the State that no registering authority has been notified for granting registration to petty food business operator. Under the circumstances, we have ample reason to presume that there is no registering authority and that is why the petty food operators are also being granted license and not the registration certificate.
32. From the pleadings as raised in the writ petition and in the pleadings of counter affidavit that has been filed by the contesting respondents, we do not find anything to dispute or question the status of petitioner as petty food business operator.
33. Under the circumstances and in view of the Section 89 of the FSS Act, 2006, Zila Panchayat is not the designated authority to question the license, if at all it has been granted by the Licensing Authority notified by the State Government under the FSS Act, 2006. Authority and power, therefore, exercised by the 3rd respondent in passing the impugned order questioning the license of the petitioner and directing closure of the meat shop vide order dated 3rd October, 2017 is clearly void for want of lawful authority.
34. It has been argued strenuously by the learned counsel for the 3rd respondent that under Section 197 of Adhiniyam, 1961 is fully empowered to provide for bye-laws and rules to regulate markets, slaughter houses, sale of food etc. It has also been argued that this provision under Section 197 of Adhiniyam, 1961 came to be deleted from the Statute only by Ordinance No.5 dated 29th January, 2018 and, therefore, on the date of grant of license to the petitioner i.e. on 28th September, 2017, Zila Panchayat was well within its right to grant license or refuse the same by virtue of Section 197 of Adhiniyam, 1961.
35. Sri Manish Goyal, learned Additional Advocate General, who was invited by the Court to assist the Court in the mater as the interpretation of the relevant provisions of the State Act in the light of the Central Act coming into force occupying the entire field relating to the food business, though initially argued for some time that the State Licensing Authority has to power to grant license and such petty food business operation is required to have valid license but later on, conceded that in view of the Regulations 2.1 (4) and 2.2 (1) of Regulations, 2011, the registration and license are two separate things and the petty manufacturers or petty food business operators are required to have only registration and not license, provided of course they fall within definition of the Regulation 1.2 (4). However, Sri Manish Goyal, learned Additional Advocate General stated that Adhiniyam, 1961 came to be amended only vide Ordinance No.5 w.e.f. 29th January, 2018 and therefore, according to him fact remains that Section 197 very much existed on the Statute on the date of grant of license, in question, to the petitioner.
36. Now testing the arguments of learned counsel for the respondent No.3 on the question of Zila Panchayat having valid authority to grant license under the bye-laws framed vide Section 197 of the Adhiniyam, 1961 on the touch stone of legislative powers between Central and State, we find that the FSS Act, 2006 has been framed in supersession to all existing lays by the Central Legislature vide Section 1 (2), the Act has been extended to whole of India without any exception and vide Section 89, it is given overriding effect and vide Section 97, all the Acts in force in the Central and the State have come to be repealed. Sub-Section (2) of the Section 97 of the FSS Act, 2006 runs as under:-
"97. (2) If there is any other law for the time being in force in any State, corresponding to this Act, the same shall upon the commencement of this Act, stand repealed and in such case, the provisions of section 6 of the General Clauses Act, 1897(10 of 1897) shall apply as if such provisions of the State law had been repealed."
37. The FSS Act, 2006 has received the assent of the President which is came into force in the official Gazette but in respect of the different sections in different point of time. What is relevant to quote here is that Sections 19-21, 23-29, 31-35, 48-89, 94-98 and 100 came into force w.e.f. 29th July, 2010 with the notification being published on 29th July, 2010. Section 22 of the FSS Act, 2006 was the last section which was got into force w.e.f. its Gazette notification on 18th August, 2010. Thus, by 18th August, 2010, all the sections of the FSS Act, 2006 came into force.
38. Article 246 of the Constitution of India permits the Central to frame the laws in respect of the Subject entries provided for in the Union list of the 7th Schedule of the Constitution of India.
39. Adulteration of food stuffs and other goods are subject matter of the Concurrent list which is the List III of the 7th Schedule. It is settled that in respect of the List III which is Concurrent list of the 7th Schedule of the Constitution, both Union and State have legislative power to exercise. However, in cases where the Union legislature has enacted law which covers the field of the Concurrent list and it has received assent of the President, it shall have an overriding effect.
