Welcome Hotel & Ors Vs. State of
Andhra Pradesh & Ors [1983] INSC 102 (22 August 1983)
DESAI, D.A.
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
CITATION: 1983 AIR 1015 1983 SCR (3) 674 1983
SCC (4) 575 1983 SCALE (2)131
CITATOR INFO :
F 1987 SC1802 (11)
ACT:
Andhra Pradesh Catering Establishments
(Fixation and Display of Prices of Foodstuffs) Order, 1978-Validity of.
Essential Commodities Act, 1955-S. 2(a) (v)-
"Foodstuffs", meaning of-Whether it includes cooked food ?- Mechanics
of price fixation under the Act-Extent of scope for interference by Court.
HEADNOTE:
The Government of Andhra Pradesh, in exercise
of powers conferred under the Essential Commodities Act, 1955 promulgated the
Andhra Pradesh Catering Establishments (Fixation and Display of Prices of
Foodstuffs) Order, 1978 fixing the maximum prices of seven items of cooked food
listed in the Schedule thereto. As the hoteliers in the State raised a hue and
cry, the State Government effected an upward revision of the prices fixed by an
Amending Order dated December 11, 1980. The hoteliers were not satisfied with
that and negotiations were held between them and the Minister of Civil Supplies
and as a consequence another order dated January 5, 1981 was issued effecting
yet another upward revision in the maximum prices fixed and also reducing the
number of scheduled items from seven to six.
Ignoring this order which replaced the
earlier orders, the petitioners approached this Court questioning the validity
of the earlier orders and obtained an ex parte stay.
The contentions raised were: (i) that the
State Government was not competent to issue any price control measure in
respect of 'cooked food' as the expression 'foodstuffs' under the Act means raw
foodstuffs only; and (ii) that the fixation of maximum prices of scheduled
items under the impugned orders was arbitrary and violative of Art. 14 inasmuch
as the prices were economically unprofitable as the same had been arrived at
without scientifically examining the prices of inputs, over-head charges, etc.
Dismissing the petitions,
HELD: 1. The expression 'foodstuffs' in s.
2(a) (v) of the Essential Commodities Act, 1955 includes cooked food. If power
to control prices of raw foodstuffs such as rice or wheat in conferred by s. 3,
there is no justification for that power not comprehending within its fold the
power to regulate prices of articles made out of such raw foodstuffs.
[678 A-C] (i) The Essential Commodities Act,
1955 has the same object as the 1946 Act and therefore the expression
'foodstuffs' in the 1955 Act must receive 675 the same construction which it
received under the 1946 Act.
Expressions such as 'food crops', 'spices'
and 'condiments' indicate different spices of articles of food but the general
expression 'foodstuffs' was interpreted in the context of the 1946 Act to
include spices and condiments also. It was pointed out that although
expressions 'food' and 'foodstuffs' could be used in both a wide and a narrow
sense, the expression 'foodstuffs' had been used in a wider sense in the 1946
Act. [679 D-G] State of Bombay v. Virkumar Gulabchand Shah, [1952] S.C.R. 877
referred to.
(ii) The expression 'food' has generally been
understood to mean nutritive material absorbed or taken into the body of an
organism which serves for purposes of growth, work or repair and for the
maintenance of the vital process.
What human beings consume is styled as food
and what animals consume is described as animal feed. This distinction has to
be borne in mind. The expression 'foodstuffs' is made of two expressions,
'food' and 'stuff'. In other words, the stuff which is used as food would be
foodstuff. Therefore, foodstuff is that which is taken into the system to
maintain life and growth and to supply for waste of tissue. If raw foodstuff
with a view to making it consumable by human beings undergoes a change in its
condition by the process of cooking, the derivative is none the less foodstuff.
[679 H, 680 A-B] (iii) That the expression 'foodstuff' as used in the 1955 Act
comprehends cooked food is also clear from the fact that 'food crop' has been
separately defined in the Act.
