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SCA/8977/2009 1/ 34 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8977 of 2009
WITH
SPECIAL
CIVIL APPLICATION No. 9769 of 2009
TO
SPECIAL
CIVIL APPLICATION No. 9773 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.A.PUJ
Sd/-
===================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2.
To
be referred to the Reporter or not ?
NO
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
FEDERATION
OF PACKAGED DRINGING WATER MANUFACTURES, VADODARA – Petitioner
Versus
STATE
OF GUJARAT & 14 Respondents
Appearance
:
1. Special
Civil Application No.8977 of 2009
MR
R R MARSHALL, SENIOR ADVOCATE WITH MR
JAL SOLI UNWALA for Petitioner.
GOVERNMENT PLEADER for
Respondent No. 1.
MR DHAVAL G NANAVATI for Respondent Nos.2 to
4
MR AMIT V THAKKAR for Respondent No.5.
MR
NIRAV C THAKKAR for Respondent Nos.6 to 15.
2. Special
Civil Application Nos.9769 to 9773 of 2009
MR
NIRAV C THAKKAR for Petitioners. GOVERNMENT PLEADER for
Respondent No. 1. MR DHAVAL G NANAVATI for Respondent Nos.2 &
3. MR R R MARSHALL, SENIOR ADVOCATE WITH MR JAL SOLI
UNWALA for Respondent No.5.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 25/06/2010
COMMON CAV JUDGMENT
Since
all these petitions are in relation to the same subject matter and
are inter-connected and since they are heard together, the same are
being disposed of by this common judgment and order.
Special
Civil Application No.8977 of 2009 is filed by Federation of Packaged
Drinking Water Manufacturers, Vadodara praying for a direction to
the respondent authorities to ensure that the every individual /
trader / businessman who is doing the business of manufacturing
and/or selling and/or exhibiting for sale packaged drinking water
within the limits of respondent No.2 Surat Municipal Corporation
shall obtain and possess a valid license / certification mark of the
respondent No.5 Bureau of Indian Standard as per the provisions
of Section 15 of the Bureau of Indian Standards Act, 1986 as well as
under Sub-Rule 28 of Rule 49 of the Prevention of Food Adulteration
(7th Amendment) Rules, 2000 after following the
pre-requisites for the grant of license as per Annexure C and
further to ensure that all such individuals / traders / businessmen
carry on their business in conformity with the Indian Standard
Packaged Drinking Water (other than packaged natural mineral water)
specification at Annexure D to this petition and till then, to
restrain all such persons / individuals / traders / businessmen from
carrying on such business.
Special
Civil Application Nos.9769 to 9773 of 2009 are filed by different
concerns praying for quashing and setting aside the impugned notices
dated 08.09.2009 issued by the respondent No.3. By way of an
amended prayer, they have also prayed for quashing and setting aside
the illegal action of the respondent Corporation in applying seals
to the business premises of the petitioners by holding the same to
be illegal etc. and seeking further direction to the respondent
Corporation to forthwith remove the said seals.