40. It is true that though Section 197 of the Adhiniyam, 1961, empowers the Zila Panchayat to frame bye-laws governing food, markets etc., the Union Legislature having enacted the law governing the same field and bringing into force with overriding effect vide Section 89 of the Central Act the provision of Section 197 looses its relevance. Even otherwise, while provision as contained under Section 197 though existed on the Statute of the State for all practical and legal purposes, the Union Act is said to be have completely overshadowed the power conferred upon Zila Panchayat under Section 197 of Adhiniyam, 1961 is rendered repugnant to the Central Act and can not operate in the field occupied by the Central Act.
41. Article 254 of the Constitution of India mandates that subject to clause (2) in the event of there being inconsistency between the laws made by the Parliament of the Constitution and the laws made by the Legislature of the States as a subject covered the concurrent list, it is the law that is made by the Union Legislature or Parliament that will prevail and to the extent of inconsistency the State Act and its provision will be treated as repugnant. So, the Article provides absolute supremacy to the Union Legislature in terms of the Legislative competence with regard to the matters relating to Concurrent list. This being the situation, though on the date of grant of license in question to the petitioner Section 197 of the Adhiniyam, 1961 Act, was very much there in existence but the provisions giving powers of the Zila Panchayat stood repugnant to the law enacted by the Union Legislature in the form of the FSS Act, 2006 and the regulations framed thereunder in 2011 governing the filed.
42. While we hold as above we may refer the authority of Security Association of India and another vs. Union of Indian and others, (2014) 12 SCC 65 wherein vide paragraphs 45, 46 and 47, the Supreme Court held thus:-
"45. Article 246 of the Constitution does not provide for the competence of Parliament or the State Legislatures as commonly perceived but merely provides for their respective fields. Article 246 only empower Parliament to legislate on the entries mentioned in List I and List III of the Seventh Schedule and that in case of a conflict between a State law and a parliamentary law under the entries mentioned in List III, the parliamentary law will prevail. It does not follow that Parliament has a blanket power to legislate on entries mentioned in List II as well. Thus, the argument of the appellants that Parliament has supreme right to legislate over any area as per Article 246 (1) is misplaced. Furthermore, this Court in Welfare Association, A.R.P. v. Ranjit P. Gohil (2003) 9 SCC 358 also held that : (SCC p. 378, para 28).
46. It has become a well-established principle that there is a presumption towards the constitutionality of a statute and the courts should proceed to construe a statute with a view to uphold its constitutionality.
47. In the light of the above, we will answer the question of repugnancy of the State Act with respect to the Central Act. The question of repugnancy arises only in connection with the subjects enumerated in the Concurrent List (List III), on which both the Union and the State Legislatures have concurrent powers to legislate on the same subject i.e. when a State law and Central law pertain to the same entry in the Concurrent List. Article 254(1) provides that if a State law relating to a concurrent subject is "repugnant" to a Union law then irrespective of the Union law being enacted prior to or later in time, the Union law will prevail over the State law. Thus, prior to determining whether there is any repugnancy or not, it has to be determined that the State Act and the Central Act both relate to the same entry in List III and there is a "direct" and "irreconcilable" conflict between the two i.e. both the provisions cannot stand together."
43. Further, tracing out history of judicial pronouncements on the subject, we may also refer to the authority in Zaverbhai Amaidas v. Bombay (1955) 1 SCR 799 wherein the Apex Court held thus :-
"The principle embodied in section 107 (2) and Article 254 (2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the state.
Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:
(1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field."
44. Under the circumstances, therefore, in the present case the power as exercised by the 3rd respondent in passing the impugned order dated 3rd October, 2017 is a clear transgression of authority that cannot be approved in law.
45. In view of the above, order impugned dated 3rd October, 2017 passed by the 3rd respondent (Annexure-1 to the writ petition), deserves to be quashed and is hereby quashed.
