Tahir Majeed Baba vs Commissioner Food & Drugs Administration & Others

Sanjay Dhar, J

1) The petitioner has challenged order contained in communication No.FADA-Legal/25/2021-05 dated 24.03.2023, whereby his appeal against order dated 16.12.2022 passed by the Designated Officer in respect of food licence for running the business has been dismissed on the ground of limitation and the petitioner has been advised to apply afresh before the Designated Officer. Challenge has also been thrown to order No.107-FDA of 2023 dated 23.05.2023, whereby a Committee of Officers has been constituted by respondent No.1 to examine the case of Samci Restaurant with regard to grant of food licence.

2) Briefly stated, the facts which emerge from the pleadings of the parties are that a license under the Food Safety and Standards Act, 2006 (hereinafter referred to as “FSSA”) was issued in favour of the petitioner on 15.05.2019 with its validity upto 14.05.2021. It seems that a writ petition was filed by respondent No.4 bearing WP(C) No.1997/2021 challenging the action of issuance of licence in favour of the petitioner. The writ petition was disposed of by the learned Writ Court by providing that so long as the premises to be licensed under the Act remains under dispute between the petitioner and respondent No.5 therein, the Designated Authority under the Act is well within its power not to grant or renew the license under the Act in favour one and to the exclusion of other. It was further provided that the parties may apply for grant of license jointly and in case they fulfil the requirements of the Act and the Regulations framed thereunder, they shall be granted the requisite license by the Designated Authority.

3) The aforesaid order of the Writ Court came to be challenged by respondent No.4 by way of a Letters Patent Appeal bearing LPA No.197/2022, which was decided by the Division Bench of this Court on 03.11.2022 and the order of the Writ Court was modified by providing that the concerned authority upon being approached shall consider the individual claims in light of the relevant provisions of the law and decide the same within a period of one month.

4) It seems that the petitioner pursuant to the aforesaid observations of the Letters Patent Bench made an application before respondent No.3-Designated Officer under FSSA for renewal of licence but the same was rejected by the said respondent in terms of order dated 16.12.2022. An appeal came to be filed by the petitioner in terms of Section 31(8) of FSSA before the Appellate Authority i.e. respondent No.1 on 17.01.2023. The Appellate Authority-respondent No.1 rejected the appeal of the petitioner on the ground that the same has not been filed within the stipulated timeframe prescribed under the Act and the petitioner has been advised to apply afresh along with mandatory documents as per the check list uploaded on the FOSCOS Portal before the Designated Officer. This order has been passed by respondent No.1 on 24.03.2023, which is under challenge in this writ petition.

5) It also appears that respondent No.1 has issued impugned order No.107-FDA of 2023 dated 23.06.2023, whereunder a Committee of officers has been constituted to examine the case of Samci Restaurant with regard to grant of food licence as per the mandate of FSSA.

6) The petitioner has challenged both the aforesaid orders on the ground that the impugned order dated 24.03.2023 issued by the Appellate Authority i.e. respondent No.1 is not in accordance with law, inasmuch as the appeal of the petitioner has been dismissed for the reason that the same has been filed beyond the prescribed period of limitation though no period of limitation has been prescribed for filing an appeal in terms of Section 31(8) of FSSA against an order of rejection for grant of license. It has been contended that the limitation period of fifteen days has been prescribed only in respect of an appeal filed by a person in terms of Section 32(4) of the Act and not in respect of the one filed under Section 31(8) of the Act. According to the petitioner, the Appellate Authority has failed to draw a distinction between an appeal filed under Section 31(8) of the Act and the one filed under Section 32(4) of the Act.

7) While challenging impugned order No.107-FDA of 2023 dated 23.06.2023, it has been contended by the petitioner that respondent No.1 is not competent to constitute a Committee for examining the cases relating to grant of food licence as the same can be done only by the Licensing Authority.

8) The official respondents have not filed any reply to the writ petition. However, respondent No.4 has contested the writ petition by filing his reply. In his reply, respondent No.4 has claimed that the petitioner has suppressed the material facts from this Court, particularly those relating to pendency of two suits, one instituted by respondent No.4 and another instituted by the petitioner, which have been instituted before the Court of Principal District Judge, Srinagar. It has also been submitted that the petitioner had filed another writ petition bearing WP(C) No.2934/2022 before this Court which came to be dismissed vide order dated 22.12.2022. All these facts, according to respondent No.4, are material and have been suppressed by the petitioner.

