Document Fragment View

Matching Fragments

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.

(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.

"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) :