The Bombay High Court has upheld the vires of Section 394 of the Mumbai Municipal Corporation Act of 1888 and ruled that a license under the provision is mandatory in order to carry on a catering business.
A division bench of Justice SC Dharmadhikari and Justice Anuja Prabhudessai held that the objective of the Food Safety and Standards Act is to ensure availability of safe and wholesome food for human consumption whereas the intent of requirement of a license under Section 394 is to ensure public health, hygiene and safety.
The court was hearing a petition filed by a 61-year-old businessman from Umerkhadi, Mumbai, seeking issuance of a writ of mandamus declaring that the Food Safety and Standards Act prevails over Section 394(1)(e) of the MMC Act.
The petitioner had a shop where he used to prepare and sell various types of food items. As the petitioner had a few gas cylinders and gas stoves in his shop, he was informed by the officers of Mumbai Municipal Corporation to obtain a licence under S.394.
However, after the petitioner applied for a licence, the sanitary inspector who inspected the petitioner’s shop filed a criminal proceeding against him for carrying on catering business without a licence.
By a letter dated April 6, 2017, the petitioner was informed that his application for a licence was rejected and he was directed to discontinue his trade business within seven days.
The petitioner did not discontinue his business, instead he obtained a registration certificate under the FSS Act. As a result, the municipal corporation confiscated the gas stove and cylinders at the petitioner’s shop. Then the writ petition was filed.
The court noted that restrictions on trade under Section 394 are intended to regulate storage of certain specified substances in order to prevent a fire outbreak or an explosion due to mishandling, improper storage etc. Similarly, restrictions on trade are intended to prevent nuisance, unhygienic conditions, spread of contagious diseases etc., and to ensure public health, hygiene and safety, the court said.
The bench concluded:
“It is thus evident that restrictions under 394, are intended to fulfill the mandate of Section 61 and 63 of MMC Act. Whereas the objectives of the FSS Act, which is a Central Act, is to ensure availability of safe and wholesome food for human consumption. The requirement of obtaining license and registration as per the regulation 2.1 of FSS Regulations 2011 is to regulate and monitor the manufacture, processing distribution, sale, and import of food. The provisions under the FSS Act are much wider and general in nature and do not meet the specific and peculiar exigencies covered by the MMC Act, viz. to regulate the specified trade and storage of hazardous substance so as to ensure public safety, health and hygiene. The impugned legislation and the central legislation do not cover the same field but operate in two different fields. There is thus no conflict or repugnancy between the two provisions.”
The court added that the mandatory requirement of a licence under the MMC Act was to ensure public safety etc., therefore, it was not an unreasonable restriction under Article 19(1)(g) of the Constitution of India.
Thus, the petition was dismissed.