[680 D]
2. (a) The mechanics of price fixation has
necessarily to be left to the judgment of the executive and unless it is patent
that there is hostile discrimination against a class of operators, the
processual basis of price fixation has to be accepted in the generality of
cases as valid. [681 G-H] Prag Ice & Oil Mills & Anr. v. Union of
India, [1978] 3 S.C.R. 293 relied on.
(b) The petitioners ordinarily do not serve
only the scheduled items, but they have large establishments catering to
various tastes and delicacies. No price fixation order need guarantee profit to
an establishment in respect of each unit of article served or sold. It is the
overall picture in the trade or commerce that needs to be examined. The
petitioners have not shown that in their overall turnover they have since the
promulgation of impugned orders suffered losses. And this situation never
fructified because the 1978 Order was kept in suspended animation for a period
of two years and when the latest order dated January 5, 1981 was promulgated,
it was still-born at the hands of the Court because of the ex parte stay order
obtained by the petitioners.
[681 D-F]
ORIGINAL JURISDICTION: Writ Petition Nos. 43
of 1981, 51-53, 415-18/81, 5465-5562/83, 1751-52/81 and 7763-7890 of 1983.
676 Dr. L. M. Singhvi, B. Kanta Rao, Lakshmi
Kant Pandy and J. Eswara Prasad for the Petitioners.
M. S. Ganesh, Ms. Lata Krishnamoorty and
T.V.S.N. Chari for the Respondent.
The Judgment of the Court was delivered by
DESAI, J. Should Art. 32 of the Constitution lend its assistance to petitioners
in this group of petitions so that the poor in Andhra Pradesh can be
successfully deprived of their staple simple breakfast ? Even an imaginary
marginal dent in the profits of the hoteliers stirs it into action by an easy
resort to a writ petition under Art. 32 and an ex- parte stay which itself is
success even if the petition ultimately fails because in the meantime the
measure which may possibly affect their profits is kept under suspended animation
and the profit being continuously derived from scattered consumers is not
refundable and the unjust enrichment is enjoyed with impunity. This case amply
illustrates the point.
Hoteliers of Andhra Pradesh raised a hue and
cry when the Government of Andhra Pradesh-the first respondent enacted and
proclaimed in exercise of the powers conferred by Sec. 3 of the Essential
Commodities Act, 1955 (1955 Act for short) read with the notification of the
Ministry of Agriculture and Irrigation dated June 9, 1978, the Andhra Pradesh
Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order.
1978 (1978 Order for short) dated September 8, 1978 whereby it was made
obligatory for the catering establishments to display the prices of all
foodstuffs served by the establishment and simultaneously fixed the maximum
price of seven items of food comprising the poorman's menu in the State of
Andhra Pradesh. The seven items enumerated in the Schedule appended to the 1978
Order include idli, vada, upma, sada dosa, puree, coffee, tea and a rice plate
(scheduled items for short). Cl. 3 of the Order prescribed maximum prices of
the scheduled items of food and cl. 4 makes it obligatory to display in English
and principal language of the area the weight or measure and price of every
item of foodstuff offered for sale in the establishment. There were
consequential provisions such as power to issue directions, power to call for
information, power of entry, search & seizure and power to grant exemption
as also power to amend the Schedule. A clarificatory notification was issued on
October 3, 1978 giving certain directions.
677 The Schedule and the rates set out
therein were modified by the Amending Order dated December 11, 1980. The
amendment catered to an upward revision of the prices. It seems some further
negotiations took place between the Minister of Civil Supplies and Labour on
the one hand and hoteliers on the other which led to a notification dated
January 5, 1981 (1981 Order for short) giving further upward revision in
maximum price of scheduled items and the scheduled items were reduced from 7 to
6 deleting rice place. Ignoring this latest order which replaced the earlier
orders, the petitioners approached this Court and obtained an ex-parte stay of
the implementation of Orders dated September 5, 1978 and December 11, 1980. In
fact, but for the intervention by the Court staying the operation of earlier
orders, the order dated January 5, 1981 was not stayed yet effectively the
petitioners succeeded in putting into cold storage the price fixation order
leaving them free to charge any price unhampered and uninhibited by any
governmental action.
