Case BriefsHigh Courts

Kerala High Court: The Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., issued directions to State to ensure that unauthorized drinking water units were not functioning in the State and that the packaged drinking water units were functioning with licenses.

Factual Matrix

Petitioner claimed to be a registered society filed the petition challenging the action of the unauthorized packaged drinking water units and ice units  and also to prevent companies from unauthorized distribution of polluted water and ice bars in the State of Kerala.

Petitioner contended that it was highly necessary that the unauthorized water distribution should strictly be made under the control of the Government, and the State Health authorities were responsible for curtailing such manufacturers. Adding to this, there are 106 packaged drinking water plants in Kerala and the Government is again taking steps to give licence to 20 more plants and that the majority of units are running without any valid licence from the authorities concerned; units distribute low-quality ice bars and the same are used by the wayside shopkeepers for making ‘kulukki sarbath’, which may cause serious diseases to human beings in future.

Without any Government standard mark, ice bars and water were being distributed in bottles all over Kerala and those units were gradually developing cottage industry, resulting to people getting infected by serious diseases causing threat to the health of nearby inhabitants and further creating various ecological problems. But authorities concerned were not taking any action against the exploitation of companies.

In view of the above concerns, the present petition was filed.

Special Government Pleader, Surin George Ipe filed a statement setting out the details and showing the banning of packaged drinking water units in various districts across the State of Kerala.

The statement stated that no packaged drinking water units and ice manufacturing units were functioning in the State without a valid FSSAI Licence and BIS certification and that stringent actions were initiated against the offenders.

Further, it was added that in order to ensure quality, special squads were constituted in all districts across the State, in addition to the routine inspection of Food Safety Officers. Inspections ensured that the operators were having an FSSAI licence and that BIS certification and hygienic conditions were followed for the manufacturing and distribution of packaged drinking water as provided in the 4th schedule of Food Safety Rules, 2011.

It was also stated ‘No Objection Certificate’ for drinking water bottle plants was granted in the State by the Ground Water Authority.

Analysis, Law and Decision

Bench disposed of the petition while directing respondents to ensure that unauthorized drinking water units were not functioning in the State and that the packaged drinking water units were functioning with licenses and other permits and undertaking all precautions in accordance with law to meet up with the standards prescribed under law.

  • State Government to ensure that low-quality ice was not distributed by any of the manufacturing units so as to affect public health.
  • While granting licence to any new packaged drinking water units, necessary directions shall be issued to maintain the standards prescribed under respective statutes.
  • The above-stated units should start functioning only after securing permits/clearances/consents from respective statutory authorities.

In view of the above petition was disposed of. [Human Rights Commission v. Kerala State Ground Water Department, WP (C) No. 12508 of 2014 (S), decided on 10-03-2021]


Advocates before the Court:

For the Petitioner:

Advocate Kum. D. Mini Rajan

For the Respondents:

R1-5 by Sri. Surin George Ipe, Sr. Government Pleader R6 by Adv. Sri Manoj Ramaswamy, SC

R10 by Adv. Sri. T.G. Rajendran

Op EdsOP. ED.

Section 52 of the Easements Act, 1882[1] (hereinafter “the Act”) defines the term “licence” as under:

  1. “Licence” defined. —Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an easement or an interest in the property, the right is called a licence.

From the above definition, it may be ascertained that the licence originates in a grant; the licence can be granted only in favour of a definite number of persons; a licensee has no interest in the property, apart from the right to do or continue to do something which would be unlawful in the absence of such right.

The Supreme Court has explained the term licence in its celebrated judgment Associated Hotels of India Ltd. v. R.N. Kapoor[2], while explaining the difference between lease and licence as under:

  1. … Whereas S. 52 of the Easements Act defines a licence thus:

 

Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property.

In Pradeep Oil Corpn. v. Municipal Corpn. of Delhi[3], the Supreme Court further explained the essentials of licence as under:

  1. A licence, inter alia, (a) is not assignable; (b) does not entitle the licensee to sue the stranger in his own name; (c) it is revocable; and (d) it is determined when the grantor makes subsequent assignment.

In Yazdani International (P) Ltd. v. Auroglobal Comtrade (P) Ltd.[4], the Supreme Court has clarified the characteristics of a licence as:

  1. As rightly pointed out by Shri Nariman, licence by definition does not create any interest in the property. A licence only gives a right to use the immovable property of the grantor, to the grantee. There is no transfer of any interest in such property in favour of the grantee.

The above principles laid down by Supreme Court have been reiterated by Delhi High Court in Planet M. Retail Ltd. v. Select Infrastructure (P) Ltd.[5], inter alia, stating that: 33. … the licensee is only given the permission to use the property in a particular way and after the termination of the licence, the licensee has no right to continue in the said premises and the possession of the said premises remain with the licensor.