In
Special Civil Application No.8977 of 2009, this Court has issued
notice on 27.08.2009. On 08.09.2009, further order was passed by
this Court directing respondent No.2 Surat Municipal Corporation
to keep a responsible Officer present before the Court with an
explanation as to why the action was not taken, as directed by this
Court vide order dated 11.06.2008 in Special Civil Application
Nos.8044 to 8062 of 2008 by the concerned Officer and also with an
explanation as to why the actions, as contemplated in the order of
Division Bench of this Court in Special Civil Application No.7549 of
2009 dated 10.08.2009 were not taken. On 09.09.2009, Deputy
Municipal Commissioner (Health) of Surat Municipal Corporation was
present before this Court and assured the Court that he would see to
it that all necessary actions which were required to be taken under
the order dated 11.6.2008 passed in Special Civil Application
Nos.8044 to 8062 of 2008 and also under order passed by Division
Bench of this Court in Special Civil Application No.7549 of 2008 on
10.08.2009 wold be taken in accordance with law. The petition was
thereafter admitted on 06.10.2009. On this date i.e. 06.10.2009,
Special Civil Application Nos.9769 to 9773 of 2009 were also
admitted and they were ordered to be heard with Special Civil
Application No.8977 of 2009. On 19.11.2009, the petitioners of
Special Civil Application Nos.9769 to 9773 of 2009 were desirous to
go for certificate from the Bureau of Indian Standard and hence,
only for the purpose of carrying out those technical tests and
establishment of the Laboratory and the Factory, they were allowed
to open the seal of the premises, after filing undertaking by the
petitioners that they would not carry out any manufacturing /
selling activities without the permission of this Court and would
not operate the plant for manufacturing of the product. They were
also required to file an undertaking that they would not transfer,
alienate the disputed property in any manner whatsoever. Lastly on
09.02.2010, a detailed order was passed by this Court permitting the
petitioners to file a representation before the Corporation and
directing the respondent Corporation to decide such representation
within a period of 14 days from the date of receipt of such
representation in accordance with law and the respondent Corporation
was further directed to place the said decision on the record of
these petitions. Since the decision on the petitioners’
representation was not placed on record, this Court has passed
further order on 02.03.2010 directing the respondent Corporation
either to place the said decision on record or to depute the
concerned Authority to remain personally present before the Court on
03.03.2010. Accordingly, an affidavit was filed on 03.03.2010 on
behalf of the respondent Corporation along with which the decision
on the petitioners’ representation was placed on record and all the
matters were heard on merits.
The
brief facts giving rise to Special Civil Application No.8977 of 2009
are that the petitioner of this petition is a Public Trust having
its registration No. F-1444/Vadodara dated 16.04.2003. Some of the
main objects and aims are to promote industries and trade and
packaged drinking water industries. It is a group of individual
members who are carrying on the business of manufacturing and/or
selling packaged drinking water, after obtaining necessary license
from the Bureau of Indian Standards as per the provisions prescribed
under the Prevention of Food Adulteration Act as well as Rules
framed thereunder. Bureau of Indian Standards has laid down certain
specifications for packaged drinking water (other than packaged
natural mineral water which is popularly known as IS-14543 :
2004. In the year 2008, the respondent Corporation had sealed the
factory premises of certain individual businessmen who were
illegally carrying on business of manufacturing and/or selling
and/or exhibiting for sale packaged drinking water without having
the requisite certification mark from the Bureau of Indian
Standards. Those erring individuals approached this Court by way of
Special Civil Application No.8044 of 2008 to 8062 of 2008, inter
alia, praying to immediately
remove the seals applied upon the Factory premises. This Court
after hearing all the parties disposed of the said Special Civil
Applications on 11.06.2008 with certain directions. Inspite of
those directions, many of such individual businessman within the
limits of Surat Municipal Corporation were still carrying on the
business of manufacturing and/or selling and/or exhibiting for sale
packaged drinking water in total violation of the above mentioned
provisions of law as also in total disregard and flagrant violation
of the order and inspite of this factual situation, the respondent
Corporation had not taken any action / steps against those erring
individuals.
It
is in this background of above mentioned facts and circumstances of
the case, the petitioner approached this Court earlier by way of
Special Civil Application No.4642 of 2009. After hearing the
advocate for the petitioner, this Court vide its order dated
13.05.2009 without going into the merits of the matter and without
expressing any opinion, disposed of the said petition by reserving
liberty for the petitioner to make a representation to the
respondent Corporation. It was also directed that if such a
representation was made, it would be considered by the respondent
authority in accordance with law and as expeditiously as possible,
preferably within the period of one month from the date of receipt
of the representation from the petitioner. In due compliance of the
directions given by this Court, the petitioner made representation
dated 26.05.2009 to the Commissioner, Surat Municipal Corporation.
Inspite of the direction given by this Court, the representation of
the petitioner was not decided and hence, the petitioner was
constrained to file the present petition before this Court.
Mr.
