(2015) 409 KLW 406
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.N.RAVINDRAN & ANIL K.NARENDRAN, JJ.
W.P.(C)Nos.28902 & 30763 of 2013 & 31120 and 31819 of 2014
Dated this the 20th day of May, 2015
PETITIONER(S)
1. KARTHIGESU.K., PROPRIETOR, HOTEL ARYAAS (VEG) XVII/663, SHOP NO.18 & 19, ADOOR TOWER, ADOOR, PATHANAMTHITTA.
2. S.RAMALINGAM, PROPRIETOR, HOTEL ANANDABHAVAN (VEG), PMC IX/1081/2, PATHANAMTHITTA.
3. R.RAJALAKSHMI, PROPRIETRIX, HOTEL ARYAAS, CENTRAL JUNCTION PANTHALAM P.O., PUNALUR, PATHANAMTHITTA.
4. J.RAMAKUMAR, PROPRIETOR, ARYAS HOTEL, M.C.ROAD, PANTHALAM, PATHANAMTHITTA.
5. K.K.NAVAS, PROPRIETOR, HOTEL THANIMA, G.H.S.ROAD, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT.
6. M.K.MURAGAN, PROPRIETOR, HOTEL ARYA BHAVAN, II/1036, DCDE, KOZHENCHERRY GRAMA PANCHAYAT, KOZHENCHERRY, PATHANAMTHITTA.
7. THOMAS SCARIA, PROPRIETOR, PRINCE FAMILY RESTAURANT, MARAMAN P.O., CHETTIMUKKU, KOZHANCHERRY.
8. K.G.RAJASHEKHARA KURUP, PROPRIETOR, KURUP'S HOTEL, II/675, KOZHENCHERRY, KOZHENCHERRY.
9. SANTHOSH MATHEW, PROPRIETOR, HOTEL NEW JOHNS, V/13, MALLAPPILLY GRAMA PANCHAYAT, MALLAPPILLY, PATHANAMTHITTA.
10. RAJESH G.NAIR, PROPRIETOR, VIJAYA HOTEL, II/29, MALLAPPILLY GRAMA PANCHAYAT, MALLAPPILLY.
11. KERALA HOTEL AND RESTAURANT ASSOCIATION, PATHANAMTHITTA DISTRICT COMMITTEE, PATHANAMTHITTA, REPRESENTED BY ITS VICE PRESIDENT MR. KARTHIKESHU.
BY ADVS.SRI.C.S.AJITH PRAKASH SRI.PAUL C THOMAS
RESPONDENT(S)
1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FOOD CIVIL SUPPLIES DEPARTMENT, GOVERNMENT OF KERALA.
2. THE DISTRICT COLLECTOR, PATHANAMTHITTA, CIVIL STATION, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT-689 645.
3. THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA, CIVIL STATION, PATHANAMTHITTA-689 645.
4. THE DISTRICT SUPPLY OFFICER, PATHANAMTHITTA, CIVIL STATION, PATHANAMTHITTA-689 645.
5. THE TALUK SUPPLY OFFICER, TALUK SUPPLY OFFICE, ADOOR, PATHANAMTHITTA DISTRICT- 691 523.
6. THE TALUK SUPPLY OFFICER, OFFICE OF THE TALUK SUPPLY OFFICER, PATHANAMTHITTA, PATHANAMTHITTA DISTRICT-689 645. BY SPL.GOVERNMENT PLEADER SRI.C.S.MANILAL
JUDGMENT
W.P.(C).No.28902 of 2013 is filed by the Kerala Hotel and Restaurant Association, Pathanamthitta District Committee, along with persons who are engaged in the business of running hotels and restaurants at Pathanamthitta, Adoor and Panthalam in Pathanamthitta District, seeking a writ of certiorari to quash Ext.P20 price list dated 13.11.2013, published by the District Collector, Pathanamthitta, fixing the price of various food stuffs in the hotels and restaurants in that district, during the Sabarimala pilgrimage season (2013-14). They have also sought a declaration that, the steps taken by the District Administration to fix the price of food stuffs in their hotels and restaurants, as evidenced by Ext.P20 price list, and the compulsion to display the said price list by replacing the existing price list exhibited in their hotels and restaurants is illegal, ultra vires, without jurisdiction and is in total disobedience of the dictum laid down by this Court in the decisions reported in Kerala Hotel and Restaurant Association v. State of Kerala (2005 (4) KLT 497) and Kerala Hotel and Restaurant Association v. Thrissur District Consumer Disputes Redressal Forum (2012 (3) KLT 277).
