Summary: Restaurant association files petition accusing food delivery companies of allowing illegal eateries to flourish

“Businesses which are operating by flouting the laws of the land are being encouraged to prosper” thanks to food delivery platforms like Zomato, Swiggy, and Dunzo, which have onboarded many “illegal” restaurants and put public health at risk, a petition filed by the Indian Hotel and Restaurant Association (AHAR) in the Bombay High Court alleged. Furthermore, civic authorities have neglected their duty to curb the growth of these illegal eateries, the petition stated.

Many eateries operate without required licenses in unsafe and unhygienic conditions

• AHAR members have obtained all requisite licenses: The petition stated that AHAR and its member restaurants have obtained all permissions to operate a restaurant including licenses under:
  1. Section 394 of MMC Act, 1888
  2. No-objection certificate from the Chief Fire Officer
  3. Registration under Maharashtra Shops and Establishment Act, 1946
  4. FSSAI registration
• But, many eateries are operating without these required licenses: Several unauthorised and illegal eating houses across the city are operating their businesses from their residences, shops, and galas without obtaining the requisite mandatory permissions mentioned above, the petition stated. Several eateries are also operating on streets and street corners which is illegal according to the judgment and order dated 23.10.2016 passed by the Bombay High Court in the matter of Shri Vile Parle Kelwani Mandal vs. MCGM & Ors, the petition added.
• Illegal eateries are operating out of unhygienic places: Many of the illegal vendors operate from premises that are “nothing but a bare minimum space made out in the most unhygienic conditions” and without the premises being registered with the Buildings and Factories department and without Occupancy Certificates (OC) or Completion Certificates (CC), the petition stated.
• The use of illegally obtained LPG cylinders by some eateries possess significant safety risk: The unlicensed eateries illegally procure LPG gas cylinders, which makes “the whole illegal premises vulnerable to serious mishaps and accidents owing to the explosion of such LPG cylinders. The serious impending risk that bothers and makes the petitioner perplexed is the risk involved with all the residents at large in the vicinity of all such illegal premises, that may lead to serious casualties and injuries, that may be fatal,” the petition stated.
• Illegal eateries took advantage of the COVID-19 lockdowns while licensed members of AHAR suffered economically: 

“The said lockdown has had a destructive impact on legally operating restaurant businesses; in as much as, on one hand, the restaurants have been forced to remain shut for a majority of the duration of lockdown and have been later permitted to operate their businesses only for home deliveries and to some extent with a limited seating capacity and for a limited duration of curtailed operating hours. All the said events have had a back-breaking impact on the legally operating restaurant industry. As against this, on the other hand, the aforementioned illegally operating food delivery outlets, by the very nature of the activity, i.e., operating through residencies, galas, street corners, etc., are not abiding by the legally mandatory lockdown related conditions applicable to restaurant businesses.” – AHAR petition

Food delivery companies have encouraged the growth of illegal eateries, while civic authorities have turned a blind eye

• Food delivery services like Zomato and Swiggy have encouraged illegal eateries: The delivery services (listed as respondents 13 to 20 below) have enrolled a substantial number of illegally operating eating houses as their members and have allowed them to sell to the public at large. The food delivery companies enrolled these eateries without verifying if they have obtained the requisite licenses, the petition stated.
• Civic authorities are putting public life at risk: The administration and civic authorities have turned a blind eye to the “these illegalities that are prevalent day in and day out” and “they are putting the public lives in immense peril of serious health hazards.” If any mishaps or fatal accidents occur at any moment such as food poisoning or another pandemic because of unhygienic food every day, the “absolute criminal liability” for it will lie with the civic authorities as well as the food delivery companies. This neglect by civic authorities violates Article 21 of the Indian Constitution read with Article 47 of the Indian Constitution. “Article 21 guarantees the Fundamental right to live with proper human dignity. Alongside, Article 47 entrusts the State with a duty and responsibility to raise the level of nutrition and the standard of living and to improve public health which is the primary duty the State is entrusted with,” the petition explained.
• Delivery services, as well as police stations, did not take concrete actions in response to notices sent by the government: AHAR filed several complaints with the Executive Health Officer, Municipal Corporation of Greater Mumbai, following which the Medical Officer of Health (MOH) of the H/West Ward issued notices to the food delivery companies calling them to stop the pick-up and delivery of food from illegal eateries and also asking them to provide names and addresses of all eating houses who are registered with them. The MOH also sent notices to the Senior Inspectors of Police of the Khar, Bandra and Santacruz police stations to take appropriate action under law against the illegally operating eating houses, but neither the food delivery companies nor the police stations have taken any concrete steps pursuant to these notices, the petition argued.
• Didn’t receive responses for RTI requests: Sumeer Sabharwal (Petitioner 2) filed RTIs with MOH to know the statuses of the various notices sent but has not received any response yet, the petition stated.
• Vehicles used by food delivery drivers are registered for personal use: The two-wheelers used by delivery drivers are registered with Regional Transport Office (RTO) for personal use but used for commercial purposes because they pick and deliver food for food delivery companies.
• FSSAI grants licenses to some eateries without proper scrutiny: Many of the illegal vendors manage to get the FSSAI (Food Safety and Standards Authority of India) license though they are not eligible for the same, the petition states.

