Karnataka High Court
M/S Pepsico Restaurants International ... vs Corporation Of The City Of Bangalore And ... on 17 November, 1995
Equivalent citations: 1996CRILJ3113, ILR1996KAR1357, 1995(6)KARLJ243
ORDER
1. The notice dated August 31, 1995, (Annexure-C), and the Memo/Order dated September 12, 1995, (Annexure-H), issued by the third respondent in No. Ho. PR. 86/95-96 cancelling the licence granted to the first petitioner to run restaurant, are sought to be quashed by the petitioners in this petition. They have further sought for a writ to strike down Sections 443(4) and 444(2) of the Karnataka Municipal Corporations Act, 1976 (for short 'the Act') as being ultra vires and unconstitutional.
2. The first petitioner is a company incorporated under the Companies Act having its principal place of business at New Delhi. The second petitioner is the Director-Finance of the first petitioner-company having authority to sue and to be sued in the name of the company. The petitioners state that the first petitioner is part of an international chain of restaurants which is carrying on business at No. 4, Brigade Road Bangalore, from June 1, 1995 in pursuance of the licence issued by the second respondent as per Annexure-A. The petitioners state that the principal company also carry on business in different parts of the world in the name and style 'KFC' or 'KENTUCKY FRIED CHICKEN'. They serve both vegetarian and non-vegetarian food. It is further stated that each one of the restaurants of KFC International, including the first petitioner, serve fried chicken which is manufactured as per specifications and recipe proprietory to KFC International. They also state that they strictly and vigilently comply with all the applicable health standards and regulations as prescribed by, and required under, the local laws of India.
3. That, on August 25, 1995, at about 10-45 AM and again at 11-55 AM, the third respondent and the officers designated to collect samples under the provisions of Prevention of Food Adulteration Act, 1955 (for short 'the PFA Act'), went to the restaurant of the petitioners and took certain samples of raw-materials and cooked food under the provisions of PFA Act and issued Form VI as required under the Rules. It is stated by the petitioners that the third respondent and his officers have also visited the restaurant on some other day and and collected some other materials with which we are not concerned in this petition.
4. The fried chicken appeared to have been sent to the Public Analyst for analysis and report. The Public Analyst is stated to have submitted his report dated August 29, 1995 on August 30, 1995 to the third respondent. That, in view of the report of the Public Analyst, the third respondent issued a notice dated August 31, 1995 to the petitioners, that the fried and raw chicken samples were collected from the restaurant of the first petitioner for analysis on August 25, 1995 and on analysis fried chicken was found to be adultered, misbranded and unfit for human consumption due to use of excess of Monosodium Gultamate (for short 'MSG') as per PFA Act 1954 and Rules 1955, and called upon the petitioners to explain within three days as to why their licence should not be cancelled for the said offence. The petitioners by their letter dated September 1, 1995 informed the third respondent that they have received the notice dated August 31, 1995 with shock and they were neither aware of the report of the Public Analyst nor do they have any report of the Public Analyst. The petitioners have further requested the third respondent not to proceed further in the matter and to grant them adequate opportunity and time to respond to the said notice. The petitioners have also sought for a personal hearing in the matter. Again by letter dated September 4, 1995 addressed to the Commissioner, the second respondent herein, the petitioners have disputed the allegations made in the notice dated August 31, 1995 and has further stated that their fried chicken produce has insignificant level of MSG in fact less than 1%. Thereafter the third respondent issued a memo dated September 12, 1995, as per Annexure-H, cancelling the licence granted to the petitioners to run restaurant at No. 4, Brigade Road, Bangalore, as per Section 443(4) of the Act and Bye-law 35 Clause 39 read with Clause 42 of the Bye-laws. The petitioners being aggrieved by the said memo have presented this petition for the reliefs mentioned in the first paragraph of this order.
5. The petitioners assail the show-cause notice and the impugned Memo/Order of cancellation of licence on the following grounds -
(1) The second respodent Commissioner is the only authority under the provisions of the Act empowered to cancel the licence of the restaurant. The order of cancellation issued by the third respondent, Health Officer, is without the authority of law, the impugned show-cause notice and the order of cancellation are therefore invalid, inoperative and liable to be quashed.
(2) That, the power to refuse/revoke/cancel the licence is a quasi-judicial power vested only with the second respondent and such power cannot be delegated to any other officer in the absence of any provision providing for such delegation either expressly or by necessary implication; the Act does not empower the second respondent to delegate his quasi-judicial power in favour of any other officer; the order issued by the third respondent is therefore without the authority of law.
(3) That, the licence to run the restaurant was issued under the provisions of the Act, the Rules and the Bye-laws. There is no provisions either under the Act or under the Rules or Bye-laws for cancellation or revocation of the licence for violation of any of the provisios of the PFA Act. If the respondents intend to take action against the petitioners for violation of the provisions of PFA Act and the Rules framed thereunder, they must strictly comply with the provisions of the said Act and the Rules. Neither the second respondent nor the third respondent has complied with the provisions of Sections 10, 11 and 13 of the PFA Act. The impugned Notice and the order of cancellation issued by the third respondent for the violation of the provisions of PFA Act are illegal and liable to be quashed for non-compliance with the provisions of the said Act and the Rules.
