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MR.JUSTICE V.LAKSHMINARAYANAN

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on:

02.04.2025

Pronounced on:

16.05.2025

CORAM:

 THE HONOURABLE  MR.JUSTICE V.LAKSHMINARAYANAN

• P.(MD).No.4619 of 2025and

W.M.P.(MD).No.3310 of 2025

A.R.Dairy Food Private Limited,

Represented by its Authorized Signatory, R.Rajadharshini .. Petitioner

Vs.

1.Food Safety and Standards Authority of India,

Ministry of Health and Family Welfare,

2^nd Floor, South Wing, Central Documentation Complex,    Chennai Port Trust Building, Rajaji Salai,    Chennai – 600 001.

2.Central Designated Officer,

Central Licensing Authority under

FSSI Act, 2006 (TN-03),

Southern Regional Office,

Chennai Port Trust Building,

Rajaji Salai, Chennai – 600 001.                  .. Respondents

Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records in F.No. 10014042001610/TN-03/2024-25/1425 dated 14.02.2025, on the file of the 2^nd respondent herein and quash the same as wholly illegal and without jurisdiction.

For Petitioner

:

Mr.V.P.Raman Senior Counsel for Mr.K.Krishna

For Respondents

:

Mr.S.Arunnithy

O R D E R

This writ petition challenges the order of the 1^st respondent dated 14.02.2025 suspending the license, until further orders, that had been granted to the writ petitioner.

Facts

2. The petitioner is a private limited company. It procures milk from milk producers, cooperative societies, and farmers in and around the Dindigul District. The petitioner markets the milk under the brand names of “RAAJ

Milk” and “Malabar Milk”. It has been benefited with a license under the Food Safety and Standards Act (hereinafter referred to as the “Act”). It is a food business operator (FBO). The services that it is entitled to provide are as follows:

I.Manufacturing – dairy products and analogues of evaporated,

concentrated milk, and cow milk;

(i)Manufacturing – standardized milk;

(ii)Toned milk;

(iii)Total toned milk;

(iv)Skimmed milk;

(v)Full cream milk;

(vi)Ghee;

(vii)Butter;

(viii)Milk powder and cream powder;

(ix)Butter milk;

(x)Chhana and Paneer;

(xi)Flavoured milk;

(xii)Fermented milk;

(xiii)Packaged drinking water other than mineral water;

(xiv)Khova based sweets; (xv)Spiced butter milk and (xvi)Food services.

II.Relabelling – Milk powder and cream powder

III.Trade and Retail – Distributor, Wholesaler and Retailer.

IV.Food Services – Club and Canteen.

V.Transportation like insulated refrigerated van / wagon and milk tankers, etc,.

3.The petitioner pleads, in and about March 2024, it participated in a tender for the supply of ghee to Tirumala Tirupati Devasthanam (hereinafter referred to as “TTD”). TTD also benefited the petitioner with a contract. As per the contract, the petitioner was called upon to supply 10 lakh kgs of ghee between 06.06.2024 to 30.10.2024. The petitioner supplied 4 tankers of ghee on 04.06.2024. This supply did not face any issues. The issue that arose on account of subsequent dispatches resulted in actions being initiated against it. Suspension of FBO licence being one, which has resulted in the present writ petition.

4.The petitioner dispatched 4 tanker loads of ghee on the following dates:

• 03.07.2024;
• 04.07.2024 and
• 09.07.2024 (2 tankers)

5.TTD rejected these consignments on 25.07.2024. Subsequently, it issued a show cause notice to the petitioner, calling it to show cause as to why the contract for the supply of ghee should not be cancelled. The petitioner states that it has replied to the same and the matter is pending consideration before TTD.

6.The petitioner states the Executive Officer of TTD issued a public statement on 23.07.2024 stating that the ghee supplied to TTD contains vegetable fat and therefore, it had been rejected. Soon thereafter, on 27.07.2024, the Designated Officer for Dindigul visited the manufacturing unit of the petitioner at Dindigul and collected samples of ghee and butter. These samples underwent necessary tests. The reports dated 09.08.2024 and 22.08.2024 showed that the butter and ghee were not adulterated and they conform to the standards.

7.Post the elections in Andhra Pradesh in May 2024, there was a change in Government in the State of Andhra Pradesh. On 15.09.2024, Hon’ble The Chief Minister of Andhra Pradesh gave a public statement alleging that the ghee supplied to TTD contained animal fat. This statement created a furer throughout the nation. Swinging into action, TTD lodged a complaint with the Inspector of Police, East Police Station, Tirupati. The police has also registered a complaint under Sections 274, 275, 316, 318(3), 318(4), 61(2), and 299 of Bharatiya Nyaya Suraksha Sanhita, 2023, read with

Sections 51 and 59(1) of the Food Safety and Standards Act, 2006.

8.Additionally, an intimation regarding the quality of ghee supplied by the petitioner was given to the 2^nd respondent by the Director, Institute of Preventive Health, Managalagiri, Andhra Pradesh. Acting on this intimation, a show cause notice was issued on 20.09.2024 to the writ petitioner. The following allegations were made in the said notice:

“*As per the information received in this Office from The Director Institute of Preventive Medicine, Mangalagiri (Andhra Pradesh), your firm M/s.A R

Diary Food Private Ltd bearing FSSAI Central

License No.10014042001610 at 10/5C, Madurai

Road, Begampur Post, Dindigul, Dindigul block, Dindigul, Tamil Nadu – 624002 was one of the suppliers of Ghee to Tirumala Tirupati

Devasthanam (TTD) since the last 4 years.

*Further as per the information, the Ghee procurement committee of TTD has sent all the samples supplied to TTD for testing to NDDB CALF Lab at Anand, Gujarat.

*After analysis, the sample from your firm M/s.A R Diary Food Private Ltd (FSSAI Central License No. 10014042001610 ) has failed to meet the parameters and your firm has been blacklisted by EO, TTD.”

9.The notice called upon the petitioner to show cause as to why its license should not be suspended for the contravention of the provisions of the Act. The petitioner was given time till 23.09.2024 to issue a reply to the same.

10.On the very next day, i.e., on 23.09.2024, the Central Food Safety Officer caused an inspection of the premises of the writ petitioner. He collected the following samples:

(i)Cow ghee brand RAAJ – 2 nos.

(ii)Cow ghee (loose) – 2 nos.

and sent them for analysis. He also prepared a report. The report states that as there were allegations of the presence of external fat in the ghee, on the directions of the 2^nd respondent, the samples were collected. It was also noted in the report that the following materials were sold to M/s.Sri Vyshnavi Dairy

Specialities Private Limited, Andhra Pradesh:

• 17445 kgs of ghee – lot T005 – 03.07.2024;
• 16775 kgs of ghee – lot T006 – 04.07.2024;
• 17520 kgs of ghee – lot T007 – 09.07.2024; and(iv) 17850 kgs of ghee – lot T008 – 09.07.2024.

11.The sale to M/s.Vyshnavi Dairy were the very same lots sold to TTD, which was rejected by it in July 2024. The inspection report further states that no external fat other than milk fat was found inside the premises at the time of inspection. It also pointed out certain minor Schedule-IV non compliance.

12.The report also found that the petitioner had purchased all the 8 consignments from M/s.Sri Vyshnavi Dairy Specialities Private Limited and had supplied the same to TTD. The Central Food Safety Officer concluded that the ghee was not prepared by the writ petitioner.

13.In reply to the show cause notice issued by the 2^nd respondent, the petitioner stated that they had received the cancellation notice from TTD together with the report on the basis on which  TTD had concluded that the ghee was unfit for being processed by it. It was asserted that before the supply was made by them to TTD, the petitioner had obtained a confirmation from an NABL-accredited lab that the ghee supplied complied with the requirements of AGMARK and FSSAI standards. The test reports were also furnished to the 2^nd respondent along with the reply as enclosures.

14.It was further stated that all the samples collected from the premises

of the writ petitioner on 27.07.2024 by the Designated Officer of Dindigul were tested, and a report was submitted that the samples comply with the requisite standards. Therefore, they sought for the dropping of the proceedings.

15.Subsequently, on 27.09.2024, another show cause notice was issued to the petitioner stating that the petitioner has committed the following violations:

(i)False information regarding manufacture of ghee;

(ii)Supplies compromising quality parameters; and (iii)Misleading certification and claims.