“What is much and immensely worrisome is that the FSSAI authority grants these licenses without even scrutinizing for once, the premises and the quality of the food being cooked by these errant vendors playing and mocking with the health of lakhs and lakhs of people all over and encouraging such rampant violation are the food delivery companies who also through illegal gratifications have turned the civic authorities and BMC (Municipal Corporation of Greater Mumbai) officials, even the Police into mere spectators, without even an iota of control.” – AHRA petition

What does the petition seek?

The petition has sought the following in its prayer for relief:

1. Petitioners are allowed to issue a public notice to all owners/operators of unlicensed eateries, for being sued under the provisions of Order 1 Rule 8 of the Code of Civil Procedure, 1908.
2. Direction to the BMC and Mumbai Police to take appropriate action under law against the illegally operating eating houses as well as illegal roadside vendors such as sealing the establishments until licenses are obtained.
3. Direction to the civic authorities listed as respondents 1 to 12 below to take action against the food delivery companies listed as respondents 13 to 20 and to abide by the Shri Vile Parle Kelwani Mandal vs MCGM & Ors order issued by the Bombay HC.
4. Direction to the Mumbai Police to register FIRs against the officials of the food delivery companies to initiate a thorough investigation.
5. Direction LPG companies listed as respondents 21 and 22 to stop the supply of LPG cylinders to illegal eateries.
6. Direction to the Mumbai Police to take appropriate action against food delivery companies for using non-commercial vehicles and two-wheelers commercial use.
7. Declare eateries operating only with FSSAI license and without the Municipal health license or licenses under section 394 of MMC Act as illegal.
8. Direction to the BMC to upload on its website a list of licensed eateries and directions to all eating houses to prominently display the details of their licences.

Who are the petitioners and respondents?

Petitioners

1. Indian Hotel and Restaurant Association
2. Sumeer Ramdayal Sabharwal who runs a restaurant called  “Dimppys”

Respondents 

1. Municipal Corporation of Greater Mumbai
2. The Executive Health Officer, Municipal Corporation of Greater Mumbai
3. The State of Maharashtra
4. The Commissioner of Police, Mumbai
5. Addl. Commissioner of Police, Traffic, Mumbai
6. The Food and Drug Administration
7. Union of India through the Ministry of Law & Justice
8. Food Safety and Standards Authority of India (FSSAI)
9. The Ministry of Health and Family Welfare
10. The Chief Fire Officer, Mumbai
11. The Divisional Fire Officers, Mumbai
12. The Regional Fire Officers, Mumbai
13. Bundl Technologies Pvt. Ltd.
14. Zomato Limited
15. Dunzo Limited
16. Thirst Crow Marketing Services
17. Shadowfax Technologies
18. M/s. Lala Move
19. Samast Technologies
20. Sefast India (Wefast)
21. Bharat Petroleum
22. Hindustan Petroleum Corporation
23. All owners/operators of all unlicensed restaurants, food parcel kitchens, food vendors on-road and buildings, food trucks and carts and all/any other food vendors on-road and residential buildings being sued under the provisions of Order 1 Rule 8 of the Code of Civil Procedure, 1908 in a representative capacity

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