K PANDURANGA PAI Vs. STATE

JUDGEMENT

(1.) All the writ petitioners are hoteliers. The prayer in all these matters is one and the same i.e., to issue a writ of mandamus or any other appropriate writ or order in the nature of a writ declaring Cl.6 of A.P. Catering Establishments (Fixation of Foodstuffs) Order 1978 and G.O.Ms. No. 56 (F and A) dt. 16-2-1984 as ultra vires of Arts. 14, 16, 19(1)(c) and (g) and Art.21 of Constitution of India; and S.3(2) of the Essential Commodities Act, 1955; and direct the respondents not to implement and not to take any proceedings or make any prosecutions in pursuance of the said orders. The respondents in all these matters are 1) Government of Andhra Pradesh and 2) The Commissioner of Civil Supplies, Government of Andhra Pradesh, Hyderabad.

(2.) . In all these matters, the contentions of the petitioners are as follows : The Government of Andhra Pradesh issued a notification in G.O.Ms. No 548 (F and A) dt. 8-9-1978 known as the A P. Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order 1978 fixing the rates chargeable for the items of food mentioned in the schedule annexed to the order. The Government then issued G.O.Ms. No. 51 (F and A) dated 8-2-1984 in exercise of the powers conferred by clause XII of G.O.Ms. No. 548 and the rates of 7 items of foodstuffs were fixed. Certain conditions were imposed under the notification requiring the hotelirs to supply the specified items between fixed hours. Under the said G.O. the scheduled items should be supplied irrespective of whether the hoteliers are carrying on business in those items or not. The said direction is unconstitutional. Those who do not carry on business in these particular items and those who do not wish to carry on business in those items cannot be compelled to do so. The petitioners would sustain losses if the prices fixed under the G.O. are adhered to. The petitioners closed business from the midnight of 14th/15th of Feb. 1984. The Government then issued G.O.Ms. No. 51. Under the said G.O. the petitioners are liable to be prosecuted if they do not comply with the conditions of the G.O. The Government further issued a notification dated 16-2-1984 in G.O.Ms. No. 56 (F and A) and published in the Gazette on 18-2-1984 directing the hoteliers to keep their establishments open and declared the closure as illegal and penalties were also prescribed if they do not comply with the order. The said notification was issued purporting to be under Clause 6 of G.O.Ms. No. 548 (F and A) dated 8-9-1978. That to close down the business if they do not want to continue their business is the fundamental right of the petitioners guaranteed under Art 19(1)(g) of the Constitution. The same is ultra vires of the Constitution and arbitrary. Further the Government issued the impugned order without jurisdiction and the same is ultra vires of S.3(2) of the Essential Commodities Act, 1955. The State Government has no authorisation to issue the said notification from the Central Government. The impugned order is also violative of Art.21 of the Constitution as it encroaches upon the personal liberty of the petitioners. Therefore, the impugned order is liable to be struck down.

(3.) On the other hand, the contentions of the respondents as can be seen from the counter filed by the second respondent are as follows:- The Government has issued G.O.Ms. No. 548 dt. 8-9-1978 and the same is amended by G.O Ms. No. 626 (F and A) dt. 11-12-1980. The same was challenged in the Supreme Court by the hoteliers and the Supreme Court upheld the said G.O. and dismissed the writ petitions. And subsequently the Government notified G.O.Ms. No. 51 (F and A) dt. 8-2-1984 after due consultation with the various representatives of the hoteliers from various places in the State and the clause that these specified items be sold at specificed hours was based on the advice tendered by the hoteliers themselves during the discussion held on 7-12-1983. The conditions prescribed are minimal and fundamental to protect the interests of the consumers. Instead of implementing the Government Orders giving them a trial, the hoteliers closed their establishments. The main object of the said order is to maintain the supplies and services essential to the life of the community and for providing foodstuffs to the consumers at reasonable prices. The Government was, therefore, obliged to issue directions in the public interest to the hoteliers to re-open their establishments and make available the scheduled items to the consumes at the prices fixed by the Government. To this effect G.O.Ms. No. 56 (Fand A) dt. 16-2-1984 is issued. The same is not ultra vires of Art.19(1)(g) of the Constitution. The State can always prevent the action of the hoteliers in closing their establishments in the public interest and the same is saved by Art.19(6) of the Constitution. The order was made by the Government in lawful exercise of the powers conferred by S.3 and the powers conferred by the Central Government in their orders Nos. G.S.R. 316(E) dt. 20-6-1972 and G.S.R. 800 it 9-6-1978 and with the prior concurrence of the Central Government. There is no infirmity or illegality either in the order or the notification issued thereunder. The direction relating to make available all the items mentioned in the schedule during the hours fixed can be traceable to Cl.6(1) which is held to be intra vires by the Supreme Court Art.19(1)(c) has no application to the case So also Art.21 of the Constitution or Arts.16 and 14 The Writ of Mandamus being purely discretionary relief, the same cannot be granted in favour of the hoteliers. The contentions now raised by the hoteliers were rejected by the Supreme Court in its judgment dated 22-8-1983 reported in AIR 1983 SC 1015 The writ petitions are liable to be dismissed.