16.In the said show cause notice, the Central Licensing Authority called upon the petitioner to produce the following documents:

(i)Tender notice by TTD and tender application issued by TTD;

(ii)Tender agreement;

(iii)Procurement agreement between the petitioner and M/s.Sri

Vyshnavi Dairy Specialities Private Limited;

(iv)Certificate of analysis;

(v)Manufacturing details; and

(vi)Details regarding the procurement of raw materials, production and supply of ghee, namely:

Sl.N o

Documents Required

1

List of supplier of milk, butter and ghee for your premise

2

Month wise procurement details of ghee, butter and milk for the year 2024

3

Month wise production details of ghee, butter and milk for the year 2024

4

List of buyers of ghee, butter and milk (month wise data)

5

Month wise supply / sale details of ghee, butter and milk for the year 2024

6

Month wise stock details of ghee, butter and milk for the year 2024.

17.It was further directed that the petitioner should immediately stop distribution of manufactured ghee and, inform its distributors, wholesalers and retailers not to proceed with further sale of the product, until further directions, from the Central Licensing Authority.

18.The petitioner approached this Court by way of a writ petition in W.P.(MD).No.23551 of 2024. After hearing the petitioner and the 1^st respondent herein, this Court ordered the writ petition on 03.10.2024. This Court noted that the show cause notice dated 27.09.2024 was bereft of any details and sufficient time had not been granted to reply to the same. The learned Additional Solicitor General representing the respondent submitted that a supplementary notice will be issued to the petitioner within three days. Recording the same, the writ petition was disposed of.

19.In the meantime, before the writ petition was taken up for hearing, the 1^st respondent had issued a notice dated 30.09.2024, in more or less identical terms, as the notice dated 27.09.2024, but with a deletion on the direction with respect to the stoppage of manufacture and supply of ghee. Hence, the bar to manufacture, distribution & sale of ghee lasted between 27.09.2024 and 30.09.2024.

20.Pursuant to the order of the Court on 08.10.2024, the respondent issued a notice titled “improvement notice”. The notice invoked Section 32 of the Act and Regulation 2.1.8(4) of the Food Safety and Standards (Licensing & Registration of Food Businesses) Regulation, 2011. The notice also gave the details of the provisions of the Act and Regulations that had not been complied with, grounds for issuing the improvement notice, and reiterated the demand for the aforementioned documents.

21. The petitioner issued a reply on 22.10.2024,inter alia, stating as follows:

(i)There is no adulteration in the ghee supplied by it;

(ii)The issue relating to the supply by the petitioner of the ghee manufactured by M/s.Sri Vyshnavi Dairy Specialities Private Limited, as if it were their own, is a subject matter of show cause notice issued by TTD and investigation by the SIT formed by the Supreme Court, and hence, the issue may be deferred;

(iii)The purchase of ghee from M/s.Sri Vyshnavi Dairy Specialities

Private Limited and sale to TTD does not fall within the provisions of Section

32 and that the rejected ghee had been returned to M/s.Sri Vyshnavi Dairy

Specialities Private Limited;

(iv)As no violations of the conditions of license were found, there is no scope for improvement notice under Section 32, and the consequential proceedings under Section 32 of the Act and Regulation 2.1.8(4)  cannot be invoked;

(v)As the ghee had been rejected by TTD, there is no danger to public health and therefore, Regulation 2.1.8(4) also is inapplicable;

(vi)The grounds set forth in the show cause notice, at best, relate to the violation of the Act and not violation of the Regulations. The petitioner conceded that the allegations might attract penalty and criminal prosecution, but not suspension of license;

• In respect of the past transaction, there is no question of application of Section 32 as there is no violation of the Regulations;
• Finally, the samples that had been lifted from the manufacturing unit of the petitioner cleared the requisite tests, and therefore, the petitioner is not liable to be proceeded against.

22.Having received this response, a further notice was issued by the Central Licensing Authority on 07.11.2024. This too was replied on 21.11.2024. On consideration of these issues, the impugned order came to be passed on 14.02.2025, suspending the license of the petitioner until further orders. Aggrieved by the same, the present writ petition.

Chronology of events

23. Considering the complexities and technicalities involved in the circumstances leading to the present writ petition, the following table reiterating the facts in a chronological manner becomes necessary for the proper understanding of the matter:

Date

Event

March 2024

The petitioner participated in a tender for the supply of 10 lakh kgs of ghee to TTD. The petitioner was successful and consequently entered into a contract with TTD for the supply of the said quantity of ghee between 06.06.2024 to 30.10.2024.

23.07.2024

The Executive Officer of TTD issued a public statement claiming that the last four consignments of ghee supplied by the petitioner to TTD between 03.07.2024 and 09.07.2024 contained vegetable fat and, therefore, had been rejected.

25.07.2024

TTD issued a show cause notice to the petitioner as to why the contract for the supply of ghee should not be canceled.

27.07.2024

The Designated Officer of Dindigul visited the manufacturing unit of the petitioner at Dindigul and collected samples of ghee and butter for the purpose of testing.

09.08.2024 and

22.08.2024

The test report of the samples collected by the Designated Officer showed that the ghee and butter were not adulterated.

 

20.09.2024

Based on information received from the Director, Institute of Preventive Health, Managalagiri, Andhra Pradesh that the ghee supplied by the petitioner to TTD did not meet the requisite FSSAI standards and that the same was consequently rejected by TTD, the Central Designated Officer, Chennai issued a show cause notice calling upon the petitioner to show cause as to why its license should not be suspended for contravention of the provisions of the Act.

21.09.2024

The Central Food Safety Officer conducted an inspection of the premises of the petitioner. The Officer collected samples of T007 and T008 (consignments supplied to TTD on

09.07.2024) for testing. In the inspection report, the Officer found that there were no other external fat other than milk fat found inside the premises. The Officer, in the report, also found that the eight consignments of ghee supplied by the petitioner to TTD were procured from Vyshnavi Dairy.

22.09.2024

The petitioner issued a reply to the show cause notice dated 20.09.2024. The petitioner maintained that the ghee supplied to TTD was supplied after obtaining a confirmation from an NABL-accredited lab that the ghee complied with the FSSAI and AGMARK requirements. Further, the test report of the Designated Officer dated 09.08.2024 and 22.08.2024 also confirms that the ghee did not fall short of the standards required under the Act.

23.09.2024

The FSSAI authorities conducted an inspection of the premises of Vyshnavi Dairy and found that they don’t have a manufacturing unit of ghee and also other noncompliances.

27.09.2024

The Central Designated Officer issued another show cause notice alleging the furnishing of false information regarding the manufacture of ghee and compromising on quality parameters by the petitioner. The Officer required the petitioner to furnish certain other documents and directed the petitioner to immediately stop the distribution and sale of its manufactured ghee.

30.09.2024

The Central Designated Officer issued a show cause notice identical to the one issued on 27.09.2024. However, the direction relating to the stoppage of the distribution and sale of the manufactured ghee was omitted.

03.10.2024

The Madras High Court passed an order in W.P. (MD) No. 23551 of 2024 wherein it noted that the show cause notice issued on 27.09.2024 did not contain sufficient details and that adequate time had not been granted to the petitioner to reply to the same. Recording the undertaking made by the Additional Solicitor General that a supplementary notice would be issued within 3 days, the writ petition was disposed of.

08.10.2024

An improvement notice was issued by the Central Designated Officer invoking Section 32 of the Act r/w. Regulation 2.1.8 (4) of the Food Safety and Standards (Licensing and Registration of Food Business) Regulation, 2011. The notice listed out the provisions of the Act and Regulations not complied with and also stated the grounds for non-compliance, and demanded certain documents.

22.10.2024

The petitioner issued a reply maintaining the ghee supplied to TTD had cleared the requisite tests and that the petitioner had not engaged in any contravention of the Act.

07.11.2024

Since the petitioner had issued the reply on 22.10.2024 without annexing the requisite documents, another improvement notice was issued.

21.11.2024

The petitioner sent a reply to the improvement notice dated 07.11.2024, along with certain documents as enclosures.

14.02.2025

The Central Designated Officer passed the impugned order suspending the license of the petitioner for non-compliance of the provisions of the Act and the Regulations.

Arguments of the parties

24.I heard Mr.V.P.Raman for Mr.K.Krishna for the petitioner and

Mr.S.Arunnithy for the respondents.

