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K. Panduranga Pai Vs. State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 3736 and etc. of 1984
Judge
Reported inAIR1985AP268
ActsEssential Commodities Act, 1955 - Sections 3(2) and 3(3); Andhra Pradesh Catering Establishments (Fixation and Display of Prics of Foodstuffs) Order, 1978; Constitution of India - Articles 14 and 19(1); Andhra Pradesh Shops and Establishments Act
AppellantK. Panduranga Pai
RespondentState of Andhra Pradesh and anr.
Appellant AdvocateJ. Eswara Prasad, Adv.
Respondent AdvocateAdd. Adv. General
Excerpt:
constitution - fundamental right - sections 3 (2) and 3 (3) of essential commodities act, 1955, andhra pradesh catering establishments (fixation and display of prices of foodstuffs) order, 1978, articles 14 and 19 (1) of constitution of india and andhra pradesh shops and establishments act - petition seeking issue of writ of mandamus or any other appropriate writ or order in nature of writ declaring clause 6 of order of 1978 and go as ultra vires of articles 14, 16, 19 (1) (c) and (g) and article 21 - prayers to direct respondents not to implement and not to take any proceedings or make any prosecutions in pursuance of said orders - rates of seven items of foodstuffs were fixed by government in exercise of power conferred by impugned government order - certain conditions were imposed.....lakshminarayana reddy, j.1. all the writ petitioners are hoteliers. the prayer in all these matters is one and the same o.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 establishment (fixation of foodstuffs) order 1978 and g.o.ms. no.56 (f & 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.....
Judgment:

Lakshminarayana Reddy, J.

1. All the writ petitioners are hoteliers. The prayer in all these matters is one and the same o.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 Establishment (Fixation of Foodstuffs) Order 1978 and G.O.ms. No.56 (F & 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 contention s of the petitioners are as follows:

The Government of Andhra Pradesh issued a notification in G.O.Ms.No. 548 (F & A) dt 8-9-1978 known as the A.O.Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order 1978 fixing the rates chargeable for the item of food mentioned in the schedule annexed to the order. The Government then issued G.O.ms.No.51(F &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 hoteliers 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 item 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 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&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&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 Governemnt. 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 contention 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&A;) dt 11-12-1980. The same was challenged in the Supreme Court upheld the said G.O. and dismissed the writ petitions. And subsequently the Government notified G.O.ms.No.51 (F&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 specified hours was based on the advice tendered by the hoteliers themselves during the discussions held on 7-12-1983. The conditions prescribed are minimal and fundamental to protect the interest 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 service 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 consumers at the prices fixed by the Government. To this effect G.O.ms.No.56(F&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 establishment 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 dt 9-6-1978 and with the prior concurrence of the Central Government. Thee 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 toCl.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 : [1983]3SCR674 . The writ petitions are liable to be dismissed.

4. These being he contentions of the parties, the questions that arise for consideration in these writ petitions would be as follows:-

(1) Whether Cl.6 of A.P.Catering Establishments (Fixation of Foodstuffs) Order, 1978; and G.O.ms.No.56 (F and A) dated 16-2-1984 and Clauses 2 and 4 of Notification II in G.O.ms.No.51 dated 8-2-1984 are ultra vires of Arts. 14, 16, 19(1)(c) and 19(1)(g) of Constitution of India?

(2) Whether Cl.6 of the Catering Establishments (Fixation of Foodstuffs) Order, 1978 and G.O.ms.No.56 (F &A;) dated 16-2-1984 is beyond the powers delegated to the State Government by the Central Government as per S. 3(2) of the Essential Commodities Act, 1955?

5. Points Nos 1 and 2

The petitioners attack Cl.6 of the A.P.Catering Establishments (Fixation of Foodstuffs)Order, 1978 as unconstitutional. Therefore, let us see what this Clause 6 of the impugned order of 1978 is? This clause is incorporated in G.O.ms.No.548 and it reads thus:-

'6. Power to issue directions

(1) The Government may be notification published in the Andhra Pradesh Gazette from time to time issue such directions of a general character to the owners of catering establishments as they may consider necessary or expedient for carrying out the purposes of this Order and such owners shall give effect to all such directions.