The licence by its very nature does not create interest in the property to which it relates, and is revocable. The Act provides that the said revocation may either be express or implied or even deemed under certain circumstances provided under Sections 61 and 62[6] respectively of the Act. 

However, Section 60[7] of the Act carves out two exceptions when an otherwise revocable licence shall become irrevocable. Section 60 of the Act is reproduced below:

  1. Licence when revocable. — A licence may be revoked by the grantor, unless—

(a) it is coupled with a transfer of property and such transfer is in force;

(b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution.

Section 60(a) of the Act provides that if a licence is coupled with a transfer of property and such transfer is in force, it may not be revoked by the grantor. The words “transfer of property” are not used in the limited sense of a transfer as defined in the Transfer of Property Act, 1882[8]. A licence coupled with interest involves two things: a licence to enter the land and grant of an interest. Such a licence is both irrevocable and assignable, but only as an adjunct of the interest with which it is coupled.

As held in Maganlal Parsottamdas Sevniwala v. Chimanlal Dahyabhai Modi[9], the Gujarat High Court held that explained that the creation of a tenancy in respect of an immoveable property always means transfer of interest in immoveable property, as the former itself constitutes immoveable property. Therefore, when a landlord lets out property to a tenant, there is transfer of interest in immoveable property and the terms of Section 60(a) are satisfied.

The Supreme Court in Pradeep Oil Corpn.[10] has explained the principles regarding a licence coupled with interest as follows:

  1. A licence may be created on deal or parole and it would be revocable. However, when it is accompanied with grant it becomes irrevocable. A mere licence does not create interest in the property to which it relates. Licence may be personal or contractual. A licensee without the grant creates a right in the licensor to enter into a land and enjoy it.
  2.  In Halsbury’s Laws of England, 4th edn., Vol. 27 at p. 21 it is stated:
  3. Licence coupled with grant of interest. — A licence coupled with a grant of an interest in property is not revocable. Such a licence is capable of assignment, and covenants may be made to run with it. A right to enter on land and enjoy a profit a prendre or other incorporeal hereditament is a licence coupled with an interest, and is irrevocable. Formerly it was necessary that the grant of the interest should be valid; thus, if the interest was an incorporeal hereditament, such as a right to make and use a watercourse, the grant was not valid unless under seal, and the licence, unless so made, was therefore a mere licence and was revocable; but since 1873 the court has been bound to give effect to equitable doctrines and it will restrain the revocation of a licence coupled with a grant which should be, but is not, under seal.

In principle, where a licence involves the grant of a right in immoveable property to the licensee, the grantor in general cannot revoke the licence and thus defeat the right in immoveable property which is one of the incidents of the licence. The grantor cannot possess unlimited power to terminate the licence at any time for reasons which are considered sufficient or adequate by him.

Section 60(b) of the Act provides that a licence is irrevocable on the fulfilment of following three conditions:

(i) licensee executed a work of permanent character;

(ii) he did so, acting upon the licence; and

(iii) he incurred expenses in doing so.

The section itself suggests that the onus of proving these facts lies upon the licensee and in the absence of any evidence on these questions, the licence cannot be said to be irrevocable under Section 60(b). It is primarily a question of fact and thus to be specifically pleaded and proved by the licensee, failing which, the licence cannot be treated as irrevocable.  

The words “permanent character” should be understood in contradistinction with the idea conveyed by the expression “work of temporary character”. Further, as held in Jagannath Govind Shetty v. Jayantilal Purshottamdas Patel[11],

11. … The words “of a permanent character” speak of a clear connotation of the words “executing the work” in the context of the execution of work, would mean putting up some permanent structures in the premises… The word “work”, therefore, is to be necessarily interpreted to have connection with the construction on some structure on the land and bringing of some additional moveable assets for the purpose of running a business of hotel, cannot be said to be execution of work of a permanent character”.

However, in Shankar Gopinath Apte v. Gangabai Hariharrao Patwardhan[12], the Supreme Court held that where a person improves the land by executing a work of permanent character in the belief that being a tenant he would become a statutory purchaser of land or that the oral agreement of sale would be implemented, the execution of work would be in his capacity as a tenant or a prospective purchaser and not in his capacity as a licensee. It was thus held that the said work could not be held to a permanent construction.

The Kerala High Court in P.M. Jacob v. Mulanthuruty Panchayat[13], held the construction of a theatre to be a work of permanent character executed by the petitioner at his expense acting on the licence.

