M/S Punjab Stores vs Chief Executive Officer, Food ...
2015 Latest Caselaw 8455 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 6th November, 2015
+         W.P.(C) No.9204/2015 & CM No.21014/2015 (for stay)
      M/S PUNJAB STORES                              ..... Petitioner
                      Through: Mr. K. Radha Krishnan, Sr. Adv. with
                                 Mr. M.Y. Deshmukh, Adv.
                                 Versus

    CHIEF EXECUTIVE OFFICER, FOOD SAFETY AND
    STANDARDS AUTHORITY OF INDIA & ORS ..... Respondents

                  Through: Ms.     Tasneem      Ahmadi, Mr.
                           Yashvardhan Bandi and Mr. Pramod
                           Kumar, Advs. for R-1&2.
                           Mr. Deepak Dhingra and Mr. Atul
                           Parmar, Advs. for R-3.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petition seeks a mandamus to the respondent No.2 Food Safety

and Standards Authority of India (FSSAI) and its Chief Executive Officer

impleaded as respondent No.1 to collect samples of skimmed milk powder

delivered by the respondent No.3 M/s Dharampal Satyapal Limited (Dairy

Division) (DSL) to the petitioner, inspect and test the same on the spot under

commission comprising of professionally qualified panel under the

Chairmanship of a retired Judge of the Supreme Court or of the High Court

and to submit a report to this Court.

2. It is the case of the petitioner that it is the agent of the respondent

No.3 DSL and that the goods dispatched by the respondent No.3 DSL to the

petitioner are not in accordance with the Regulations of FSSAI. The

petitioner had earlier filed W.P.(C) No.5766/2015 in this Court and in

which, on the statement of the counsel for FSSAI appearing on advance

notice that testing would be done, it was so directed. This petition has been

filed stating that FSSAI is required to carry out on the spot testing.

3. This petition came up first before this Court on 28th September, 2015,

when I wondered as to why the petitioner, if an agent of the respondent No.3

DSL, instead of complaining to the respondent No.3 DSL or returning the

goods to the respondent No.3 DSL, has indulged in this exercise. It was

enquired from the counsel for the petitioner, whether the petitioner had any

other disputes with the respondent No.3 DSL and how the petitioner came to

know of the goods being substandard. The counsel for the petitioner, on that

day, though denied that there were any disputes with the respondent No.3

DSL stated that the petitioner had come into custody of the goods in March,

2014 and had supplied the samples of the said goods to the retailers for

marketing and who complained thereagainst and whereafter the petitioner

itself got the goods tested from the respondent No.4 Gujarat Laboratory. To

satisfy that the petition is not an abuse of the process of the Court, to

blackmail the respondent No.3 DSL, the petitioner, vide order dated 28 th

September, 2015 was directed to file an affidavit stating, (i) whether there

are any disputes, claims, counter-claims and complaints between the

petitioner and the respondent No.3 DSL, (ii) seals of what quantity of the

goods have been broken by the petitioner, and (iii) which of the retailers

objected to the goods and on what basis and to furnish proof of complaints

received as well as the correspondence, if any of the petitioner with the

respondent No.3 DSL in this regard. Time of two weeks as sought by the

counsel for the petitioner to file the affidavit was granted and the petitioner

was also directed to inform the respondent No.3 DSL of the next date of

hearing.

4. However the petitioner did not file the affidavit till 14th October, 2015

and till 3rd November, 2015. The counsel for the respondent No.3 DSL on

3rd November, 2015 contended that the petitioner has concealed material

facts from this Court; it was informed that the warehouse of the petitioner

has been sealed by the Axis Bank, being the Banker of the petitioner, and the

petitioner being thus unable to sell the goods has devised this methodology.

On request of the counsel for the petitioner, the matter was adjourned to 4 th

November, 2015 and thereafter to today.

5. The counsel for the petitioner has today handed over a voluminous

affidavit along with annexures comprising of as many as 225 pages.

6. The senior counsel for the petitioner, the counsel for the respondents

No.1&2 FSSAI and the counsel for the respondent No.3 DSL have been

heard.