(4) The order of cancellation is bad for non-compliance with the principles of natural justice, inasmuch as the petitioners have not been given a copy of the analysis report nor a personal hearning inspite of a request.
6. It is the case of the petitioners that the KFC System is a comprehensive restaurant system for the retailing of a limited menu of uniform food products of highest quality in a clean and wholesome atmosphere which is intended to be particularly attractive to families. The foundation of KFC System is the adherence by each one of the restaurants, including the first petitioner to standards and policies provided for the uniform operation of all the KFC restaurants. They further stated that Section 5 of the PFA Act has been misapplied to the facts of the case. The petitioners are neither the importers nor the sellers of any seasoning as its own.. It is their case that they use the seasoning for the manufacture of their fried chicken products as the special recipe which is proprietory of KFC International and the said seasoning is currently manufactured by the one M/s. Mc. Cormick as per the specification and under a licence from KFC international and it is meant only for KFC restaurants. The said seasoning is imported to India by M/s. Kancor Flavours and Extracts Limited, Cochin as agents/distributors of M/s. Mc. Cormick and the same being sold exclusively to the petitioners for use at the said restaurant. It is further contended that the seasoning used only for the purpose of adding flavour to the food products and according to the report from their laboratory it does not contain more than 1/2% of MSG and the report of the Public Analyst is not correct. Even otherwise the mere presence of MSG more than 1% would not be injurious to health and as the impugned order does not make any reference to the health hazardous on account of seasoning containing more than 1% MSG, the impugned notice is not in accordance with Clause 42 of by Bye-law 35. They have also assailed the impugned order as the result of a concentrated, well orchestrated and mala fide campaign against the petitioners through the press by the respondents and others. They have also contested the mode of collection and sealing of samples and the mode of examination by the Public Analyst.
7. The respondents have filed their statement of objections denying the allegations made by the petitioners. They have specifically stated that the sample was collected and sealed in a disinfected glass bottle and preservative form was added and on the receipt of the sample, the Public Analyst stored the same in a freezer and after thorough examination submitted his report on August 30, 1995. It is the case of the respondents that the fried chicken contains MSG at 2.8% and Glutomate at 2.42%, which is prohibited by the Rules.
8. The next contention of the respondents is that, Rule 64(B) of the PFA Rules deals with the permissible limits of adding MSG to an article of food and according to the said provision MSG may be added to an article of food, provided that the gultomate content of the ready-to-serve food does not exceed 1%. It shall not be added to the food for use by the infants below 12 months and, in view of the fried chicken containing more than 1% of the MSG without any label as prescribed by Rule 42(S) of the PFA Rules, the food articles come within the mischief of misbranding and adulteration. In view of the opinion of the Public Analyst that the same is not fit for human consumption on account of presence of MSG at more than 1% and Clause 21 and 22 of Bye-law 35 of the Bye-laws of the Corporation, the licence was revoked under Clause 42 of Bye-law 35. It is stated by the respondents that respondents have not initiated any action under the provisions of PFA Act. The action was taken only under the provisions of the Act. While taking action, the relevant provisions of PFA Act was also taken note of and on account of violation of the provisions of PFA Act which have relevance to the public health, the reference was made in the notice as well as in the memo, to the provisions of the PFA Act. Therefore the action was taken under the provisions of the Act, Rules and the Bye-laws. It was further contended that the Commissioner is empowered to delegate his all or any of his powers to any other officer by virtue of Section 66 of the Act and accordingly the Commissioner has delegated his power under section 66 of the Act to the Health Officer, by a Notification dated February 22, 1993. In view of the said Notification, the third respondent is well within his powers to issue the impugned notice and the memo/order of cancellation. It was further contended that Section 66 of the Act clearly empowers the ommissioner to delegate not only his ordinary powers but all other powers including quasi-judicial powers, as per Karnataka Act 35/94. In this view of the matter, the third, respondent, Health Officer having been delegated all the powers of the Commissioner inclusive of quasi-judicial powers was well within his jurisdiction to issue the impugned memo of cancellation of licence.
9. The respondents have refuted the contention of the petitioners as regards the non-compliance of principles of natural justice on the ground that the conduct of the petitioners disentitles them for any hearing as they did not ask for copy of the report nor complain in their objections that they were prejudiced for non-supply of report nor the bye-laws provide for any personal hearing before the impugned order was made.
10. The respondents have also raised an objection to the maintainability of the writ petition in view of the availability of efficacious and alternate remedy by way of an appeal under section 444(1)(e) of the Act.
11. In view of the aforesaid rival contentions, the following points would arise for consideration -
(1) In the facts and circumstances of this case, whether the second respondent has legal authority to delegate his quasi-judicial power to the third respondent - Health Officer ?
(2) If so, whether the second respondent has in fact delegated such authority to the third respondent ?
(3) Whether the third respondent has the authority of law to issue show-cause notice and make the order of the cancellation of licence ?