25.Mr.V.P.Raman argued as follows:

(i)Though an alternate remedy is available under Section 34(4) (c) of the Act, a writ petition is still maintainable as the impugned order violates the fundamental right of the petitioner and is in excess of the jurisdiction vis-à-vis the powers vested in the respondents;

(ii)He urges that the show cause notices dated 08.10.2024 and 07.11.2024 pertain only to ghee and not to any other food product, but the impugned order had suspended the license in its entirety and that too, without a show cause notice, and therefore is in violation of principles of natural justice;

(iii)He pleads that indefinite suspension of business activities literally amounts to cancellation of the license, and hence traverses beyond the show cause notice and is disproportionate;

(iv)The 2^nd respondent had by-passed the procedure under

Section 32 and therefore, had exceeded its jurisdiction;

(v)As there is a gross violation of the procedure contemplated under Section 32 of the Act, the writ petition is maintainable;

(vi)In addition to all the aforesaid points, he adds as a question

of law pertaining to jurisdiction of the 2^nd respondent to issue a show cause notice is involved, a writ is maintainable.

26 .On the merits of the impugned order, he urges

1. There is a violation of Section 32 of the Act. The plea being, in terms of Section 32,  a license can be suspended only when any of the two circumstances exist:

(i)Failure to comply with the improvement notice; or (ii)In the interest of public health.

1. He pleads that there is a clear difference between an improvement notice and a show cause notice under Section 32. Show cause notice is referable to Section 32(3) deals with cancellation of the license. He relies upon the judgment of this Court in the case of K.Karupanan Vs. The District Collector and ors. in W.P.(MD).Nos.15336 of 2022, in order to substantiate this plea.
2. He also urges that there has been a serious violation of Section 40 of the Act, and therefore, no reliance can be placed upon the complaint lodged by TTD. Hence, he pleads the writ petition be allowed and the order be quashed.

27.Per contra, Mr.S.Arunnithy, urges as follows:

(i)The order impugned is appealable under Section 32(4)(c), hence, the writ petition is not maintainable;

(ii)The show cause notices and improvement notices were issued to the petitioner, and after giving sufficient opportunity to the petitioner, the suspension order came to be passed, and therefore, there is no violation of the principles of natural justice requiring the interference by this Court.

(iii)He urges that the improvement notices were issued invoking

Section 32 of the Act on the following grounds:

(a)Unauthorised sale of ghee to Vyshnavi Dairy;

(b)False information regarding supply;

(c)Misbranding huge quantity of ghee;

(d) Non-disclosure of material facts;

(e)Unfair trade practice; and

(f)Failure to submit documents as sought for by the authorities.

He states (a) to (f) above attract Sections 23, 24(2), 26(1), 26(2)(v),

27(1), 28 and 31 of the Act. He requests the Court to read the same along with the Food Safety and Standards (Licensing and Registration of Food Business) Regulation, 2011, and Schedule-II Annuxure-III of Conditions of License, and Regulations 10(1) and 10(2) of the Food Safety and Standards (Labelling and Display) Regulations, 2020.

28.Expanding further, Mr.S.Arunnithy submits that the petitioner had failed to give the following details:

(i)Date of manufacture of ghee;

(ii)Traceability of ghee supplied to Vyshnavi Dairy;

(iii)Vehicle transportation information;

(iv)Certificate of analysis;

(v)Business transactions between M/s.Sri Vyshnavi Dairy Specialities Private Limited and the petitioner.

Hence, the suspension of the licence is a valid exercise of power.

29.Inviting the attention of this Court to the judgment of the Supreme Court in Centre for Public Interest Litigation Vs. Union of India and others, [(2013) 16 SC 279], he argues that the Act and Regulations have to be incorporated to enforce Article 21 of the Constitution of India. Therefore, the right under Article 19(1)(g) should be read subject to Article 21 of the Constitution of India.

30.On the issue of proportionality, the response of Mr.S.Arunnithy is that under Regulation 2.1.8(1) of the Licensing Regulations, the licensing authority has the power to suspend “all or any” of the activities of the food business operator. The authority had decided all of the petitioner’s activity deserved to be suspended for the aforesaid violations. Therefore, the impugned order does not suffer from any vice. He argues there is no violation of Section 40 of the Act, and there is a failure on the part of the petitioner to comply with Section 28(2) of the Act, and therefore, the impugned order is perfectly justified.

31.I have carefully considered the submissions on both sides and I have gone through the records.

Brief Survey of the relevant Provisions of Food Safety and Standards Act, 2006

32.Prior to the enactment of this Act, there were several legislations which dealt with the manufacture, distribution, retailing,  consumption, and sale of food products. These legislations were repealed under Section 97 read with Schedule II of the Act. A comprehensive legislation regulating the aforesaid aspects was contemplated since 1988, but it fructified only in 2006. The Act is a consolidating and comprehensive piece of legislation relating to food. It lays down scientific standards for food articles and regulates the manufacture, storage, distribution, sale, and use of food products for human consumption.

33.As per Section 31(1) of the Act, no person is entitled to commence or carry on a food business except under a license. As per Section 31(3), any person desirous of carrying on a food business has to apply for a license to the Designated Officer. The Designated Officer, under Section 31(4), is entitled to either grant the license or reject the same. The proviso to the said Section enables a person to commence a food business, in case, the application seeking license is not disposed of within a period of 2 months from the date of filing of the application.

34. Section 32 of the  Act contemplates issuance of a notice termed ‘an improvement notice’. This notice is defined in Section 3(10) of the Act. An improvement notice is issued, if the Designated Officer, has reasonable grounds to believe that the FBO has failed to comply with any regulation issued under the Act. An improvement notice must state the following:

(i)The grounds for believing that the  FBO has failed to comply with the regulations;

(ii)Specify matters which constitute the FBO’s failure to comply;

(iii)State that the FBO should take steps to secure compliance; (iv)Measures that have to be taken by the FBO within a time period not less than 14 days.

35.Under Section 32(2), in case, the FBO fails to comply with the improvement notice, her / his license is liable to be suspended. If the defects pointed out in the improvement notice persist, the Designated Officer is entitled to cancel the license granted. He can do so, after issuance of a show cause notice, to the FBO. Proviso to Section 32(3) empowers the Designated Officer to suspend or cancel the license forthwith in the interest of public health. Under such circumstances, the Designated Officer need not resort to procedure of issuance of an improvement notice and may proceed straight away to suspension. An appeal is maintainable under Section 32(4) against the issuance of the improvement notice or refusal to issue a certificate as regards the rectifications made pursuant to improvement notice or against the order suspending or cancelling the license.

Maintainability of the writ petition

36.The preliminary objection that has been raised is that this writ petition is not maintainable as there is an effective and alternate remedy under Section 32(4) of the Act. Before proceeding to the merits of the case, I have to recollect certain principles, on the basis of which, this Court had to look at this issue.

37.The power to issue writs was  vested with this Court, much before the adoption of the  Constitution of India, by the actual sovereign namely, the people of India. The nation established the political sovereign the Constitution of India. This, in turn created the institutional sovereigns viz. the legislature, the executive, the judiciary, and other Constitutional organs. The power to issue writ petitions, though founded in English jurisprudence, obtained statutory recognition under the Specific Relief Act, 1877. As per proviso (d) to Section 45 of that legislation, the High Court, prior to issuing a writ, had to come to a conclusion that the applicant had no other specific and adequate legal remedy. This provision was inserted to prevent persons from approaching the High Court directly without exhausting the remedy available to them, under other statutes.

• Under the Regulating Act of 1773, the Supreme Court was created in Calcutta. Under Clause IV of the Charter of 1774, the Supreme Court at Calcutta was given “such jurisdiction as the Court of King’s Bench may lawfully exercise in England”. This included the power to issue prerogative writs. Insofar as the presidency of Madras is concerned, Recorder court which was existed at the Fort St. George was replaced by the Supreme Court of Judicature through the Madras Charter of 1800. Clause 47 of the said Charter reproduced Clause 21 of the Calcutta Charter and enabled the Supreme Court at Madras to issue Writs. Similarly, through clause 13 of the Bombay Charter of 1823, the Supreme Court of Bombay was empowered to issue prerogative

writs.