R. R. Marshall, learned Senior Advocate appearing with Mr. Jal
Unwala for the petitioner has submitted that the respondents were
not implementing the provisions of Sub-Rule 28 of Rule 49 of the
Prevention of Food Adulteration (7th Amendment) Rules,
2000 and Section 15 of the Bureau of Indian Standards Act, 1986. He
has further submitted that it is the duty of the respondents to see
that the above provisions of Food Adulteration Rules as well as
Bureau of Indian Standards are put into action with equal force and
the action on the part of the respondents in allowing such erring
individuals to carry on the business of manufacturing and/or selling
packaged drinking water without complying with the provisions of the
Prevention of Food Adulteration Rules as well as the Bureau of
Indian Standards Act is required to be deprecated and strict action
is required to be taken against such authorities. He has further
submitted that there is no nexus between the classification /
different treatment given to such erring individuals and the
provisions of the Prevention of Food Adulteration Rules as well as
Bureau of Indian Standards Act. He has further submitted that the
erring individuals did not confirm to the specifications and the
procedures prescribed in Annexure D by the Bureau of Indian
Standards nor did they purchase certification mark / license as per
Annexure C and in that view of the matter, it is incumbent upon the
respondent Corporation to immediately adhere to the provisions
of this Act and Rules and should have forthwith restrained such an
erring individuals from carrying on the business in violation of the
statutory provisions under the Prevention of Food Adulteration Rules
and the Bureau of Indian Standards Act.
An
affidavit-in-reply is filed on behalf of Surat Municipal Corporation
on 03.11.2009. Mr. Dhaval G. Nanavati, learned advocate appearing
for the Surat Municipal Corporation has raised preliminary objection
to the maintainability of the petition. He submitted that the
petitioners have failed to show infringement of any of its
fundamental or legal rights. The petition does not disclose any
infraction of the rights of the petitioners. He has further
submitted that the petition involves disputed questions of fact
which in turn, require detailed fact finding inquiry and leading of
the documentary as well as oral evidence. Such an inquiry is not
feasible in the present proceedings under the extra ordinary
jurisdiction of this Court. He has further submitted that the
petition suffers from inordinate delay and inexplicable laches. He
has, therefore, submitted that the petition is not maintainable and
the petitioner is not entitled to any relief as prayed for.
So
far as merits of the matter are concerned, he has submitted that the
respondent Corporation, from day one initiated action when it has
come to its knowledge and notice that some of the businessmen were
manufacturing / selling the packaged drinking water in the open
market for the consumption of the public at large without having any
requisite permission / license / certification under provisions of
Section 15 of the Bureau of Indian Standards Act read with Sub-Rule
28 of Rule 49 of the Prevention of Food Adulteration (7th
Amendment) Rules, 2000. He has further submitted that out of all
those businessman, 19 Unit holders had initially preferred writ
petitions challenging the action of the Corporation on the ground
that the action of sealing the units by the Corporation was too
harsh as the provisions of the Prevention of Food Adulteration Act
are not applicable to the units as the units are not falling under
the definition of packaged drinking water, as the units are not
engaged in manufacturing or selling the packaged drinking water and
only selling the water in the open Jars / Kerbas and only tied the
lid from the top. The arguments of the Corporation were that the
Corporation had an authority to take action under the provisions of
Prevention of Food Adulteration Act as the Units are covered under
the definition of packaged drinking water as they put a lid on the
Jars wherein they preserved water. The Corporation has also
justified its action on the ground that it is the responsibility of
the Corporation to ensure public health, hygiene and safety against
the packaged drinking water. In absence of any certificate from the
Health department or the fitness certificate for the quantity of the
water from the concerned authority, those businessman were not
entitled to carry on their business. Considering the records and
the provisions of the Act as well as the Rules, this Court vide its
order dated 11.06.2008 had issued certain directions. He has
further submitted that as per the directions of this Court, the
Corporation had allowed the unit holders to draw the samples so that
same could be tested in the Laboratory of the Corporation as well as
Govt. Laboratory at Vadodara. The reports of both the Laboratories
were different and hence, the Corporation had asked all those unit
holders to stop their activities. Against this action of the
Corporation, the unit holders have preferred Misc. Civil Application
before this Court contending therein that though they have supplied
the samples for analysis, the report has not been handed over to
them by the concerned Laboratories. However, both the test reports
so received from the Laboratories were placed before this Court and
after considering the submissions of the parties and the reports so
placed before the Court, six unit holders who have obtained the
favourable reports in their favour were allowed to continue their
business. Mr. Nanavati further submitted that the opinion of the
BIS Plants was permitted to manufacture / sell or exhibit for sale
of water. He has further submitted that the Corporation is very
keen and also duty bound to see that the citizens get clean and
hygiene water to drink and the Corporation was ready and willing to
obey each and every direction contained in the order of this Court.