(4) Whether the case of the petitioners is prejudicially affected for not supplying the copy of the Analyst report and providing an opportunity of being heard to the petitioners ?
(5) Whether the petition is liable to be dismissed due to the availability of alternate remedy by way of an appeal ?
(6) Whether the report of the Public Analyst can be accepted for taking action without initiating action under the provisions of PFA Act ? and (7) Whether the presence of MSG in excess of the prescribed percentage itself is sufficient to revoke the licence or is it necessary for the authorities to record a finding the presence of MSG in excess of the prescribed percentage would be injurious to health ?
Re. Points 1 to 3 :
12. Section 343 of the Act states that, no person shall without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, keep any lodging house, eating-housing, tea-shop, coffee-house, cafe, restaurant, refreshment room, or any place, where the public are admitted for repose or for the consumption of any food or drink or any place where the food is sold or prepared for sale. Section 343(2) empowers the Commissioner to cancel or suspend any licence granted under sub-section (1) at any time if he is of the opinion that the premises covered thereby are not kept in conformity with the condition of such licence or with the provisions of any Bye-law made under section 423 relating to the such premises. Section 444 of the Act which deals with the general provisions regarding licence registration and permission, states that every licence or permission granted under this Act or any rule or bye-law made under it shall be signed by the Commissioner and for every such licence or permission fee shall be paid in advance at such rates as may be fixed and further provided that no more than one fee shall be levied in respect of any purpose specified in more heads than one of Schedule X. It also states that the Corporation may compound for any period not exceeding three years with the owner of any mill or factory for a certain sum to be paid in lieu of fee. Every order of the Commissioner or other municipal authority granting or refusing a licence or permission shall be published on the notice board of the Corporation. Sub-section (3) of Section 443 states that every order of the Commissioner or other municipality refusing, suspending, cancelling or modifying a licence or permission shall be in writing and shall state the grounds on which it proceeds. Sub-section (4) of section which deals with the regulation or suspension of licence by the Commissioner reads thus :
"Notwithstanding anything contained in this Act any licence or permission granted under this Act or any rule or bye-law made under it, may at any time be suspended or revoked by the Commissioner, if any of its restrictions or conditions is evaded or infringed by the grantee or if the grantee is convicted of a breach of any of the provisions of this Act or any rule, bye-law or regulation made under it, in any matter to which such licence or permission relates, of if the grantee has obtained the same by misrepresentation or fraud."
Bye-law 35 of the Corporation of the City of Bangalore deals with the regulation of hotels, boarding houses, cafes, refreshment rooms, coffee houses and any premises to which public are admitted for consumption of any food or drink in the City of Bangalore. Clause 1 of Bye-law 35 prescribes that no place within the municipal limits of the City of Bangalore whall be used as hotel, boarding house, rest house, restaurant, eating house, cafe, refreshment room, coffee house or premises to which the public are admitted for the consumption of any food or drink without a licence from the Commissioner or other officer appointed by him in this behalf and such licence shall remain in force from the date on which it is granted until the 31st March following and may be renewed every year. Clause 22 of Bye-law 35 prescribes that no foodstuff of any sort which is stale unwholesome, offensive or in any way unfit for human consumption in the opinion of the Health Officer, shall be stored, served, sold or exposed for sale in the premises, Cl. 41 of Bye-law 35 empowers either Commissioner or the Health Officer whenever satisfied on personal inspection or on report of inspection, may instead of recommending the prosecution of the licensee, issued to him in writing such directions as he may deem necessary for securing proper compliance with these bye-laws or in the interest of public health. Clause 42 of the said bye-law deals with the revocation or suspension of the licence, and it reads as under :
"42. The Commissioner may suspend or completely revoke any licence granted under the Bye-law in respect of any place on grounds of public health or safety or where any of the conditions specified in the Bye-laws are not being strictly observed :
Provided that such suspension or revocation of the licence shall not be deemed to exempt the licensee or any other person from liability to prosecution under these bye-laws, and provided further, that such suspension or revocation shall be made only after an opportunity is given to the licensee to show cause in the matter."
Cl. 43 of Bye-law 35 empowers the Commissioner or any person authorised by him to seize and detail articles of food or drink and vessels, utensils, etc., used for manufacturing, preparing or keeping such articles of food or drink and close down and lock the premises.
13. From the combined reading of the aforesaid provisions, it is apparent that no person shall run a restaurant without a licence being granted by the Commissioner and the Commissioner at any time cancel or suspend the licence granted where the premises covered, in this opinion, is not kept in conformity with the conditions of licence and if any of its restriction, condition is deviated or infringed by the licensee and if the licensee is convicted of a breach of any of the provisions of the Act or any rule, bye-law or regulation or if the grantee has obtained the same by misrepresentation or fraud. The Commissioner may also suspend or completely revoke the licence granted under the bye-law in respect of any ground of public health or safety or for non-observance of the conditions of any of the bye-law. The suspension or revocation of such licence shall be made only after an opportunity is given to the licencee to show-cause in the matter. The aforesaid provisions do not empower any other corporation authority to revoke the licence granted. It is therefore clear that it is the Commissioner alone who is competent to suspend or cancel or revoke the licence and that revocation or suspension shall be made only after an opportunity is given to the petitioner to show cause in the matter. In the administration of a local body like Corporation of the City of Bangalore, it may not be possible for the Commissioner to perform all his functions and exercise all his powers conferred by the provisions of the Act and therefore sections 66 and 67 of the Act empower the Commissioner to delegate his ordinary and extra-ordinary powers to any of his officers. Section 66 deals with the delegation of the ordinary powers of the Commissioner to his officers and it reads as under :
"86. Delegation of Commissioner's Ordinary Powers. -
Subject to the rules made by the State Government, the Commissioner may delegate to any officer of the corporation subordinate to him, any of his ordinary powers, duties and functions including the powers specified in Schedule III."
