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Judgment
ANUJA PRABHUDESSAI, J
Rule. Respondents waive service. By consent, Rule made returnable forthwith.Â
By this petition filed under Article 226 of the Constitution, the petitioner has sought the following reliefs:
“[A]  That this Honourable Court be pleased to issue a writ, mandamus or writ in the nature of mandamus or any other appropriate writ,
direction and order under Article 226 of the Constitution of India, 1950 declaring that Food Safety and Standards Act, 2006 and the Food Safety and
Standards ( Licensing and Registration of Food Business) Regulations, 2011 shall prevail over Section 394(1)(e) of the Mumbai Municipal Corporation
Act, 1988 r/w. Part IVÂ Schedule M of the said Act.
[B] That this Honourable Court be pleased to issue a writ,mandamus or writ in the nature of mandamus or any other appropriate writ direction and
order under Article 226 of the Constitution of India, 1950, declaring that Section 394(1)(e) of the Mumbai Municipal Corporation Act 1888 read with
Part (IV) Schedule M of the said Act is inconsistent and repugnant to the Food Safety and Standards (Licensing and Registration of Food Business)
Regulations, 2011 and is therefore void.
[C] That this Honourable Court be pleased to issue a writ,mandamus or writ in the nature of mandamus or any other appropriate writ direction and
order under Article 226 of the Constitution of India, 1950, declaring that Section 394(1)(e) of the Mumbai Municipal Corporation Act 1888 read with
Part (IV) Schedule M of the said Act is ultra vires Article 254 of the Constitution of India.
[D] That this Honourable Court be pleased to issue a writmandamus or writ in the nature of mandamus or any other appropriate writ direction and
order under Article 226 of the Constitution of India, 1950 declaraing that the Petitioner does not require a license under Section 394 of the Mumbai
Municipal Corporation Act, 1888 since the petitioner is registered under Section 31(2) of the Food Safety and Standards Act, 2006 read with
Regulation 2.1.1(5) of the Food Safety and Standards (Licensing and Registration of Food Business) Regulations, 2011.
[E] That this Honourable Court be pleased to issue a writ,mandamus or writ in the nature of mandamus or any other appropriate writ direction and
order under Article 226 of the Constitution of India, 1950, declaring that the seizure and confiscation by the Respondent no.3 of two commercial gas
cylinders weighing 19 kgs each, one small cylinder weighing 4 kgs, two gas stoves from Shop No.2, Shree Bajrang Krupa, Advocate Anandrao Surve
Marg, Umerkhadi, Mumbai 400 009 and two commercial gas cylinders weighing 19 kgs each and two gas stoves from Shop No.5, Onkar Co-operative
Housing Society, Advocate Anandrao Surve Marg, Umerkhadi, Mumbai 400 009 is illegal, arbitrary and without any authority of law and is violative of
Article 19(1)(g) of the Constitution of India, 1950.â€
The petitioner runs a proprietary concern “Khadya†in shop nos.2 and 5, situated at A.A.Surve Marg, Umarkhadi, Mumbai, wherein he has
been preparing and selling various types of food items. The said shops are registered under the Maharashtra Shops & Establishment Act vide
registration certificates dated 18th November, 2015 and 19th December, 2016.   The petitioner claims that the Officers of the respondent no.1
had informed him that he was required to obtain permission under Section 394 of the Mumbai Municipal Corporation Act. Hence, by application
dated 21st November, 2016 he applied for license under Section 394 of the Mumbai Municipal Corporation Act. The Sanitary Inspector of the
Respondent No.1 inspected the Shop No.2 on 22nd November, 2016.  He prepared the inspection report and an offence sheet dated 25th
November, 2016, which led to filing of criminal proceeding No. 4230315/SS/2016 before the Metropolitan Magistrate, 44th Court, Shindewadi, Dadar,
Mumbai, for carrying on catering business without obtaining license under Section 394 of the Mumbai Municipal Corporation Act, 1888 (hereinafter
referred to as 'MMC Act').
