PFA – M/s Modi Home Products Vs State of Rajasthan , Oct 21, 2016

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

(1) CIVIL WRIT (CW) NO.3667/2011 PETITIONER:

M/s Modi Home Products, near Railway Fatak, Nagore Road, Ward No.17, Nokha through its proprietor Sh. Badri Narayan Modi S/o Ram Chandra Modi, aged about 47 years, resident of Nokha, District Bikaner.

Vs. RESPONDENTS:

1. The State of Rajasthan through the Director (Public Health) Medical and Health Services, Jaisalmer.

2. The Chief Medical and Health Officer, Jaisalmer.

3. The Municipal Board, Nokha, through its Executive Officer, Municipal Board, Nokha, District. Bikaner. (2) CIVIL WRIT (CW) NO.2862/2011 PETITIONER: M/s P.B.Agencies, Bhatia Market, Jaisalmer through sole Proprietor Smt. Gayatridevi w/o Shri Rajendra Kumar Bhatia by caste Bhatia aged 44 years resident of Bhatia Market, Jaisalmer.

Vs.

RESPONDENTS:

1. State of Raj., through the Director (Public Health) Medical and Health Services., Jaipur.

2. The Chief Medical and Health Officer, Jaisalmer.

3. The Municipal Board, Jaisalmer, through the Commissioner, Municipal Board, Jaisalmer. 2

(3) CIVIL WRIT (CW) NO.2920/2011

PETITIONER:

M/s Komal Traders, Jannai Pada, near Raj. Patrioka Office, Jaisalmer through sole Proprietor Mahesh Kumar Khatri son of Shri Khubchand Khatri by caste Khatri aged 35 years resident of Janani Pada, Near Raj. Patrioka Office, Jaisalmer.

Vs.

RESPONDENTS:

1. State of Raj., through the Director (Public Health) Medical and Health Services., Raj., Jaipur.

2. The Chief Medical and Health Officer, Jaisalmer.

3. The Municipal Board, Jaisalmer, through the Commissioner, Municipal Board, Jaisalmer.

(4) CIVIL WRIT (CW) NO.2921/2011

PETITIONER:

M/s Poonamchand Brijpal Bhatia, Bhatia Para, Jaisalmer through sole Proprietor Aman Bhatia son of Shri Rajendra Kumar Bhatia by caste Bhatia aged 19 years resident of Bhatia Para, Jaisalmer.

Vs.

RESPONDENTS:

1. State of Raj., through the Director (Public Health) Medical and Health Services., Raj., Jaipur.

2. The Chief Medical and Health Officer, Jaisalmer.

3. The Municipal Board, Jaisalmer, through the Commissioner, Municipal Board, Jaisalmer.

(5) CIVIL WRIT (CW) NO.2925/2011 3

PETITIONER:

M/s Babu Lal Bhatia, Bhatia Marekt, Jaisalmer through sole Proprietor Mohanlal Bhatia son of Shri Babulal Bhatia by caste Bhatia aged 55 years resident of Bhatia Market, Jaisalmer.

Vs.

RESPONDENTS:

1. State of Raj., through the Director (Public Health) Medical and Health Services., Raj., Jaipur.

2. The Chief Medical and Health Officer, Jaisalmer.

3. The Municipal Board, Jaisalmer, through the Commissioner, Municipal Board, Jaisalmer.

(6) CIVIL WRIT (CW) NO.2926/2011

PETITIONER:

M/s Jugal Store, Kachery Road, Jaisalmer through sole Proprietor Jugal Kishore Mehta s/o Shri Ramanlal Mehta by caste Mehta aged 49 years resident of Kachery Road, Jaisalmer.

Vs.

RESPONDENTS:

1. State of Raj., through the Director (Public Health) Medical and Health Services., Raj., Jaipur.

2. The Chief Medical and Health Officer, Jaisalmer.

3. The Municipal Board, Jaisalmer, through the Commissioner, Municipal Board, Jaisalmer.

(7) CIVIL WRIT (CW) NO.2928/2011

PETITIONER:

M/s Jagdamba Trading Company, Shiv Pada, Jaisalmer through sole Proprietor Jagdish Prasad Kela son of Shri 4 Mohan Lal Kela by caste Kela aged 42 years resident of Shiv Pada, Jaisalmer.

Vs.

RESPONDENTS:

1. State of Raj., through the Director (Public Health) Medical and Health Services., Raj., Jaipur.

2. The Chief Medical and Health Officer, Jaisalmer.

3. The Municipal Board, Jaisalmer, through the Commissioner, Municipal Board, Jaisalmer.

(8) CIVIL WRIT (CW) NO.7645/2011

PETITIONER: Ganesh Provision Store, Gaddisar Choraya, Jaisalmer, Through: Chetan Kumar S/o Sh. Jamana Das Bhurta By Caste Maheshwari Aged 26 years R/o Ramnagar Colony, Musalbar Jethwai Road, Jaisalmer.

Vs.

RESPONDENTS:

1. State of Raj., through the Director (Public Health) Medical and Health Services., Raj., Jaipur. 2. The Chief Medical and Health Officer, Jaisalmer. 3. The Municipal Board, Jaisalmer, through the Commissioner, Municipal Board, Jaisalmer. Date of Order : 21.10.2016 HON’BLE MS. NIRMALJIT KAUR,J. Mr. Mahesh Thanvi, for the petitioners. None present for the respondent-State. Mr. D.D.Chitlangi, for the Municipal Board, Nokha.