2. W.P.(C)No.30763 of 2013 is filed by persons who are engaged in the business of running non-vegetarian hotels and restaurants in Thiruvalla Town in Pathanamthitta District, seeking a writ of certiorari to quash Ext.P12 proceedings dated 11.11.2013 of the District Collector, Pathanamthitta, fixing the price of food stuffs in the hotels and restaurants in that district during the Sabarimala pilgrimage season (2013-14) and Ext.P13 price list (same as Ext.P20 in W.P.(C).No.28902 of 2013) published by the District Collector, Pathanamthitta. They have also sought a declaration that the steps taken by the District Administration to fix the price of food stuffs in the non-vegetarian hotels run by the petitioners, as evidenced by Ext.P13 price list and the compulsion to display the said price list by replacing the existing price list is illegal, ultra vires, without jurisdiction and is in total disobedience of the dictum laid down by this Court in the decisions referred to above.
3. W.P.(C)No.31120 of 2014 is filed by the Kerala Hotel and Restaurant Association, Pathanamthitta District Committee, along with persons who are engaged in the business of running hotels and restaurants in Pathanamthitta District, seeking similar reliefs in respect of Ext.P29 price list dated 13.11.2014, issued by the District Collector, Pathanamthitta, fixing the price of various food stuffs in the hotels and restaurants in that district, during the Sabarimala pilgrimage season (2014-15).
4. W.P.(C)No.31819 of 2014 is filed by persons who are engaged in running hotels and restaurants at Adoor, Maramon, Kozhencherry, Mallappally, etc. in Pathanamthitta District, seeking similar reliefs in respect of Ext.P16 price list published by the District Collector, Pathanamthitta dated 13.11.2014 (same as Ext.P29 in W.P.(C)No.31120 of 2014), fixing the price of various foods stuff in the hotels and restaurants in that district, during the Sabarimala pilgrimage season (2014-15).
5. Since the issue raised in all these writ petitions is one and the same, they are disposed of by a common judgment, treating W.P.(C).No.28902 of 2013 as the main case.
6. The petitioners in these writ petitions are engaged in the business of running hotels and restaurants (both vegetarian and non-vegetarian) at various places in Pathanamthitta District. In W.P. (C).Nos.28902 of 2013 and 31120 of 2014, the Kerala Hotel and Restaurant Association, Pathanamthitta District Committee, is one among the petitioners. According to the petitioners, they are running their hotels/restaurants after obtaining sales tax registration, necessary licenses/permissions/consent from the local authorities and other statutory bodies and also license under the Food Safety and Standards Act, 2006. In their hotels/restaurants, the petitioners are providing food stuffs like meals, idly, dosa, etc., along with other refreshments like tea, coffee, juices, etc., and the price of each food stuff is exhibited in their hotels/restaurants, as provided under the Kerala Food Stuffs (Display of Prices by Catering Establishments) Order, 1977. According to the petitioners, the price of the food stuffs is periodically reviewed by the hoteliers in consultation with the Kerala Hotel and Restaurant Association and one such review and price enhancement was effected in December, 2012.