7. The petitioner, in the affidavit handed over today in Court, has a) in

the first fifteen pages pointed out errors in the order dated 28th September,

2015 supra in this petition; b) from pages sixteen to twenty four reproduced

the letter dated 18th April, 2015 stated to have been addressed to the

respondent No.3 DSL; c) in para 13 of the affidavit stated, (i) that the

contract dated 10th March, 2014 of the petitioner with the respondent No.3

DSL was upto 31st March, 2015 only; (ii) that it was obligatory on the part

of the respondent No.3 DSL to take back the unsold quantity of Skimmed

Milk Powder and to remit the security deposit furnished by the petitioner

along with interest; (iii) the respondent No.3 DSL neither took back the

unsold stock of Skimmed Milk Powder nor refunded the security deposit; d)

in paras 14 to 23 (i.e. till page 32) again found fault with the order dated 28th

September, 2015 supra in the present proceedings; e) in para 24 stated that i)

there was no question of breaking of seal of the product; ii) only 10 bags out

of 12000 bags had been utilised for testing and offered by way of samples;

that the petitioner could not sell a single bag out of 12000 bags in view of

the fact that the same are adulterated and substandard; iii) that the petitioner

has taken loan by way of pledge of warehouse receipts/storage receipts from

the Axis Bank Limited and the goods are in the safe custody and lock and

key of the Axis Bank Limited; iv) that the petitioner has to pay huge amount

of interest on the loan and is in a financial crisis; f) in para 25, again quoted

the letter dated 18th April, 2015 supra; and, g) paras 26 to 29 are either a

reproduction of what is stated in the earlier paragraphs or quote of the

judgments of the Courts.

8. What becomes evident from the aforesaid is that by the time W.P.(C)

No.5766/2015 earlier filed by the petitioner came up before this Court on

28th May, 2015, the contract between the petitioner and the respondent No.3

DSL was over (on 31st March, 2015) and there indeed are disputes between

the petitioner and the respondent No.3 DSL relating to the said contract.

The petitioner of course in the affidavit handed over today in the Court has

also stated that this Court in the order dated 28 th September, 2015 has

wrongly recorded the statement of the counsel for the petitioner that there

are no disputes, claims, counter-claims and complaints between the

petitioner and the respondent No.3 DSL.

9. I have today also enquired from the senior counsel for the petitioner,

when the subject goods were received by the petitioner and when did the

petitioner found the same to be substandard and / or adulterated, as is

alleged.

10. The senior counsel for the petitioner has stated that the goods were

delivered between 10th March, 2014 and 26th March, 2015 and the petitioner

detected the goods to be adulterated and substandard in March, 2015 and

asked the respondent No.3 DSL to take back the goods on 18th April, 2015.

11. I further enquired from the senior counsel for the petitioner, what was

the expiry date of the aforesaid goods.

12. The senior counsel for the petitioner stated that he does not know of

the same and in fact does not even know, whether there is any expiry date of

such goods.

13. Having not found the petitioner to, in the affidavit handed over in the

Court today, disclosed the complaints if any received by it from its retailers,

as the petitioner was vide order dated 28th September, 2015 directed to

disclose, it was again enquired from the senior counsel for the petitioner.

14. The senior counsel for the petitioner confirms that no complaints from

the retailers of the petitioner have been filed.

15. The senior counsel for the petitioner has drawn attention to the letter

dated 28th April, 2015 of the petitioner to the respondents No.1&2 FSSAI at

page 145 of the paper book and to the order dated 28th May, 2015 in W.P.(C)

No.5766/2015 earlier filed by the petitioner. He has argued that FSSAI vide

the said order was directed to do the needful in the matter as indicated in the

said order but has not complied therewith.