• With the abolition of the Supreme Courts and creation of the High courts under the Indian High Courts Act of 1861, the powers which were vested with the Supreme Courts, stood transferred to the High Courts. This becomes clear from a casual glance of Section 9 of the Indian High Courts Act of 1861. Under this Act, Charters were issued by her Majesty in England and three Charter High Courts were created at Calcutta, Madras and Bombay were created. Therefore, these Courts continued to issue writs as their predecessors, the Supreme Courts and earlier, the King’s Court in England. It was under 1877 Specific Relief Act that the restrictions as cited above were brought in.
• The power of High Courts under Section 9 of the High Courts Act,

1861 was more or less reproduced under Section 106 of the Government of India Act, 1915 and by Section 223 of the Government of India Act, 1935.

Apart from this restriction, Section 45 also imposed limitation that the High

Court of Calcutta, Madras and Bombay. They could not issue Writs of Prohibition and Certiorari or any other order deciding the legality of proceedings outside of their Original Civil jurisdiction. (For an expansive understanding see, Ryots of Garabandho v. Zemindar of Parlakimedi, AIR

1943 PC 164).

41.I shall slightly digress here to speak about the Writ of Habeas

Corpus also. The three High Courts of Charter at Fort William, Madras and Bombay were statutorily empowered under Section 491 of the Cr.PC of 1898 to issue writs of Habeas Corpus, within the limits of their ordinary original civil jurisdiction. This Section was enlarged by the Criminal Law Amendment Act, 1923. Power to issue writs of Habeas Corpus was conferred on all the High Courts in the British India and territorial limitation placed by Section 491 was removed. It removed the bar that was placed by the 1898 Act for issuance of writs only within the limits of the ordinary original civil jurisdiction of the three Charter High Courts.  By virtue of the 1923 amendment, the Cr.P.C empowered the High Courts to issue writs or directions over any person or authority within their appellate criminal jurisdiction, thereby expanding the power to issue writs to the remaining province or provinces over which the High Court had authority.

42.With the advent of the Constitution of India, this power found Constitutional recognition under Article 226. The power under Article 226 is not confined only to the well-known five writs of Certiorari, Mandamus,

Prohibition, Habeas Corpus, and Quo Warranto. It enables a High Court to issue such writs to suit the circumstances which arise before it.

43.Yet, the limitations developed during the colonial era continue to haunt the Constitutional Courts even today. The limitations which were found under the Specific Relief Act, 1877, have, unfortunately, been adopted even after India, i.e., Bharat became a Republic. History shows it was  initially imposed by a statute, which thereafter became self-imposed, though no such limitations are found under Article 226 of the Constitution. The bar developed during colonial era exists in our Constitutional jurisprudence even after 75 years of independence.

44.The reason for enforcing an alternate remedy was that a party’s grievance would be readily addressed, if he/she resorted to the said remedy. The purpose being the litigant find a solution to the problem that he faced at an early date. The development of alternate remedy as a bar to the issuance of writ petitions was not because the court was not ready to resolve the issue but in order to enable the party to get an early solution to her problems. This shows that the approach of the court should litigant friendly and litigant centric and not one to shirk off its responsibility to decide an issue.

45.Be that as it may, the existence of an alternate remedy as a bar to the issuance of a writ is only a self-imposed one. For the mere fact that an alternate remedy exists, a Constitutional Court need not turn the party away from its doors. Certain exceptions have been carved out by the Constitutional Courts, whereunder the Courts, would not be necessarily prevented from issuing a writ, despite the existence of an alternate remedy. They are:

(i)Breach of fundamental rights;

(ii)Violation of principles of natural justice;

(iii)An order issued by an authority who has no jurisdiction or is suffering from an excess of jurisdiction;

(iv)Challenge to the validity of a statute or a delegated legislation.

46.A distinction has to be made with regard to ‘entertainability’ and ‘maintainability’ of writ petitions. The fact that there is an alternate remedy does not mean that writ petition is not maintainable. Having come to a conclusion that the writ petition is maintainable, does not mean that, the Court should come to the conclusion that the writ is entertainable. The Court should examine whether any of the exceptions that have been carved out by the Constitutional Courts apply to the facts of the case. If they do, the Court need not turn the party away. When facts are not in dispute and no factual allegation needs to be examined in detail, a writ petition can certainly be maintained and entertained. For the aforesaid propositions, I rely upon the judgments of the Supreme Court and of this Court in the following chronological order:

(i)Hindustan Petroleum Corporation Limited Vs.

Geeta Kasturirangan and another, [(2010) 4 MLJ 255];

(ii)Assistant Commissioner of State Tax and others

Vs. Commercial Steel Limited, [(2022) 16 SCC 447]; and

(iii)Godrej Sara Lee Ltd., Vs. Excise and Taxation

Officer cum Assessing Authority and others, [(2023) SCC OnLine SC 95].

47.Even in the judgment, referred to by Mr.S.Arunnithy, in Samsung India Electronics Pvt Ltd Vs. State of H.P and others, [(2017) 102 VST 78], a Division Bench of the Himachal Pradesh High Court pointed out that if the High Court is satisfied that the alternate remedy is adequate or suitable, only then it should refuse to exercise the jurisdiction under Article 226. However, the Bench added that a Court may issue writs if it comes to the conclusion that there is a breach of principles of natural justice or a procedure that is required be followed to arrive at a decision had not been followed. Hence, I am not going to reject the writ petition at the threshold holding that the writ petition is not maintainable. As will be seen latter, the papers reveal that this case involves violation of principles of natural justice as well as interpretation of the FSSAI Act and General Clauses Act. Hence, it will not be appropriate to direct the petitioner to avail alternate remedy.

Statutory violations committed by the Petitioner and the Respondents

48.Before attempting to understand if the procedure adopted in suspending the license of the petitioner by the respondents meets the procedural requirements contemplated under the Act, the Court must first proceed to evaluate the conformity of the actions of the parties with the mandates of the Act and the Regulations framed thereunder. This becomes necessary to understand the legality of suspension and the procedure for suspension adopted in the present case.

1. By the Respondents

• Since I have already discussed the scope of Section 32 of the Act, to address the statutory violations committed by the Respondents, I will now turn my attention to the Rules.
• In exercise of the powers conferred under Section 91 of the Act, the

Central Government framed the Food Safety and Standard Rules of 2011.

Under Rule 2.1.2, the State Government has been called upon to appoint a Designated Officer. Rule 2.1.2(2)(v) enables the Designated Officer to suspend, cancel or revoke the license of a FBO, when the said authority notices, any threat or grave injury to the public, as noticed in the report of the food analyst. The notices dated 20.09.2024, 27.09.2024 and 30.10.2024 point out that the respondents relied upon the report of the food analyst, namely, the NDDB CALF Lab, Gujarat, procured by TTD.

51.Under Section 40 of the Act, a purchaser of a food article is entitled to get the food article analyzed by a food analyst. 40(1) has two provisos. The first proviso being that the purchaser should inform the FBO, at the time of purchase, that he intends to have the food so analyzed. There is no dispute that in this case, at the time of entering into the agreement for the supply of ghee, the purchaser – TTD had stipulated that it will analyze the ghee that it purchases. Under Section 40(2), the food analyst owes a duty to inform the Designated Officer, if he finds that the sample sent for analysis by the purshaser, contravenes the provisions of the Act and Rules. This procedure was not followed in the present case at all.

52.On the admitted case, TTD had sent the samples to the NDDBCALF to find whether the samples were in compliance with the standards set out in the agreement, Act, and Regulations. NDDB-CALF analyzed the ghee and came to the conclusion that it does not meet the requisite standards. Yet, NDDB-CALF  never informed the Designated Officer nor the FBO about

such failure.

53.The reason why such reporting is mandated is because if the “food analyst” finds a failure as aforesaid, under Section 42(3), the Designated Officer must decide whether the contravention is punishable with imprisonment or fine alone. In the case of contravention punishable with imprisonment, the Designated Officer must send his recommendations, within fourteen days, to the Commissioner of Food Safety for sanctioning prosecution. Further, the Act also contemplates a situation under Section 46(4) enabling the person aggrieved by the report of a food analyst to prefer an appeal to the Designated Officer. The Designated Officer can then take a call whether to refer the matter to a referral food laboratory, notified by the Food Authority, under the Act for its opinion.

54.Applying this provision to the facts of the present case, NDDB CALF Lab, having come to the conclusion that the ghee sample sent by TTD failed to comply with the requirements of the Act, it should have informed the concerned Designated Officer, who could have proceeded under Section 42. This was not done. The report was also not communicated to the FBO, which could have enabled the FBO to prefer an appeal to the Designated Officer. This crucial procedure was violated in the present case. The petitioner is sought to be condemned on the basis of the report of the NDDB CALF Lab, which was never put to the notice of the petitioner by the respondents but was intimated only by the purchaser / TTD.