Dr. L.M. Singhvi, who led on behalf of the
petitioners made two submissions which have nothing to do with the validity or
legality of the impugned Orders. He submitted that the Court should give a
direction to the State Government to re-examine the prices of inputs and
overhead charges so as to arrive at such maximum price of the scheduled
commodities as to ensure a reasonable return on the investment which would
render the restriction on the fundamental right to carry on trade, reasonable
and satisfy Art. 19 (1) (g) of the Constitution. He next submitted that there
are certain directions in the 1978 and 1981 orders which are impossible of
compliance and, therefore, the petitioners should be heard before they are
compelled to implement the conditions. Neither of the submissions has any
impact on the validity of the impugned Orders. It may, however, be pointed out
how the petitioners suppressing material facts succeeded in obtaining an
ex-parte stay order. In the counter-affidavit filed by one Mr. D. Muralikrishna,
Director of Civil Supplies, it was stated that after the Order dated December
11, 1980 was issued the hoteliers resorted to some agitation which led to the
Minister of Civil Supplies calling a meeting of the hoteliers. What transpired
at this meeting may be extracted from the counter-affidavit:
"The Minister for Civil Supplies
therefore convened a meeting at Hyderabad on 31.12.80 with the representatives
of hoteliers all over the State and the Joint Collectors. At the said meeting
all the issues involved were thoroughly 678 discussed. After prolonged
discussions, the hoteliers of the districts have agreed unanimously for
reducing the prices in respect of 6 items of foodstuffs excluding meals and an
undertaking to that effect was signed by the hoteliers at 1.30 a.m. on
1.1.1981." A copy of the undertaking is produced at Annexure 'B' to the
counter-affidavit which inter alia also provided that the rates of the
scheduled items determined with the consent of the hoteliers will be reviewed
after three months. What is now demanded is that the State Government should
examine the prices of inputs and overhead charges and determine afresh the
maximum prices of the scheduled items, which was very much an integral part of
an over all agreement between the State Government and the hoteliers. After
suppressing this material fact from the Court in the petition, the petitioners
obtained an ex-parte stay order on January 12, 1981 and this was suppression of
such a material fact as would disentitle the petitioners to any relief at the
hands of this Court. That a part review at reasonable interval is implicit in
any price fixation measure.
The second submission that the petitioners be
heard to point out the impossibility of complying with some of the conditions
of the Orders is merely to be stated to be rejected. If the real bone of
contention was the maximum price of scheduled items which was to be thrashed
out by discussion, it is not possible to accept the submission that the
petitioners would not have put forth their grievances about the impossibility
of complying with some of the conditions of the impugned orders. There is not a
whisper about it in the agreement Annexure 'B' and we do not find anything very
unusual or impracticable in the conditions prescribed in the impugned orders.
Mr. B. Kanta Rao who appeared for some of the
petitioners urged that the State Government is not competent to issue any price
control measure in respect of cooked food because the Essential Commodities
Act, 1955 which confers power to issue orders in respect of essential
commodities does not confer any power to issue any order in respect of cooked
food. Sec. 3 of Essential Commodities Act, 1955 confers power on the Central
Government by an order to provide for regulating or prohibiting the production,
distribution and supply and trade in essential commodity or for securing their
equitable distribution and availability at fair prices. The power to fix price
of essential commodity is implicit in the power conferred by 679 Sec. 3 of the
Act and what is implicit in Sec. 3 (1) is made explicit by cl. (c) of
sub-section (2) of Sec. 3 which provides that an order made under Sec. 3 (1)
may provide-(c) for controlling the price at which essential commodity may be
bought or sold. Clause (a) of Sec. 2 defines 'essential commodity' to mean any
of the items which include...(v) foodstuffs, including edible oilseeds and
oils. The submission is that the expression 'foodstuffs' in its etymological
and grammatical sense would mean raw foodstuffs or appropriately called food
grains such as wheat, rice, jawar, bazra, maize etc. but not cooked food which
is a perishable commodity. We see no justification for giving a restricted
meaning to the expression 'foodstuffs'. If power to control prices of raw
foodstuffs such as rice or wheat is conferred by Sec. 3, we see no
justification for that power not comprehending within its fold the power to
regulate prices of articles made out of such raw foodstuffs.