7. According to the petitioners, millions of devotees visiting Sabarimala pass through Pathanamthitta District and there will be heavy requirement of food stuffs in their hotels/restaurants during every pilgrimage season. Every year, the District Administration used to convene meetings with all concerned in order to make arrangements for the devotees visiting Sabarimala. Such a meeting was convened on 28.9.2013, by the District Collector, Pathanamthitta, in which the representative of the Kerala Hotel and Restaurant Association was also invited. In that meeting, the District Collector made a demand to reduce the price of food stuffs in the hotels and restaurants in Pathanamthitta District, during Sabarimala pilgrimage season (2013-14). Though the representative of the Association expressed its inability to do so, the District Collector unilaterally fixed the price of various food stuffs in the hotels and restaurants in Pathanamthitta District during Sabarimala pilgrimage season (2013-14) and published Ext.P20 price list. The very same price list, which is produced as Ext.P13, is under challenge in W.P. (C).No.30763 of 2013. The price list issued for Sabarimala pilgrimage season (2014-15) is under challenge in W.P.(C). Nos.31120 of 2014 and 31891 of 2014.
8. The sole issue that arises for consideration in these writ petitions is whether the District Administration has the authority to fix the price of food stuffs in the hotels and restaurants in that district and compel them to display such a price list, replacing the price list exhibited in such hotels and restaurants in terms of the Kerala Food Stuffs (Display of Prices by Catering Establishments) Order, 1977.
9. The learned Senior Government Pleader would justify the price fixation made by the District Administration, during Sabarimala pilgrimage seasons 2013-14 and 2014-15, by contending that, such price fixation was made in order to ensure that food stuffs at a moderate and reasonable price are made available to the pilgrims during Sabarimala pilgrimage seasons. Relying on Annexure I order passed by a Division Bench of this Court dated 10.12.1993 in O.P.No.15667 of 1992, the learned Senior Government Pleader would contend that, the highhanded exploitation made by the hoteliers was noticed by this Court even during previous pilgrimage seasons, whereupon, peremptory directions were issued to the District Administration to ensure that, the price charged for food stuffs in the hotels is reasonable and the pilgrims are not exploited. Relying on Annexures II and III minutes of the meetings held on 10.10.2013 and 1.11.2013 respectively, the learned Senior Government Pleader would contend that, the representative of the first petitioner in W.P.(C).Nos.28902 of 2013 and 31120 of 2014 had attended the aforesaid meetings convened by the District Administration in order to make arrangements for the devotees visiting Sabarimala during the pilgrimage season (2013-14). It was thereafter, the price list of food stuffs for the pilgrim season (2013- 14) was fixed by Annexure IV proceedings of the District Collector dated 11.11.2014. Later, the Vyapari Vyavasayi Ekopana Samithi of Nilakkal, Pampa and Sannidhanam, made a complaint regarding fixation of price of certain food stuffs like masala dosa, peas masala and kizhangu curry and after considering their grievance, a revised price list of food stuffs was published by Annexure V proceedings of the District Collector dated 13.11.2013.
10. In
Kerala Hotel and Restaurant Association v. State of Kerala (2005 (4) KLT 497)
a learned single Judge of this Court held that in the absence of an enabling provision for imposing restrictions in the matter of price of food articles sold by an eating house, it may not be possible for the District Administration to suggest a control in such areas, unless the State applies its mind and brings in a legislation, which authorises restriction, thereby fettering the freedom of an entrepreneur. Paragraphs 4, 5, 6 and 7 of the said judgment read thus;
“4. The Government Pleader had attempted to sustain the order on the strength of the Kerala Food Stuffs (Display of Prices by Catering Establishments) Order, 1977. It required the caterers to publish the price of food articles sold by them. Such orders were issued under the authority of Essential Commodities Act. Ext. P3 was valid and one made in the right step.
