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Allahabad High Court · body

2013 DIGILAW 1813 (ALL)

M. K. ENTERPRISES v. STATE OF U. P.

2013-07-10

SUNIL AMBWANI, SURYA PRAKASH KESARWANI

body2013
JUDGMENT By the Court.—We have heard learned counsel appearing for the petitioner. Learned Standing Counsel appears for the State respondents. Shri A.N. Rai appears for respondent No. 11. 2. The petitioner is aggrieved by the Office Memorandum dated 9.11.2012 awarding contract to M/s Ashok Kumar Lata Ten House Plastic Complex Basti-respondent No. 11 for supplying cooked food under the ‘Janani Shishu Suraksha Yojna’ on the ground that the scheme provides for supplying cooked food, whereas the respondent No. 11 has licence under Food Safety and Standard Act, 2006 for doing petty food business in food material/drinking material. 3. On 10.5.2013 we passed following orders : “ 17.12.2012 we had passed following orders : “Learned standing counsel has accepted notice on behalf of respondent Nos. 1 to 6; 8 to 10, and 12. Sri Hemendra Kumar Mishra has accepted notice on behalf of respondent No. 7. Sri S.R. Pandey has accepted notice on behalf of respondent No. 11. The petitioner submitted his tender, in response to the notice for contract, issued by the Chief Medical Officer, Basti published on 12.8.2012, for supply of cooked food, and other items in ‘Janani Shishu Suraksha Yojna’, and in other schemes of the State, for maternity care. It is alleged that the contract was settled with respondent No. 11 by a committee, which was not properly constituted, and further respondent No. 11 does not have a licence, for sale and supply of ‘cooked food’ under the Food Safety and Standard Act 2006. All the respondents are allowed two weeks time to file counter-affidavit. The petitioner will have one week thereafter to file rejoinder-affidavit. List on 29.1.2013. The Standing Counsel has filed counter-affidavit of Shri Rajesh Kumar, District Administrative Officer in the office of Chief Medical Officer, Basti, in which it is not denied that respondent No. 11, who has been awarded contract for supply of cooked food in the “Janani Shishu Suraksha Yojna” does not have a valid licence for cooked food under Food Safety and Standards Act, 2006. In paragraph-7 of the counter-affidavit all that is stated is that the respondent No. 11 was required to comply with conditions of the tender and which require, that the registration certificate is issued under and is subject to the provisions of FSS Act, 2006, all of which must be complied with by the petty food business. In paragraph-7 of the counter-affidavit all that is stated is that the respondent No. 11 was required to comply with conditions of the tender and which require, that the registration certificate is issued under and is subject to the provisions of FSS Act, 2006, all of which must be complied with by the petty food business. The respondent No. 11 is represented through Shri S.R. Pandey, Advocate. He has not filed counter-affidavit so far. Prima facie, we find that the respondent No. 11, who has been awarded the contract for supplying ‘cooked food’, does not have a licence under Food, Safety and Standard Act, 2006 for supplying ‘cooked food’. His licence is admittedly issued for supplying ‘food items/drinking items’ (Khadya Padarth Evam Pey Padarth) for which the licence is valid upto 29.6.2013. A person, who does not hold a licence from the competent authority in the business in which he has offered his bid, was not entitled for settlement of contract to supply of such items, as the supply would be contrary to the provisions of Food, Safety and Standard Act, 2006. Shri S.R. Pandey is allowed two weeks’ further time to file counter-affidavit. List on 28.5.2013. Until 28th May, 2013 the respondents are restrained from accepting supplies and making payments to respondent No. 11.” 4. A counter-affidavit of Shri Rajesh Kumar, District Administrative Officer in the office of Chief Medical Officer, Basti has been filed justifying the award of contract to respondent No. 11 on the ground that in Clause-4 of the licence issued by the Food Registering Authority, Nagar Palika Parishad, Basti it has been specifically mentioned that this registration certificate is issued under and is subject to the provisions of FSS Act, 2006 all of which must be complied with by the petty food business. The tenders were invited from the interested and eligible candidates under conditions laid down in paragraphs 3 (c) and 5 (d) for supply of food in the hospitals. In the conditions of the tender, the details of classification of license have not been demanded and in view of this it cannot be said that the licence granted to respondent No. 11 has been disapproved. In the conditions of the tender, the details of classification of license have not been demanded and in view of this it cannot be said that the licence granted to respondent No. 11 has been disapproved. It is further stated in para-7 that Clause-4 of the food licence issued to respondent No. 11 alongwith other persons specifies that this registration certificate is issued under and is subject to the provisions of FSS Act, 2006 all of which must be complied with by the petty food business. 5. Shri Awadh Narain Rai has filed a counter-affidavit of Shri Ashok Kumar-respondent No. 11 in which it is stated that the tender notice clearly specified in Column-3 (c) that the persons applying for the bid must have food licence, which is required to be submitted alongwith the tender. Since the respondent No. 11 has a valid food licence, his tender was rightly accepted. 