Hon'ble Mohd. Tahir,J.
Heard Sri Shashi Kant Upadhyay, learned counsel for the petitioner and Sri Neeraj Kanta Verma, learned A.G.A.for the State of U.P.
This petition has been filed by the petitioner Uttam Chand Baranwal with a prayer to issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 19.4.2014 passed by respondent no. 2 Adjudicating Officer/Additional District Magistrate ( Admin) Deoria and to issue a writ, order or direction in the nature of mandamus directing to the respondent authorities not to recover the penalty of Rs. 50,000/- from the petitioner.
It is submitted by learned counsel for the petitioner that the impugned order dated 19.4.2014 passed by respondent no. 2 is illegal arbitrary and , as such, is liable to be set aside by this Hon'ble Court. The petitioner's counsel by mistake has accepted the allegations which were levelled by the Food Security Officer, Barhaj, District Deoria and on the basis of his acceptance, respondent no. 2 has imposed the penalty of Rs.50,000/-, which is illegal and has been arbitrarily imposed. It is a well settled principle of law that the client should not suffer by mistake of his counsel. The actual case of the petitioner is that no such type of articles, which were alleged by the Food Security Officer Barhaj, District Deoria, were recovered from the shop of the petitioner, the respondent No. 3 made a false allegation upon the petitioner about selling of the alleged sugar boiled confectionery which was said to be sub standard. The impugned order has been passed against the provisions of the Food Safety and Standards Act, 2006 ( hereinafter referred to as Act). The recovered article has not been sent to the Food Analyst in accordance with the method prescribed in the Food Safely and Standards Act , 2006. It is further submitted by counsel for the petitioner that since the impugned order is appealable before the appellate tribunal but on the day of passing the impugned order, it was not in existence, it has been established subsequently at Gorakhpur in pursuance of the Notification No. 713/Saat Neyay-2-2014/38G/2010 dated 23rd May, 2014 ,therefore, the appeal against the impugned order may not be entertained by the appellate Tribunal established at Gorakhpur, it may not function with retrospective effect. therefore, the impugned order has been challenged before this Court by way of filing present writ petition for exercising the powers conferred under Article 226 of the Constitution of India.
In reply of the above contention, it is submitted by Sri Neeraj Kanta Verma, learned A.G.A. that the impugned order has been passed on 19.4.2014 by Adjudicating officer/Additional District Magistrate (Admin) Deoria, on the day of passing of the impugned order, the appellate Tribunal was not in existence whereas it has been provided in the above mentioned Act that the order passed by Adjudicating Officer shall be appealable before the Appellate Tribunal but immediately after passing of the impugned order and prior to establishment of the appellate Tribunal, the petitioner has not approached the High Court by way of filing the writ petition under Article 226 of the Constitution of India, the present writ petition has been filed after establishment of the appellate Tribunal, therefore, this writ petition is not maintainable. The remedy available to the petitioner is to challenge the impugned order before the Appellate Tribunal, Gorakhpur, therefore, this petition may be dismissed on the ground of availability of the alternative remedy as provided by the Act itself.
Considering the facts, circumstances of the case, submission made by counsel for the petitioner, learned A.G.A.for the State of U.P. and from the perusal of record it reveals that the petitioner has challenged the impugned order dated 19.4.2014 passed by respondent no.2 Adjudicating Officer/Additional District Magistrate ( Admin), Deoria in case No. 45 of 2012 under section 26(2) 51, 52 ( 1) of the Food Safety and Standards Act , 2006. The Act itself is providing that order passed by Adjudicating Officer may be appealed before the Appellate Tribunal but on day of passing the impugned order, the Appellate Tribunal was not established. Now the Appellate Tribunal has been established at Gorakhpur in pursuance of the Notification No. 713/Saat Neyay-2-2014/38G/2010 dated 23rd May, 2014. This petition has been filed after the establishment of the Appellate Tribunal at Gorakhpur whereas it has been clearly defined in the Act itself that there shall be an appellate Tribunal where the appeal shall lie against the order passed by Adjudicating Officer, in such a circumstance, the impugned order may be challenged by way of filing the appeal before the Appellate Tribunal, Gorakhpur. The plea of retrospective functioning of the appellate Tribunal may not be applicable in the present case. In such a circumstance, the petitioner is having proper alternative remedy to file an appeal against the impugned order before the Appellate Tribunal, Gorakhpur. This petition is not maintainable. The Act itself has provided the period of limitation to file the appeal against the impugned order but on the day of passing the impugned order, the appellate Tribunal was not established which has been established subsequently, such a ground may be taken by the petitioner before the appellate Tribunal for condoning the delay in filing the appeal.
Accordingly, this petition is disposed of.
Dated : 17.11.2014 Su