(2) The Commissioner or the Collector as the case may, subject to the directions in clause (1), issue to the owner of a catering establishment such directions, as in his opinion are necessary or expedient for carrying out the purposes of this order and such owner shall give effect to all such directions.'

6. It can be seen from the Order G.O.ms.No.548 (F&A;) dt 8-9-1978 that the same is issued in exercise of the powers conferred by S. 3 of the Essential Commodities Act, 1958 and under the powers conferred by the Central Government in their order No.G.S.R.316 (E) dt. 20th June, 1972 and G.S.R.no.800 dt 9th June ,1978. This order is also noticed with the prior concurrence of the Central Government . Cl.3 of this order reads thus:-

'3. Maximum prices of Food Stuffs,

(1) No owner of a catering establishment shall sell or offer for sale any food stuff of a weight or measure:

(a) less than the weight or measure specified in the Schedule.

(b) In the city of Hyderabad at a price exceeding the price fixed in columns (2) and (3) of the Schedule.

(c) In the rest of the State, at a price exceeding the price fixed by the Collector of the district concerned from time to time.

(2) The Commissioner of Civil Supplies shall have power to amend the schedule from time to time by means of an order published in the Andhra Pradesh Gazette.

(3) The price fixed in sub-cl.(1) is inclusive of packing service charges or table occupation or entrance charges.'

Therefore, from the above, we see that the purpose of issuing of this G.O.ms.No.548 is to fix maximum rates of prices of foodstuffs mentioned in the schedule. In the schedule, the foodstuffs mentioned are Idly, Vada, Upma, Sada Dosa, Coffee, Tea and Meals (Plate). The maximum prices are also fixed by the Government for the above 7 items in G.O.ms.No.51(F&A;) dt 8-2-1984 in exercise of the powers conferred by Clause 12 of G.O.ms.No.548 . G.O.ms.No.548 has been questioned by the hoteliers of Andhra Pradesh by way of writs in the Supreme Court and the learned judges of the Supreme Court delivered judgment in all the writ petitions and the decision reported in Welcome Hotel v. State of A.P. : [1983]3SCR674 upholds the validity of G.O.ms.No.548. Therefore, the right to declare certain food stuffs as essential commodities (7 items mentioned above in our case) and the fixation of maximum prices for the same cannot be questioned by the petitioners any more.

7. Clause 6 of G.O.ms.No.548 which is an innocuous one only says that the Government will have power to issue directions to the catering establishments of a general character which the Government must consider necessary, expedient for carrying out the purpose of the order, that is to say, to carry on the purposes of implementing the maximum prices fixed for the foodstuffs declared as essential commodities. But at the same time, as and when a direction is issued by the Government under this clause, the same can always be questioned whether it is, in fact, necessary and expedient for carrying out the purpose of the order and whether the said direction is violative of any of the provisions of the Constitution.

8. In pursuance of Clause 6 of G.O.Ms.No.548, the Government issued the notification dt. 16-2-1984 inG.O.ms.No. 56 (F&A;) published in the Gazette on 18-2-1984 directing the hoteliers to keep their establishments open and the closure of the hotels declared illegal. It is this order that is now being questioned by these petitioners, saying that the same is violative of Art. 19(1)(g) of the Constitution of India. It is also necessary to mention here that the Government issued G.O.ms.No.626(F&A;) dt 11-12-1980 fixing the maximum prices for the same 7 items of food stuffs and also directed that all the items mentioned in the schedule shall be made available by the catering establishments throughout their business hours. The Government by issuing G.O.ms.No.51 dt.8-2-1984 amended the maximum prices of food stuffs mentioned in G.O.ms.No.626 (F&A;) dt. 11-12-1980 and the rates are refixed. In one of the directions in this G.O.ms.No.51, the Government directed the items for which weight and price are indicated in the schedule shall be made available from 7 A.M. to 10 A.M. and from 4.30P.M. to 8 P.M. in the case of items other than the plate means and plate meals and plate meals shall be made available between 11 A.M. and 2 P.M. and 7 P.M. and 9 P.M. and within these time limits, the schedule items shall be served hot and fresh. The petitioners are not now questioning in these writ petitions the maximum rates fixed for various items. They are only questioning the directions in G.O.ms.No.51 dt 8-2-1984 about the timings mentioned above and the direction that they should be served hot and fresh. They also questioned direction of the Government in G.O.ms.No.56 dt. 16-2-1984 tore-open the catering establishments with immediate effect and that any violations of the directions will entail action against the owners of catering establishments under the provisions of the Essential Commodities Act. 1955. They further questioned the fixation of 12 APIs for extra plate for Cetni in G.O.ms.no.51 dt 8-2-1984 on the ground that one paisa or two paise coins are not in circulation and, therefore, the fixation of 12 paise will cause hardship in returning the change to the persons that wanted extra plate of Chetni. Let us, therefore, consider whether the above directions are violative of Arts. 14, 16, 19(1)(g) or 21.