Expression such as 'foodcrops' 'spices' and
'condiments' indicate different species of articles of food but the general
expression 'foodstuffs' was interpreted to include spices and condiments also.
In the State of Bombay v. Virkumar Gulabchand Shah(1) this Court construed the
expression 'foodstuffs' in cl. (3) of the Spices (Forward Contract Prohibition)
Order of 1944 read with Sec. 2 (a) of the Essential Supplies (Temporary Powers)
Act, 1946 to include turmeric. After examining the definition of expression
'foodstuffs' in Oxford English Dictionary and Webster's International
Dictionary and some decisions bearing on the subject, this Court held that the
expressions 'food' and 'foodstuffs' can be used in both a wide and a narrow
sense and that the circumstances and background can alone determine which is
proper in any given case. After examining the object and the intendment
underlying enactment of Essential Supplies (Temporary Powers) Act, 1946, this
Court held that if turmeric is a commodity essential to the life of the
community it must be covered by the expression 'foodstuffs'. Accordingly, it
was held that the expression 'foodstuffs' has been used in a wider sense in
1946 Act. It may be recalled that the Essential Commodities Act, 1955 was
enacted for the control of the production, supply and distribution of and trade
and commerce in essential commodities. It has the same object as the 1946 Act
and therefore, the expression 'foodstuffs' in 1955 Act must receive the same
construction. If that be so, the expression 'foodstuffs' must obviously include
cooked food also.
Further the expression 'food' has generally
been understood to mean nutritive material absorbed or taken into the body of
an 680 organism which serves for purposes of growth work or repair and for the
maintenance of the vital process. What human beings consume is styled as food
and what animals consume is described as animal feed. This distinction has to
be borne in mind. Expression 'foodstuffs' is made of two expressions, 'food'
plus 'stuff'. In other words, the stuff which is used as food would be
foodstuff. Therefore, foodstuff is that which is taken into the system to
maintain life and growth and to supply waste of tissue. If the raw foodstuff
with a view to making it consumable by human beings undergoes a change of its
condition by the process of cooking, the derivative is none the fewer
foodstuffs. If raw rice is foodstuff, does rice when boiled in water cease to
be foodstuff? As the Chinese by an accidental fire in a hut where there were
pigs learnt the advantage of consuming cooked food in place of raw food, the
submission of Mr.
Kanta Rao would make us march backward by
centuries and be a disgrace to modern culinary art. And 'food crop' is another
expression defined in the 1955 Act. Therefore, the expression 'foodstuff' as
used in the 1955 Act comprehends cooked food. The contention of Mr. Kanta Rao,
therefore, must be negatived.
It was next contended that the maximum price
of scheduled items fixed under the impugned orders is economically unprofitable
and the same have been arrived at without scientifically examining the price of
inputs and overhead charges and the reasonable return on investment and
therefore, the exercise of fixing maximum price suffers from the vice of
arbitrariness and must be declared unconstitutional as being violative of Art.
14. While canvassing the submission, some attempt was made both on the side of
the petitioners as well as on the side of the State to take us through the
labyrinth of the tables drawn up by both side showing prices of inputs and
overhead charges. We declined to be involved in the vortex of this cost
accountant's exercise as we are neither experts of the subject nor we consider
it necessary to undertake this exercise. The argument proceeded that the prices
of inputs have escalated so high that the maximum prices determined by the
impugned orders have become uneconomical. For this malaise, petitioners have to
thank themselves because it was an integral part of their agreement with the
Minister of Civil Supplies on December 31, 1980 that the maximum prices fixed
by the impugned orders would be re-examined on the expiration of the three
months from the date of the agreement. Instead of honoring this agreement, the
petitioners within a span of 12 days rushed to this Court and obtained ex-parte
stay order wholly suppressing the fact that the orders 681 impugned in these
petitions have already been replaced by the latest order dated January 5, 1981.