5. In spite of the above submissions, I find it difficult to accept the stand that any of these are enabling provisions for imposing restriction in the matter of price of food articles sold by an eating house. It may be in public interest to restrict the price, but such powers, if at all, are circumscribed by the requirement to recognise the fundamental rights of a person to carry on an industry or business to his liking. The District Authorities might be getting complaints about the prices levied by the establishments, but only in authorised matters, it may be possible for them to exert themselves. The issue is far too complex for them to issue edicts. There is no case that the licences issued to the petitioners by the Local Authority contain a stipulation that they would be subjected to such restrictions. The orders referred to also do not authorise the Administration to impose upper limit in the price. What is contemplated there is only publication of price. The respondents have also no case that there is any supply of rationed articles at concessional prices to the hotel owners and they are reaping profits forfeiting the trust or violating any undertakings given by them.
6. Price of a food item may depend on various factors. To cite a few, the investment that is there for starting up or running the same will be one. The expenditure that is incurred for running an establishment vary from place to place and locality. The quality of food stuff also will necessarily require the caterer to fix a price, if he is keen to make a profit. Above all, there is no compulsion of whatever nature for a person to go and take food from any public eating house, which is not to his taste. A person can avoid a hotel which charges higher prices, if price alone is his concern.
7. In the matter of services, unless there is law in operation (e.g. bus fare, taxi fare etc.), it may be difficult for the Administration to prescribe prices, be it personal service or professional service. Imagine the situation where the District Administration is of opinion that fee charged by a hospital or a chartered accountant or even a lawyer is excessive. The theory of demand and supply is a time tested concept. It may not be possible for them to suggest a control in such areas, unless the State applies its mind and bring in legislation, which authorises restriction, thereby fettering the freedom of an entrepreneur. Therefore, the hotelier will have the absolute discretion as of now at least to prescribe the price of his ghee roast, parotta or pulavu, if the business is not situated in restricted places or areas.”
11. The view expressed in the aforesaid judgment was reiterated by another learned single Judge of this Court in
Kerala Hotel and Restaurant Association v. Thrissur District Consumer Disputes Redressal Forum (2012 (3) KLT 277)
and this Court opined that, in the present day context it is only desirable that there should be some law which would save the common man from unreasonable and arbitrary pricing of food articles by hotels and restaurants in the State by establishing a machinery for regulating prices of food articles to ensure that the consumers are not unjustly fleeced. Paragraph 11 of the said judgment reads thus;
“11. This Court is of opinion that, in the present day context it is only desirable that there should be some law which would save the common man from unreasonable and arbitrary pricing of food articles by hotels and restaurants in the State by establishing a machinery for regulating prices of food articles to ensure that the consumers are unjustly fleeced. Of course that can only be by enacting appropriate legislation by the legislature if such legislation is permissible under the Constitution. Those are all matters which should gain the attention of the Government and the legislature. In this connection I may also note that the preparation of food in many hotels and restaurants are in unclean and unhygienic surroundings. Whenever officers of the Public Health Department or Local Authority seizes food which are unfit for consumption the media who report those incidents zealously guards the names of the hotels and restaurants from where the seizure is made denying the public the right to know the culprits. The officers also do not publish the names of the culprits to enable the public to avoid such establishments. The media thus abdicates their duty to the public. With a pious hope that the powers that be would take into account the above opinions of this Court in that regard and take appropriate action in accordance with law to at least minimise the miseries of the common man who depend on hotels and restaurants for his necessities for food, I dispose of this writ petition as above.”