(The words "including the powers specified in Schedule III" were added by Act 35/1994 and shall be deemed to have come into effect with effect from 1-6-1995.) In exercise of his power under section 66 of the Act, the Commissioner has issued a Notification dated February 22, 1993, delegating his powers to some of his officers. It reads as follows :
"Bangalore Mahanagara Palike.
B 12(8) PR 82/91-92 Office of the Commissioner, Bangalore Mahanagara Palike, Bangalore, dated 22-2-1993.
NOTIFICATION In supersession of all the previous Circulars and Notification pertaining to the delegation of powers under section 66 of the K. M. C. Act 1976 I, P. D. Shenoy, the Commissioner, Bangalore, Mahanagara Palike, Bangalore, by virtue of the powers vested in me under Section 66 of the K.M.C. Act, 1976 do hereby delegate the powers to the various officers of the Health Department subject to the condition that I shall have the power to call for and take any file for examination and pass suitable orders thereon without prejudice to the General Powers delegated in this Notification.
1. Power Licences :
* * * *
II. Hotels & Lodgings :
a) All Star Hotels : Commissioner
b) Boarding & Lodging & Rest Houses : Dy. Commissioner.
c) Hotels and Restaurants : Health Officer
d) Tea shop, coffee house and restaurant room : Additional Head Officer.
* * * *
Renewals will be sanctioned by the respective authorities.
NOTE : All the files pertaning to General Administration, Medical and conservancy stores, and the files relating to sanction of licence by the Health Officer, Deputy Commissioner and Commissioner shall pass through the Additional Health Officer and Health Officer. This will come into effect forthwith. They should also ensure payment of property taxes.
Sd/-
Commissioner, Bangalore Mahanagara Palike."
14. Sri R. N. Narasimha Murthy, learned Senior Counsel, appearing for the petitioners, has contended that, in view of Section 343(2) of the Act, the Commissioner may at any time cancel or suspend any licence granted under sub-section (1) of Section 343 to keep a restaurant, if he is of the opinion that the premises covered thereby are not kept in conformity with the conditions of such licence or with the provisions of any bye-law made under section 423 of the Act, relating to such premises in respect of which the licence is granted under the Act and in view of sub-section (4) of Section 443, it is again the Commissioner alone who is competent to suspend or revoke licence granted if any of its restrictions or conditions are evaded or infringed by the grantee and if a grantee is convicted breach of any of the provisions of the order or any rule, bye-law or regulation made under it in any matter to which licence/permission relates. He further submits that, again in view of Clause 42 of bye-law 35, it is the Commissioner who is competent to suspend or completely revoke the licence granted under the bye-law for the reasons mentioned in the said clause and in the manner provided therein. It is the further case of Mr. Narasimha Murthy, that to revoke a licence either for non-observance of any of terms of the conditions set out in bye-law, the Commissioner shall hold an enquiry and such an enquiry is a quasi-judicial one; The quasi-judicial power shall be exercised only by the Commissioner and not by any other person. It is his further contention that even the Commissioner cannot delegate his powers in the absence of any provision either in the Act or rules or in the bye-laws either expressly or by its necessary implication authorising him to delegate such powers. He contends that, section 66 of the Act is the only provision which deals with the delegation of ordinary powers of the Commissioner to any of his officers and Notification dated February 22, 1993 has been issued in exercise of his power under Section 66 of the Act and the power delegated under Notification dated February 22, 1993, according to Sri R. N. Narasimha Murthy, is not the power to exercise quasi-judicial functions of the Commissioner as Section 66 does not empower the Commissioner to delegate his quasi-judicial powers.
15. Sri Ashok Haranahalli, learned counsel appearing for respondents 1 to 3, does not admit that, the power of commissioner to revoke the licence to be a quasi-judicial power; Even if it is held to be so, the same may be delegated in view of Section 66 of the Act as amended by Act 35 of 1995, which includes "the power specified in Schedule III". The power under Schedule III is a quasi-judicial power as has been held by this Court in Shailaja Uppund v. Commissioner, ILR (1990) Karnataka 1686 following the decision of this Court in W.P. No. 888/86 (Citizen Forum v. State of Karnataka). This contention of Sri Ashok Haranahalli is refuted by Sri. R. N. Narasimha Murthy on the ground that by Act 35/94 the Legislature has included only the power specified in Schedule III and not all quasi-judicial power.