9. As far as the direction in Cl.4 in G.O.ms.No.51 dt 8-2-1984, saying that the 7 items of food stuffs should be served hot and fresh, the learned counsel for the writ petitioners contend that there are no guidelines in the G.O.about the degree of hotness and freshness at which the food stuffs should be served; and , therefore, the same is arbitrary.

10. The foods with which we are concerned are Idly, Vada, Upma, Sada Dosa, Coffee, Tea and Meals. They are bound to be served hot and fresh for anyone to eat when a person is paying for the same. Those food stuffs, if they are cold and not fresh, they will not be worth eating and on the other hand health hazard. As per the degree of the hotness, they must be to a degree at which a person can eat. Very hot things cannot be eaten. Therefore, the degree of hotness can be to the extent that can be said that they are not cold. It is common knowledge at what degree of hotness these foodstuffs could be any guidelines with regard to the degree of hotness.

11. With regard to freshness, when these food stuffs are prepared just before service; and when they are still hot, they can be called fresh. Otherwise, if they are prepared for some hours ago and become cold, the same can be said to be not fresh. Therefore, with regard to freshness also, there is no need to prescribe any guidelines. Thus we do not find any substance in the argument of the learned counsel for the petitioners that because no guidelines are prescribed in the G.O.Ms.No. 51 with regard to hotness and freshness, the direction is arbitrary. There cannot be any fundamental right for the hoteliers to sell stale and uneatable food.

12. Coming to clause 2 in G.O.Ms.No 51 dt. 8-2-1984, prescribing 12 paise for extra plate of Chetni cannot be said to be arbitrary simply because one paise and two paise coins are not available and they are out of currency. Any extra paise of less than five can be adjusted when the total bill is paid. If in the total bill paise less than 5 paise were to be paid in paise coin, neither the hotelier nor the customer would bother to give it up. Therefore the clause cannot be questioned as arbitrary.

13. Then, there is the question relating to the fixation of timings at which the food stuffs should be sold as per Cl.4 of notification II of G.O.ms.No.51 dt .8-2-1984. G.O.ms.No.51 directs that all the persons that are governed by this G.O.should sell and make available scheduled foodstuffs in between 7 A.M. to 8 P.M. with an interval in between 10 A.M. and 4.30 P.M. and in the case of plate meals from 11 A.M. to 2 P.M. and from 7 P.M. to 9 A.M. This fixation of timings is questioned by the petitioners as arbitrary and violating the fundamental right guaranteed under Art. 19(1)(g).

14. Art. 19(1)(g) guarantees that all the citizens shall have the right to practice any profession or to carry on any occupation, trade or business. We see from Art. 19(6) that nothing in sub-cl.(g) prevents the State from making any law imposing, into the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. Therefore, we have now to see whether the prescription of timings in the above manner would be a reasonable restriction in the interest of the general public?

