Nizar v. The Secretary, Elampalloor Grama Panchayat, Food Safety Officer & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** ## **WP(C).No.13801 OF 2020(A)** ## **PETITIONER/S:** |||**NIZAR**| |---|---|---| |||**AGED 50 YEARS**| |||**S/O.ALIYAR KUNJU, NIZAR MANZIL, PUNUKANNOOR,**| |||**PERUMPUZHA P.O., KUNDARA, KOLLAM - 691 504.**| |||**BY ADV. SRI.SAJU J PANICKER**| |**ENT/S**|**:**|| |**1**||**THE SECRETRY, ELAMPALLOOR GRAMA PANCHAYATH**| |||**ELAMPALOOR, KOLLAM- 691 501.**| |**2**||**FOOD SAFETY OFFICER**| |||**KUNDARA CIRCLE, KUNDARA, KOLLAM - 691 501.**| |**3**||**K.PL.UNNIKRISHNAN NAIR**| |||**S/O.KUTTAN PILLAI, KORANTIPPALLIL VEETTIL, THEVALLY**| |||**P.O., KOLLAM - 691 009.**| |**4**||**K.P.RAMACHANDRAN NAIR**| |||**S/O.KUTTAN PILLAI, KORANTIPPALLIL VEETTIL, THEVALLY**| |||**P.O., KOLLAM - 691 009.**| |**5**||**K.P.SREEKUMAR**| |||**S/O.KUTTAN PILLAI, KORANTIPPALLIL VEETTIL, THEVALLY**| |||**P.O., KOLLAM - 691 009.**| ## **RESPONDENT/S:** ## **OTHER PRESENT:** **SRI.M.R.SASITH,SC, SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.13801 OF 2020(A)** **2** ## **ALEXANDER THOMAS, J.** **----------------------------------------W.P.(C.) No. 13801 of 2020 ----------------------------------------Dated this the 14[th] day of July, 2020** ## **JUDGMENT** The case set up in the Writ Petition (Civil) is as follows : _That the petitioner is conducting a tea shop in Perumpuzha P.O, Kundara, Kollam. and was having valid licence to conduct the tea shop. After the expiry of the licence period the petitioner filed an application for renewal and the application was received by the 1st respondent and issued receipt for the same. The respondents 3 to 5 the landlord, issued a letter to the 1st respondent stating that they had not renewed the rent deed of shop rooms including that of the petitioner and hence shall not renew the licence of the shop room. The 1st respondent on the basis of Ext P3 directed the petitioner to obtain no objection certificate from the landlord and informed that only on receipt of the no objection certificate they will renew the licence. The intention of the respondents 3 to 5 is to evict the petitioner in a short cut manner from the shop room other than due process of law. The requirement of the consent of the landlord is required when a person intends to obtain a licence for the first time. The petitioner was renewing the licence regularly. The 1st respondent cannot insist upon for production of a written consent from the landlord for the purpose of issuing of the licence. The 2nd respondent the food safety officer, on the influence of respondents 3 to 5 inspected the tea shop_ **WP(C).No.13801 OF 2020(A)** **3** _of the petitioner and issued a notice directing to produce the rent deed and no –objection certificate. It is further stated that if rent deed and no – objection certificate is not produced the 2nd respondent will cancel Ext P4 certificate of registration of the petitioner issued as per Regulation 2.1.1(5) of the Food Safety and Standards ( Licensing and Registration of Food Businesses) Regulations, 2011. The 2nd respondent has no authority to call for the rent deed and no objection certificate. The powers of the 2nd respondent is stated in Section 38 of the Food Safety and Standards Act. If any shop is functioning without licence the Food Safety Officer has no authority to interfere in the matter. Rule 2.1.3 of the The Food Safety and Standard Rules 2011 deal with powers and duties of Food Safety officer. Nowhere it is stated that the 2nd respondent has the right to call for the rent deed and no objection certificate from the land lord. The above act of the 2nd respondent is due to the influence made by the respondents 3 to 5. The 2nd respondent had committed an offence under Section 39 ( b) of the Food Safety and Standards Act. Ext P4 certificate can be cancelled as per Regulation 2.1.8 of the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011. Registration can be cancelled if the Food Business Operator has failed to comply with the conditions within the period mentioned in any improvement notice served under Section 32 of the Act. The registration can be cancelled in the interest of public health also. Registration cannot be cancelled on the reason that there is no rent deed and no objection certificate from the Landlord. The 1st respondent is not renewing the licence of the tea shop of the petitioner. The 1st respondent directed the petitioner to