1. By the Petitioner

55.On the admitted facts, the petitioner is not a person without blemishes. The petitioner has committed the following statutory violations:

• Furnishing false information: The petitioner has contravened Sections 26(1), 26(2)(v) and 27(1) of the Act. In the warranty certificate submitted by the petitioner to TTD, the petitioner had specifically mentioned the name of the manufacturer as “M/s. A.R. Dairy Food Private Limited, Dindigul” and had provided its own address. However, later, during the inspection by the Central Food Safety Officer and the officials of the FSSAI and from its reply to the notices, it took a stand that the ghee supplied to TTD was manufactured by Vyshnavi Dairy and not by it. This shows it had falsely claimed to be the manufacturer under the warranty certificate. In fact, on 21.09.2024, when the premises of the petitioner was inspected by the Central Food Safety Officer, the petitioner itself submitted a self-declaration that the ghee supplied to TTD was purchased from Vyshnavi Dairy. The said statement was also adopted by the petitioner in its reply dated 22.10.2024;
• False information constituting misbranding: The petitioner

has contravened Sections 26(1), 26(2)(ii) and 27(1) of the Act r/w.

Section 3(1)(zf)(A)(i) of the Act.

• The petitioner, knowing very well that the ghee has been procured from Vyshnavi Dairy,  has stated in the warranty certificate that the ghee has been manufactured by it. Therefore, when the ghee was supplied to TTD, it was falsely claimed by the petitioner, in the warranty certificate, that it was the original manufacturer. This was clearly not the case. The petitioner, as admitted by itself later, clearly knew that the ghee was procured from Vyshnavi Dairy, yet it chose to represent that the ghee was manufactured by it. This clearly amounts to misbranding according to the definition provided for the term under

Section 3(1)(zf)(A)(i);

• Unauthorized sale/distribution: The petitioner has contravened Section 31(1) of the Act r/w. Regulation 2.1.2 of the Food Safety and Standards (Licensing and Registration of Food Business) Regulation, 2011 and Section 63 of the Act. As noted previously, the petitioner has obtained the ghee from Vyshnavi Dairy. However, in the invoice issued to TTD, the petitioner declared itself as the manufacturer. As far as the license granted to the petitioner is concerned, it only permits the petitioner to re-label milk powder and cream powder.  This shows that the petitioner had engaged in unauthorised repacking/relabelling of the ghee procured from Vyshnavi Dairy for it did not have any license under Section 31 of the

Act to do so;

• Non-compliance of the labelling requirements in case of non-retail container: The petitioner has contravened Section 23 of the Act r/w. Regulation 10(1) and 10(2) of the Food Safety and Standards (Labelling and Display) Regulations, 2020. Though, according to the petitioner, Vyshnavi Dairy was the manufacturer of the ghee,  the name of Vyshnavi Dairy was nowhere mentioned in the container, or was pasted on the label, or in any of the invoices, or in any of the accompanying documents. This is clearly contrary to Regulation 10 which mandates the statement of the name and address of the manufacturer. Hence, the traceability of the ghee has been compromised;
• Failure to report rejection of the supplied ghee to the food authorities: The petitioner has contravened Section 28 of the Act r/w.

Food Safety Standards (Food Recall Procedure) Regulation, 2017.

According to Section 28 of the Act, if an FBO has reasons to believe that a food which he has processed, manufactured or distributed is not in compliance with the Act, or the Rules or Regulations, made thereunder, he shall immediately initiate procedures to withdraw the food in question from the market and consumers, indicating reasons for its withdrawal and inform the competent authorities thereof. In this case, the petitioner has failed to inform the concerned authorities about the rejection of ghee by TTD. In fact, the petitioner had admittedly resold the rejected ghee to Vyshnavi Dairy, when it had an obligation to withdraw the rejected ghee from the market and inform the concerned authorities. Therefore, the action of the petitioner is inconsistent with the recall procedure envisaged under the Act and the Regulations;

• Non-disclosure and traceability: The petitioner did not furnish the agreement whereunder it had procured the ghee from Vyshnavi Dairy, nor did it produce the certificate of analysis and traceability records. This position prevailed, despite repeated requests, from the respondents. This non-disclosure has compromised the traceability of the source and final disposal of the ghee. Further, the petitioner claims that the ghee was returned to Vyshnavi Dairy after the same was rejected by TTD. On this aspect, another fact has to be noted. While Vyshnavi Dairy claims the rejected ghee was sold to a soap manufacturer, the petitioner alleges, it was re-sent to TTD and accepted by it. However, the petitioner has not furnished any records to prove the same;
• Unfair Trade Practice: Section 24(2) prohibits the sale, supply, use and consumption of food through any unfair trade practice. In this case, the petitioner, knowing fully well that the ghee in dispute has been rejected by TTD for failing to meet the standards requisite under the Act, and that it had an obligation under Section 28 to prevent the sale and distribution of such food articles in the market, had re-sold the same to Vyshnavi Dairy. Moreover, the petitioner also does not have any record to prove that the rejected ghee was returned to Vyshnavi Dairy other than a few invoices. Till now, the whereabouts of the rejected ghee remains unknown. This clearly amounts to supply through an unfair trade practice.

Suspension under Section 32 of the Food Safety and Standards Act, 2006

56.Now that there is a certain clarity in the violations committed by the petitioner and the respondents, this Court would now proceed to understand if the suspension and the procedure adopted for suspension are permitted under the provisions of the Act.

57.Section 32 of the Act deals with improvement notice. Clause (1) of the provision empowers the Designated Officer to issue “an improvement notice” if she/he “has reasonable ground for believing that any food business operator has failed to comply with any regulations to which this section applies”. When the Designated Officer has reasonable ground(s) to believe so, he may issue an improvement notice:-

• stating the grounds for believing that the food business operator has failed to comply with the regulations;
• specifying the matters which constitute the food business operator’s failure so to comply;
• specifying the measures which, in the opinion of the said Authority, the food business operator must take, in order to secure compliance; and
• requiring the food business operator to take those measures, or measures which are at least equivalent to them, within a reasonable period (not being less than fourteen days) as may be specified in the notice.

58.A reading clause (1) shows that the Section only applies to violation of Regulations that can be redressed or remedied by undertaking certain measures suggested by the Designated Officer.

59.There is a difference between Rules and Regulations under the Act. Rules are framed by the Central Government under Section 91. Section 32 does not deal with Rules but only with Regulations. The power to make Regulations has been conferred on the Food Authority, namely, the Authority constituted under Section 4 of the Act- See Section 3(m). The Food Authority, with the prior approval of the Central Government and after publication, is entitled to notify the Regulations. This power to frame Regulations is traceable to Section 92 of the Act. Under Section 94 of the Act, the State Government too is entitled to frame the Rules but the same is subject to the powers of the Central Government and the Food Authority to make Rules and Regulations respectively.

60.A combined reading of section 32 & section 92 of the Act reveals the entire scope of the provision is restricted to those violations of Regulations, whose compliance can be effected, by mandating the FBO to engage in certain improvement measures. However, when no such improvement is possible or if the violations are of such nature that the issuance of improvement notice would be redundant, then the Section need not and cannot be invoked.

61.It must be noted that Section 32 does not cast an obligation on the Designated Officer to issue an improvement notice in all the cases of violation of Regulations. The word used in clause (1) is “may” as opposed to “shall”. Therefore, it is sufficient if the Designated Officer issues an improvement notice when the resultant violation can be rectified by suggestions and consequent, implementation of certain corrective measures. As the name indicates, improvement notice can be issued only when there is a possibility for improvement.

62.Apart from the issuance of improvement notice, Section 32 also contemplates the suspension and cancellation of the license granted to the FBO. Such suspension or cancellation can take place:

• if the food business operator fails to comply with the improvement notice; or
• if the violation committed by the food business operator endangers public health.