ORDER

5

All above writ petitions shall stand decided by this common order as the legal issue involved is identical. However, for convenience, the facts are taken from Civil Writ Petition No.3667/2011.

The petitioner Firm is holding a food licence issued by the Municipal Board, Nokha on 28.04.2007. The Directorate of Medical & Health Services, Jaipur issued circular dated 19.08.2010 to all the Joint Directors of Medical & Health Services, Zone, Rajasthan for implementation of the Prevention of Food Adulteration Act, 1954 and were given a target of 60 cases of inspection and of taking 12 samples per month under the provisions of PFA Act, 1954. Accordingly, Food Inspector of the Office of Chief Medical and Health Officer, Jaisalmer inspected the shop of petitioner Firm M/s Modi Home Products on 20.01.2011 due to suspicion of adulteration in Monika Brand Dhania and Mirch Powder. Vide letter dated 10.02.2011, the petitioner was informed that analysis of the sample disclosed that the seized article was containing prohibited oil soluble sudan IV colour and was unfit for human consumption. The Executive Officer, Municipal Board, Nokha vide order dated 18.03.2011 cancelled the food licence of the petitioner on the instructions of 6CMHO, Jaisalmer.

Learned counsel for the petitioners while praying for setting aside the impugned orders cancelling the food licence as well as the order/letter written by CMHO submitted that Prevention of Food Adulteration Act, 1954 stands repealed and the Food Safety and Standards Act, 2006 came into force before the impugned action had been taken against the petitioners and thus, the proceedings initiated against the petitioners under the provision of repealed Act of 1954 was void ab initio and without jurisdiction, and cannot be sustained in any manner. Secondly, even if it is assumed but not admitted that even after the repeal of the Act of 1954 and coming into force of the Act of 2006, the respondents have the power to take action under the Act of 1954, even then the impugned orders and action taken by the respondents against the petitioners is grossly in violation of the mandatory provisions of the Act of 1954 in as much as before passing the impugned order neither any show cause notice was issued to the petitioners nor any opportunity of hearing was provided to them nor the copy of any enquiry report was supplied. The respondents have not even taken into consideration the 7fact that petitioners had sent the sample of chili powder which was packed in the month of December, 2010 for analysis to Accurate Laboratory, Ahmadabad and as per the report of Accurate Laboratory dated 23.03.2011, the said sample conform with the prescribed standard of quality of PFA Rule, 1955. Not only this, the petitioners also sent the samples of chilly powder packed in the month of December, 2010 to the Government Agmark Laboratory, Bikaner for granting the sanction for packing the same under Agmark classification and on testing the said samples, sanction was granted for packing the chilly powder under the Agmark classification vide order dated 23.03.2011.

Reply has been filed. As per the reply, the Act of 2006 had not been published in the official Gazette and had not been implemented on the date when the action was initiated against the petitioners. Secondly, the petitioners were holding food licence issued by the local authority and as per the provision of Rule 8 of the Rajasthan Prevention of Food Adulteration Rules, 1955, every licence is subject to the conditions laid down under Rule 8. In case, the petitioner was aggrieved with the passing of the order dated 18.03.2011 by the Municipal Board, Nokha, he had the alternative and 8statutory remedy to file an appeal under Rule (6) of the Rajasthan Prevention of Food Adulteration Rules, 1955. It is further stated that as per the mandatory provision of Rule 8 sub-rule (1) of the said Rules, the licence shall be valid for full calendar year and further provided that the licensing authority can at any time cancel, suspend or modify the licence without assigning any reason therefor.

Heard.

The first argument that the Prevention of Food Adulteration Act, 1954 does not apply to the petitioners Firm as the same stood repealed by the Food Safety and Standards Act, 2006 cannot be sustained. No doubt, the various provisions of the Act, 2006 except Section 22 were notified and came into force on or before 29.07.2010. However, as per Section 97(1) of the Act of 2006, which deals with Repeal and Savings, the Prevention of Food Adulteration Act, 1954 (37 of 1954) was repealed only w.e.f. 5th August, 2011 [Vide F.No.P-15025/41/2011-DFQC, dtd 4.8.2011], whereas the action had already been initiated against the petitioners in the month of January, 2011 much prior to the date when the Act of 1954 was repealed. Thus, this argument of the learned counsel for the petitioner 9 is rejected. Hence, the alleged violations under the Food Safety and Standards Act, 2006 cannot be gone into.

In any case, it is admitted by the learned counsel for the petitioners that the licences issued were valid only for one calendar year and the same were never renewed and thus, to the said extent those licences have in any case expired by efflux of time.

Although, there may be some merit in the argument that licences were cancelled without opportunity of hearing but as per Rule 8 of the Rajasthan Prevention of Food Adulteration Rules, 1957, the said licences of the petitioners Firm can be suspended and cancelled any time while it is operating during the calendar year without assigning any reason and the said rule has not been challenged by the petitioners.

Accordingly, the writ petitions are dismissed with liberty to the petitioners to avail the alternative remedy if available to the them in accordance with law and if so advised.

(NIRMALJIT KAUR ),J.

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