IMPORTANT POINTS
1. By virtue of Section 92, Food Authority empowered by Parliament to make Regulations in respect of subjects mentioned in Section 92 itself.
2. The Parliament did not define what the small scale or cottage industry would be.

JUDGMENT

A.B. Chaudhari, J.— Rule. Rule is made returnable forthwith. Learned Advocate Smt. Pranita Chaubey waives service on behalf of respondent No.1, learned Advs. Mr. Mehmood Pracha with Mr. R.V. Malviya, for respondent No.2, and learned Govt. Pleader Mrs. Dangre, for respondent Nos. 3 to 5. With the consent of rival parties, this Writ Petition is taken up for final hearing.

2. By the present Writ Petition, the petitioner, Rice Millers Association, Gondia, has put to challenge Clause (b) of Regulation 4 of the Food Safety & Standards (Licensing & Registration of Food Businesses) Regulations, 2011, as ultra vires the powers conferred on Respondent No.2, i.e., Food Authority, under Section 31(2) and Section 91 of the Food Safety and Standards Act, 2006, and has consequently prayed for quashing the consequential communications stated in Prayer Clause (1).

3. In support of the Writ Petition, Mr. Khapre, learned counsel for the petitioner, submitted that the provision of the Regulations, 2011, and in particular Clause (b) of Regulation 4 is ultra vires the provisions of Sections 31 and.92 of the Food Safety & Standards Act, 2006 [hereinafter referred to as the Act of 2006 for brevity] According to Mr. Khapre, the power to frame a Regulation given to the authority is by way of supporting the legislation and in no case, a Regulation or any Clause thereof can override or supplant the substantive provision of the Act. He further argued that there cannot be any Regulation in derogation of what is contemplated by the Act of 2006; otherwise the same would attract the vice of not only arbitrariness, but want of authority. Mr. Khapre then argued that prescription of Rs.12 lakhs annual turnover as the limit to treat food businesses as small scale or cottage as per Clause (b) of Regulation 4 is clearly in usurpation of authority by the Food Safety & Standards Authority of India and without any power to do so. He further contended that the said authority does not have any power to define what is the small scale industry and it must be left to the licensing or Registering Authority to decide upon the facts and circumstances in each case, rather than generalizing the same, since there are en number of food items and no general prescription of Rs.12 lakhs as annual turnover could have been made. Mr. Khapre invited our attention to Sections 31 and 92 of the Act of 2006 and argued that the said Regulation clearly is in contravention or derogation of these provisions and, therefore, are ultra vires the said provisions and liable to be declared accordingly. He, therefore, prayed for the reliefs stated in the prayers to the petition.

4. Per contra, learned counsel for respondent No. 2 and other respondents supported the Regulation in question. The counsel for the respondents argued that the meaning of the words small scale, as contended by the counsel for the petitioner, cannot be understood in the way petitioner wants to. According to him, the Act of 2006 relating to the food businesses must be distinguished from the other items with which small scale industries are concerned. According to the learned counsel for the respondent No.2, the Act of 2006 is so framed with a view to have food safety standards in the country in view of serious cases of adulteration of food items being found out in the country. Learned counsel for the respondents then invited our attention to Sections 31 and 92 and argued that the Regulation, in question, is framed as per the due authority given by the Act itself and there is no usurpation as contended by the petitioner. The Counsel for the respondents then continued their arguments and submitted that the Regulation, in question, is supplemental to what the Act has provided, and is not in derogation of the substantive provisions of the Act. According to them, small scale industries in food business have been brought in the Regulations with annual turnover of less than Rs.12 lakhs after long, conscious and studious exerci