63.When the Designated Officer issues “an improvement notice”, he must give a minimum of 14 days for the FNO to comply with the measures specified therein. When such measures are not complied with within the period stipulated in the improvement notice, the Designated Officer may suspend the license of the FBO after giving him a reasonable opportunity of being heard and for reasons recorded in writing in accordance with Section 32(2) r/w. Regulation 2.1.8 (1) of the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011 [hereinafter referred to as “the Licensing Regulations”]. Even after the suspension of license, if the Designated Officer, pursuant to an inspection report, is of the opinion that the defects are still not rectified or the measures specified in the improvement notice are still not complied with, then she/he after giving the FBO an opportunity to show cause as provided under Section 32(3) of the Act r/w.

Regulation 2.1.8(3) of the Licensing Regulation may cancel the license of the

FBO.

64. The procedure contemplated for suspension and cancellation under

Section 32(2) and 32(3) of the Act r/w. Regulation 2.1.8(2) and 2.1.8(3) of Licensing Regulations need not be complied with and such suspension or cancellation can take place forthwith for reasons to be recorded in writing in circumstances, where the protection of public health, assumes exigency. The power of the Designated Officer to do so stems from the proviso to Section 32(3) r/w. Regulation 2.1.8(4) of the Licensing Regulations.

65.Now, it must be remembered that the suspension and cancellation of license contemplated under Section 32 of the Act are predicated on the issue of an improvement notice or on the existence of conditions that would constitute a public health crisis. However, there can be situations that could neither constitute a public health crisis nor could be remedied by the implementation of certain corrective measures, but still could constitute a violation of the Act and the Rules. In such cases, the issuance of an improvement notice becomes a futile exercise. It is for this reason that a Single Judge of the Kerala High Court in the case of V.B. Muraleedharan

Vs. The Assistant Commissioner of Food Safety and Ors., [W.P. (C). No. 35151 of 2018, dated 12.04.2019] had held that the issuance of improvement notice under Section 32 is only directory and not mandatory. The Court held:

“8. The further contention of the petitioner that an improvement notice is liable to be served on the petitioner before any action is taken against him is also not sustainable in view of the clear language of Section 32. Section 32 is clearly a directory provision and it is well within the power of the designated office to decide, in a given case, whether an improvement notice is liable to be served and an opportunity granted to rectify the non compliance. As such, the non serving of an improvement notice will not be a ground for challenging an action taken by the designated officer on the basis of a test report.”

66.The decision of the Single Judge was appealed before a Division Bench. The Bench in V.B. Muraleedharan Vs. The Assistant Commissioner of Food Safety and Ors., [W.A. No. 2030 of 2019, dated 22.01.2020] affirmed the decision  of the Single Judge and held:

“23…. issuance of improvement notice is only discretionary and it cannot be said that in all cases of adulteration, misbranding etc., improvement notice has to be given.”

67.At this stage, I will refer to the judgment cited by Mr.V.P.Raman. He relied upon a judgment of this court in K.Karupanan v. District Collector and another, W.P.(MD).No.15336 of 2022 dated 14.07.2022 to urge that no action can be initiated for suspension or cancellation without a notice under Section 32 of the Act.

68.A Careful perusal of the Judgment shows that the business of the writ petitioner therein had been shut down without even a show cause notice. Hence, the learned Judge had held that if the authority seeks to invoke Section 32, he necessarily has to comply with the principles of natural justice. The judgment certainly does not lay down a proposition that Section 32 is mandatory in all cases. Hence, it does not help the case of the petitioner.

69.I respectfully agree with the views of the Kerala High Court  that issuance of an improvement notice is only a directory provision. It has been inserted in the Act to enforce compliance of the Regulations framed pursuant to the Act, when such compliance could be enforced on the implementation of certain measures. However, when no such appreciable measures could possibly be undertaken to bring the actions of the FBO (as in this case of misbranding, unauthorised sale, etc.) more in alignment with the provisions of the Act, improvement notice need not be issued as a routine statutory measure. In this case, the authority had rightly issued show cause notices on 21.09.2024, 27.09.2024 and 30.09.2024. It was on account of the orders of this Court in W.P.(MD).No.23551 of 2024 dated 03.10.2024, that these show cause notices underwent a metamorphosis and became “improvement

notices”.

70.For instance, if the FBO engages in a sale not authorized by the license issued under Section 31, then, in such situations, there could not be any possible measure suggested or undertaken to rectify or improve the unauthorized sale. These are transactions which are illegal ab initio as they contravene Section 31(1) of the Act. They cannot be effectively addressed or remedied through the issuance of an improvement notice. In these cases, the non-issuance of an improvement notice cannot be faulted.

71.Nevertheless, in such situations, the Designated Officer cannot resort to the suspension or cancellation of license under Section 32(2) or 32(3) for the same are predicated on the issuance of an improvement notice nor could he resort to such course of action under Proviso to Section 32(3) unless the outcome of the unauthorized sale has resulted in a public health

crisis.

72.In the instant case, I am able to perceive that there has been an “improvement” in the show cause notice stage by stage. Initially, on 20.09.2024, when the notice, was sent, there was only a report of the Director of Preventive Health, Mangalagiri. In the second notice dated 27.09.2024, the respondents sought to improve the same by introducing a new case altogether of false information, misleading certification, and supply issues. When this notice was put in challenge before the Court, the respondents conceded that they will issue a supplementary notice. The supplementary notices issued on

08.10.2024 and 07.11.2024 were issued as  “improvement notice” invoking Section 32 of the Act r/w. Regulation 2.1.8(4) of the Licensing Regulations.

73.As noted earlier, an option is given to the respondents either to give an improvement notice or proceed straight away for suspension, if the circumstances so demand. When Regulation 2.1.8(4) of the Licensing Regulations deals with the suspension of license forthwith to protect public health, without issuance of improvement notice; the same provision cannot be used to issue an improvement notice. The respondents, having concluded that a situation to suspend the license forthwith does not arise in the facts of the case, should have stated what is the “improvement” that they seek from the petitioner. Instead, the so-called improvement notice merely sets out the provisions contravened by the petitioner.

74.The discussion earlier made would reveal that the “improvement notices” issued in this case only set out the violations committed by the petitioner. These violations include both the provisions of the Act and the Regulations framed thereunder. When in terms of Section 32, no improvement notice can be issued to address the violation of the provisions of the Act, the improvement notices issued on 08.10.2024 and 07.11.2024 have been purportedly issued to address the same. Even if it is assumed that the improvement notice can be issued to address and rectify the violations of the Act,  the violations committed in the present case by the petitioner, including furnishing of “false information”, “misbranding”, “unauthorized sale”, “non-traceability” of the source of the supplied ghee and the whereabouts of the rejected ghee, cannot be cured or rectified through the issuance of an improvement notice, for there is no scope for improvement per se. Though these are grave violations of the Act and Regulations when viewed from the angle of supply of several thousand kilograms of ghee to a religious institution such as TTD, they cannot be effectively addressed under Section 32 of the Act, for the said provision can be resorted to only while dealing with rectifiable violations of Regulations.

75.Further, the impugned order does not disclose as to how, for a supply made in July 2024, an order passed in February 2025 can be treated as one falling under the category “forthwith” under Regulation 2.1.8(4) of the Licensing Regulations. “Forthwith” has been interpreted to mean “as soon as may be”, (i.e.,) the action should be performed by the authority with reasonable speed and expedition with a sense of urgency without any unavoidable delay. See, Navalshankar Ishwarlal Dave and another v. State of

Gujarat and Others, 1993 Supp (3) SCC 754.

76.Though the delay and procedure adopted by the Designated Officer fails to meet the requirements of Section 32 of the Act and Regulation 2.1.8 of the Licensing Regulations, this Court cannot lose sight of the fact that the Act attempts to protect the consuming public and preserve their right to healthy and wholesome food, and their right to know the contents of the food and other details of manufacturing. Such valuable rights cannot be put in jeopardy just because Section 32 of the Act does not attempt to address the violations such as the ones in the present case.

Harmonious interpretation of the fundamental rights

77.As pointed out in the previous paragraph, the Act attempts to protect the right to healthy and wholesome food of the consumers, and their right to know the details of preparation and manufacturing of the food. These are not mere statutory rights but are rights which are readable into Articles 14 and 21 of the Constitution of India. In this background, misbranding, unauthorized sale, etc., contravene not only the provisions of the Act, but also the rights of the consumers under Articles 14 and 21 of the Constitution. Furthermore, the Act, itself, under Section 18(1) declares that the authorities functioning under the Act must endeavour to protect human life and health.