6. The question involved in this case is as to whether the cooked food under any Government scheme can be supplied by a person, who does not have a licence to sell cooked food under Food and Safety Standard Act. 7. A perusal of the directions issued under the ‘Janani Shishu Suraksha Scheme’ by the State Government on 28.6.2013 would show that the scheme provides for supply of cooked food to the pregnant woman prior to the delivery, and thereafter. The scheme provides for special care for pregnant and lactating mothers. Para-2 of the Government order provides that the arrangement will be made for free cooked food by the District Woman and Joint Hospital from the Government budget. For the remaining units such as Community Health Centres and Primary Health Centres the arrangement shall be made from ‘Janani Shishu Suraksha Programme’. The scheme provides that an effort should be made that the cooked food is provided from the reputed restaurants or organisation such as Rotary club, Lion’s club, Inner Wheel club, Mahila Samakhya, Akshaya Patra etc. The cooked food should be of standard quality, nutritious and fresh. For the purpose of preparing the food the refined oil (I.S.O. mark), Egmark ‘masalas’ and fresh vegetables should be used. The supply of fresh vegetables should be made from the Mandi Samiti or Parag Dairy. 8. The scheme further provides that the District Nodal Officer, and the representative of the Food and Drug Controller department should make surprise inspections. For the purpose of preparing the food the refined oil (I.S.O. mark), Egmark ‘masalas’ and fresh vegetables should be used. The supply of fresh vegetables should be made from the Mandi Samiti or Parag Dairy. 8. The scheme further provides that the District Nodal Officer, and the representative of the Food and Drug Controller department should make surprise inspections. The Nodal Officer should also make inspections of quality of food at the place where the food has been cooked. 9. We have also examined the tender notice issued by the Chief Medical Officer/Chairman, District Purchase Committee, which provides in para 3 (c) for a food licence to be enclosed alongwith the tender and para 5 (D) for food licence to be issued under Food Safety and Standard Act, 2006. 10. As the scheme and the tender provide for supply of cooked food by reputed restaurants or organisations, the licence of the persons, who submit the tenders, should be of ‘cooked food’ and not ‘food material or drinking material.’ 11. The cooked food is ordinarily a mixture or combination of various food items and commodities whether packed or fresh or dairy products and oils, which are cooked for the purpose of human consumption and is different than the food material and drinking material in raw form. Even if there is no specific requirement for licence of cooked food, the very purpose, for which the supply is made, requires that the licence should be issued for ‘cooked food’ as it is ordinarily served in restaurants and not for food and drinking materials available in grocery shops in the market. 12. The Food Safety and Standards Act 2006, defines food; food additive; food business; food business operator; manufacture; manufacturer; primary food in Sections 2 (j); (k); (n); (o); (zc); (zd); (zd); and (zk) respectively in the definition clause. 13. The Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations 2011, provides for licensing and registration of food business. Regulation 2.1.1, Chapter II of the Regulations provides for registration of petty food business and Regulation 2.1.2 provides for license for food business. 14. Both the petitioner as well as respondent No. 1 have obtained registration certificate under Regulation 2.1.1 (5) for petty food business. Regulation 2.1.1, Chapter II of the Regulations provides for registration of petty food business and Regulation 2.1.2 provides for license for food business. 14. Both the petitioner as well as respondent No. 1 have obtained registration certificate under Regulation 2.1.1 (5) for petty food business. The registration for petty food business is provided for articles specifically mentioned in the column of ‘items of food manufactured/handled’, and not for all food items whether cooked or not. 15. Schedule-IV, applicable to food business operators for carrying out petty food business provides for general hygienic and sanitary practices to be followed by food business operators for carrying out sale and manufacture of food. In case of petty food business, Regulation 2.1.1 (5) Part-I, Schedule IV, with reference to Regulation 2.1.1 (2) provides for general hygienic and sanitary practices to be followed by petty food business operators applying for registration. The aforesaid conditions for registration provides for sanitary and hygienic requirements for food manufacturer/processor and seller. The regulations are also provide for sanitary and hygienic requirement for street food vendor units other than manufacturing or precessing. 16. In the present case, the licence of both the parties have been annexed alongwith the counter-affidavit from which we find that the respondent No. 11 does not have licence of cooked food. 17. The writ petition is allowed. The Office Memorandum dated 9.11.2012 is quashed. The Chief Medical Officer as the Chairman of District Purchase Committee will re-advertise the tender and ensure that for the supplies of cooked food the person, who meets the qualification and conditions prescribed under the Scheme, must possess a valid licence to supply cooked food under the Scheme. A copy of the order be given to the Chief Standing Counsel to be communicated to the Principal Secretary, Medical and Health and the Principal Secretary, Social Welfare for ensuring that all supplies under the Government schemes should be made by the persons, who have valid licence for making such supplies issued by the Competent Authority under the Food Safety and Standard Act, 2006. —————