The Delhi High Court in Keventer Agro Ltd. v. Kalyan Vyapar (P) Ltd.[14], while explaining the meaning of permanent character, held that merely because flooring work was done by the plaintiff in the property, the same cannot be termed as work of permanent character and hence the plaintiff cannot claim the benefit of Section 60(b) of the Act.

It is therefore manifest that whether a construction is of permanent character or not is primarily a question of fact and any finding can be given only in light of the nature of construction and other circumstances.

The term “acting upon the licence” means carrying out such a licence or doing something in pursuance of the licence. 

The provision is based upon the principle of estoppel by acquiescence. When the licensee acting upon a licence has executed a work of permanent character and incurred expenses in the execution, the licence cannot be revoked by the grantor. If the licence specifically disallows the licensee to execute a work of permanent character and in contravention of such stipulation, the licensee has executed a work of permanent character, then the licensee cannot claim protection under Section 60(b) of the Act.

In Annathu Sarojini v. Mohd. Sainulabdeen[15], the Kerala High Court emphasised that if the licence specifically disallows the licensee to execute a work of permanent character and in contravention of such a stipulation if the licensee has executed a work of a permanent character, he cannot claim protection under Section 60(b) of the Act.

In Thayyil Kanissante Valappil Saraswathi v. Bharatha Textiles[16], the Kerala High Court held that the act of erecting the pump house and installing the pump set was in  pursuance and for the purpose of the using the licence to draw water from the well, and hence the defendant/licensee was said to have acted in pursuance to the licence.

Apart from the conditions of permanent structure and act in pursuance of licence, the extent of costs incurred for such construction is also relevant to be noted.

The Allahabad High Court in Mathuri v. Bhola Nath[17], has emphasised that the extent of costs incurred in construction is irrelevant in order to bring the construction within Section 60 of the Act.

The above principle was reiterated by the Lucknow Bench of the said Court in Narsingh Das v. Mian Safiullah Sha[18], wherein it was held that even though not costly constructions were done by the licensees but merely built a pucca wall to include land as part and parcel of their houses, the same was held to be a work of permanent nature.

Therefore, it emerges that Section 60 of the Act is not exhaustive. There may be case where the agreement may be entered into making the licence irrevocable, even though none of the two clauses are fulfilled. Similarly, even if the two clauses are fulfilled to render the licence irrevocable, yet the parties may agree to the contrary. In such a situation, the benefit of irrevocability under Section 60 of the Act shall not enure to the licensee.

The Calcutta High Court in Mohd. Ziaul Haque v. Standard Vacuum Oil Co.[19], has dealt with the revocation of licence between the parties depending on the terms of agreement between them, holding that where an agreement between the parties provides for revocation of licence, the same may be revoked, even if the said licence was otherwise irrevocable.

The Madhya Pradesh High Court in State of M.P. v. Abdul Rahim Khan[20], held that a licence is not revocable on the mere will of the grantor, and the same can be revoked only under a power reserved under the licence, even though the licensee has made a permanent construction thereon. However, the said power should be exercised honestly and fairly.

The Supreme Court in landmark judgment of Ram Sarup Gupta v. Bishun Narain Inter College[21], has explained the revocability of licence as under:

  1. 9. … Section 60 enumerates the conditions under which a licence is irrevocable. Firstly, the licence is irrevocable if it is coupled with transfer of property and such right is enforced and secondly, if the licensee acting upon the licence executes work of permanent character and incurs expenses in execution. Section 60 is not exhaustive. There may be a case where the grantor of the licence may enter into agreement with the licensee making the licence irrevocable, even though, neither of the two clauses as specified under Section 60 are fulfilled. Similarly, even if the two clauses of Section 60 are fulfilled to render the licence irrevocable yet it may not be so if the parties agree to the contrary… On the same reasoning there is nothing to prevent the parties agreeing expressly or impliedly that the licence which may not prima facie fall within either of the two categories of licence (as contemplated by Section 60) should nevertheless be irrevocable… The parties may agree expressly or impliedly that a licence which is prima facie revocable not falling within either of the two categories of licence as contemplated by Section 60 of the Act shall be irrevocable. Such agreement may be in writing or otherwise and its terms or conditions may be express or implied. A licence may be oral also in that case, terms, conditions and the nature of the licence, can be gathered from the purpose for which the licence is granted coupled with the conduct of the parties and the circumstances which may have led to the grant of the licence.