obtain no_ **WP(C).No.13801 OF 2020(A)** **4** _objection certificate from the landlord. The 1st respondent has no authority to demand no objection certificate from the l;andlord for renewing the licence. Apart from that Ext P5 issued by the 2nd respondent is also illegal. The 2nd respondent has no authority under the Food safety and Standards Act, 2006 to issue such notice to the petitioner. Ext P5 notice issued is illegal and is liable to be set aside. The petitioner is seeking a direction to consider his application dated 25.06.2020 for renewing the licence of his shop room which is evident from Ext P2 receipt, at the earliest by the 1st respondent without insisting for no objection certificate from the landlord._ 2. It is in the light of these averments and contentions that the petitioner has filed the instant W.P.(C). with the following prayers : _1. “To issue a writ of mandamus, order or direction directing the 1st respondent to consider the application for D & O licence submitted before the 1st respondent on 25.06.2020 which is evident by Ext P2 receipt without insisting for no objection certificate from the respondents 3 to 5 ._ _2. To issue a writ of certiorari calling for records relating to Ext P5 and quash the same._ _3. Such other relief this Hon’ble court deems fit and proper to grant in the facts and circumstances of the case.”_ 3. Heard Sri.Saju J Panicker, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned senior Government Pleader appearing for R2 and Sri. M.R.Sasith Panicker, learned counsel appearing for R1 (Elampalloor Grama Panchayat). In the nature of the orders proposed to be passed in this petition, notices to contesting respondents 3 to 5 will stand dispensed with. 4. The case of the petitioner is that he has duly obtained Ext.P1 **WP(C).No.13801 OF 2020(A)** **5** trade/D&O licence dated 6.8.2019 issued by the 1[st] respondent-Secretary of the Grama Panchayat for running his tea shop in the shop room taken on rent from respondents 3 to 5 and that said licence has been initially graned by the 1[st] respondent after the petitioner had duly produced the consent of the landlord/building owner concerned. Further that, the trade licence has been renewed by the 1[st] respondent from time to time. The complaint of the petitioner is that now the application filed by the petitioner on 25.6.2020 for renewal of the trade licence for the year 2020-21, as acknowledged in Ext.P2 receipt is not being considered by the 1[st] respondent-Secretary of the Grama Panchayat. The petitioner could learn that the contesting respondents 3 to 5, who are the owners of the building have submitted Ext.P3 letter to the 1[st] respondent-Secretary of the Grama Panchayat pointing out that the trade licence shall not be renewed in favour of the petitioner as they have not renewed the rent deed/lease deed in favour of the petitioner etc. 5. The petitioner would contend that the issue regarding the consent of the landlord is relevant only at the initial time of grant of trade licence by the local body concerned and subsequent renewals of the trade licence are to be done by the 1[st] respondent without insisting for any consent of the landlord and that the abovesaid legal position in that regard is well settled by a series of rulings of the Apex Court and of the Division Bench of this Court in cases as in _**Sudhakaran**_ **WP(C).No.13801 OF 2020(A)** **6** _**v. Corporation of Trivandrum and anr.**_ [2016 (14) SCC 263], para Nos.8 & 9, _**Marimuthu v.DG of Police,**_ [1999 (3) KLT 662(DB)], para No.18, wherein it has been held by the Apex Court in _**Sudhakaran’s case (supra)**_ [2016 (14) SCC 263] that the requirement of the consent of the land lord is applicable only when a person intends to obtain licence for the first time and that renewal of subsequent application for obtaining licence on expiry of the period of the existing licence during the currency of the tenancy is not applicable for obtaining licence and that even in case of application for obtaining application for the first time, the tenant cannot be deprived of running lawful business merely because the land lord withheld the consent and that valid tenancy itself has implied authority of the land lord for legitimate use of the premises by the tenant etc. 6. The 2[nd] grievance of the petitioner is that the 2[nd] respondentFood Safety officer is now insisting as per Ext.P5 notice dated 29.6.2020 that petitioner should produce the rent