He has, therefore, submitted that the petition should not be
entertained by this Court.
An
affidavit-in-rejoinder is filed on behalf of the petitioner on
28.01.2010. Based on this rejoinder affidavit, Mr. Marshall has
submitted that Rule 49 of the Prevention of Food Adulteration (7th
Amendment) Rules, 2000 is explicitly clear and states that no person
shall manufacture / sell or exhibit for sale packaged drinking water
except under the Bureau of Indian Standard certification mark. In
view of this position of law, the authorities are bound to stop any
person from carrying out the sale of packaged drinking water without
ISI mark. If the authorities fail in the performance of their duty,
it is open for the petitioner to pray for a writ of mandamus from
this Court seeking direction against authorities to enforce the law
in its letter and spirit. The members of the petitioner Association
are selling packaged drinking water after obtaining ISI mark as
required by law. Acquiring of this mark is a long and extensive
process and after acquiring it, one is subjected to strict test and
measures so that the mark is not taken away. All those who want to
do business in packaged drinking water are bound by the same law and
cannot be heard to say that they will do business flouting the law.
In view of the increased amount of packaged water, i.e. consumed, it
is absolutely imperative that it shall be manufactured, bottled and
sold exactly as per the provisions of law so that clean and healthy
drinking water is available to the public at large. He has further
submitted that as per the provisions of the Act, Section 7 puts
prohibition on the manufacture, sale etc. of certain articles of
food and states that no person himself or by any other person on his
behalf manufacture for sale or storage, sell or distribute any
article of food in contravention to any other provisions of this Act
or Rules made thereunder. He has further submitted that the
Corporation is permitting sale without ISI mark which is contrary to
the Rules. Section 10(1)(c) of the Act talks about the powers of
the Food Inspector. It clearly states that the Food Inspector shall
have the powers with the previous approval of local health authority
or with the previous approval of the Food Authority to prohibit the
sale of any article of food in the interest of public health.
Unregulated sale of water without seal and without ISI mark would
never be in the interest of public health. Section 23 of the Act
gives power to the Central Government to make the Rules and Section
24 gives powers to the State Government to make Rules. The Central
Government has enacted Rule 49 Sub-rule 28 which makes it mandatory
that no packaged drinking water shall be manufactured or sold or
exhibited for sale without any ISI mark. He has further submitted
that even the Bombay Provincial Municipal Corporation Act empowers
the Corporation to crack down on illegal sale of water. Section 66
(4) states that the Corporation would look after the organization,
maintenance or management of chemical or petrochemical Laboratory
for examination or analysis of the Food or Drugs for the detection
of diseases or for the researches connected with public health.
Section 387 of the BPMC Act empowers the Commissioner to enter into
any premises with or without assistance of the workmen. He has,
therefore, submitted that it is imperative in the interest of public
health and safety and also in the interest of fair play between
various players competing in the packaged drinking water market and
also for the purpose of upholding the law that the petition deserves
to be allowed and no one would be allowed to sell a commodity as
sensitive as water without obtaining ISI mark which is the express
requirement of law.
Lastly,
Mr. Nanavati, learned advocate appearing for the Corporation has
referred to and relied upon the decision taken on the representation
made by the petitioner pursuant to the directions issued by this
Court vide its order dated 09.02.2010. He has submitted that
pursuant to the order of 09.02.2010 passed by this Court, the
respondent Corporation had issued notices to all those persons who
were covered by the order dated 11.06.2008 and requested them to
remain present to satisfy the respondent Corporation as to why the
BIA Certificate was not required by them. Pursuant to the said
notice, all those persons remained present and made their oral as
well as written submissions. After considering the arguments,
submissions and contentions of the petitioners, the Corporation had
passed an order on 22.02.2010 and a decision was taken by the
respondent Corporation that without BIA Certificate, those persons
who were not having BIA Certificates would not be permitted to sell
/ manufacture or store the drinking water as it is contrary to the
provisions of the Act as well as Rules. He has, therefore,
submitted that nothing further survives in this petition and it can
be disposed of accordingly.