By letter dated 6th April, 2017 the petitioner was informed that his request for license was rejected for the reasons specified in the said refusal
letter.  The petitioner was directed to discontinue the trade within 7 days from the receipt of the said letters, failing which, action under Section
394 of the MMC Act would be initiated. The petitioner did not discontinue the said business, but he obtained Registration Certificate dated 8th May,
2017 under the Food Safety and Standard Act, 2006 (hereinafter referred to as 'FSS Act') for commencing and carrying on food business in the said
premises.
The grievance of the petitioner is that despite registration of the shops under the FSS Act, the respondent no.3 insisted for license under Section 394
of the MMC Act, and on failure to produce the said license, the respondent no,3 seized and confiscated the gas cylinders, gas stoves from the shop
no.2.  Â
The petitioner contends that FSS Act, is a single comprehensive special legislation enacted by the parliament in the year 2006. In view of the
provisions of section 31 of FSS Act r/w. Regulation 2.1 of the 2011 Regulation no license is required under section 394 of MMC Act. It is the case
of the petitioner that the provisions under Section 394 of the MMC Act relating to license are repugnant to and are inconsistent with the provisions of
Section 31 of FSS Act r/w. Regulation 2.1 of the 2011 Regulation. Â
The petitioner claims that since he has obtained RegistrationCertificate under FSS Act and 2011 Regulations, the respondent nos.1 to 3 have no
authority to proceed under Section 394 of the MMC Act. The petitioner contends that the confiscation and seizure of the gas cylinders and gas stoves
is illegal, arbitrary and is violative of fundamental rights under Article 19(1)(g) of the Constitution of India.
The primary issue in the present Petition is whether the petitioner is obliged to take license under Section 394(1)(e) read with Part (IV) Schedule M
of the MMC Act, or whether such requirement of license as mandated by Section 394(1)(e) of MMC Act is repugnant to and inconsistent with the
provisions of the FSS Act (Licensing and Registration of Food Business) Regulations 2011. Â
On the issue of repugnancy, the Apex Court in Rajiv Sarin & Anr. vs State Of Uttarakhand & Ors. (2011) 8 SCC 708 has observed thus:
It is trite law that the plea of repugnancy would be attracted if both the legislations fall under the Concurrent List of the Seventh Schedule of the
Constitution. Under Article 254 of the Constitution, a State law passed in respect of a subject matter comprised in List III i.e. the Concurrent List of
the Seventh Schedule of the Constitution would be invalid if its provisions are repugnant to a law passed on the same subject by the Parliament and
that too only in a situation if both the laws i.e. one made by the State legislature and another made by the Parliament cannot exist together. In other
words, the question of repugnancy under Article 254 of the Constitution arises when the provisions of both laws are completely inconsistent with each
other or when the provisions of both laws are absolutely irreconcilable with each other and it is impossible without disturbing the other provision, or
conflicting interpretations resulted into, when both the statutes covering the same field are applied to a given set of facts. That is to say, in simple
words, repugnancy between the two statutes would arise if there is a direct conflict between the two provisions and the law made by the Parliament
and the law made by the State Legislature occupies the same field. Hence, whenever the issue of repugnancy between the law passed by the
Parliament and of State legislature are raised, it becomes quite necessary to examine as to whether the two legislations cover or relate to the same
subject matter or different.
xxx
As and when there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a
scrutiny of the Act in question. In this process, it would also be necessary for the courts to examine the true nature and character of the enactment, its
object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective
legislature under the constitutional scheme.
xxx xxx
39.In nutshell, in order to attract the doctrine of repugnancy, both the legislations must be substantially on the same subject. Repugnancy in the
context of Article 254 of the Constitution is understood as requiring the fulfillment of a ""Triple test"" reiterated by the Constitutional Bench in M.
Karunanidhi v. Union of India, (1979) 3 SCC 431 @ page 443- 444, which reads as follows:-
It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to
prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts..