46. We must not forget that very fundamental to life is livelihood. Apex Court has held that Right to livelihood is a fundamental right as right to life is protected under Article 21 of the Constitution of India. For every human being to earn livelihood is a fundamental right and the same so also came to be recognized under Part III of the Constitution of India as a right to 'practice any profession or carry on any occupation, trade or business' is a fundamental right, however it is subject to reasonable restrictions vide clause V of Article 19 of the Constitution. But Constitution does not permit any course of action which is arbitrary or unreasonable. While protection from unreasonable restriction is guaranteed under the said article, arbitrariness is hit by Article 14 of the Constitution. One has to carry on trade, commerce or business subject to public convenience and public health and hygiene and that is why FSS Act, 2006 has regulated commercial activities of petty food business operators as well. The FSS Act, 2006 and Regulations, 2011 framed thereunder guarantee, safety and security in terms of public health and hygiene. Under the circumstances, if one has obtained license after complying with all the norms to do business, it is most arbitrary and unreasonable exercise of executive power to issue a restraining order and that too by an authority that is not authorized in law to do so. In a country like India where petty food business operators whether they run small fixed shop or carry on trade as hawkers/ vendors, the majority consists of such marginal dealers depending on their petty business and still majority of our population being agrarian, these business operators are life line of people in villages, small towns and sub-urban areas. Injuncting them from doing business for misplaced reasons and issuing cryptic orders put such poor people in deep hardships on their livelihood front in particular and adversely affects interest of public in general. Such anarchial way of putting public to harassment for none of their fault and forcing them to litigation to get their lawful rights to be enforced, causes serious dent to the principle of Rule of law, a back bone of any organized democratic society. Thus, the wrong done unlawfully needed to be remedied by imposing exemplary cost upon the wrong doer to provide complete justice to the victim.
47. Under Chapter XXI, Rule 11 of the Allahabad High Court Rules, 1952, there is an ample provision for award of cost. The provision runs as under:-
"11. Costs. - In disposing of an application under this Chapter the Court may make such order as to costs as it may consider just."
48. In order to do justice, therefore, rules (supra) provide for the imposition of the cost while disposing of the matter, as may be considered just and proper by the Court. While in the case of Nagar Panchayat Kithore, District Meerut v. Presiding Authority, Labour Court, U.P., Meerut and another, (2007) 1 SAC 567, the Court held that imposition of exemplary costs taking into account of the circumstances of the case as justified, Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353 has held that "so far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to the rule in force".
49. Apart from above, in a catena of the decisions, Supreme Court has held that the Court can award exemplary costs to the litigants who have approached the Court for commission and omission of State authorities. While no litigants can derive any benefit on account of pendency while protection of interim order has been there, the litigants can also not be prejudiced for non-consideration of their case for a service benefit, which is otherwise guaranteed to them as condition of service under the rules, just for wrongful action or inaction on the part of respondent authorities.
50. In the case of RamRameshwari Devi and others v. Nirmala Devi and others, (2011) 8 SCC 249, the Court observed that "in order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately, wasted in a large number of uncalled for cases".
51. In the present case, the food business operator, namely, the petitioner, we are constrained to hold, was wholly illegally, deprived of his livelihood for almost whole of the year, the period for which license was to operate, but for illegal and wholly misplaced assumption of authority by the 3rd respondent. The period of the license is just coming to expire by 27th September, 2018 and thus the petitioner was made to suffer huge financial loss and business prospects for none of his fault. An unnecessary litigation has been forced upon him. Under the circumstances, we are of the view that the petitioner is entitled to exemplary cost of Rs.2,00,000/- to be paid by the 3rd respondent to the petitioner within a period of six weeks from the date of production of a certified copy of this order, failing which, the same shall be recovered as arrears of land revenue.
52. The petitioner is free to carry on his business as per the terms and conditions of the license and apply for registration/ renewal of license in future as law may permit under the FSS Act, 2006 and the Regulations, 2011 framed thereunder.
53. Before we part with the case, we feel it appropriate to request that in case if the registering authoirty has not been notified by the State Government as is required under Regulations, 2011 read with Section 31 (2) of the FSS Act, 2006, the State Government shall take all endevour to designate and notify the Registering Authority forthwith as required under the Act (supra).
54. In the result, the writ petition succeeds and is allowed as above.
Order Date :- 10.9.2018 Atmesh