12. The respondents have no case that, any licences issued to the petitioners by the local authorities/statutory bodies for running their hotels/restaurants contain a stipulation authorising the District Administration to impose any restrictions on the price of food stuffs sold by such hotels/restaurants. The respondents have also no case that, there is any supply of rationed articles at concessional rates to the petitioners and that the petitioners are reaping profits forfeiting the trust or violating any undertaking given by them. What is contemplated under the provisions of the Kerala Food Stuffs (Display of Prices by Catering Establishments) Order, 1977, is only the display of the price of food stuffs and the provisions contained therein do not in any manner authorise the District Administration either to fix the price of food stuffs sold in hotels/restaurants or to impose any upper limit in the price of such food stuffs. In the absence of an enabling provision for imposing such restrictions, it is impressible for the District Administration to issue orders fixing the price of food stuffs in the hotels/restaurants in that district, during Sabarimala pilgrim seasons, unless the State applies its mind and brings in a legislation, which authorises restriction, thereby fettering the freedom of an entrepreneur. As noticed by the learned single Judge of this Court in
Kerala Hotel and Restaurant Association v. Thrissur District Consumer Disputes Redressal Forum (2012 (3) KLT 277)
it is only desirable that, there should be some law which would save the common man from unreasonable and arbitrary pricing of food stuffs by hotels and restaurants in the State, by establishing a machinery for regulating the prices of food stuffs, to ensure that the consumers are not unjustly fleeced.
13. Relying on Annexure I order passed by a Division Bench of this Court on 10.12.1992 in O.P.No.15567 of 1992, the learned Senior Government Pleader would contend that, during previous pilgrim seasons, this Court had issued peremptory directions to the District Administration to see that the charges levied in the hotels are reasonably fair, without any exploitation of the pilgrims. But a reading of paragraph 6 of Annexure I order would show that, the direction contained therein was taking note of the report filed by the Special Commissioner appointed by this Court, who had pointed out that exorbitant charges are being collected in some hotels at Pampa and that necessary direction should be given to the authorities concerned to see that the pilgrims are not exploited. Therefore, this Court by Annexure I order directed the Commissioner of Civil Supplies, in consultation with the District Collector, Pathanamthitta, to see that the charges levied in the hotels are reasonable. This Court further directed the State to make immediate arrangements through the Commissioner of Civil Supplies and his subordinates to see that the hotels and other eating places cater to the innumerable worshiping public in a reasonable way and supply unadulterated food and that the charges are the minimum. The Commissioner of Civil Supplies was also directed to keep in touch with the Special Commissioner appointed by this Court to satisfy him about the arrangements made and the directions in that behalf. Therefore, the directions in Annexure I order referred to above are intended for those hotels temporarily put up during each pilgrimage season at Sabarimala, Pampa, etc., on the strength of the permission/licence granted by the Travancore Devaswom Board. Hence we find absolutely no merit in the contention raised by the learned Senior Government Pleader that, Annexure I order of this Court would entitle the District Administration to fix the price of food stuffs in the hotels and restaurants in Pathanamthitta District during the Sabarimala pilgrimage seasons.
14. Relying on the provisions of the
Kerala Essential Articles Control Act, 1986
the learned Senior Government Pleader would contend that, the District Administration has the power to control, during Sabarimala pilgrimage season, the price of food stuffs in the hotels and restaurants in Pathanamthitta District, in order to ensure their availability at a fair price to the pilgrims. The Kerala Essential Articles Control Act, 1986 empowers the State Government to declare any article, not being an essential commodity within the meaning of the Essential Commodities Act, 1955, to be an essential article and to control by a notified order, the production, supply and distribution of, and trade and commerce in any such essential article. Section 3 of the Act empowers the Government to control the production, supply, distribution, etc. of essential articles. Going by sub-section (1) of section 3, if the Government are of the opinion that it is necessary or expedient so to do for maintaining or increasing the supplies of an essential article, or for securing their equitable distribution and availability at fair prices, they may by notified order provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. As per sub-section (2) of section 3, without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may make provision in respect of matters enumerated in clauses (a) to (k) of sub-section (2). Under clause (b) of sub-section (2), the Government have the power for controlling the price at which any essential article may be brought or sold. Section 5 of the Act mandates the notified orders to be laid before the Legislative Assembly and going by section 6 of the Act, any order made under section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act, or in any instrument having effect by virtue of any enactment other than this Act. The respondents have no case that, the food stuffs referred to in Ext.P20 price list in W.P.(C)No.28902 of 2013 are 'essential articles' notified by the State in exercise of its powers under section 3 of the said Act. Therefore, the contention raised by the learned Senior Government Pleader relying on the provisions of the aforesaid Act can only be repelled.