9) On merits, it has been submitted that it is respondent No.4 who continues to run the restaurant under the name and style of Samci Restaurant in the ground floor of the building situated at Kothibagh Bund, Srinagar, which building has been purchased by respondent No.4 but the petitioner being his elder brother has been inducted as a co-owner in the said building. It has been submitted that after coming into force of FSSA, the license was issued in favour of respondent No.4 on 04.08.2014 for running M/S Samci Restaurant and it was renewed upto 29.01.2018. According to respondent No.4, the petitioner, after entering into a conspiracy with the officials of State Food Safety and Standards Authority, succeeded in getting the license of respondent No.4 issued under FSSA transferred in his own name in terms of order dated 15.05.2019, whereafter writ petition bearing WP(C) No.1997/2021 was filed by respondent No.4 and subsequently LPA No.126/2021 was also filed by him. It has been submitted that respondent No.4 has filed an application for grant of license under FSSA in his favour as directed by the LPA Bench, which is still pending but the application of the petitioner has been rejected on the ground that the same was barred by time.

10) It has been contended by respondent No.4 that as per the provisions contained in Regular 2.1.12 of the Food Safety and Standards (Licensing and Registration of Food Business) Regulations, 2011 (hereinafter referred to as “the Regulations of 2011”), the procedure for filing appeal has to be as per the provisions laid down under Section 31(8) and 32(4) and (5) of FSSA. It has been contended that the provisions of Section 32(5) of the Act which provide a limitation period of fifteen days for filing of appeal has to be read into the procedure prescribed for appeal under Section 31(8) of the Act as well. Thus, according to respondent No.4, an Appellate Authority has rightly rejected the appeal of the petitioner being barred by time. Regarding challenge to order No.107-FDA of 2023 dated 23.06.2023, it has been contended that in terms of sub-section (3) of Section 30 of FSSA, respondent No.1 was well within his competence to constitute a Committee so as to examine the matter with regard to grant of licence and to make recommendations.

11) Respondent No.4 has also contended that during pendency of the writ petition and after passing of the impugned order by the Appellate Authority, the petitioner made a fresh application for grant of licence before the Designated Officer and the same has again been rejected in terms of order dated 03.09.2023, and, as such, the present writ petition has become infructuous.

12) I have heard learned counsel for the parties and perused the record of the case.

13) The two issues that arise for determination in this writ petition are as to whether any period of limitation has been prescribed for filing of an appeal under Section 31(8) of FSSA and whether the period of limitation prescribed under Section 32(5) of the said Act has to be read into in case of an appeal under Section 31(8) of the Act. The second issue that arises for determination is as to whether the Commissioner of Food Safety is competent to constitute a Committee of officers in order to enquire into the matters relating to grant of license.

14) In the first instance, let us deal with the second issue that has been raised by the petitioner in this writ petition. As already noticed, respondent No.1 has constituted a Committee of officers in terms of impugned order dated 23.06.2023 (supra), which reads as under:

Government of Jammu and Kashmir Office of the Commissioner Food and Drug Administration Civil Secretariat, Jammu

Subject:

Constitution of Committee for examination of case of Samci Restaurant. Srinagar

ORDER No. 107 FDA of 2023

Dated:- 23-06-2023

Sanction is hereby accorded to the constitution of a committee comprising of the following members to examine the case of Samci Restaurant with regard to Grant of Food License as per mandate of the Food Safety & Standards Act, 2006 and other related issues :-

Mr. Sheikh Zammeer, Designated officer Anantnag

Mr. Rafi Ahmad Dar, Designated Officer, Kupwara

Ms Syed Ashan-Ul-Haq, Asstt. Legal Remembrancer.

The Committee shall also examine various orders passed by the Hon'ble High Court, Srinagar and furnish its report along with the recommendations within a period of 10 days positively,

(Shakeel-Ul-Rehman), IAS

Commissioner

Food & Drugs Administration

15) From a perusal of the contents of the aforesaid order, it is clear that respondent No.1 has constituted a Committee for the purposes of examining the case relating to grant of food licence in respect of Samci Restaurant which is a matter of dispute between the petitioner and respondent No.4.

16) Section 31 of FSSA deals with licensing and registration of food business. Sub-section (3) of the said provision provides that any person desirous to commence or carry on any food business has to make an application for grant of licence to the Designated Officer. Sub-section

(4) casts a duty upon the Designated Officer to give an opportunity of hearing to the applicant and thereafter either grant or refuse the licence, for which purpose he has to record the reasons. Sub-section (8) of Section 31 of FSSA Act provides the remedy of appeal against an order of rejection for grant of licence to the Commissioner of Food Safety.

