Shri Uma Shankar Gupta vs Kolkata Municipal Corporation & Ors.

DEBANGSU BASAK, J.

Whether a pulse mill owner is required to obtain a licence under the Food Safety and Standards Act, 2006 and the Food Safety and Standards

(Licensing and Registration of Food Businesses) Regulations 2011 for the purpose of obtaining/ renewing a certificate of enlistment from the Kolkata

Municipal Corporation falls for consideration in the present writ petition.

The petitioner is an owner of a pulse milling unit. The petitioner claims himself to be the Secretary of West Bengal Das Para Essential Commodities

Traders Welfare Organisation. According to the petitioner, it was granted a certificate of enlistment by Kolkata Municipal Corporation for the

financial year 2016-2017. Such licence was required to be renewed on payment of specified fees. The petitioner deposited all fees for renewal of such

certificate of enlistment. The same was not renewed. On enquiry, the petitioner learnt that, Kolkata Municipal Corporation was insisting upon licence

from Food Safety and Standards Authority of India (FSSAI). According to the petitioner, a pulse mill unit is exempt from obtaining a licence under the

Act of 2006 and the Regulations of 2011.

Learned Advocate for the petitioner refers to the provisions of the Regulations of 2011 particularly Regulation 2.1.2 dealing with licence for food

business. He submits that, under sub-Regulation (3) and (4) licence for commencing of carrying on food business, which are not covered under

Schedule 1, is to be granted by the concerned State/ Union Territory Licensing Authority. He refers to Schedule 1 of the Regulations of 2011

particularly to V thereof and submits that grains, cereals and pulses milling units are exempted from the regulations of 2011. He refers to the download

obtained from the Food Safety and Standards Authority of India website and submits that, such download deals with procedures of licensing. He

draws the attention of the Court to the fact that, FSSAI, is of the view that, all food essential units excepting grains, cereals and pulses milling units are

required to obtain licence. He refers to the clarification dated March 5, 2012 issued by FSSAI and submits that, such clarification misreads the

Regulation of 2011.

Learned Advocate appearing for the Corporation submits that, Kolkata Municipal Corporation is the State Licensing Authority under the Act of 2006.

He refers to the Act of 2006 particularly Section 3(1)(n) and Section 31(1)(2) of the Act of 2006. He submits that, petty manufacturer is defined in the

Regulations of 2011. A pulse mill owner is obliged to make an application for grant of licence under the Act of 2006 in terms of Section 31(3) of the

Act of 2006. He also refers to Regulation 2.1 of the Regulations of 2011. He submits that, a pulse mill owner is not exempted from obtaining licence

under the Act of 2006.

Learned Advocate appearing for the FSSAI submits that, a pulse mill owner is obliged to obtain a licence under the Act of 2006. As the preamble to

the Act of 2016 states, the Act of 2006 came into being to consolidate the laws relating to food safety and to establish the Food Safety and Standards

Authority of India for laying down the 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.

Section 3 of the Act of 2006 defines various words and phrases. Section 3(1)(n) defines “food business†to mean 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. Section 31 of the Act of 2006

lays down that, no person shall commence or carry on any food business except under a licence.

Therefore, in order to carry on any food business, a person is obliged to obtain a licence under the Act of 2006. Sub-Section (2) of Section 31 exempts

a petty manufacturer from obtaining a licence under the Act of 2006. Petty manufacturer is not defined in the Act of 2006. However, the Food Safety

and Standards (Licensing and Registration of Food Services) Regulations 2011, defines “Petty Food Manufacturer as follows:-

“4. “Petty Food Manufacturerâ€​ means any food manufacturer, who-

a) manufactures or sells any article of food himself or a petty retailer, hawker, itinerant vendor or temporary shall 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/ltr per day; or

(ii) procurement or handling and collection of milk is upto 500 litres of milk per day; or

(iii) Slaughtering capacity of 2 large animals or 10 small animals or 50 poultry birds per day or less.â€​

Sub-Section 3 of Section 31, deals with the manner in which an application for grant of licence is to be made by a person carrying on a food business,

and the manner in which such application is required to be dealt with by the authorities. Section 31 also contemplates an appeal from an order passed

by the designated authority dealing with issue with regard to grant of licence under the Act of 2006.

The FSSAI through its director by a writing dated March 5, 2012 clarified that, all food processing units other than mentioned in the clarification, are

required to obtain licence. A pulse mill unit having more than 100 kgs. to 2 metric tonnes per day production is required to obtain licence from the Sate

Authority, while an unit with the production of more than 2 metric tonnes per day is to obtain licence from the Central Licensing Authority.

A pulse mill cannot be said to be a petty food manufacturer. Therefore, a pulse mill is required to obtain a licence under the Act of 2006. The authority

from which a pulse mill owner is required to obtain such licence will depend upon capacity of the pulse mill concerned. If it is between 100 kgs. per

day to 2 metric tonnes per day then it has to obtain the licence from the State Authorities while if its capacity in excess of 2 metric tonnes per day

then from the Central Licensing Authority.

In such circumstances, the insistence on the part of Kolkata Municipal Corporation that a pulse mill should obtain the requisite licence under the Act of

2006 cannot be said to be arbitrary or without any basis. The issue raised in the writ petition is answered in the affirmative, and against the petitioner.

A pulse mill owner is required to obtain a licence under the Act of 2006 read with the Regulations of 2011 for the purpose of obtaining or renewing a

certificate of enlistment from Kolkata Municipal Corporation. W.P. No. 19363 (W) of 2017 is disposed of accordingly. No order as to costs. Urgent

certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.