16. Sri Ashok Haranahalli, learned counsel for the respondents has contended that in order to read and understand the purport and intent of a statutory provisions, it must be read as a whole and not with reference to any particular expression. Section 66 of the Act as it stood prior to amendment, as held by this Court did not contain the power to delegate the quasi-judicial powers. Therefore Section 66 of the Act came to be amended empowering the Commissioner to delegate the quasi-judicial powers also. The expression 'including' used in the provision embraces not only the powers specified in Schedule III but also, all quasi-judicial powers as it is an inclusive definition. The contention of Sri Ashok Haranahalli is too hard to be accepted. The expression 'including' as used by the amendment Act does not refer to the power of the Commissioner as a whole but refer only to the powers of the Commissioner specified in Schedule III. In this context, it is material to notice as to why Section 66 of the Act was amended. By virtue of Section 147 read with Schedule III of the Act, the Commissioner is empowered to assess any property for the first time or increase the assessment of any property otherwise than in consequence of general increasing of the rate at which the property tax is leviable. Under the scheme of taxation rules procedure is laid down in this regard. In part 2 of Schedule III whenever general revision of books of assessment is required to be done, notice has to be given by the Commissioner under Rule 7. Objections are to be called for to the proposed revision under Rule 8 and after considering the objection, the Commissioner is required to adjudicate and make an order of assessment whether it is done for the first time or on revision. The scheme of the rules makes it clear that this power is vested only in the Commissioner and in no other officer. Prior to Karnataka Act 35/94, the Commissioner delegated this power to the revenue officers. This delegation was held to be without the authority of law by this Court, in Shailaja Uppund's case as Section 66 of the unamended section did not provide for delegation of quasi-judicial function by the Commissioner of any of his officers. In order to include the power of the Commissioner specified in Schedule III which was held to be a quasi-judicial act, the Legislature amended Section 66 of the Act by adding the expression "including the powers specified in Schedule III". It is well settled rule of interpretation of statute that "the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical is more consistent with the alleged object and policy of the Act. (See Kanai Lal v. Paramnidhi, ).
17. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., AIR 1987 SC 1023 the Supreme Court has held as follows :
"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without glasses provided by the context. With those glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the settling of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression 'Prize chit' in Srinivasa and we find no reason to depart from the Court's construction."
In view of the amendment of Section 66 of the Act by specifically adding "including the powers specified in Schedule III" the Commissioner is empowered to delegate his powers specified in Schedule III to any of his officers and not other powers.
17A. In view of what is stated above, the next question to be considered is, as to the nature of the function of the Commissioner. Whether the power to decide the question whether or not the petitioner has violated the terms and conditions of the licence in view of Clause 22 of Bye-law 35 and to revoke the licence in exercise of his powers under Cl. 42 of the said Bye-law, is an administrative act or a quasi-judicial act.
In Board of High School and Intermediate Education, U.P. v. Ghanshyam Das Gupta, the Supreme Court considering the point as to what constitutes a quasi-judicial act, has held as follows :
"7. The first question therefore which falls for consideration is whether any duty is cast on the committee under the Act and regulations to act judicially and therefore it is a quasi-judicial body. What constitutes 'quasi-judicial act' was discussed in the Province of Bombay v. Khushaldas S. Advani, . The principles have been summarised by Das, J. (as he was then) at p. 725 (of SCR) (at page 260 of AIR) in these words :-
"The principles, as I apprehend them are :
(1) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide the disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
(ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.
In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of any two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act judicially."
(8) These principles have been acted upon by this Court in later cases : See Nagendra Nath v. Commr. of Hills Division, , Radheshyam Khare v. State of Madhya Pradesh, ; G. Nageshwara Rao v. Andhra Pradesh State Road Transport Corporation, and Shivji Nathu bhai v. Union of India, . Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and on one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively : (vide observations of Parker, J., in R. v. Manchester Legal Aid Committee, (1952) 2 QB 413."
The question in controversy in this case is, what is the percentage of MSG in fried chicken prepared by the petitioner-restaurant ? Whether the percentage of MSG in excess of the limit allowed by Rule 64(b) of the PFA Rules would render the fried chicken unfit for human consumption ? Whether the level of MSG contents in the fried chicken, would satisfy the Cls .21 and 22 of Bye-law 35 of the Corporation and whether they are sufficient grounds to revoke the licence ? If the Commissioner is satisfied that the petitioners have evaded or infringed any of the restrictions or conditions of licence, only after giving the petitioners to show the cause as to why the licence should not be cancelled. The decision on these disputed questions and mode of deciding the said questions cannot be at any stretch of imagination said to be an administrative act, because it cannot be decided except issuing notice to the other party and providing him an opportunity of being heard. The act of the Commissioner to revoke the licence of the petitioners-restaurant for the reasons set out in the impugned order would definitely be a quasi-judicial act.
