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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2195 OF 2008
Intuitive Software Design Private Limited
& Anr. : Petitioners
V/s.
The State of Maharashtra & Ors. : Respondents
...
WITH
WRIT PETITION NO.2196 OF 2008
Analog Financial Services Private Limited
& Anr. : Petitioners
V/s.
The State of Maharashtra & Ors. : Respondents
...
WRIT PETITION NO.2198 OF 20O8
Quadrangle Trading Services Private
Limited & Anr. : Petitioners
V/s.
The State of Maharashtra & Ors. : Respondents
...
AND
WRIT PETITION NO.2197 OF 2008
Subhiksha Trading Services Limited & Anr. : Petitioners
V/s.
The State of Maharashtra & Ors. : Respondents
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...
Mr.D.D.Madon, Senior Advocate, with Nikita Ajwani i/b.
Rajani Associates for the petitioners.
Mr.D.A.Nalawade, Government Pleader for the State.
...
CORAM : S.A.BOBDE & S.J.KATHAWALLA,JJ.
DATE : OCTOBER 03, 2008.
ORAL ORDER:
1. By these Writ Petitions, the licensees have challenged
the suspension of their licences issued under the
Maharashtra Prevention of Food Adulteration Rules, 1962,
hereinafter referred to as the “Rules”, by the licensing
authority and its confirmation by the appellate authority.
2. In Writ Petition no.2195 of 2008, 2196 of 2008 and
2198 of 2008, admittedly, no show cause notices were
issued to the licensees. The submission on behalf of the
authorities is that show cause notice was issued to
Subhiksha Trading Services Ltd., which is a sister concern
of these three licensees and, therefore, it was not
necessary to issue separate show cause notices to these
licensees. Further, according to the respondents, since
these licensees were operating from the same premises,
show cause notices were not necessary. We are unable to
accept this contention. The licensees are independent
companies and Subhiksha Trading Services Limited & anr.,
to whom a specific show cause was issued is also an
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independent company like the licensees, and the licence
applied for was granted in the name of each of these
independent companies. The authorities cannot be heard to
say that it was not necessary to issue a show cause notice
independently to the licensees. There is also no merit in
the contention since the same licensees were operating in
the same premises, it was not necessary to issue a
separate show cause notice. On this ground alone, we
consider it appropriate to quash and set aside the
impugned orders in Writ Petition nos.2195 of 2008, 2196 of
2008 and 2198 of 2008. We, accordingly, set aside the
impugned orders. The authorities shall be at liberty to
initiate fresh proceedings, in accordance with law.
3. Coming to Writ Petition no.2197 of 2008, the
petitioner is a company holding a licence under the Food &
Drugs Act. The show cause notice alleged breach of
certain conditions of the licence issued to the
petitioners. After considering the reply to the show
cause notice, the licensing authority i.e. the Asstt.
Commissioner suspended the licence for a period of ten
days. The petitioners carried the matter in appeal to the
Commissioner. The Commissioner has enhanced the period of
suspension from 10 days to 20 days.
4. Admittedly, no grievance had been made by the
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licensing authorities before the appellate authority that
the suspension order passed by the Asstt. Commissioner
was too light. The learned counsel had not been able to
point out any provision in law which empowers the
appellate authority to enhance the punishment imposed upon
the licensee. Rule 5(7) of the maharashtra Prevention of
Food Adulteration Rules, 1962, confers a right of appeal
on ‘any person aggrieved by the decision of the licensing
authority’. Obviously, the right of appeal is not
conferred on the licensing authority. The Appellate
Authority could not have, therefore, enhanced the period
of suspension in an appeal by the licensee. On this
ground,
we consider it appropriate to set aside the order
in appeal. The appellate authority shall be at liberty to
consider the matter afresh.
5. That apart, we find that the order of the appellate
authority suffers from non-application of mind to the
facts and circumstances of the case. The appellate
authority has upheld the order of the Asstt. Commissioner
without applying its mind to the specific alleged
violations. The original order of the licensing authority
at ground no.3 states that the walls were not
appropriately painted. Therefore, there is a breach of
rule 5(3) of the Rules and term no.4(a) of the licence.
We do not see any reference of rule 5(3) to the case which
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regulates the power conferred on the licensing authority
to grant the licence. Further, condition 4(a) reads as
follows:-
“4. License every year at least once or the
officer examining necessary period
kitchen and in which food articles
production is made as such each rooms
walls and ceiling will give completely
colour. If this place is give oil
colours then working place except for
all the place within 5 years again
given colour.
(a) License to all such each room or
place will make arrangement of
putting colour so that it can be
good condition can wash and
clean."
(Sic)
We do not see how the licence could have been suspended
merely by stating that the walls were not appropriately
painted. In ground no.6, certain insanitary conditions
such as spitting of pan and gutkha has been referred to
as being in violation of rules 4(3) and 5(3) of the
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Rules. As stated earlier, rule 5(3) deals with grant oflicence and rule 4(3) deals with the powers of Local
Authority to appoint Food Inspectors. There appears to
be gross non-application of mind to the facts of the
case.
6. The appellate authority has not taken care to
consider which acts of the licensee has resulted in
violation of specific rules.
7. For these reasons and in particular, since the period
of suspension has been enhanced without due process of
law, we set
aside the impugned order and remand the
matter back to the appellate authority for a fresh
decision in accordance with law.
8. In the result, the rule is made absolute in the
aforesaid terms. No order as to costs.
S.A. BOBDE, J.
S.J. KATHAWALLA, J.
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