The Supreme Court in Mumbai International Airport (P) Ltd. v. Golden Chariot Airport[22], has explained the principle of revocability of licence as:

  1. The very idea of a licence being irrevocable is a bit of a contradiction in terms. From the clauses of the licence referred to above, it is clear that by its terms the licence is revocable. It is well known that a mere licence does not create any estate or interest in the property with which it is concerned. Normally a licence confers legality to an act, which would otherwise be unlawful. A licence can be purely personal, gratuitous or contractual. Whether a contractual licence is revocable or not, would obviously depend on the express terms of the contract. A contractual licence is normally revocable, except in certain circumstances that are expressly provided for in the Easements Act, 1882[23].

Advocate and a qualified Chartered Accountant, presently practising at Supreme Court and Delhi High Court.

[1] <http://www.scconline.com/DocumentLink/9Io3PkiL>.

[2] (1960) 1 SCR 368

[3] (2011) 5 SCC 270, 280

[4] (2014) 2 SCC 657, 676.

[5] 2014 SCC OnLine Del 4869.

[6] <http://www.scconline.com/DocumentLink/Bn71Kq3P>.

[7] <http://www.scconline.com/DocumentLink/Dxwts5FR>.

[8] <http://www.scconline.com/DocumentLink/wafSf6F7>.

[9] 1979 SCC OnLine Guj 35

[10] (2011) 5 SCC 270, 278

[11] 1979 SCC OnLine Guj 49

[12]  (1976) 4 SCC 112.

[13] 1981 SCC OnLine Ker 78 

[14]  2015 SCC OnLine Del 13790.

[15] 1990 SCC OnLine Ker 52

[16] 1991 SCC OnLine Ker 145

[17] 1934 SCC OnLine All 50

[18] 1954 SCC OnLine All 147

[19] 1950 SCC OnLine Cal 209

[20]  1974 MP LJ 776.

[21] (1987) 2 SCC 555, 566

[22] (2010) 10 SCC 422, 434.

[23] <http://www.scconline.com/DocumentLink/Bn71Kq3P>.

Case BriefsHigh Courts

Bombay High Court: G.S. Patel, J., while addressing the present application expressed that:

“The very least a Court of equity expects when asked to grant discretionary relief is complete and honest disclosure of the relevant facts.”

It has been stated that the defendant – Vishna Foods Private Limited has been unauthorizedly using the well-known mark ISKCON. Plaintiff claimed complete proprietary rights over the said mark.

With the present interim application, the plaintiff claimed that the use of the mark ISKCON by the defendant is illicit.

Further in para 25 of the plaint, plaintiff acknowledged that the defendant attributed its use to a conceptualisation of an entity with the same name ISKCON in Bengaluru.

Para 25 of the plaint:

“…using the impugned mark ISKCON as also the line “conceived by the team of Srila Prabhupada’s ISKCON Bangalore” not only on the impugned goods but also on its website, the Defendant is wrongly suggesting and/or giving an impression and/or misguiding/misleading the customers and public at large that the impugned mark ISKCON has been used by the Defendant with the permission and/or under a license from ISKCON, Bangalore, which is a branch of the Plaintiff. The Plaintiff is the owner of the trademark ISKCON and anyone much less any team from any branch of the Plaintiff does not have any right, power or authority to give permission or license to use the said trade mark ISKCON in any manner whatsoever.”

Paragraph 26 of the plaint only mentioned the pendency of some disputes in the Supreme Court. It did not mention that the Supreme Court constituted a committee under chairmanship of Mr Justice RV Raveendran, former Judge of the Supreme Court as chairman, with two additional members, one from each of the two contesting ISKCON units.

Mr Hiren Kamod for the Plaintiff submitted that the Bengaluru unit is a ‘branch’ of the Mumbai unit, which necessarily means that according to the plaintiff the Bengaluru unit has no independent existence.

Plaint did not disclose that the Bengaluru branch has set up an independent claim to use inter alia the name and to license it, or that the Bengaluru unit has been using the mark for a great many years.

Dr Saraf as instructed submitted that the ISKCON Bengaluru has been using the mark for a very long time and has in fact licensed Vishna Foods.

Mr Kamod agreed that plaint was silent of various aspects and it was further added that the Plaintiff checked ‘with the Supreme Court committee’ which confirmed that there was no license. Further, it emerged that the plaintiff had asked about the defendant from its own representatives on the Supreme Court-appointed committee.

There was no record in the plaint of any such question being addressed to the committee or its Chairman.

Bench on perusal of the above expressed that:

 If the Plaintiff did make such an enquiry, then it is hoist by its own petard, for its assertion that the Bangalore unit is only managing some temple and some properties is clearly untrue. Else, why would the Plaintiff even make such an enquiry?

Further, the court added that the fact that the plaintiff admitted to have made such an enquiry presupposes:

  • knowledge of the use of the mark by the Bengaluru unit; (b) possible licensing and history of licensing to third parties by the Bengaluru unit.