18. Sri R. N. Narasimha Murthy, learned Senior Counsel for the petitioners, has contended that this Notification is no notification in the eye of law as the Commissioner has not delegated any of his specific powers under this Notification. As the said question is not relevant to decide the question in controversy in this petition, I do not propose to express any view on this contention. In Pradyat Kumar Bose v. Hon'ble C.J. of Calcutta H.C., the Supreme Court has observed as follows (at p. 291) :
"As pointed out in Barnard v. National Dock 'Labour Board', (1953) 2 QB 18 at page 40(B), it is true that 'no judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication'. But the exercise of the power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power. It is nonetheless so, by reason of the fact that an opportunity to show cause and an enquiry stipulating judicial standards have to precede the exercise thereof.
It is well-recognised that a statutory functionary exercising such a power cannot be said to have delegated his functions merely a deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides - is the ultimate responsibility for the exercise of such power.
As pointed out by the House of Lords in 'Board of Education v. Rice', 1911 AC 179 at p. 182(C), a functionary who has to decide an administrative matter of the nature involved in this case, can obtain the material on which he is to act in such manner as may be feasible & convenient, provided only the affected party "has a fair opportunity to correct or contradict any relevant and prejudicial material."
In Bombay Municipal Corporation v. Dhondu Narayan Chowdhary, the Supreme Court while considering similar provision coming under the Bombay Municipal Corporation Act has held as follows (para 3) :
"It goes without saying that judicial power cannot ordinarily be delegated unless the law expressly or by clear implication permits it."
It is true that Supreme Court on the facts of the case held that the Commissioner was empowered to delegate his power under S. 105-B of the Act in view of Chapter 6A of the Act, which also had a reference in S. 68 of the Bombay Municipalities Act under which the Commissioner had powers to delegate his power to any of his officers. What is to be seen in this case is that the extent of authority to delegate the powers of the Commissioner to any of his officers. Notice dated August 31, 1995 issued to the petitioners calling upon then to show within 3 days as to why the licence should not be cancelled for the offences mentioned therein was issued by the Health Officer, respondent-3, herein. The impugned order or memo of revocation of licence dated September 12, 1995 was passed by the Health Officer. From the provisions of the Act, the rules and the bye-laws to which I have referred to above, it is clear that the Health Officer is not conferred with any power to revoke the licence of a restaurant. Such power is exclusively vested in the Commissioner and, S. 66 of the Act empowers the Commissioner to delegate any of his ordinary powers including the one specified in Schedule III. S. 66 of the Act does not empower the Commissioner to delegate his quasi-judicial powers to any of his officers except the one specified in Schedule III.
I therefore answer Points 1 to 3 in the negative.
Point No. 4.
19. The petitioners further contend that the impugned memo of the cancellation of licence is arbitrary and unreasonable for having been made in violation of principles of natural justice. It is their case that show-cause notice dated August 31, 1995 does not specifically contain the particulars of commissions and omissions alleged to have been done by the petitioners. The contention of the petitioners is that though the notice states that on analysis, fried chicken sample was found to be adulterated, mis-branded and unfit for human consumption due to use of excess MSD as per PFA Act 1954 and Rules 1995, it does not contain particulars as to the percentage of MSG found in the fried chicken on analysis and its effect and how the food products were adulterated or misbranded and unfit for human consumption. It is their contention that, even though the said show-cause notice has been issued on the basis of the report of Public Analyst, the notice did not contain the contents of the report of the Public Analyst nor a copy of the report was annexed to the show-cause notice. It is their further case that even though a request was made for personal hearing, the same was not afforded for reasons best known to the respondents.
20. Sri Ashok Haranahalli, learned counsel for the respondents, has contended that the complaint that they were not given the opportunity of being heard would not lie in the mouth of the petitioners as they did not ask for a copy of the report nor have they filed any objection to the show-cause notice. When they have stated in the objections filed before the Commissioner that the percentage of level of MSG is less that 1%, which is contrary to the report of the Public Analyst, there was no need to hear the petitioners. Relying on Clause 42 of Bye-law 35 of the Bye-laws of the Corporation of the City of Bangalore, Sri Ashok Haranahalli contended that, the petitioner is not entitled for personal hearing in the absence of any specific provision in the bye-law. Even if the petitioners are entitled for hearing where the law is silent as to the mode of disposal of the objections, they are not entitled for hearing for the disposal of the objections as Clause 42 of Bye-law 35 prescribes an opportunity to be given to the licence only to show-cause in the matter; and, an opportunity was, in fact, given to the petitioners to show-cause as to why action should not be taken, in view of the report of the Public Analyst that, the analysis revealed excess use of MSD in the fried chicken contrary to the provisions of PFA Act; and the third respondent has considered the objections of the petitioners and disposed of the matter. The opportunity to file the objections and consideration of the said objections by the authority concerned according to Sri Ashok Haranahalli, is a sufficient compliance with Clause 42 of Bye-law 35 of the Bye-laws of the Corporation of the City of Bangalore; where the Bye-laws specifically provide for a particular mode of opportunity, the petitioners are not entitled to for any mode other than that the one which is prescribed by law.