Mr.
Nirav C. Thakkar, learned advocate appears on behalf of the
respondent Nos.5 to 15 who were subsequently joined as respondents
in this petition. Some of these respondents are also petitioners of
Special Civil Application Nos.9769 to 9773 of 2009. He has submitted
that the petitioners are carrying on the business of selling
non-packaged drinking water in Surat. They extract water by tube
well and treat it by process known as reverse Osmosis (RO) and sell
the same in the area of Surat. Somewhere in February 2008, a notice
came to be issued by the respondent No.2 Corporation stating that
the petitioners are required to obtain BIA certificate mark if they
want to sell the bottle. Thereafter, on 20.05.2008, a warning
letter came to be issued by respondent No.2 Corporation stating,
inter alia, that the petitioners are required to obtain certificate
of the health department along with the report of public health
Laboratory showing that the water supplied by them is fit for human
consumption. Despite the fact that it requires sometime to obtain
report demanded by the respondent Corporation, on the same day,
seals were applied on the premises of the petitioners. The
petitioners, therefore, preferred Special Civil Application Nos.8044
to 8062 of 2008 challenging the action of the respondent No.2. The
petitioners pointed out to this Court that the petitioners are
selling non-packaged drinking water and are not covered under any
statutory mandate, particularly under the provisions of the Act or
any of the Rules framed thereunder. On issuance of the notice, the
respondent Corporation appeared but did not file any reply opposing
the petition. Thereafter, on completion of the pleadings and after
hearing the parties, the petitions came to be disposed of on
11.06.2008 by issuance of certain directions. The main anxiety of
the Court was to see that the water supplied by the petitioners
should be fit for human consumption and accordingly, this Court,
inter alia, directed that
unless and until the certificate from health department and fitness
certificate by the Public Health Laboratory regarding the quality of
water is obtained, the petitioner would not carry on the business
activities. The petitioners were further directed to regularly i.e.
on quarterly basis submit such reports to the Corporation. It was
also made clear that the petitioners should satisfy the respondent
Corporation that the provisions of the BIS Act do not apply to the
petitioners and they were not required to comply with the same.
After the disposal of the above petitions, the respondent
Corporation had drawn samples of water from the premises of each
petitioner and sent the same to Public Health Laboratory for
testing. Out of many samples collected by the Corporation, only
some had passed the test and had been given the certificate that the
water sold by the said party is fit for human consumption. The
present petitioners are part of such
group whose samples had been declared fit for human consumption.
Mr.
Thakkar has further submitted that the petitioners had pointed out
before the respondent Corporation that the Prevention of Food
Adulteration Act and Rules do not apply in the case of the
petitioners since the petitioners are selling non-packaged drinking
water. They have further pointed out that in case of a similarly
situated person, criminal case was sought to be instituted under the
provisions of Section 7 (3) and Section 16 of the PFA Act by Food
Inspector of respondent No.2. After hearing both the sides and
considering the settled legal position, JMFC vide his order dated
31.07.2006 had acquitted the accused, inter alia,
holding that the definition of Food does not include water and
non-packaged drinking water is not included in the definition of
Rules 32-A and 33-A of Schedule B of the PFA Act. He has further
submitted that the Commissioner of Food Adulteration department had
issued a letter to the Federation of packaged drinking
water manufactures expressing an opinion that the non-packaged
drinking water is not included in the purview of PFA Act. From the
reports regularly submitted by the petitioners, it is clear that the
water supplied by the petitioners is fit for human consumption.
Mr.
Thakkar has further submitted that the respondent Corporation has
not taken any decision on the clarification submitted by the
petitioners. The impugned notices are issued only because the
petition was filed by the Federation. Not only the said petition of
the Federation deserves to be dismissed but the notices issued on
the basis of the said petition are also required to be quashed and
set aside.
In
this group of five petitions, Federation was also joined as party
and reply was filed, which is more or less, on the basis of the
averments made in the petition. The Corporation has also filed its
reply. However, the contentions remain the same and hence, they are
not separately required to be dealt with.