Facts in the instant matter involve and relate to the direct question of license, whether or not ISKCON Bengaluru is entitled to use the word mark and the label mark and to license it in the first place.

Adding to the above, Bench stated that it is not as simple as saying that Vishna Foods is an infringer and that its claim to have a license is false simply because ISKCON Bombay has a dispute pending in the Supreme Court allegedly restricted to a temple and properties with ISKCON Bengaluru.

“The very least I would have expected is a disclosure of the Supreme Court orders and then some record of this enquiry that I am now orally told has been made, or must have been made, or was probably made.” 

Court directed the impleadment of ISKCON Bengaluru and will hear the Interim Application on merits after the amendments will be effected and replies and a rejoined will be filed.[International Society for Krishna Consciousness (ISKCON) v. Vishna Foods (P) Ltd., 2021 SCC OnLine Bom 187, decided on 03-02-2021]

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., held that a Canadian Adoption Agency which was recognised for a very long period of time and its’ non-renewal will not result in disbarment from operating as a recognised agency.

Petitioner a Canadian Organisation duly recognized as an authorized foreign adoption agency by the Ontario Ministry of Children and Youth Services, in Canada.

It was stated that the petitioner had a license as an adoption agency for inter-country adoption services since 2003. Petitioners’ license was renewed under Regulation 31(3) of the Adoption Regulations, 2017 under Section 68(c) read with Section 2(3) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Further, it was stated that the said license remained for a period of 5 years and expired in June, 2018.

When the petitioner applied for the renewal of the license, it was not granted by respondent 2. Hence, the petitioner filed the present petition before this Court seeking an appropriate direction to the respondent authority, to renew its license.

Respondent 2 had submitted that there were alleged irregularities in the adoptions which were facilitated by the Petitioner along with certain non-compliances in submission of the documents such as annual reports, etc. which were required to be submitted in compliance of Regulation 30 and 31(2) of the Adoption Regulations, 2017.

Decision

Bench expressed that considering the petitioner had the license since 2003 and was a recognized adoption agency in Canada. This Court opined that the said non-renewal could not result in permanent disbarment of the petitioner from operating as a recognized adoption agency.

Further, the Court stated that even though the licence was not renewed, the petitioner ought to have an opportunity to apply afresh.

Hence, High Court permitted the petitioner to file a fresh application seeking a licence under the Adoption Regulations, 2017 framed under the scheme of the Juvenile Justice Act. [World View Adoption Assn. v. Union of India, 2021 SCC OnLine Del 196, decided on 22-01-2021]


Advocates for the parties:

For the Petitioners: Ms Neela Gokhale, Ms Harshal Gupta, Ms Shruti Dixit & Mr Kushal Choudhary, Advs.

For the Respondents: Mr Gaurang Kanth, Standing Counsel with Ms Biji Rajesh, Advocate for R-2.

Legislation UpdatesNotifications

Taking steps towards the Prime Minister’s vision of making India a global manufacturing hub for sale & exports of toys, Department for Promotion of Industry and Internal Trade (DPIIT), Ministry of Commerce and Industry has devised a comprehensive action plan with steps being taken to boost production & sale of indigenous toys across the country.

Quality Control order has been issued by the Department for standardization and quality adherence of Toys.

The order will come into effect from 1st January, 2021.  This order aims to bring forward the synergized efforts of the GoI, states and the stakeholders to promote ‘Team up for toys’ vision keeping quality standards of the indigenous toys as the priority.

Now, as a part of the initiatives being taken to provide impetus to the medium, small and micro toy production units in the country, DPIIT has released Toys (Quality Control) Second Amendment Order, 2020. It exempts goods manufactured & sold by artisans registered with Development Commissioner (Handicrafts), from use of Standard Mark under licence from Bureau of Indian Standards, as per Scheme1 of Schedule-II of BIS(Conformity Assessment)Regulations,2018.

The Amendment Order 2020, also exempts products registered as Geographical Indications from following Indian Toy Standards & compulsory use of Standard Mark licence from Bureau as per Scheme 1 of Schedule-II of BIS(CA)Regulations,2018. The Gazette notification issued by the department says that “nothing in this Order shall apply to goods or articles manufactured and sold by Registered proprietor and Authorised user of a product registered as Geographical Indication by the Registrar of Geographical Indications, Office of Controller General of Patents, Designs and Trademarks (CGPDTM)”


Ministry of Commerce & Industry

[Press Release dt. 12-12-2020]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Mohammad Rafiq, CJ and K.R. Mohapatra, J. set aside the impugned order being ultra vires the statutory provisions.