21. It is true that Clause 42 of Bye-law 35 would not specifically prescribe that the licencee should be given an opportunity of being heard. It provides for an opportunity to show cause in the matter. When once the notice is issued calling upon the licencee to show-cause, as to the alleged non-observance or violation of the terms of the licence or the bye-law, it satisfies the requirement of Clause42 of Bye-law 35. There is no need to hear the petitioners in person under Clause 42 of Bye-law 35. However in view of the specific request made by the petitioners for a personal hearing in their representation dated September 1, 1995, requesting to grant adequate opportunity and time to respond to the said notice and in view of the complex nature of the question involved in the said notice, I am of the view that it would have served well if the petitioners were provided an opportunity of being heard. I am not expressing the view that the order is bad for not providing a personal hearing to the petitioners. I am only expressing my view that, in the circumstances of the case, it would have been just and appropriate for the respondents, if the petitioners were provided an opportunity of personal hearing.
22. Sri R. N. Narasimha Murthy submitted that the show-cause notice simply states that the fried chicken sample was found to be adulterated, misbranded and unfit for human consumption due to excess of MSG as per PFA Act 1954 and the Rules 1955. The said notice is based on the analysis report of the Public Analyst. Even though the show-cause notice is based on the report of the Public Analyst, the respondents did not mention the contents of the report of the Public Analyst in the show-cause notice nor annexed a copy of the report of Public Analyst to the show-cause notice. The petitioners were, therefore, deprived of an opportunity to make an effective representation in respect of the allegations made by the respondents. It is their further contention that the show-cause notice does not also indicate as to the level of MSG in the fried chicken that was found by the Public Analyst. In the absence of particulars, it was difficult for the petitioners to file their objections and therefore though they did not expressly ask for a copy of the report, they mentioned in their representation dated September 1, 1995, that a copy of the report was not given to them. It is their contention that by necessary implication a request was made for a copy of the report. It is their further contention that where show-cause notice is based on the report of the Public Analyst, it is the duty of the Commissioner to furnish a copy of such report to the petitioners whether asked or not, in order to provide them an opportunity to make an effective representation in their defence. Sri Narasimha Murthy has further submitted that the memo of cancellation of licence dated September 12, 1995 contains four reasons, namely, that the fried chicken sample contained 2.8% of MSG more than the permissible maximum limit of 1% and it is an offence under S. 64B of PFA Act, 1954 and Rules 1955; that the failure to declare that use of MSG as required under Rule 42 of PFA Rules 1955 amounting to misbranding; Failure to disclose the particulars as per S. 5 and 14A of PFA Act, 1954 having imported the seasoning mix; and violated the provisions of Clause 21 and 22 of Bye-law 35 of the Corporation of the City of Bangalore as the food exhibited for sale was found adulterated and unfit for human consumption. Without expressing any opinion as to the correctness or otherwise of the contents of the order, it has to be considered whether the memo/order of revocation of licence was preceded by show-cause notice on those points. It is well established that where an action has to be taken against any person by an authority on the basis of any violation of statutory provision or for commission of an offence, a show-cause notice is necessary in respect of the very act alleged to have been committed or in respect of the provisions which are alleged to have been violated is a must. The show cause notice as indicated above does not contain any statement as to the level of MSG in the fried chicken and as to the misbranding or as to disclose of particulars as per Ss. 5 and 14A of the PFA Act 1955. It may be seen at this stage that the petitioners have contended that they have not imported the seasoning mix. In the absence of any notice to be petitioners on these aspects the petitioners were deprived of an opportunity of making an effective representation which has resulted in an arbitrary order. In the facts and circumstances of this case, where the show-cause notice was purely based on the report of the Public Analyst, I am of the view that the show-cause notice should have been accompanied with a copy of the report of the Public Analyst. Dealing with the right of delinquent employee at a departmental enquiry for the report of the enquiry officer, the Supreme Court in Managing Director Ecil v. B. Karunakar, formulated questions, three of which are relevant for the purpose of this case, read as follows :
(i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the domestic enquiry were silent on the subject or are against it ?
(ii) Whether the report of the enquiry officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank ?
(iii) Whether the obligation to furnish the report was only when the employee asked for the same or whether it even otherwise ?
Dealing with the said questions, the Supreme Court had held that when the enquiry officer is not the disciplinary authority the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority comes to a specific conclusion with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right of defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision of charges is a denial of a reasonable opportunity to the employee to prove his innocence and is a breach of principles of natural justice. The Supreme Court has further held that since it is the right of the employee to have report to defend himself effectively and he would know in advance whether the report is in his favour or against him, it will not proper to construe his failure to ask for the the report as waiver of his right. Whether, therefore, the employee asks for such a report or not, the report has to be furnished to him.
23. Sri Ashok Haranahalli, learned counsel for the respondents relying on the very decision has contended that, that is a case where the question of right of the delinquent employee for the report of the enquiry officer was considered, which is nothing to do with the technical report. The technical report as in this case would not contain any of the details as set out in the enquiry officer's report in a domestic enquiry. Even otherwise the non-furnishing of the report itself would not prejudice the case of the petitioners in all circumstances. In this context he has read to me certain observations of the Supreme Court in the very judgment which are as follows (1994 AIR SCW 1050 at p. 1074) :
"The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rights to be performed on all and sundry occassions. Whether in fact, denial to him of the report has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits."