78.At the same time, the food business operator also has a fundamental right under Article 19(1)(g) to “ practise any profession, or to carry on any occupation, trade or business”. This right can be only reasonably restricted under Article 19(6) through a legislation enacted in the interest of the general public. Moreover, the FBO’s are also entitled to “equal protection of the law” under Article 14 and their license can be suspended or cancelled only after strictly adhering to the formalities stipulated under the Act. This is because the Act envisages a situation which would fall under Article 19(6), a reasonable restriction of their right to carry on a business in the interests of the general public. Therefore, the procedure under Section 32 cannot be partly omitted and partly followed to suit the whims of the Designated Officer. It is true that the issuance of improvement notice is not mandatory. However, the suspension and cancellation that entails the non-compliance of the improvement notice under Section 32 cannot be isolated to effect suspension or cancellation without issuing the improvement notice.

79.When the fundamental rights of the consumers and the FBO’s are pitted against each other, the Court must not find ways to determine which rights would subdue the others. On the other hand, the Court must harmoniously read the seemingly conflicting fundamental rights and must endeavor to provide a space for both under the Indian Constitution. After all, this Country is known for its diversity of interests and competing aspirations. The Constitution, like a mother, caters to all and leaves none in the agony of disappointed hopes.

80.In the same spirit, this Court proceeds to address the facts of the present case. In this case, the petitioner is alleged to have engaged in several contraventions of the Act including furnishing of false information, misbranding, unauthorized sale/distribution of ghee agreed to be supplied to TTD, etc. For the said violations, it would be but a futile exercise to issue an improvement notice under Section 32 for the said violations are incapable of being rectified through the issuance of an improvement notice. Moreover, the violations have arisen under a contract entered into between TTD and A.R. Dairy Food Private Limited and there is no scope for A.R. Dairy Food Private Limited to undertake any measures to remedy the violations that have taken place. However, that does not mean that suspension could be effected through a procedure consequent to the issuance of improvement notice. Section 32, though directory, has to be interpreted strictly for it directly interferes with a

FBO’s right to carry on his business.

81.Even so, the alleged violations committed by the petitioner are grave and if true, they seriously infringe the consumers’ rights under Article

14 and 21. Though Section 32 has to be strictly interpreted, the Designated Officer is not a powerless entity to address the violations committed by the petitioner. To say that the FBO’s cannot be denied equal protection of laws is to also imply that they are still equal before law. It would be unfair to assume and even more dangerous to interpret that only those who commit violations of Regulations, which are capable of being rectified through an improvement notice, can get their license suspended or cancelled. To let other contraventions go scot- free would not only adversely affect the fundamental rights of the consumers, but also would affect the FBO’s right to “equality before law” under Article 14.

Suspension of license under Section 31 of the Act read with Section 21 of

the General Clauses Act

82.The Designated Officer is not without power to suspend the license of the petitioner for the violations of the FSSAI Act committed by it. After all, Rule 2.1.2(2)(v) of the Food Safety and Standards Rules, 2011 [hereinafter referred to as “ the Rules” for the sake of brevity] reiterates that the Designated Officer shall have all the administrative powers including that of suspension, cancellation and revocation of the license of a food business operator, in case of, any threat or grave injury to the public. This power to suspend a license is not only readable under Section 32, but also under Section 31 of the FSSAI Act r/w. Section 21 of the General Clauses Act.

83.Section 31 of the Act deals with licensing and registration of a food business. Section 31(1) states that no person shall commence or carry on any food business except under a licence. This power to grant or refuse the license is vested with the Designated Officer under Section 31(4). Now to understand whether this power to issue license also includes the power to rescind the license so issued, one must take into account Section 21 of the

General Clauses Act. Section 21 of the General Clauses Act reads as follows:

“Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued”.

84.Though Section 21 of the General Clauses Act clarifies that the authority who is empowered to issue the license also has the power to rescind the license so issued, its application is restricted to legislative and executive actions. It was elucidated by the Supreme Court in the case of Indian National Congress (I) v. Institute of Social Welfare, [(2002) 5 SCC 685] that the power to rescind as a corollary of the power to issue cannot be exercised, by virtue of Section 21 of the General Clauses Act, in case of, quasi-judicial orders.

85.Therefore, one must first decide the nature of function performed by the Designated Officer under Section 31 of the Act to ascertain the applicability of Section 21 of the General Clauses Act. Here, it would be pertinent to refer to the judgment of the Supreme Court in Orissa Administrative Tribunal Bar Assn. v. Union of India, [(2023) 18 SCC 1] to understand the nuances that distinguish a quasi-judicial function from a legislative and executive function. In the said case, Justice Dr.D.Y. Chandrachud, speaking for the Bench, held that a quasi-judicial function would involve deciding two competing claims.

86.In the case of grant of license under Section 31(4) of the Act, the Designated Officer is not performing any quasi-judicial act, but is only deciding if an application for grant of license made under Section 31(3) of the Act should be granted or not. The same cannot be construed as an adjudication of competing claims. Therefore, the issuance of license by the Designated Officer under Section 31 is only an administrative action and not a quasi-judicial one. This conclusion is fortified by the fact that the Act contemplates a situation of “deemed licensing” under the proviso to Section 31(4). Such a deemed approval would not be possible, if the power to grant licence were to be termed quasi-judicial.

87.Further, in Orissa Administrative Tribunal Bar Assn. case, it was also held that for Section 21 of the General Clauses Act to apply, the proposed action sought to be taken under Section 21 should not be repugnant to the subject-matter, content and effect of the legislation, and should be harmonious to the object and scheme of the legislation. In the present matter, the Act not only empowers the Designated Officer to grant license to the food business operator, but also empowers her/him to check the violations of the Regulations committed by it. Under Section 32, the said Officer has the power to suspend or cancel the license to ensure the FBO’s compliance with the Regulations framed to give effect to the provisions of the Act. Similar provision is also found under the Rules.

88.Therefore, invoking Section 21 of the General Clauses Act to read the power of cancellation and its complementing power of suspension into Section 31 to address violations of the Act and those incapable of being addressed through an improvement notice would not be repugnant to the contents of the legislation. In fact, it would be in harmony with the object and scheme of the legislation. The Act is structured and framed in such a way as to regulate the registration and the activities of the FBO’s in order to secure the availability of safe and wholesome food to the people of this country. The Act, as discussed previously, is not incongruent to the business interests of the FBO’s for it provides an opportunity to such operators to remedy the rectifiable contraventions committed by them.

89.However, it should not be forgotten that the measures of suspension and cancellation, though adverse, are not unknown to the Act. They can be used as preventive and punitive measures under Section 32 to redress the violation of the Regulations that are framed to give effect to the provisions of the Act. When such is the function they perform, it would not be unreasonable to hold that the same powers can be read into Section 31 to redress the violation of the Act itself. Therefore, the Designated Officer, in this case, has the power to suspend the license of the petitioner for the contravention of the provisions of the Act committed by it.

90.At this juncture, this Court makes it clear that the exercise of the power of suspension and cancellation under Section 31 of the Act r/w. Section 21 of the General Clauses Act cannot be unilateral or arbitrary. This is because, even administrative actions, are not beyond the application of the principles of natural justice. Law demands that before an order of suspension is issued, the party must be put on notice and heard. This is a basic compliance of the principles of natural justice. I need not refer to God and Adam as has been done by the English Courts. Indian epics and history like Ramayana and Mahabharatha are filled with incidents where repeated opportunities were given to the delinquents to rectify themselves, and still, when they did not do so, they were visited with punishment. In fact, in this very city where this Court has been established, a king lost his life when questioned by Kannagi as to why he punished her husband to death without adhering to the principles of natural justice.

91.Therefore, before passing an order of suspension or cancellation under Section 31 of the Act r/w. Section 21 of the General Clauses Act, the Designated Officer must hear the FBO who has allegedly committed a violation of the provisions of the Act or the Regulations for whom an improvement notice cannot be issued under Section 32. See, U.P. Avas Evam Vikas Parishad Vs. Noor Mohammad, [2021 SCC OnLine SC 1266].

92.In fact, Regulation 2.1.8(1) of the Licensing Regulations makes it mandatory to hear the food business operator before suspending his license and stipulates that the order of suspension must be a reasoned order. Likewise, the food business operator must be issued with a show cause notice under Regulation 2.1.8(3) of the said Regulations before his license is cancelled. Therefore, such an order relating to suspension or cancellation, though made under Section 31 of the Act r/w. Section 21 of the General Clauses Act, must be preceded by a notice and hearing and must be a reasoned order.