The petitioner is a licensee of Sikula IMFL Shop originally issued under the Bihar and Odisha Excise Act and the Rules made thereunder and later in the year 2017 under Odisha Excise Act 2008. The petitioner has been paying monthly consideration amount along with other statutory dues for issuance of license. While the excise licenses are renewed automatically, the Government made changes in rates and guidelines as applicable. When the petitioner submitted documents along with Solvency certificate for renewal of license as required under Rule 51 read with Rule 150 of the Odisha Excise Rule 2017, the Competent Authority refused to receive the same and required the petitioner to submit the documents along with Bank Guarantee and not the Solvency certificate vide order dated 02-01-2020 directing to phase out the practice of issuing of Solvency certificates and insist on producing IT Returns or Bank Guarantee, etc. for issuance of license by the State Government through its Revenue and Disaster Management Department. Hence the Excise Department of the Government of Orissa accordingly vide impugned letter dated 30-03-2020 directed the authorities to substitute Solvency certificate by Bank Guarantee. Hence, the instant petition has challenged the said letter.

Counsel for the petitioners submitted that the Government of Orissa by the aforesaid letter dated 30-03-2020 cannot supersede or override the statutory provisions contained in Rule 51 and Rule 150 of the Rules of 2017.

Counsel for the respondents Shri Ashok Parija submitted that the Government has taken a uniform decision in respect of all the departments wherever lease/license are issued. It was further submitted that the Government is in the process of incorporating the appropriate amendments in the Rules of 2017 to provide for Bank Guarantee in place of Solvency certificate.

After hearing the submission of both sides the Court held that that the statutory prescription enumerated in the statutory Rules namely; Rule 51 and Rule 150 of the Rules of 2017 and Rule 3 and Rule 4 of the Certificate Rules, cannot be overridden by mere executive order issued by the Revenue & Disaster Management Department dated 02-01-2020.

In view of the above, the impugned letter is quashed and petition disposed off.[Gopinath Sahu v. State of Orissa, 2020 SCC OnLine Ori 565, decided on 03-08-2020]


*Arunima Bose, Editorial Assistant has put this story together

Hot Off The PressNews

It has been brought to the notice of the Food Safety and Standards Authority of India (FSSAI) that a number of websites are operating with the domain name comprising the word ‘FSSAI’ along with suffix or affix ‘registration’, ‘license’, etc. Some of such websites also use the logo of FSSAI.

FSSAI is a statutory body constituted under the Food Safety and Standards Authority of India Act, 2006. FSSAI has not authorized any entity to register its website with the domain name comprising the word ‘FSSAI’ or to use its name and logo or represent FSSAI as such. In the event anyone intends to avail the services of any such online website for registration/ license as food business operator, it is advisable that background check of such a third party should be carried out with regard to the authenticity or reliability of its services. FSSAI shall not be responsible for loss or damage suffered by the FBO on account of deficiency of services by such party.

Public is informed that applications for FSSAI license or registration by the Food Business Operators (FBOs) can only be made at the online Food Licensing and Registration portal of FSSAI by using the link https://foodlicensing.fssai.gov.in/index/aspx.


Food Safety and Standards Authority of India

[Press Release dt. 09-01-2020]

Case BriefsHigh Courts

Allahabad High Court: Siddhartha Varma, J. while allowing this petition restored the licence of the petitioner to run the Fair Price Shop.

In the instant case, the petitioner Nasareen Jahan ran a Fair Price Shop whose license was suspended on 23-5-2017 after a preliminary enquiry conducted on the basis of a complaint. Later on, the license was cancelled and thereafter the appeal too was dismissed which was filed by the petitioner.

Counsel for the petitioner Krishna Kumar Singh, submitted that the enquiry did not take place as mentioned in the Government Orders of 29-7-2004 and 16-10-2014. Any date, place or time was not fixed for the enquiry nor was the petitioner given any opportunity to cross-examine the witnesses. It was further submitted that if the manner in which the charges were dealt with is seen it becomes crystal clear that the orders were passed without any application of mind.

The first charge was that during the inspection, the dealer of the shop was not present and was also alleged that the rate card was not displayed. But, the counsel for the petitioner submitted that the petitioner had gone to collect the essential commodities.

The second charge on the petitioner was that two Antyoday Cardholders, namely, Jafiran w/o Nasir and Rashma w/o Malle were given only 35 kg of food grains and kerosene oil was given to them in the alternative months. The petitioner had replied that Jafiran and Rashma were not Antyodaya Cardholders in her shop and to that effect Jafiran and Rashma had also given their affidavits and had specifically stated that no inspection was done and that they had never given any statement.