15. It is not now is dispute that the A.P.Shops and Establishments Act covers hotels and restaurants also. S.4 of the said Act prescribes time limits that no shop should open earlier to 5 A.M. and keep open later than 11 P.M., but in between these hours i.e., from 5 A.M. to 11 P.M. it is absolutely the discretion of he shop-keepers either to keep open their shops or only keep open for certain hours in between these limits. Now the direction issued in G.O.ms.No.51 makes it obligatory and compulsory for the shop-keepers not only to keep open their hotels in between the hours prescribed in this direction but also they must make available the food stuffs declared as essential for sale. The shop-keepers not only to keep open their hotels in between the hours prescribed in this direction but also they must make available the food stuffs declared as essential for sale. The shop keepers have no freedom or option to close their shops for any reason whatsoever during these prescribed hours. Surely the same is , in our opinion, an unreasonable restriction. This direction applies to all hotels, restaurants and eating houses in the entire State whether it is a city, town or a village. Hotels, restaurants and eating houses are not charitable institutions. They are not established under any licence from the Government. They did not receive any aid or assistance from the Government. The business in hotels, restaurants and eating houses is, pure and simple, a business of individuals to earn profits. Therefore, it is for them to decide as what food articles are to be sold and in what hours in their premises.

16. For instance, there is a canteen at a wayside Railway Station, The canteen-keeper can expect business only at the timings when the trains arrive and not in other hours. To direct him to keep his premises open and make the foodstuffs available during all the hours fixed by the Government in this G.O.is certainly unreasonable. So also the restaurants and canteens in a village near a cinema theatre will have business only during the cinema hours, say, from 6 P.M. to 10 P.M. If we were to ask the said canteens and restaurants to keep open in the hours prescribed in this G.O. and make available al these foodstuffs, it is certainly an unreasonable restriction. Thus we can give any number of instances with regard to the unreasonableness of this direction. Therefore, when the Government is not giving any assistance or aid or the same are not run on any licence from the Government which licence prescribes certain conditions, the restrictions imposed with regard to the timings of keeping open the premises and making available all the foodstuffs all the time are certainly unreasonable and offend the right of business guaranteed under Art. 19(1)(g).

17. It is not in doubt that any direction of the Government, in order to be valid, should not offend any of the fundamental rights guaranteed to a citizen by our Constitution. If any authority is necessary for this proposition, we can have it in a decision reported in Narendra Kumar v. Union of India, : [1960]2SCR375 . Their Lordships of the Supreme Court observed as follows (Para 6):-

'It is fair and proper to presume that in passing the Essential Commodities Act, the Parliament could not have intended by the words used by it in S. 3 to include a power to make such provisions even though they may be in contravention of the Constitution. The fact that the words 'in accordance with the provisions of the articles of the Constitution' are not used in the section is of no consequence. Such words have to be read by necessary implication in every provisions and every law made by the Parliament on any day after the Constitution came into force. It is clear therefore that when S. 3 confers power to provide for regulation or prohibition of the production, supply and distribution of any essential commodity it gives such power to make any regulation or prohibition in so far as such regulation and prohibition do not violate any fundamental rights guaranteed by the Constitution.'

Therefore, when the regulations imposed in this G.O.ms.No.51 directing the hoteliers to keep open their premises and make available all the foodstuffs all these hours irrespective of the need or the necessity of the public in that particular area in which the hotel is situated, it is certainly an unreasonable restriction on the right of business of the hoteliers. Thereof, in our opinion , Cl.4 of Notification Ii of G.O.ms.No.51 cannot be allowed to stand as it is . It has to be read down as the timings mentioned therein are subject to the business hours of the catering establishments.

18. Moreover, it can be seen from G.O.ms.No.626 dt 12-12-1980 that the direction is that all the items mentioned in the schedule shall be made available by the catering establishments throughout their business hours. According to Additional Advocate General, when the hoteliers represented to the authorities that it would be hardship for them to make all the foodstuffs available through out the business hours, the Government has consented to modify the same and fixed the hours in the case of tiffin foodstuffs from 7 A.M. to 10A.M. and again from 4.30 P.M. to 8 P.M. and in the case of plate meals from 11 A.M. to 2 P.M. and 7 P.M. to 9 P.M. This notification is supplemental to the notification issued along with G.O.ms.No.626 dt. 11-12-1980 where the foodstuffs are directed to be supplied throughout the business hours. Simply because some representatives of the hoteliers' association agreed to certain terms (sic) which on the ground of agreement. There cannot be an agreement against law.