Before any repugnancy can arise, the following conditions must be satisfied:
That there is a clear and direct inconsistency between theCentral Act and the State Act.
That such an inconsistency is absolutely irreconcilable.
That the inconsistency between the provisions of the twoActs is of such nature as to bring the two Acts into direct collision with each other and a
situation is reached where it is impossible to obey the one without disobeying the other.
In other words, the two legislations must cover thesame field. This has to be examined by a reference to the doctrine of pith and substance.xxx
Before adverting to the controversy in the present Petition, it would be appropriate to refer to the decision in Lalji Mulji vs The State Of
Maharashtra (1965) 67 BOMLR 484 wherein` the vires of Section 394(1) (a)(ii) of MMC Act read with Schedule M, Part II (a), (b) and (c)Â was
called in question on the ground that the impugned section was inconsistent with the provisions of Section 31 of the Petroleum Act of 1934 and,
therefore, void. The Division Bench of this court while addressing the challenge, observed that concern which motivated the amended Section
394 is to prevent an outbreak of fire, and, with that end in view, to provide for certain precautionary measures or safeguards. Referring to the
expression ""better provision for the prevention of fire, explosion and otherdanger to life, health and property"" in the statement of objects and reasons
which introduced the Section 394Â the Bombay Municipal Corporation Act, the Division Bench observed that the emphasis in Section 394 is on the
need for additional precautions. It was observed that the Petroleum Act, which is a Central legislation, also deals with the question of storage of
petroleum and petroleum products and provides for certain precautions and safeguards which were required to be taken in the matter of transport
and storage of petroleum and petroleum products. However the dominant object of the Petroleum Act is not to make regulation, relating to storage.
The object of the Central legislation is far wider and covers several other matters, viz., import, export, production, refining and blending petroleum and
other inflammable substances. These provisions, which extend to the entire land, are of a general character and are not designed to meet peculiar
situations prevailing in crowded towns. On the other hand, the object of the impugned legislation is to make regulations relating to the storage of
petrol in the City of Bombay with a view to protect life and property. The Division Bench held that the precautions under Section 394 have to be
superimposed upon the precautions called upon by the Petroleum Act because of the-situation prevailing in a crowded city. The Division Bench held
that there is no repugnancy or inconsistency between the impugned legislation and the central legislation. Both legislations operate in different fields,
and there is no clash, much less, a collision between the two. The requirement of securing a licence from the Municipal Commissioner is a reasonable
restriction in the interest of general public to safeguard their lives and property and does not violate the fundamental right guaranteed by Article 19(1)
(g) of the Constitution of India.
In the instant Petition, the provisions under section 394(1)(e) of MMC Act are said to be inconsistent and repugnant to the provisions under FSS
Act. In order to address this controversy, it would be necessary to examine the true nature, object and scope of the provisions under section 394 (1)
(e) of the MMC Act vis-à -vis Section 31 of FSS Act r/w.
Regulation  2.1.2 of 2011 Regulations.Â
 12. Section 394 (1)(e) of the MMC Act, reads thus:
“394. Certain articles [or animals] not to be kept, and certain trades, processes and operations not to be carried on without a licence; and things
liable to be seized destroyed, etc., to prevent danger or nuisance.