15.
Clause 3 of the the Kerala Food Stuffs (Display of Prices by Catering Establishments) Order, 1977
casts a statutory duty on the owner or other person in charge of a catering establishment to display at a conspicuous part of the catering establishment, the price of every item of food stuff in that establishment. Sub-clause (i) of clause 2 of the Order defines 'catering establishment' to mean a hotel, restaurant, eating house, cafe, tea shop, coffee stall, club, boarding house, canteen or railway refreshment room, where food stuffs are served supplied or consumed on payment of price and includes any other place of like nature open to the public. Sub-clause (v) of clause 2 of the Order defines 'food stuff' to mean, any article of food or combination of articles of food kept for sale or service or supply at a catering establishment and includes liquid refreshments and beverages.
16. Clause 3 of the Order only requires catering establishments like hotels, restaurants, etc. to display at a conspicuous part of their establishment, the price of every item of food stuff in that establishment. Therefore, the provisions under the Kerala Food Stuffs (Display of Prices by Catering Establishments) Order, 1977 would also not entitle the District Administration to fix the price of food stuffs in hotels, restaurants, etc. in Pathanamthitta district during the Sabarimala pilgrimage season.
17. Going by clause 4 of the Order, the owner or any other person in charge of a catering establishment shall, when required by the Commissioner or the District Collector by general or special order, furnish truthfully and to the best of his knowledge and belief such particulars or information as may be required relating to the food stuffs kept for sale, service, supply or consumption in that establishment. Clause 5 of the Order mandates that, the owner or any other person in charge of a catering establishment shall give all facilities at all reasonable times to any Enforcement Officer for inspection of the food stuff kept for sale, service or supply at that catering establishment or at any other place used for preparation of food stuffs for the purpose of that catering establishment. Clause 6 of the Order deals with the power of entry, search, seizure , etc. by an Enforcement Officer and going by sub-clause (1) an Enforcement Officer may, with a view to securing compliance with the Order or to satisfy himself that the provisions of the Order have not been contravened, require the owner/occupier or any other person in charge of the catering establishment to make any statement or furnish any information or produce any books, accounts or other documents showing the transactions relating to food stuffs and every person so required shall comply with such requisition.
18. Therefore, in exercise of the powers conferred under Clauses 4 to 6 of the Order, the Enforcement Officers exercising the powers under the Order can collect necessary information relating to the food stuffs kept for sale, consumption, etc. and conduct necessary inspection, search, seizure, etc. with a view to securing compliance with the provisions of the Order and to ensure that there is no contravention of any of the provisions of the Order. The Enforcement Officers can also ensure that no catering establishments like hotels, restaurants, etc. hike the prices of food stuffs displayed in terms of Clause 3 of the Order, during the Sabarimala pilgrimage season. Taking into account the fact that a large number of pilgrims from North India and the neighbouring States of Tamil Nadu, Karnataka and Andra Pradesh visit Sabarimala during every pilgrimage season, the District Administration/ Enforcement Officers shall also insist on the display of a price list of food stuffs in English, Hindi, Kannada and Telugu.
In the result, the price list published by the District Collector, Pathanamthitta fixing the price of various food stuffs in the hotels and restaurants in Pathanamthitta district during the Sabarimala pilgrimage season (2013-14) and (2014-15), which are under challenge in these writ petitions, are set aside. But, it is made clear that this judgment will not stand in the way of the District Collector or the Travancore Devaswom Board from fixing the price of food stuffs in the hotels and restaurants in Sabarimala, Pampa, etc. which are temporarily put up during each pilgrimage season on the strength of the permission/licence granted by the Travancore Devaswom Board.
The Writ Petitions are disposed of as above.
Sd/- P.N.RAVINDRAN, JUDGE
Sd/- ANIL K.NARENDRAN, JUDGE
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