19. Then, there is the other questions as to right of the hoteliers to close their business if they do not think the same is profitable. In the case before us, when the Government imposed maximum prices for certain of the foodstuffs and made a condition that all the restaurants should sell all those foodstuffs during the hours prescribed by the Government on pain of penalty, the hoteliers closed their business. Then the Government issued G.O.ms.No.56 dt. 16-2-1984 to reopen the catering Establishemnts with immediate effect and continue the sale of foodstuffs at the prices mentioned in the order with immediate effect. It is this G.O. that is being questioned by the petitioners as offending their fundamental right guaranteed under Art. 19(1)(g).

20. The learned counsel for the writ petitioners submitted thatCl.6 of the A.P. Catering Establishments (Fixation of Foodstuffs) Order, 1978 in G.O.ms.No.56 (F&A;) dt. 16-2-1984 is beyond the powers delegated to the State Government by the Central Government as per S. 3(2) of the Essential Commodities Act, 1955. The Central Government in their Orders Nos. G.S.R. 316(E) dt. 20-6-1972 and G.S.R.800 dt. 9-6-1978 conferred powers on the State Government by way of delegation to make orders under S. 3 of the Essential Commodities Act, 1955. We see from G.S.R.800 dt. 9-6-1978, the Central Government directed that the powers conferred on it by sub-sec. (1) of section 3 of the said Act to make orders to provide for the matters specified in Class.(a), (b), (c) and (d), (e), (f),(g),(I)(ii) and (j) of sub-sec. (2) thereof, shall in relation to food stuffs be exercisable also by a State Governemnt subject to certain conditions. Under S. 3(2)(c), the State Government has got authority to give directions for controlling the prices at which the essential commodities may be bought or sold. Under S. 3(2)(b), the State Government has got power to issue directions for regulating by licences, permits or otherwise the storage, use or consumption of any essential commodity. Under S. 3(2)(e), the State Government can give directions prohibiting or withholding the sale of any essential commodity ordinarily kept for sale.

21. The learned counsel for the petitioners submit that under the powers delegated to the State Government by the Central Government production of essential commodities is the one that is not delegated. We are unable to understand what exactly the learned counsel meant by this. We see from S. 3(1) that the Central Government has got the authority to provide for regulating or prohibiting the production of an essential commodity. Therefore, the Central Government also cannot direct anybody to produce an essential commodity when the person is not in that business. As and when a person is engaged in production of some essential commodity, then the Central Government has got the power to regulate its production. It can even prohibit the production. So also the State Government under delegated powers by the Central Government, can regulate production and distribution of essential commodities. S. 3(2)(d) speaks about regulation of the storage, transport, disposal, distribution, use or consumption of the essential commodity. Therefore, the State Government under the delegated authority may not be able to direct any petitioners hoteliers to produce the essential commodities. But if they produce essential commodities, the State Government can certainly give directions by way of regulating the production and distribution. Therefore, in our opinion, the State Government has no power, whatsoever, to direct any of the writ petitioners to necessarily produce any or all of the essential commodities namely Idly, Upma, Vada , Sada Dosa, Coffee, Tea , meals plate. But once the petitioners produce these goods, the State Government has got the right to issue directions by way of regulation i.e.with regard to price, purity and by way of directing that they should be sold hot and fresh.

22. Therefore, Cl.6 of the A.P.Catering Establishments (Fixation of Foodstuffs) Order, 1978 is only an authority conferred on the Governemnt to give directions for the purpose of carrying out the provisions of the Catering Establishment Fixation of Foodstuffs, Order.1978 i.e, G.O.ms.No.548. Therefore, the clause as such cannot be said to be beyond the powers of the State Government . We have to examine each direction that is given under Cl.6 of the G.O.ms.No.548. As per G.O.ms.no.56 dt. 16-2-1984, we have already held that it is beyond the powers of the State Government to issue such a direction under the delegated powers under orders No.G.S.R.316(E) dt. 20th June, 1972 and G.S.R.No.800 dt. 9-6-1978. As a matter of fact, the Central Government itself has no power under the Essential Commodities Act to issue a direction as in G.O.ms.No.56 dt.16-2-1984, and order the petitioners to reopen their catering establishments with immediate effect.