(1) Except under and in accordance with the terms and conditions of the licence granted by the Commissioner, no person shallâ€" xxx xxx
(e) carry on or allow or suffer to be carried on, in or upon any premises.â€
(i) any of the trades specified in Part IV of Schedule M, orany process or operation connected with any such trade;
(ii) any trade, process or operation, which in the opinion of,the Commissioner, is dangerous to life, health or property, or likely to create a nuisance
either from its nature or by reason of the manner in which, or the conditions under which, the, same is, or is proposed to be carried on;
(2) xxx
(3) xxx
(4) If it appears to the Commissioner that the keeping of anyarticle or animal or the carrying on of any trade, process or operation, in or upon any
premises, is dangerous or likely to create a nuisance within the meaning of clause (d), or paragraph (ii) of clause (e), of sub-section (1), the
Commissioner may, by written notice, require the person keeping the article or animal or suffering or allowing it to be kept or the person carrying on
the trade, process or operation or, allowing it to be carried on, as the case may be, to take such measures (including discontinuance .of the use of the
premises for any such purpose) as may be specified by him in such notice in order to prevent such danger or nuisance and if such measures are not
taken within the specified time, the Commissioner may seize and carry away or seal such article or animal or any machinery or device used in
connection with such trade, process or operations. Any article or animal or machinery or device so seized and carried away or sealed may be
redeemed within a period of one month from the date of seizure, on payment of such sum and subject to such conditions as to future use or disposition
of such article or animal machinery or device as may be fixed by the Commissioner in that behalf:
Provided that, xxx
(5) It shall be in the discretion of the Commissionerâ€" (a) to grant any licence referred to in sub-section (1), subject to such restrictions or conditions
(if any,) as he shall think fit to specify, or
(b) for the purposes of ensuring public safety, to withhold any such licence:
Provided that, the Commissioner when withholding any such licence shall record his reasons in writing for such withholding and furnish the person
concerned a copy of his order containing the reasons for such withholding:
Provided further that, any person aggrieved by an order of the Commissioner under this sub-section may, within sixty days of the date of such order,
appeal to the Chief Judge of the Small Cause Court, whose decision shall be final.
Schedule M which is a part of Section 394 specifies the articles which cannot be kept in or upon any premises without a license.  Whereas,
Part IV of the Schedule enumerates trades or processes or operation connected with trades which cannot be carried on or allowed to be carried on in
or upon any premises without a license. Keeping of an eating house or catering establishment is one of the trades listed in Part IV of the Schedule.
The FSS Act has been enacted by the parliament in the year 2006. The statement of objects and reasons states that ""the Bill inter alia incorporates
the salient provisions of the Prevention of Food Adulteration Act 1954Â [37 of 1954] and is based on International legislations, instrumentalities and
Codex Alimenatries Commission ( which related to Food Safety Norms). In a nutshell, the Bill takes care of International practices and envisages
on over arching policy frame work and provision of single window to guide and regulate persons engaged in manufacture, marketing, processing,
handling, transportation, import and sale of food.
FSSÂ Act, 2006 was enacted to achieve the aforesaid object.
Section 31(i) of FSS Act mandates that no person shall commence or carry on any food business except under a license. Regulation 2.1.2 of the
Food Safety & Standards (Licensing & Registration of Food Business) Regulation, 2011, framed in exercise of powers conferred by Section 92 sub
section 2 clause (O) r/w. Section 31 of FSS Act, states that subject to Regulations 2.1.1, no person shall commence any food business unless he
possesses a valid license.Â
The object of the mandate under section 394 of MMC Act and section 31 of FSS Act was considered by the Apex Court in Brihan Mumbai
Mahanagar Palika & Anr. v. Willingdon Sports Club & Ors., 2014(1) ALL MR 400 (S.C.). After considering various provisions of MMC Acts, the
Apex Court has observed thus :
“12. The provisions contained in various chapters of the Act referred to hereinabove are meant for maintaining public hygiene, health and safety
and also for preventing dangers to life, health and property. Schedule ‘M’, which is part of Section 394, specifies the articles which cannot be
kept in or upon any premises without a licence. Part IV of the schedule specifies trades or processes or operations connected with trades, which
cannot be carried on or allowed to be carried on any premises without a licence. These include keeping of an eating house or catering establishment.
The object of incorporating the requirement of a licence for an ‘eating house’ or ‘catering establishment’ is to ensure that public hygiene
is maintained at the place/premises where the food is prepared and/or supplied for consumption. It is also intended to ensure safety of the people
engaged in the preparation of food articles and supply thereof as well as all those who consume the articles at the particular place/premises. …
...
