JUDGMENT R. M. Lodha, J.
1. Heard.
2. By this writ petition, the petitioner prays for issuance of writ of mandamus directing the respondents to withdraw or cancel the circular dated 20-4-1990 issued by the Commissioner, Food and Drugs Administration (respondent No. 2) and the notice dated 11-7-1990 issued by Pandharpur Municipal Council to the petitioner.
3. The petitioner claims to be engaged in the business of flour mill at Pandharpur within the municipal limits of the Pandharpur Municipal Council. In this flour mill, the petitioner grinds various kinds of grains which, according to him, are brought by customers. The petitioner claims that he only charges grinding and labour charges and neither purchases nor sells any grain or flour nor does he manufacture or sale anything. It is the case of the petitioner that only food grains are brought to the flour mill which are grounded and given back to the customers and no item which is not food grain is brought to flour mill and, therefore, there is no question of food item being adulterated by a non-food item. It is petitioner's case that in the background of the aforesaid circumstances, the petitioner and flour mill owners were never required to obtain a licence and when he received notice dated 11-7-1990, he and other flour mill owners got shocked. The association of flour mill owners in Pandharpur of which the petitioner happens to be member claims to have made representations to the State Government and when nothing was done, the petitioner has chosen to file this writ petition.
4. The respondents have filed affidavit in reply contesting the writ petition and has set up the case that possibility of flour mill owners selling flour in the market, particularly Hoteliers, bakeries and kirana shops as commercial activity cannot be ruled out. It is stated in the reply affidavit that a meeting of the members of the flour mill owners association was held on 6-9-1990 and the deliberations of the said meeting were minuted. According to the respondents, the circular directing the flour mill owners to obtain licence has been issued under Section 7(iii) read with Rule 50 of Prevention of Food Adulteration Act, 1954 and that the said circular does not suffer from any vice of unconstitutionality or illegality.
5. The Prevention of Food Adulteration Act, 1954 (For short "Act of 1954") is a social and beneficial legislation intended to protect the interest of the class of the society who because of their economic condition deserve such protection. The Act of 1954 defines 'adulteration', 'food', 'manufacture', 'primary food', 'sale' and other expressions used in the said Act.
6. The definition of the word "Food" in Section 2(v) is thus :
"2(v) "Food" means any article used as food or drink for human consumption other than drugs and water and includes, --
(a) any article which ordinarily enters into, or is used in the composition or preparation of human food. (b) any flavouring matter of condiments, and (c) any other article which the Central Government may having regard to its use, nature, substance or quality declare, by notification in the Official Gazette, as food for the purpose of this Act."
7. Section 2(viii-b) defines "manufacture" which includes any process incidental or ancillary to the manufacture of an article of food. The primary food under Section 2(xii-a) means any article of food, being a produce of agriculture or horticulture in its natural form. Under Section 2(xiii) the word "sale" is defined thus :
"2(xiii) "sale" with its grammatical variations and cognate expressions, means the sale of any article of good, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption; or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article."
8. Section 7 prohibits manufacture, sale, etc. of certain articles of food and Clause (iii) thereof provides that-no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of licence. Clause (v) prohibits manufacture for sale, or store, sell or distribute of any article of food in contravention of any other provisions of the Act or of any rule made thereunder. In exercise of the powers conferred under Section 23 of the Act of 1954, Prevention of Food Adulteration Rules, 1955 have been framed. Rule 50 thereof provides for conditions of licence which reads thus :
"50. Conditions of licence. -- (1) No person shall manufacture, sell, stock, distribute or exhibit for sale any article of food, including prepared food or ready to serve food, except under a licence :
Provided that the fruit products covered under the Fruit Products Order, 1955, solvent extracted oil, de-oiled meal edible flour covered under the Solvent Extracted Oil, De-oiled Meal and Edible Flour (Control) Order, 1967, Vanaspati covered under the Vegetable Oil Products Control Order, 1947, and meat and poultry products covered under the Meat Food Products Order, 1973, shall be exempted from the above rules:
Provided further that a producer of milk, who sells milk only to all milk co-operative society which is a member of a milk co-operative union engaged in reconstitution of mill or manufacture of milk products, shall be exempted from this sub-rule.
(1-A) one licence may be issued by the licensing authority for one or more articles of food and also for different establishments or premises in the same local area.
(1-b) The name and address of the director or manager, as the case may be, nominated by the company under Rule 12-B shall be mentioned in the licence.
(2) the State Government or the local authority shall appoint licensing authorities.
(3) A licensing authority may, with the approval of the State Government or local authority by an order in writing, delegate the power to sign licences and such other power as may be specified in the order to any other person under his control.