17) From a perusal of the provisions contained in Section 31 of FSSA, it is clear that the Designated Officer is the Licensing Authority whereas the Commissioner Food Safety is the Appellate Authority. It is also clear that a person desirous to commence or carry on any food business, has to make an application before the Designated Officer who has either to grant or to refuse the licence for the reasons to be recorded.

18) Chapter II of the Regulations of 2011 deals with licensing and registration of food business. Regulation 2.1.3 provides for the manner in which an application for grant of license has to be made before the concerned Licensing Authority whereas Regulation No.2.1.4 provides the mode for processing of application for license. The same is reproduced as under:

2.1.4 Processing of Application for license

(1) A license shall, subject to the provisions of these Regulations, be issued by the concerned Licensing Authority within a period of 60 days from the date of issue of an application ID number as provided in subsection (3) below.

(2) If, upon scrutiny of the application within 15 days from the date of receipt of the application, the concerned Licensing Authority requires any additional information with respect to an application or if the application is incomplete, the Licensing Authority shall inform the applicant in writing, to furnish such additional information or complete the application, as the case may be, within 30 days from such notice. In case the applicant fails to furnish the required information within the stipulated time of 30 days, the application for license shall stand rejected.

(3) On the receipt of a complete application including the additional information if asked for, the Licensing Authority shall issue an Application ID number to each applicant that will be referred to in all future correspondence between the Licensing Authority and the applicant.

(4) After the issue of Application ID number the Licensing Authority may direct the Food Safety Officer or any other person or agency specially designated for such functions to inspect the premises in the manner prescribed by the Food Safety and Standard Authority of India in accordance with these Regulations. Such Inspecting Officer or person may issue a notice to the applicant, if it deems fit, guiding food business operator on necessary steps to be taken or changes or alteration to be made in the premises in order to ensure general sanitary and hygienic conditions as specified in Schedule 4. The applicant shall carry out the required steps, changes or alterations and intimate the Licensing Authority within 30 days or such period as may be allowed by the Licensing Authority.

(5) Within a period of 30 days from receipt of an inspection report excluding the time taken by the applicant in complying with the advice, if any, given in the inspection report and verification thereof, the concerned Licensing Authority shall consider the application and may either grant license or reject the application. Provided that before refusing license an applicant shall be given an opportunity of being heard and the reasons for refusal shall be recorded in writing.

(6) The Licensing Authority shall issue a License in Format C under Schedule 2 of these Regulations, a true copy of which shall be displayed at a prominent place at all times within the premises where the Food Business Operator carries on the food business.

19) From a perusal of the afore-quoted Regulation, it is clear that it is the Licensing Authority which has to scrutinize the applications for grant of license and it is for the said Authority to ask for additional information, if any, from the applicant. The Licensing Authority is also empowered to direct the Food Safety Officer or any other person or agency to inspect the premises in the manner prescribed by Food Safety and Standards Authority of India in accordance with the Regulations.

20) A conjoint reading of the provisions contained in Section 31 and Regulation 2.1.4 leaves no manner of doubt that it is the Licencing Authority which is vested with the power to make enquiry and to scrutinise the applications for grant of licenses and for this purpose the said Authority can direct the Food Safety Officer or any other person or agency to assist him in arriving at the conclusion whether an application for grant of license has to be accepted or rejected.

21) Learned counsel for respondent No.4 has vehemently contented that the commissioner of Food Safety is vested with overall power to oversee an efficient implementation of the Food Safety Standards and as such, he is competent to even constitute a committee for examining the cases relating to grant of licenses. Learned counsel has particularly relied upon sub-section (3) of Section 30 of FSSA to support his contention.

22) In order to test the merits of contention of Learned counsel for respondent No.4, it would be apt to notice the provisions contained in Section 30, which reads as under:-

Commissioner of Food Safety of the State.–(1) The State Government shall appoint the Commissioner of Food Safety for the State for efficient implementation of food safety and standards and other requirements laid down under this Act and the rules and regulations made thereunder.

(2) The Commissioner of Food Safety shall perform all or any of the following functions, namely:–

(a) prohibit in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette;

(b) carry out survey of the industrial units engaged in the manufacture or processing of food in the State to find out compliance by such units of the standards notified by the Food Authority for various articles of food;

(c) conduct or organise training programmes for the personnel of the office of the Commissioner of Food Safety and, on a wider scale, for different segments of food chain for generating awareness on food safety;

(d) ensure an efficient and uniform implementation of the standards and other requirements as specified and also ensure a high standard of objectivity, accountability, practicability, transparency and credibility;

(e) sanction prosecution for offences punishable with imprisonment under this Act;

(f) such other functions as the State Government may, in consultation with the Food Authority, prescribe.