Petitioners who have behaved in this manner are not entitled to any
consideration at the hands of the Court.
In order to illustrate how the Court is not
the forum for scientifically structuring prices of commodities, it may be
pointed out that the petitioners in their price structure tables have added in
respect of each scheduled item 24% of wages. Totalling the wages for seven
items the wage bill accumulates at 175%. And that is equally true of other
overhead charges. Add to this numerous other items of food sold by petitioners
in their establishments and the utter unsustainability of their claim becomes
manifest.
We would however, reject the contention about
the mechanics of price fixation on the short ground that petitioners,
ordinarily do not serve only the scheduled items, but they have large
establishments catering to various tastes and delicacies. No price fixation
order need guarantee profit to an establishment in respect of each unit of
article served or sold. It is the overall picture in the trade or commerce that
needs to be examined. Petitioners have not shown that in their over all
turnover they have since the promulgation of impugned orders suffered losses.
And this situation never fructified because
the 1978 Order was kept in suspended animation for a period of two years and
when the latest order dated January 5, 1981 was promulgated, it was still-born
at the hands of the Court because of the ex-parte stay order obtained by the
petitioners. And we reject this contention for the additional reason as laid
down by a Constitution Bench of seven learned Judges of this Court in Prag Ice
& Oil Mills & Anr. etc. v. Union of India(1) where Chandrachud, C.J. observed
as under;
"In the ultimate analysis, the mechanics
of price fixation has necessarily to be left to the judgment of the executive
and unless it is patent that there is hostile discrimination against a class of
operators, the processual basis of price fixation has to be accepted in the
generality of cases as valid." 682 Not the slightest case is made out for
departure from the proposition laid down by this Court as extracted
hereinabove.
Before we conclude, we would like to
pin-point the unfair advantage which the petitioners have obtained by ex- parte
stay suppressing the material fact that the later order had already replaced
the earlier orders and the latest order was issued with their consent. In the
Writ Petition No. 43/81 the prayer clause reads as under:
"Issue a writ of mandamus or any other
appropriate writ or order holding that G.O. Ms. No. 548 dated 8.9.1978 and G.O.
Ms. No. 626 dated 11.12.1980 of the Government of Andhra Pradesh and the
notification issued by the Collector, the second respondent herein dated
16.12.1980 in pursuance of the said impugned Orders as ultra vires,
unconstitutional and void and quash the same." The bone of contention was
not the power exercised by the State Government but the maximum prices fixed in
exercise of the power conferred on the State Government. The maximum prices
were to be regulated as per the order dated January 5, 1981, and even though this Court was moved for ex-parte stay on January 12, 1981, the fact that the latest order dated January 5, 1981 has replaced the earlier orders was
suppressed from the Court. And peculiarly the State Government did not pursue
vigorously its latest notification dated January 5, 1981 because its operation was not stayed by the Court. However, the entire notification fixing the price of
the menu of the poormen was put under suspended animation leaving the hoteliers
to extort any price to suit their greed. Now that we are dismissing these
petitions and vacate the stay orders, the notification fixing the maximum
prices will revive and can be enforced. But in the meantime the poor of Andhra
Pradesh were made to pay by their nose for their simplest menu and the
difference between maximum price fixed by the impugned notification and the
prices charged by the hoteliers would be unjust enrichment of the hoteliers
undeservedly enjoyed with the assistance of the court by the exercise of the
constitutional power under Art.
32 of the Constitution, and there is no way
of depriving this unjust enrichment The Court 683 set up for justice, including
socio-economic justice, unfortunately lent its assistance to such unjust
enrichment and yet we are helpless.
For the reasons herein discussed, we find no
merits in any of the contentions canvassed on behalf of the petitioners and
therefore, these petitions fail and they are dismissed with costs in each.
H.L.C. Petition dismissed.
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