23. The learned counsel for the petitioners contended that not to do business in the foodstuffs is as much a fundamental right as to do business. A right to do business implies right not to do business.

24. There is no law that compels a man to do business against his will and that too to do a particular business. In other words, if the hoteliers want to close down their business of dealing in foodstuffs, they have every right to do so. If any such law is made, it has to be tested as to whether the same contravenes any of the provisions of the Constitution. In the case before us, the Government issued G.O.ms.No.56 dt. 16-2-1984 declaring that closure of all hotels, catering establishments boarding houses as illegal and contrary to the provisions of the order and directing the owners of such hotels, catering establishments and boarding houses which have been closed down shall reopen the same with immediate effect and continue the service and sale of foodstuffs. It is this direction that is attacked by the petitioners as offending Art. 19(1)(g). Art. 19(1)(g) guarantees to all citizens of India a right to do business or practice any trade. No doubt, Art. 19(6) of the Constitution allows certain reasonable restrictions on the right of a citizen to do business in the interest of general public. The reasonable restrictions will arise only if a person does business or wants to do business. But in the event of a person does not do any business and want to stop the same if he is already in it, no question of any reasonable restriction on the practice of a business or trade would arise in that case.

25. Then the learned Additional Advocate General contended that the Government can impose certain restrictions before a person closes down a business. Surely, the Government can impose certain restrictions while a citizen who is engaged in business wants to close business; that is to say, the Government can ask the citizen to fulfil certain obligations or conditions in the interest of the public before he closes down his business provided he started the business under a licence having conditions; otherwise not. In a decision reported in Excel Wear v. Union of India, : (1978)IILLJ527SC , their Lordships of the Supreme Court held that the right to close down a business is an integral part of the fundamental right to carry on business. But at the same time, their Lordships said that no right is absolute in its scope, so is the nature of this right and that it can certainly be restricted, regulated or controlled by law in the interest of the general public. In that decision, their Lordwhips also had occasion to observe that the law may provide to deter the reckless, unfair, unjust or mala fide closures but not to permit the employer to close down is essentially n interference with his fundamental right to carry on the business.

26. In another decision reported in Rajkumar v. Authority, P. of Act : (1960)IILLJ543MP , the Bench of the Madhya Pradesh High Court observed that the carrying of any business being a right and not an obligation, any industrial concern ought to have as much liberty to carry it on as to close it down particularly when it does not yield any profit.

27. The learned Additional Advocate General then quoted the decision reported in Swastik Khandasari Sugar Mills v. State of A.P., (1983) 2 Andh WR 284 where a Bench of this Court upheld a notification issued by the Director, Sugar and Cane Commissioner, Andhra Pradesh, Hyderabad, dated 22-1-1983 directing the licences of various Khandasari units in the State to continue to crush cane up to the end of 30th April 1983 observing that as per conditions 4 and 5 of the licence, every licensee should accept and crush the sugar-cane made available to the unit up to the maximum crushing capacity during the crushing season 1982-83 and the licensee is requested to obtain prior permission of the Cane Commissioner for closure of crushing operations in the factory during 1982-83 crushing season. In dealing with the above notification, the learned Judges of this Court observed as follows:-

'The object and purpose of the impugned notification and the proceedings issued by the Director of Sugar and Cane Commissioner is to safeguard the interests of the Cane growers having regard to the circumstances prevailing during the crushing season in the year 1982-83 and the very low and unremunerative prices that was being paid t the cane growers by the producers of Khandasari sugar. The restriction if any imposed by the impugned notification, and the proceedings issued by the second respondent are temporary in nature and will be in effect only upto 30th April 1983. They are reasonable restrictions within the meaning of Art. 19(6) of the Constitution. The impugned proceedings dated 22nd Jan.1983 issued by the Director of Sugar and Cane Commissioner does not constitute an unreasonable restriction on the right of the petitioners to carry on trade and business guaranteed under Art. 19(1)(g) of the Constitution.'