(4) If the articles of food are manufactured, stored, or exhibited for sale at different premises situated in more than one local area, separate applications shall be made and a separate licence shall be issued in respect of such premises not falling within the same local area;
Provided that the itinerant vendors who have no specified place of business, shall be licensed to conduct business in a particular area within the jurisdiction of the licensing authority.
(5) Before granting a licence for manufacture, stock or exhibition of any of the articles of food in respect of which a licence is required, the licensing authority shall respect the premises and satisfy itself that it is free from sanitary defects. The applicant for the licence shall have to make such alteration in the premises as may be required by the licensing authority for the grant of a licence : Provided that a licensing authority may, for reasons to be recorded in writing refuse to grant a licence, if it is satisfied that it is necessary to do so in the interest of public health.
(6) ** (7) Proprietors of hotels, restaurants and other food stalls (including mobile and itinerant food stalls) who sell or expose for sale savouries, sweets or other articles of food shall put up a notice-board containing separate list of the articles which have been cooked in ghee, edible oil, vanaspati and other fats for information of the intending purchasers.
(8) ** (9) No licensee shall employ in his work any person who is suffering from infectious, contagious or loathsome disease.
(10) No person-shall manufacture, store or expose for sale or permit the sale of any article of food in any premises not effectively separated to the satisfaction of the licensing authority from any privy, urinal, sullage, drain or place or storage of foul and waste matter.
(11) All vessels used for the storage or manufacture of the articles intended for sale have proper cover to avoid contamination.
(12) Every manufacturer (including ghani operation) or wholesale dealer butter, ghee, vanaspati, edible oil, and other fats, shall maintain a register showing the quantity manufactured, received or sold and the destination of each consignment of the substances sent out from his manufactory or place of business, and shall present such register for inspection whenever required to do so by the licensing authority.
(13) An itinerant vendor granted a licence under these rules, shall carry a metallic badge on his arm showing clearly the licence number, the nature of articles for the sale of which the licence has been granted, his name and address and the name and address of the owner, if any, for whom he is working. His containers of food and the vehicle shall also be similarly marked. In addition to the metallic badge the vendor shall, if so required by the State Government or the local authority, carry identity card with his photograph and the number of the licence. The identity card shall be renewed every year : Provided that the whole-time employees of the companies shall not be treated as itinerant vendors for the purpose of carrying metallic badge on their arms of obtaining separate licences if any identity card containing particulars of the valid municipal licence is carried by them.
(14) The nature of articles of food for the sale of which a licence is required under these rules shall be mentioned in the application for licence. Any objectionable, ambiguous or misleading trade name shall not be approved by the licensing authority.
(15) Every licensee who sells any food shall display a notice-board containing the nature of the articles which he is exposing or offering for sale."
9. By circular dated 20-4-1990 issued by Commissioner for Food and Drugs Administration to local head authorities, the flour mill owners were required to obtain licence under the provisions of the Act of 1954 and the rules made thereunder. Accordingly, respondent No. 1 issued a notice dated 11-7-1990 to the petitioner and other flour mill owners to deposit licence fee along with the requisite form and obtain licence. The question that falls for determination is whether the issuance of circular dated 20-4-1990 requiring the flour mill owners to obtain licence under the Act of 1954 and the rules framed thereunder and the notice dated 11-7-1990 issued pursuant thereto suffer from any illegality.
10. We have already quoted the relevant provisions of the Act and the rules and have no hesitation in holding that grinding of food grains is covered in the expression "manufacture" defined in section 2(viii-b). It is so because by grinding of food grains the flour is made which is article of food brought into different form for its use. The process of grinding converts primary food as defined in Section 2(xii-a) into 'food' as defined in Section 2(v). Grinding work done for commercial use cannot be ignored. In this view the licence would be necessary under Section 7(v). It may be noted that to carry on manufacturing activity without obtaining the licence as provided under Rule 50 is the contravention of the provisions of the Act. Rule 50 clearly provides that no person shall manufacture, sell, stock, distribute or exhibit any article of food including prepared food or ready to serve food except under a licence. A wheat flour or any grain flour cannot, without any dispute, be said to be an article of food and grinding of the wheat or the grain would be a manufacture and, therefore, would require a licence under law. The State Government has framed Maharashtra Prevention of Food Adulteration Rules, 1962 under which form of licence and fee has been prescribed and, therefore, it is incumbent upon the flour mill owner to obtain a licence for carrying on business of flour mill.
11. No infirmity is found in the circular dated 20-4-1990 and the notice dated 11-7-1990 and, therefore, no case for issuance of any writ or direction is made out. Writ petition is accordingly dismissed. No costs.