Having
heard the learned counsels appearing for the parties and having
considered their rival submissions in light of the statutory
provisions, more particularly, the provisions contained in the
Prevention of Food Adulteration Act, 1954 and the Rules framed
thereunder as well as the provisions contained in Bureau of Indian
Standard Act, 1986 and also in light of various orders passed by
this Court from time to time in various petitions, the Court is of
the view that there are conflicting interest of two rival groups.
The petitioner of Special Civil Application No.8977 of 2009 is the
Federation of Packaged Drinking Water Manufacturers and is insisting
strict compliance of the provisions contained in Section-15 of the
Bureau of Indian Standard Act, 1986 as well as Sub Rule-28 of
Rule-49 of the Prevention of Food Adulteration (7th
Amendment) Rules, 2000 after following pre-requisite for the grant
of license as per Annexure-C and
further ensures that all such individuals, traders and businessmen
should carry on their business in conformity with Indian Standard
Packaged Drinking Water (other than packaged natural mineral water
specification) as per Annexure-D to the said petition. The
petitioners of Special Civil Application No.9769 to 9773 of 2009 on
the other hand pleaded that water sold by them is extracted from
underground source with the help of tubwell and such water is
treated by them with a system known as Reverse Osmosis (RO).
It is their contention that they use high technique and machinery
for the best quality and that after treating water from the
underground source the water is treated by RO System by stepping it
to various filtrations, namely, sand filtration, carbon filtration,
micro-carbon filtration etc. In this system, water is passed through
high pressure pump and only 40% of the water treated under this
system is made available as final product and rest of 60% water is
waste water. Even this waste water is being relegated for different
purposes other than drinking. The final product water derived from
this process is then stored in clean syntax tank chilled and then
placed in water bottle and sold. It is also their contention that
the water derived from RO System is one of the purest form of water
and is generally used in almost all house-hold on a large and
smaller scale. The water derived from this system is absolutely fit
for human consumption.
To
appreciate these rival contentions it is necessary to have a look at
certain statutory provisions. The Bureau of Indian Standard Act,
1986 (63 of 1986) came to be enacted mainly with an object to
provide for the establishment of the Bureau for harmonious
development of the activities of standardization, marking and
quality certification of good and for matters connected therewith or
incidental thereto. The main object and the reason for enacting this
Act was for the general development of the quality and standards of
the good sold. As per the provisions of this Act, the Bureau of
Indian Standards came to be established and incorporated under
Section-3 and the functions of the Bureau came to be specified under
the provisions of Section-10. This Act also provides for the grant
of license as per the provisions of Section-15 which reads as
follows :-
Section-15 : Grant of
License :-
(1) The
Bureau may, by order, grant, renew, suspend or cancel the license
in such manner as may be determined by regulations.
(2) The
grant of renewal of the license under Sub- section (1) shall be
subject to such conditions and on payment of such fees as may be
determined by the regulations.
Similarly,
the Prevention of Food Adulteration Rules, and the Amendment Rules,
2000 came to be framed under the Prevention of Food Adulteration
Act, 1954. This Act came to be enacted mainly with an object to
prevent the adulteration of food. In order to further standardize
and improve the quality of the products under this Act, an amendment
was inserted in the Rules by way of Sub Rule-28 of Rule-29 in the
year 2000 in relation to packaged drinking water. The provisions of
sub-rules 28 of Rule-49 of the Prevention of Food Adulteration (7th
Amendment) Rules, 2000 are as under:-
Rule
49 Sub-rule 28:
(28)
No person shall manufacture, sell or exhibit for sale packaged
drinking water except under the Bureau of Indian Standard
Certification Mark .
Similarly,
the word PACKAGE has been defined under Section-2 of
the Prevention of Food Adulteration Act, 1954, which reads as
under :-
Section
2 (x)
Package
means a box, bottle, gasket, tin, barrel, case, receptacle, sack,
bag, wrapper or other thing in which an article of food is placed
or packed.