At this stage, we may also take notice of the Food Safety and Standards Act, 2006 (for short, ‘the 2006 Act’). This Act provides for
establishment of the Food Safety and Standards Authority of India which is mandated to lay down science based standards for articles of food and to
regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for
matters connected therewith or incidental thereto. In exercise of the powers vested in it under the 2006 Act, the Food Safety and Standards Authority
of India made multiple regulations including the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011 (for
short, ‘the Regulations’). Regulation 2.1 and 2.2 makes the obtaining of licence mandatory for commencement of any food business. Part II of
Schedule IV of the Regulations prescribes general requirements of hygienic and sanitary practices to be followed by all food business operators
applying for licence. Part V of Schedule IV of the Regulations prescribes the specific hygienic and sanitary practices to be followed by food business
operators engaged in catering / food service establishments. xxx
15.xxx
These provisions reinforce the determination of thelegislature and the executive to ensure safety of food articles manufactured and supplied by the
food business operators and others engaged in catering / food service establishments. Part V of Schedule IV of the Regulations is inclusive and covers
eating houses, restaurants and hotels, snack bars, canteens, food service at religious places, hospital catering, etc.â€
It could thus be seen that the restrictions on storage of certain articles specified in Schedule M and or carrying on the trade specified in part IV
without a license are imposed as a safeguard and precautionary measure. In terms of clauses (d), (g) and (k) of section 61 of MMC Act it is an
obligatory duty of the Corporation to abate all nuisances, to take measures for preventing and checking spread of dangerous diseases and to protect
life and property in case of fire. Section 63(k) also confers discretionary powers on the Corporation to take any measure not specifically provided, to
promote public safety, health, or convenience. The restrictions under section 394 of MMC Act seek to regulate storage of such specified substances
and thus prevent sporadic breaking out of fire, explosions etc due to improper storage or negligent handling of combustible, or hazardous substances.
Similarly, restrictions on trade are intended to prevent nuisance, unhygienic conditions, spread of contagious diseases etc. and to ensure public
health, hygiene and safety.
It is thus evident that restrictions under 394, are intended to fulfill the mandate of Section 61 and 63 of MMC Act. Whereas the objectives of the
FSS Act, which is a Central Act, is to ensure availability of safe and wholesome food for human consumption. The requirement of obtaining license
and registration as per the regulation 2.1 of FSS Regulations 2011 is to regulate and monitor the manufacture, processing distribution, sale, and import
of food. The provisions under the FSS Act are much wider and general in nature and do not meet the specific and peculiar exigencies covered by the
MMC Act, viz. to regulate the specified trade and storage of hazardous substance so as to ensure public safety, health and hygiene. The impugned
legislation and the central legislation do not cover the same field but operate in two different fields. There is thus no conflict or repugnancy between
the two provisions.
The contention that these restrictions infringe fundamental right to practice occupation or trade of choice is devoid of any merit. There is no total
prohibition on the right of the petitioner to carry on the trade or business of his choice, but the restriction is only to carry on the trade or business
without the license. Suffice it to say that the right to practice any profession, or to carry on any occupation, trade, or business as guaranteed under
Article 19(1)(g), is not an absolute right but is subject to reasonable restrictions. The requirement of license, which intends to ensure public health,
hygiene and safety, cannot be considered as unreasonable restriction on the right to carry on the trade guaranteed under Article 19(1)(g). The
restrictions are in the interest of the general public; to safeguard their lives and property and thus satisfy the test of reasonableness laid down by
Article 19(6) of the Constitution.
The Corporation has detailed the reasons for rejecting the license. The petitioner has neither filed an appeal against the rejection order nor has he
met with the requirements specified in the rejection order. He continued with the business without a license, which is not permissible under section
394(1)(g) of MMC Act. Hence, the action of the Corporation cannot be considered to be arbitrary or illegal.
Under the circumstances and in view of the reasons supra, the petition has no merits and is accordingly dismissed. Rule discharged. No costs.