93.I cannot find a violation of lack of notices in the present case altogether. The petitioner had been given as many as five notices by the respondents on 20.09.2024, 27.09.2024, 30.09.2024, 08.10.2024 and 07.11.2024. To all the notices, it sent a reply. However, the petitioner was not heard after a reply was submitted to the notices. Therefore, though suspension of the petitioner’s license was done upon issuance of a notice, procuring a written reply and through a reasoned order, since the petitioner was not heard before the impugned order was passed, the exercise was not properly done. This Court makes it clear that although the suspension of the license of the petitioner is permitted by the Act, it was improperly done for the same was not preceded by a hearing. Further, there yet remains an issue of

proportionality.

Principle of proportionality

94.Section 18 of the Act lays down the general principles that will guide the authorities constituted under the Act at the time of implementation of its provisions. Section 18(1)(c) and 18(1)(d), in particular, emphasize that any measure that is taken in the interest of the public should be proportionate and not restrictive of the trade than is required to achieve an appropriate level of protection. The Act, clearly, favours the principle of proportionality and instructs the authorities constituted thereunder to be mindful of the same while implementing the provisions. Therefore, even while exercising discretionary powers under the Act and the Regulations framed thereunder, the Designated Officer cannot act beyond the requirements of proportionality

95.Proportionality, as understood in common parlance, is like using a sledgehammer to swat over a fly. In the present case, the records reveal that the petitioner had received ghee from M/s.Sri Vyshnavi Dairy Specialities Private Limited, Andhra Pradesh, and sent it to TTD as if it had manufactured the ghee on its own. On rejection of the ghee by TTD, the petitioner resold it to M/s.Sri Vyshnavi Dairy Specialities Private Limited, Andhra Pradesh. As per Section 28, on being informed by TTD of the rejection of the supplied ghee, the petitioner ought to have informed the competent authorities before disposing of the ghee to M/s.Sri Vyshnavi Dairy Specialities Private Limited, Andhra Pradesh. The Food Authorities in Andhra Pradesh inspected the premises of M/s.Sri Vyshnavi Dairy Specialities Private Limited, Andhra Pradesh and found it is not capable of having produced the amount of ghee that had been supplied to TTD.  The annual report filed by the petitioner also shows that the petitioner does not have the capacity to manufacture the huge quantity of ghee required by TTD. Hence, the issue of traceability arose.

96.While the report that has been produced by Mr.S.Arunnithy shows that the ghee that had been returned by the petitioner to M/s.Sri Vyshnavi Dairy Specialities Private Limited, Andhra Pradesh had been sold to an unknown soap manufacturer, the petitioner, in its reply, has taken a stand that the ghee sent to M/s.Sri Vyshnavi Dairy Specialities Private Limited, Andhra Pradesh found its way back to TTD and had been accepted by the latter. The disposal of the ghee is as mysterious as the Bermuda Triangle. It is traceable till the premises of the petitioner, and thereafter, it vanishes without a trace. The petitioner cannot use the law to wish away the mistakes that had been committed by it.

97.In the present case, the Designated officer vide the impugned order has suspended the license of the petitioner with regard to all the activities for which the license was granted to the petitioner concern under Section 31 of the Act. Though she has recorded her reasons for doing so, the reasons for suspending “all” the activities for which the license was granted to the petitioner relate only to the supply of misbranded ghee to TTD, and the consequent unauthorized and untraceable distribution of the rejected ghee.

98.A reading of Regulation 2.1.8(1) of the Licensing Regulations would alone reveal that the Designated Officer has the right to suspend the license of the petitioner with respect to “all or any” of the activities for which the license was granted. However, as noted earlier, the discretion of the Designated Officer is subject to the principle of proportionality and cannot be arbitrarily exercised.

99.The petitioner manufactures several products as listed above. Of all those products, ghee alone has put the petitioner on a sticky wicket. The respondents, in terms of Regulation 2.1.8 (1) of the Licensing Regulations, had to decide whether the activities of the petitioner were so detrimental to the public that the suspension of “all” the activities was necessary or whether the suspension of the manufacture of ghee products was alone sufficient. When the Act and Regulations call upon the respondents to decide on this issue, failure on their part to consider this aspect necessarily requires this Court to interfere. Proportionality, being one of the fundamental principles in the administration and exercise of powers, in case it has not been done, this

Court necessarily has to interfere. Yet, as per the Regulations, it is for the

Registration or Licensing Authority to take a call on it. In exercise of Article 226, this Court cannot normally substitute its reasoning in the place of the statutory authorities and take a call on the nature of the suspension.

100.I also have to take note of the fact that the authority on 27.09.2024, had suspended only the manufacturing activities of the petitioner relating to ghee. Within a matter of three days, that order too was rescinded and the petitioner was permitted to continue to exploit the license granted to it. All of a sudden, it cannot be called upon to shut down all its business activities. Such a course of action would not be proportional to the activities of misbranding, furnishing of false information, etc. It will also adversely affect about 13,000 vendors of the writ petitioner.

101.Further, the Court should also take note of the fact that the license of the petitioner has been suspended until further orders. This again would not be a measure proportionate to the contravention sought to be redressed.

This is a specific case of supply under a contract. It is true that the ghee supplied to TTD was misbranded and was later sold in a manner not authorized by the license nor by the Act. However, when the Act favours proportionality and corrective action, and allows the FBO’s to apply for a fresh license after three months post the cancellation of the existing license (see, regulation 2.1.8.6). Hence, the indefinite suspension is clearly not a proportional measure for it adversely affects the ability of the FBO to apply for a new license after cancellation.

102.The purpose of the legislation is not to shut down the activities of an FBO but to ensure that the product is wholesome and healthy, when it reaches the consumers. By suspending it until further orders without giving any reason to support the same, the fundamental right of the petitioner is affected. This is more so, the respondents themselves suspended only the manufacture of ghee and that too for a period of three days in September 2024. Therefore, while deciding the issue of suspension, the authority would also fix the period for which the licence should be suspended, if such a conclusion is arrived at.

Decision

103.In the light of the above discussion, I pass the following order:

(i)The impugned order dated 14.02.2025 is set aside;

(ii)The matter is remitted to the file of the 2^nd respondent;

(iii)The 2^nd respondent shall decide, by way of a reasoned order, whether to suspend the license of the petitioner for all the activities, or for manufacturing, transportation and sale of ghee alone;

(iv)The said exercise shall be completed within a period of four (4) weeks from the date of uploading of the order on the website of the Court;

(v)The arrangement made by this Court under the interim order in W.M.P. No. 3310 of 2025  on 21.02.2025 will continue till the 2^nd respondent passes the order;

(vi) It is made clear the remand is limited.There is no necessity for the respondents to issue a fresh show cause notice. On the basis of the available materials and the report of the NDDB (CALF) dated 08.02.2025 (which has come into operation just prior to the impugned order) and after hearing the petitioner, the respondents shall decide the issue of suspension of license;

(vii)It is also made clear that suspension of license as a measure to redress the violations of the Act and the Regulations made thereunder, is only an interim measure. The same cannot be allowed to operate indefinitely. If at all the Designated Officer arrives at an opinion that the license of the petitioner should be suspended, since suspension is an interim measure, it cannot be allowed to operate for a period more than six (6) weeks. Within the said period, the Designated Officer may take a decision on the cancellation of the license of the petitioner, following the procedure established.

104.In the result, this Writ Petition is allowed. As the writ petition is being allowed on a technical point, the petitioner has to bear the costs. The petitioner shall also pay the cost of Rs.2,00,000/- (Rupees Two Lakhs Only) to the 2^nd respondent within 2 weeks from today. Consequently, the connected miscellaneous petition is closed.

16.05.2025       

krk/nl

Index : Yes / No

Internet    : Yes / No

Neutral Citation           : Yes / No

To

1.Food Safety and Standards Authority of India,

Ministry of Health and Family Welfare,

2^nd Floor, South Wing, Central Documentation Complex,    Chennai Port Trust Building, Rajaji Salai,    Chennai – 600 001.

2.Central Designated Officer,

Central Licensing Authority under

FSSI Act, 2006 (TN-03),

Southern Regional Office,    Chennai Port Trust Building,

Rajaji Salai, Chennai – 600 001.

V.LAKSHMINARAYANAN, J.

krk / nl W.P.(MD).No.4619 of 2025

16.05.2025

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