deed executed in his favour by the building owner to run the tea shop or the no objection certificate from the land lord. The petitioner has made detailed references to various provisions contained in the Food Safety and Standards (Licencing and Registration of Food and Business) Regulations, 2011 to contend that the 2[nd] respondent – Food Safety Officer has no jurisdiction or competence to pass a notice in the nature of Ext.P5 so as to call upon the petitioner to produce the rent **WP(C).No.13801 OF 2020(A)** **7** deed executed in favour of the petitioner by the land lord or the NOC from the land lord etc. and that those aspects are not within the province of the 2[nd] respondent. The petitioner has made reference to the provisions of the Regulations framed under the abovesaid Act as mentioned hereinabove. 7. After hearing both sides, this Court is of the considered that the 1[st] respondent-Secretary of the Elampalloor Grama Panchayat shall consider the application submitted by the petitioner for renewal of the trade licence for the year 2020-21 as acknowledged in Ext.P2 receipt dated 25.6.2020 after affording reasonable opportunity of being heard to the petitioner as well as contesting respondents 3 to 5 and taking into account the dictum laid down by the Apex Court and the Division Bench of this Court in the aforecited judgments without any further delay. Further, it is seen that _prima facie_ , the 2[nd] respondent-Food Safety Officer has no jurisdiction as per the provisions of the abovesaid Act and the Regulations framed thereunder to pass a notice in the nature of Ext.P5 to call upon the party to produce rent deed executed by the land lord or to produce NOC of the land lord etc. and therefore, the matter would require serious reconsideration at the hands of the 2[nd] respondent-Food Safety Officer. Accordingly, the following orders and directions are passed : - 1)The 1[st] respondent- Secretary of the Elampalloor Grama Panchayat will immediately take up for consideration the matters raised by the petitioner in the application dated 25.6.2020 given by the petitioner **WP(C).No.13801 OF 2020(A)** **8** for renewal of the trade licence for the year 2020-21 and after affording opportunity of being heard to the petitioner as well as contesting respondents 3 to 5, should pass orders thereon, in accordance with law, without any further delay, at any rate, within a period of 3 weeks from the date of production of a certified copy of this judgment and take into account the dictum laid down by the Apex Court and the Division Bench of this Court in the aforecited judgments. - 2)The petitioner may produce copies of the abovesaid judgments of the Apex Court and the Division Bench of this Court before the 1[st] respondent, while he produces certified copy of this judgment. - 3)Further, it is seen that Ext.P5 has been passed without affording opportunity of being heard to the petitioner. Further, it is ordered that Ext.P5 notice dated 29.6.2020 will stand set aside and quashed and the matter will stand remitted to the 2[nd] respondent-Food Safety Officer for passing orders afresh after hearing the petitioner and after taking into account and after strictly ascertaining as to whether R2 has any jurisdiction in terms of the provisions contained in the Food Safety Act and the Regulations framed thereunder to insist for the requirements in Ext.P5 and decision in that regard may be taken within 6 weeks from the date of receipt of a copy of this judgment. 8. The petitioner will produce certified copies of this judgment as **WP(C).No.13801 OF 2020(A)** **9** well as the copies of the memorandum of this W.P.(C.) before R1 and R2, for necessary information and further action. Registry will forward certified copies of this judgment to contesting respondents 3 to 5, at the cost of the petitioner. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** SKS **WP(C).No.13801 OF 2020(A)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE LICENCE DATED 06/08/2019 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P2 THE TRUE COPY OF THE RECEIPT DATED25/06/2020 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P3 THE TRUE COPY OF THE LETTER ISSUED BY THE RESPONDENTS 3 TO 5 TO THE 1ST RESPONDENT.** **EXHIBIT P4 THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE COMMISSIONERATE OF FOOD SAFETY, GOVERNMENT OF KERALA.** **EXHIBIT P5 THE TRUE COPY OF THE NOTICE DATED 29/06/2020 ISSUED BY THE 2ND RESPONDENT.**