The third charge was that those collectively certain cardholders had said that they were not given their food grains and to that, a reply was given that the Distribution Register itself was clear that the distribution was being done properly. Counsel for the petitioner submitted that yet again a strange conclusion was drawn that the petitioner was not distributing food grains properly.

However, upon hearing the case on 24-7-2019 the case was again taken up on 31-7-2019 and upon seeing the manner in which the charges were dealt with, the Court had summoned the Sub Divisional Officer who could not reply to the question put to him as to why he was deciding cases without any application of mind. The Court definitely found that the enquiry was not conducted as per the Government Orders nor any place, date and time was fixed for such enquiry.

Thus, the Court observed that the impugned orders passed by the Commissioner Moradabad, Mandal Moradabad and the order passed by the Sub Divisional Magistrate, Sambhal, District Sambhal cannot be sustained in the eyes of law and, therefore, it needs to be quashed.[Nasareen Jahan v. State Of U.P., 2019 SCC OnLine All 3210, decided on 02-09-2019]

Case BriefsHigh Courts

Rajasthan High Court: Sanjeev Prakash Sharma, J. while deciding a petition stated that “Motor Vehicle Rules are required to be framed not only for the benefit of persons who seek license but also taking into consideration the public who are using the roads”.

The present petition has been filed stating that the petitioner held a license for Light Motor Vehicle which he was issued earlier and had been driving it for the last 13 years and therefore in light of the same he prayed that he should be allowed the transport vehicle license.

The High Court on considering the submissions, noted that the petitioner was illiterate and unable to write or read, yet the transport department had issued him the license. Further, the Court stated “that license cannot be allowed to be issued for driving any kind of vehicle to an illiterate person as he is virtually a menace for the pedestrians as he would not be in a position to understand road signs and notices of caution written on boards for human safety on the highways as well as on the roads in the cities.

Hence, on consideration of the facts and circumstances of the present case, the Court issued a direction and stated that, license of Light Motor Vehicles as issued to the petitioner and similar persons be withdrawn. State Transport Department has also been directed to take action against such persons who have been issued license but are unable to read and write. Thus, the petition was dismissed with the above observation. [Deepak Singh v. State of Rajasthan, 2019 SCC OnLine Raj 671, decided on 24-05-2019]

Case BriefsHigh Courts

Rajasthan High Court: The Bench of Mohammad Rafiq, and Goverdhan Bardhar, JJ. allowed this PIL filed for clearance of road which was encroached by shops, structures, vehicles etc.

This Public Interest Litigation was filed to draw the attention of the Court towards an attempt by Nagar Nigam, Kota to regularize the illegal and unauthorized constructions in old Sabji Mandi, Kota which caused obstructions in the public passage and in the market. A notice/advertisement in 2013 was issued by Nagar Nigam, Kota which invited applications to regularize such constructions for which the land was either leased out or was given on license. The petitioner filed contempt petition alleging non-compliance of the aforesaid order. Photographs were also produced on record by the applicants. These photographs prima facie showed bodies/temporary structures/kiosks having been put on the land of the public road. This reduced the width of the road and also obstructed the free flow of traffic when the market operated. The shopkeepers had put their goods/items on part of the road. The parking of two-wheelers and other vehicles by the shop owners and the customers also aggravated this issue. The question here was whether Nagar Nigam which granted a license to these kiosk holders several decades ago when there was no problem of huge population in the city of Kota and also there was hardly any traffic issue, can be permitted to regularize such possession/construction?

The Court while considering the facts directed their removal. [Prem Kumar Agarwal v. State Urban Development, 2019 SCC OnLine Raj 17, Order dated 10-01-2019]

Case BriefsInternational Courts

Caribbean Court of Justice (CCJ): A Five Judge Bench comprising of Saunders (President) and Wit, Hayton, Anderson, and Rajnauth-Lee, JJ. awarded only vindicatory damages to the appellant as they could only prove breach of their constitutional right and no consequential damage thereto.

There was an indictment unsealed in the United States of America whereby the appellant was charged with securities fraud, evasion of taxes, money laundering and conspiracy to commit those offences to which the respondent were directed to search the offices of the appellant in order to prevent the destruction of evidence under the Treaty on Mutual Legal Assistance and International Co-operation Act, 2014.

It was stated by the appellant that only the copy of the search warrant was read to him but neither was he given a copy of the same nor the inventory of the item seized along with denial of the appellant into its office during the search which was unreasonably oppressive and thus was the breach of Section 18 of said Act as it interfered with its privacy guaranteed under Sections 9 and 14 of the Constitution which consequently led to the closing down of the business. It was argued by the respondents that when the trade license of the appellant’s company was suspended it was neither challenged nor renewed which eventually led to the closing of the business.