Placing emphasis on the aforesaid observations of Supreme Court, Sri Ashok Haranahalli has contended that no prejudice has been caused to the petitioners in this case on account of not furnishing the copy of the report of the Public Analyst, as the petitioners were aware that the allegation is only as regards level of MSG contents in the fried chicken. Even if that report was furnished, the result would not have been different in this case.
24. Sri Ashok Haranahalli, has also produced copy of the report for my perusal. If is seen from the copy of the report that it contains not merely the level of MSG in the fried chicken, but the opinion of the Public Analyst, in respect of other factors also. It is therefore material to extract the relevant opinion of the Public Analyst which reads as under :
"I am of the opinion that the KFC Fried Chicken sample collected as per Bye-law of Bangalore City Corporation is adulterated, misbranded and unfit for human consumption due to the presence of Monosodium glutamate (MSG 2.783% 2.8%, in terms of glutamate 02.42%). Since when Monosodium glutamate is used in any ready to consume food articles invariably it has to be sold with label declaration only as per sub-rule (S) Rule 42 and the quantity of Total glutamate content should not exceed 01.00% as per Rule 64B of P.F.A. Rules, 1955.
Hence the sample of KFC Fried Chicken is Adulterated/Unfit for human consumption as per sub-clause (b) clause (1-A) S. 2 of P.F.A.Act, 1954, due to the presence of 02.42% Total glutamate in place of Maximum 01% and also misbranded as per sub-clause (K) clause (IX) of S. 2 of PFA Act 1954 read with sub-rule (S) of Rule 42 and Rule 64(B) of PFA Rules, 1959."
The aforesaid opinion of the Public Analyst refers not only to the level of MSG in the fried chicken and its consequences also and that was relied upon by the third respondent in making memo for cancellation of the licence. The petitioners did not have the opportunity to make any representation in respect on this finding. The Supreme Court in Karunakaran's case (1994 AIR SCW 1050) has also held as follows (Para 24) :
"It is now settled law that the proceedings must be just and fair and reasonable and negation thereof offends Arts. 14 and 19. It is well settled law that the principles of natural justice are integral part of Art. 14. No decision prejudicial to a part should be taken without affording an opportunity of supplying the material which is the basis for the decision."
Admittedly the report of Public Analyst is the basis of the decision of the third respondent to revoke the licence and it was not furnished to the petitioners. Thus the petitioners were deprived of an opportunity to make an effective representation in support of their defence. Point No. 4 is therefore answered in the affirmative.
Point No. 5.
25. Sri Ashok Haranahalli, learned counsel for the respondents, has next contended that this Court should refuse to exercise its jurisdiction under Art. 226 of the Constitution of India, as the petitioner will have an effective, efficacious and alternate remedy by way of an appeal under S. 444(1)(e) of the Act. It is true that an appeal is allowed to the Standing Committee for Health against the order made by the Commissioner under S. 443 of the Act. Whenever an alternate remedy is available, this Court would generally refuse to exercise its jurisdiction under Art. 226 of the Constitution and direct the parties to go before the appropriate authority. The question, whether this Court should exercise its jurisdiction, in view of availability of an alternate remedy, not being a question of jurisdiction, but being a question of policy and procedure, it depends upon the facts and circumstances of each case for this Court to decide whether or not to exercise its jurisdiction under Art. 226 of the Constitution. It is well settled, where the error, irregularity or illegality touching the jurisdiction or procedure committed by the Court or Tribunal of first instance is patent, this Court would exercise its jurisdiction under Art. 226 of the Constitution in such cases without making any reference to the alternate remedy. In U.P. State v. Mohammad Nooh, AIR 1958 SC 86 the Supreme Court has observed thus (at p. 94) :
"(ii) On the authorities referred to above it appears to us that there may conceivably be cases - and the instant case is in point - where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior Court or tribunal of first instance is so patent & loudly obtructive that it leaves on its decision in indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior Courts sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or Tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed that ex facie was a nullity for reasons aforementioned."
The memo of cancellation of licence impugned in this petition has been held to be one without jurisdiction and it is also held to have been made in violation of the principles of natural justice. In these circumstances, I am of the view that there is no impediment for this Court to exercise its jurisdiction under Art. 226 of the Constitution even though an appeal is allowed under S. 44(1)(e) of the Act. Point No. 5 is therefore answered in negative.
26. In view of my findings on points Nos. 1 to 5 I do not think it is necessary to go into the question regarding the correctness of report of Public Analyst and related question touching the merits of the case.
27. In the result, I pass the following order -
(i) The writ petition is allowed. Rule is made absolute.
(ii) Notice dated August 31, 1995 issued by the third respondents in No. HOPR 86/95-96, Annexure-C and the memo dated September 12, 1995 issued by the third respondent in HOPR 86/95-96, Annexure-H, are hereby quashed.
(iii) However liberty is reserved to the Commissioner to take action as allowed under law, the rules and bye-laws.
(iv) The question as to the validity of Ss. 443(2) and 444(2) of the Act is left open.
28. Petition allowed.