(3) The Commissioner of Food Safety may, by Order, delegate, subject to such conditions and restrictions as may be specified in the Order, such of his powers and functions under this Act (except the power to appoint Designated Officer, Food Safety Officer and Food Analyst) as he may deem necessary or expedient to any officer subordinate to him.

23) As per the afore-quoted provision, the functions of the Commissioner Food Safety include prohibiting manufacture, storage, distribution or sale of any article of food in the interest of public health, carrying out survey of the industrial units engaged in the manufacture or processing of food, conducting or organizing training programs for the personal of the office of Commissioner of Food Safety and, on a wider scale, for different segments of food chain for generating awareness on Food Safety, ensuring an efficient and uniform implementation of the standards and other requirements, sanction prosecution for offences punishable with imprisonment under the act and such other functions as the State Government may, in consultation with the Food Authority, prescribe.

24) The aforesaid provision nowhere vests power with the Commissioner of Food Safety to examine and enquire into a case for grant of license which is pending before the Licensing Authority. In my considered opinion, the Commissioner Food Safety has no jurisdiction to constitute a committee to examine and enquire into the question whether the license deserves to be granted or refused in favour of the applicants. It is only as an Appellate Authority that it may be open to the Commissioner Food Safety to enquire into or examine the case or to get it examined by a committee of officers but not at the stage when the matter is still pending before the Licensing Authority. This would amount to usurping powers of a subordinate authority by an authority which is vested with the powers to hear appeals against the said Authority. Such a course of action would be against the principles of fairness and transparency which is an essential element of exercising powers of either administrative or quasi-judicial nature.

25) In the instant case, at the time when impugned order dated 23.06.2023 was issued by respondent No.1, the appeal of the petitioner was not pending before it as the same had been rejected by the said Authority on 24.03.2023. It was only the application of respondent No.4 for grant of license that was pending before the Licensing Authority at the relevant time, as such, it was not open to respondent No.1 to interfere in the decision-making process of the Licensing Authority at that stage by constituting a committee for recommending action in the matter of grant of license for Samci Restaurant. Impugned order dated 23.06.2023, being de hors the powers of respondent No.1, as such the same deserves to be quashed.

26) That takes us to the first issue which relates to applicability of limitation provided under Section 32 (5) of FSSA to the appeals filed under Section 31 (8) of the Act. In this regard, it is to be noted that after passing of the impugned order by the Appellate Authority-respondent No.1, the petitioner, in compliance to the advice given to him by the Appellate Authority, made a fresh application for grant of license in his favour. As per the copy of order dated 03.09.2023 produced by Learned counsel for the respondents, the said application was made by the petitioner before the Licensing Authority on 30.03.2023 i.e., immediately after the passing of order by the Appellate Authority on 24.03.2023. The said application of the petitioner has been rejected by the Licensing Authority by virtue of order dated 03.09.2023. Therefore, even if the writ petition is allowed and the Appellate Authority is asked to decide the appeal of the petitioner on merits, still then the petitioner will have to face the consequences of subsequent order dated 03.09.2023 passed by the Licensing Authority. Unless and until the petitioner successfully challenges the said order, hearing of the appeal against the earlier rejection order by the Appellate Authority would be an exercise in futility. The action of the petitioner in complying with the impugned order passed by the Appellate Authority by filing a fresh application for grant of license in his favour, which has been dismissed, has rendered this writ petition infructuous to the extent of grant of relief relating to impugned order dated 24.03.2023. In these circumstances determination of the question whether the period of limitation provided under Section 32 (5) of FSSA would apply to the appeals under Section 31 (8) of the Act, would only be an academic exercise, which this Court would avoid to undertake, having regard to the fact that the relief itself has been rendered infructuous by subsequent events

27) Accordingly, the writ petition is partly allowed and impugned order dated 23.06.2023 passed by respondent No.1 is set aside. In view of subsequent developments indicated hereinabove, no opinion is being expressed on the issue as to whether or not limitation period prescribed under Section 32(2) of FSAA can be read into an appeal under Section 31(8) of FSAA. The petition is disposed of accordingly.

28) It shall, however, be open to the petitioner to challenge order dated 03.09.2023 passed by respondent No.3 by filing an appeal in terms of Section 31 (8) of FSSA before the Appellate Authority and in case the outcome of the said appeal goes adverse against the petitioner, he is at liberty to approach this Court afresh.