28. The facts of the case before us are entirely different from the one with which a Bench of this Court was dealing in the above mentioned case. The Cane Commissioner can issue a direction compelling the sugar-cane factories to crush the sugar-cane during the period of entire season for the simple reason that the Khandasari Sugar Factories are working under a licence obtained under the Andhra Pradesh Khandasari Sugar Manufacturing Licensing Order 1966 and as per the conditions 4 and 5 of the licence, the licensee shall accept and crush whatever sugarcane is made available up to the maximum crushing capacity at the notified price during the crushing season. Because of these conditions under which the sugar-cane factories are working, the Sugar-cane Commissioner could issue direction to implement these conditions. Moreover , the order is confined to one season. Therefore, in those circumstances only, their Lordships of this Court in the above decision were able to hold that the notification of the Sugar-cane Commissioner is not violative of Art. 19(1)(g) in the case before us, the hoteliers are not conducting business in their hotels under any licence and conditions. It is free trade. They are not doing business in obligation to anybody, not even to the Government. That being the case, they are free to close down their shops as and when they like. Moreover, we do not see any nexus in between G.O.Ms.No.548(F&A;) dt. 8-9-1978 and the directions in Column 4 of Notification No.II in G.O.ms.No.51 dt. 8-2-1984 and G.O.ms.No.56(F&A;) dt. 16-2-1984. The Government can fix maximum prices for foodstuffs declared as essential commodities under the Essential Commodities Act. But to regulate business hours of hoteliers and to order to compulsorily do business in foodstuffs is beyond the powers conferred by the Central Government in a State Government when powers are delegated under G.S.R.316(E) and the Central Government has no such power under S. 3 of the Essential Commodities Act. Therefore, in our view Sl.(6) of the A.P.Catering Establishments (Fixation and Display of Prices of Foodstuffs) Order, 1978 (G.O.ms.No.56 (F&A;) dt. 16-2-1984). Being an innocuous provision giving power to the Government to issue directions to implement the provisions of G.O.ms.No.56 dt. 16-2-1984 cannot be said to be violative of Art. 19(1)(g) or even Art. 14 or 16 of the Constitution of India. But we hold the direction issued in G.O.ms.No.56 in pursuance of the powers conferred on the Government under Cl.6 of the G.O.ms.No.548 dt. 8-9-1978 to the effect that the catering establishments which have been closed down shall be reopened with immediate effect is violative of Art. 19(1)(g) of the Constitution.

29. We further hold that the direction that as and when the foodstuffs mentioned in the schedule should be served hot and fresh is a reasonable restriction. But we hold that the direction of the Government in G.O.ms.No.56 dt. 16-2-1984 to reopen the catering establishments with immediate effect and continue the service of sale of foodstuffs at the prices mentioned in the order with immediate effect on pain of penalty is violative of Art. 19(1)(g) of the Constitution. Arts. 14 and 21 are not applicable to the facts of this case. The petitioners are also entitled for a direction that if any proceedings are launched against any one of the petitioners for violation of the directions that are found ultra vires by us under Art. 19(1)(g) of Constitution of India, the respondents are directed not to proceed with the same.

30. In the result, we hold that clause 6 of Andhra Pradesh Catering Establishments (Fixation of Foodstuffs) Order, 1978 is not hit by any of the provisions of the Constitution and is therefore valid.

However, we hold that clause 4 of Notification II in G.O.ms.no.51 dt. 8-2-1984 shall be read down to the effect that the timings mentioned therein are subject to the business hours of the catering establishments. We hold that clause 2 of Notification II in G.O.Ms.No.51 dt. 8-2-1984 is not ultra vires of any of the provisions of the Constitution. We further hold that G.O.ms.No.56 dt. 16-1-1984 as violative of Art. 19(1)(g) of the Constitution and we accordingly strike down the same. Thus the Writ Petitions are partly allowed and partly dismissed. No costs. Addl.Advocate General's fee Rs.250/- in each.

31. Petitions partly allowed.


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