It
is clear from the plain reading of the above provisions that it is
mandatory for every person who manufactures, sells or exhibits for
sale packaged drinking water to obtain the certification mark from
the Bureau of Indian Standards. A booklet is issued by the Bureau of
Indian Standards clearly specifies the
prerequisites for the grant of license, additional
information/documents in case of packaged drinking water in order to
obtain a registration from the Bureau of Indian Standards for
starting the business of manufacturing and/or selling packaged
drinking water as also the other procedures prescribed after the
grant of license. The Bureau of Indian Standards has also laid down
certain specifications for packaged drinking water (other than
packaged natural mineral water) which is popularly known as IS
14543:2004. The Indian standard was adopted by the Bureau of
Indian Standards after the draft was finalized by the Drinks and
Carbonated Beverages Sectional Committee and had been approved by
the Food and Agriculture Divisional Council and also after giving
due consideration to the provisions of the Prevention of Food
Adulteration Act, 1954 and the Rules framed thereunder. The packaged
drinking water is required to confirm to these Indian Standards,
namely, the microbiological requirements, labeling prohibitions,
hygienic practices to be followed, maintenance of establishments,
personal hygiene and health requirements etc. The processing of
packaged drinking water should be supervised by the technical
competent person.
It
is also necessary to bear in mind that there is no product like
non-packaged drinking water as contemplated under law irrespective
of the fact whether the petitioners sell the same by process known
as Reverse Osmosis (RO) It is not absolutely true that the only
anxiety of this Court in the order dated 11.6.2008 was to see that
the water supplied by the petitioner is fit for human consumption
and it is only because of that this Court had directed that unless
and until the Certificate from the Health Department and Fitness
Certificate by the Public Health Authority regarding the quality of
water is obtained the petitioner would not carry on their business
activities. These observations are to be looked in the context of
further directions issued by this Court in para-6 of its judgment
which makes it clear that the aforesaid arrangement is made as an
interim arrangement
so as to sub-serve the interest of the petitioners but the
petitioners shall have to satisfy the competent authority of the
respondent Corporation that the provisions regarding BIS (Bureau of
Indian Standard) do not apply to the petitioners and they are not
required to comply with the same.
The
respondent Corporation for the aforesaid purpose afforded reasonable
opportunity of hearing to the petitioners and also provided them to
file written submission along with supporting documents and assured
them to take appropriate decision after taking such material into
consideration. It was made clear that if ultimately the competent
authority comes to the conclusion, after hearing the petitioners
that the petitioners are obliged to fulfill the said requirements
then the petitioners must comply with the same. Now the competent
authority has come to the conclusion that the petitioners are
required to comply with the mandatory requirements with respect to
packaged drinking water prescribed by
Bureau of Indian Standard and hence unless and until such
requirements are fulfilled the petitioners could not be permitted to
carry on their business of non-packaged drinking water. Hygienic and
clean drinking water is an essential part of human existence and is
part of fundamental right to live. If the petitioners’ arguments
were accepted, it would result in disastrous consequences.
Non-packaged drinking water could be adulterated at any stage.
Besides that, there would be no way of ascertaining whether the
water was adulterated either at the time of manufacture or transit
or sale because it was not temper proof bottle. If the petitioners
are permitted to sell the cold water in loose non-packaged jars
or kerbas then it would be impossible for the respondent
Corporation to regulate the quality and to punish those who are
responsible for the breach of it. Taking into consideration the
totality of the circumstances it clearly emerges that the
petitioners are carrying on their business contrary to provisions of
Food Adulteration Rules and contrary to all norms prescribed by
Bureau of Indian Standard and hence the
decision taken by the Corporation in respect of representation made
by the Federation cannot be interfered with.
Hence
the petitioners of Special Civil Application No.8977 of 2009
succeeds as their prayers are virtually accepted by virtue of an
order passed by the Corporation pursuant to this Court’s interim
order and accordingly that petition is allowed to the above extent
whereas petitioners of Special Civil Application No.9769 to 9773 of
2009 fail and the said petitions are accordingly dismissed. Rule is
accordingly made absolute in Special Civil Application No.8977 of
2009 whereas rule is discharged in Special Civil Application
Nos.9769 to 9773 of 2009. There shall be no order as to costs.
Sd/-
[K. A. PUJ,
J.]
Savariya
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