16. The counsel for the respondent FSSAI controverts that FSSAI is in

non-compliance with the order aforesaid in the earlier writ petition and has

handed over in the Court a copy of the letter dated 17 th August, 2015 of the

Advocates for the respondent No.3 DSL to the FSSAI and states that though

in accordance with the said order, FSSAI issued notice to the respondent

No.3 DSL and sought the presence of the representative of the respondent

No.3 DSL for drawing the sample but neither the petitioner nor the

respondent No.3 DSL have been cooperating with the FSSAI to enable the

FSSAI to comply therewith. She has further drawn attention to Rule 2.2.10

of the Food Safety and Standards (Packaging and Labelling) Regulations,

2011 which provides for the best before and use by date to be provided and

to Regulation 2.4.4 in this regard specifically dealing with the labels on

containers of infant milk substitute and contends that best before date has to

be provided.

17. The counsel for the respondent No.3 DSL, with respect to the report

obtained by the petitioner from the respondent No.4 Gujarat Laboratory

contends that the same does not indicate to which and to whose goods it

pertains. He has also drawn attention to the letter dated 15 th June, 2015 of

the FSSAI to the petitioner at page 198 of the paper book asking the

petitioner to inform the location of the goods to be tested and the response

dated 24th June, 2015 of the petitioner thereto at page 200 of the paper book

stating that the stock is under the lock and key of the Axis Bank Limited and

the petitioner will have to request the Axis Bank Limited to facilitate

opening of the godown for taking the samples.

18. The senior counsel for the petitioner of course controverts that the

label of the containers of Skimmed Milk Powder has to have any best before

date and has also contended that if FSSAI was unable to implement the order

dated 28th May, 2015 in the earlier writ petition, it should have approached

the Court for direction and which it did not do, necessitating the present

petition.

19. I have considered the rival contentions and am of the view that no

case for entertaining this writ petition is made out. This Court has already

vide order dated 28th May, 2015 in the writ petition i.e. W.P.(C)

No.5766/2015 earlier filed by the petitioner, though without hearing the

respondent No.3 DSL and on the statement of the counsel for the respondent

FSSAI that FSSAI would take a sample from the consignment stated to be

supplied by the respondent No.3 DSL and have the same tested, directed

FSSAI to do the same, after issuing notice to the respondent No.3 DSL and

seeking the presence of the representatives of the respondent No.3 DSL at

the time when the sample is drawn. It was further directed that the

objections if any of the respondent No.3 DSL would also be entertained and

dealt with and that FSSAI, after generation of the report, act further in

accordance with law. No case for entertaining a second writ petition on the

same facts is made out. The petitioner apparently was satisfied with the

directions contained in the order dated 28th May, 2015 and did not pursue the

matter further. If the grievance of the petitioner is that FSSAI is in non-

compliance of the said order, the remedy therefor is in contempt jurisdiction

of this Court and not by way of a second writ petition. The petitioner at that

time did not insist upon samples to be tested on the spot and claiming which

relief the present petition is filed. Now that a direction has already been

given to FSSAI, if the petitioner still feels that under the Law, Rules and

Regulations the samples have to be tested at the spot or in any manner, the

petitioner is free to represent to the FSSAI in that respect.

20. The Supreme Court recently in John D'souza Vs. Aldila Braganza

(2014) 15 SCC 321 has held that it is not open for the High Court in a

subsequent writ petition to pass any order enlarging the order and direction

issued in the earlier writ petition and at best the High Court could have only

directed compliance of the direction issued in the earlier writ petition.

21. This is more so as the reason for the petitioner to approach FSSAI is

the alleged wrongful refusal of the respondent No.3 DSL to take back the

goods from the petitioner. This Court in exercise of jurisdiction under

Article 226 of the Constitution of India would not come to the assistance,

more than required, of a party having contractual dispute with another. The

needful has already been done vide order dated 28 th May, 2015 in W.P.(C)

No.5766/2015 earlier filed by the petitioner. This Court cannot allow its

process under Article 226 of the Constitution of India to be used by a party

to the contract to settle scores with the other party to the contract and the

remedy wherefor is either by way of a suit or arbitration. Reference if any

required in this regard can be made to Hari Chand Vs. Government of NCT

of Delhi MANU/DE/8077/2006 and to my judgment Bijender Singh Vs.

North Delhi Municipal Corporation MANU/DE/3770/2015.

22. With the aforesaid observations, the petition is dismissed

No costs.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 06, 2015 Bs..

(corrected and released on 5th January, 2016).