The Court came to the conclusion that the search was excessive but not oppressive and appellant has failed to prove a link as to how the breach harmed their business and hadn’t been for the search conducted still the appellant couldn’t have continued their business due to the suspended license. Also, the appellant overestimated the value of their business by 80% when they asked for the respective damages which clearly cannot be allowed. Accordingly, the appeal was partly allowed by awarding the appellant vindicatory damages in lieu of breach of their constitutional rights. [Titan International Securities INC v. Attorney General of Belize, [2018] CCJ 28 (AJ), dated 17-10-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): The Bench comprising of A.K. Goel Chairperson, S.P. Wangdi JM, and Nagin Nanda EM, reiterated its earlier order in regard to Petroleum and Explosives Safety Organisation (PESO) being the competent authority to issue licenses and to ensure that no industry producing absolute alcohol functions without such license.”

In the present application, the issue is primarily in regard to enforcement of regulatory mechanism for handling absolute Alcohol or Ethanol. It has been stated that the distilleries which carry on the business of Ethanol production, they only require the approval of Petroleum and Explosive Safety Organisation (PESO). In an earlier order by the tribunal, it had shut down 5 industries in U.P for the same reason of non-attainment of license through PESO.

The tribunal in accordance of its earlier order dated 30-08-2018 gave clarity and stated that industries producing absolute Alcohol are required to comply with the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 along with obtaining license through PESO and till the time the industry doesn’t attain the said license it is prohibited to manufacture absolute Alcohol.[Social Action for Forest & Environment (SAFE) v. Union of India,2018 SCC OnLine NGT 275, order dated 24-07-2018]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench comprising I.P. Mukerjee and Amrita Sinha, JJ. decided an appeal filed against the order of learned Single Judge directing the appellant- Indian Oil Corpn. to renew the license and continue the supply of kerosene oil to the respondent firm.

The respondent was a partnership firm that entered into an agreement for kerosene oil dealership with the appellant. According to the agreement in the event of the death of a partner, the firm was to be reconstituted and the dealership agreement was to be renewed on the decision of the appellant-Corporation. One of the partners of the firm died; however, the firm could not be reconstituted due to feud and rivalry among his heirs. Consequently, the appellant refused to renew the license of the respondent. The respondent filed a writ petition which was heard by the Single Judge who passed the impugned direction as mentioned above. Aggrieved thus, the appellant preferred the instant appeal.

The High Court perused the record and found that no interference was required with the order passed by the Single Judge. Considering the issue, the Court noted that the appellant Corpn. was a State Instrumentality, as was held by the Supreme Court in Mahabir Auto Stores v. Indian oil Corpn., (1990) 3 SCC 752. The Court was of the view that if the appellant discontinues the supply of kerosene oil to the respondent, it would cause suffering to the consumers. It was observed that the policy decision of the appellant ought not to be exercised in an unreasonable and unfair manner so as to create a hardship for the public at large. Further, rule of reason, rule against arbitrariness and discrimination, rules of fair play and natural justice are part of the rule of law applicable on actions taken by State Instrumentality in dealing with citizens. Holding that in the event of discontinuance of kerosene oil supply, the ultimate sufferer would be common people, the Court upheld the order of Single Judge and directed the appellants to continue the supply of kerosene oil to the respondent. The appeal was disposed of if in above terms. [Indian Oil Corpn. v. Shree Niwas Rammgopal,  2018 SCC OnLine Cal 4383,  dated 04-07-2018]

Case BriefsHigh Courts

Calcutta High Court: A petition filed against the decision of the State Authorities cancelling the food supply license granted to the petitioner was allowed by a Single Judge Bench comprising of Harish Tandon, J.

The petitioner’s licence was cancelled by the respondents on the ground that he violated the provisions of the West Bengal Kerosene Control Order. An inspection was conducted by the respondents at the premises of the petitioner and thereafter, the Sub-Division Officer (F&S) issued a show cause notice to the petitioner. Subsequently, the petitioner’s license was cancelled. Such order of cancellation is challenged.

The High Court perused the record and inter alia found that the said order was passed without recording any reasons for cancellation of petitioner’s license. It was observed that in any adjudication it is imperative to record reasons for passing such order; an order which is bereft of any reasons is no order in the eyes law. Reasons are heart and soul of an order without which it cannot survive. In the instant case, the order punishing the petitioner was passed by respondents without giving adequate reasons for the said adjudication. According to the High Court, the impugned order, being bereft of reasons was liable to be set aside, which was accordingly ordered. [Ram Sankar Sahoo v. State of W.B.,  2018 SCC OnLine Cal 3199, dated 15-05-2018]