Jammu & Kashmir High Court
) Ahil Gupta & Ors vs State Of J&K & Anr on 30 November, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
Sr. No. 07
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No. 424/2017
c/w
OWP No. 422/2017
1) Ahil Gupta & ors. ...Petitioner(s)
Through:- None
V/s
State of J&K & anr. .....Respondent(s)
Through:- Mr. Irfan Inqlabi, GA
2) K. S. Hospitality
Venture & ors.
Through:- Mr. Parimoksh Seth, Advocate in OWP No.
422/2017
Vs
State of J&K & anr.
Through:- Mr. Irfan Inqlabi, GA
CORAM : HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGMENT
30.11.2023 OWP No. 424/2017 Having regard to the pleadings and the relief claimed by the petitioners, with the passage of time, this petition has become infructuous.
Accordingly, this writ petition shall stand dismissed as having been rendered infructuous along with connected application(s). OWP No. 422/2017
01. The petitioners in the present petition have challenged Government order No. 39-FCS&CA of 2017 dated 20.02.2017 which has been issued by the Government of Jammu and Kashmir through Secretary to Government, Department of Food, Civil Supplies & Consumer Affairs, by virtue of which, there was complete ban on sending dry fruits/sweet packets etc. with invitation cards by any person to relatives, friends, guests, invitees etc.; and use of amplifiers/loud speakers/fire crackers in 2 OWP No. 424/2017 c/w OWP No. 422/2017 any function; and number of guests to be invited on marriage of daughter (Barat), marriage of son and small functions like engagement of son/daughter and other small functions have been restricted to a maximum of 500, 400 & 100 respectively; as also number of non-veg/veg dishes to be cooked in such function have been restricted to a maximum of 07 each and two stalls of sweets or fruits; as well as there was no wastage of any food items etc.
02. By virtue of the said order, thus, the Government had restricted the number of guests as well as number of dishes to be served in marriage function. The said order is claimed by the Government to have been issued under the provisions of The Essential Commodities Act, 1955. The Government order under challenge reads as under:-
Government of Jammu and Kashmir Department of Food, Civil Supplies and Consumer Affairs J&K, Civil Secretariat, Jammu Subject:- Imposition of restrictions on injudicious use of Essential Commodities in social/Govt./private functions.
GOVERNMENT ORDER NO:- 39-FCS & CA OF 2017 DATED :- 20.02.2017 Whereas; a number of complaints/representations have time and again been received in the Department regarding injudicious use of Essential Commodities and extravaganza expenditures being made In both public and private functions by most of the people in the state.
Whereas; it has also been observed that a lot of noise, air, sole and water pollution is also caused by using big Generator sets/using high pitch sound amplifiers/loud speakers/Decks/profuse lightning/ bursting crackers etc in such functions.
Whereas; it has also been observed that by organizing big gatherings/inviting uncontrolled number of guests in such functions, the road often get blocked due to wrong parking of vehicle by the visitors thereby creating jams.
Whereas; it has also been observed/reported that large quantities of food items(both veg and non-veg) besides beverages, fruits, sweets etc are not only being served during these functions but most of it gets wasted and is thrown into dustbins.3 OWP No. 424/2017 c/w OWP No. 422/2017
Whereas; a lot of inconvenience is being caused to the masses in general and old, infirm, students and sick people in particular by the high pitch music etc. Whereas; it has been observed that such excessive/injudicious use of essential commodities/meeting extravaganza arrangements by some people in the society as one group of people result in increase of demand/cost of Essential Products like Rice, Atta, Meat, vegetables, fruits etc in the market and on the other hand create economic stratification/social divide in the society besides affecting economic status of poor/weaker section of the society.
Now therefore, keeping all the above referred factors in view, it is hereby ordered as under:-
i) There shall be complete ban on sending dry fruits/sweet packets etc with invitation cards by any person to relatives, friends, guests, invitees etc.
ii) There shall be complete ban on use of amplifiers/loud speakers/fire crackers in any Government or private social function, which create sound beyond human capacity of hearing.
iii) The number of guests to be invited on marriage of daughter (Barat);
marriage of son and small functions like engagement of son/daughter and other small functions should be restricted to a maximum of 500, 400 and 100 respectively.
iv) The number of non-veg/veg dishes to be cooked in such functions should be restricted to a maximum of 07 each and two stalls of sweets or fruits.
v) It should be ensured that there is no wastage of any sort of food Items uncooked or cooked during such functions. Even if there is some surplus food items (cooked), same shall not be thrown into dustbins but should be provided to deserving people/old age homes etc after property preserving/packing the same.
vi) No plastic/un-decomposable material shall be thrown in open field but shall be collected in separate dustbin and shall be disposed of properly by the host/organizer.
This order shall come into force w.e.f. 1st of April 2017. By Order of the Government of Jammu and Kashmir.
03. The challenge to the order has been thrown on the grounds that the said order is illegal and unconstitutional and violates the fundamental rights of the citizens by restricting them from fundamental right of celebrating and enjoying the functions like marriages, ring ceremonies etc. and by passing the said order, there is direct interference in the personal affairs of all the citizens. The Government order impugned also does not provide that in case the order is violated, who will be the competent to 4 OWP No. 424/2017 c/w OWP No. 422/2017 take cognizance or the offence would be cognizable or bailable or non- bailable and which Court is competent to try the same.
04. The respondents have in support of the passing of the said order/restriction submitted that the order is valid has been passed in the larger interest of the public and the said order has been passed to avoid the wastage of food items and the said order has been passed by the Government under the provisions of the Essential Commodities Act, which gives power to the Government to control, production, supply, distribution, etc. of essential commodities and the said order has been passed to regulate and prohibit the production, supply etc. The said order has been passed by the Government as a policy decision to prevent extravagance and wastage of food items.
05. Heard learned counsel for the parties and perused the record on file.
06. The first question raised by learned counsel for the petitioners is that there is no power given to the Government under the provisions of Section 3 of the Essential Commodities Act, 1955 to pass such an order. Learned counsel submits that earlier also Government Order No. 1463- GAD of 2004 dated 27.10.2004 was passed which was on the similar lines to restrict number of guests and the dishes to be provided in the marriage functions and the said order was quashed by this Court holding that Section 3 of the Essential Commodities Act, 1955 does not provide for such restrictions and also that such order cannot be passed by invoking the provisions of Section 3 of the Essential Commodities Act, 1955. He 5 OWP No. 424/2017 c/w OWP No. 422/2017 further submits that the said order was held by this Court to be unconstitutional. The Government by virtue of the order impugned has regulated the scale of hospitality at wedding and related ceremonies which has been given hereinabove.
07. The said order as argued by learned counsel for the petitioners violates the fundamental rights of the citizens to celebrate and enjoy the functions like marriages, ring ceremonies etc as per their rights and customs and passing of the such order is direct interference in the personal affairs of all the citizens. Thus, this being argued that the order is illegal and unconstitutional.
08. Section 3 of the Essential Commodities Act, 1955 provides as under:-
"3. Powers to control production, supply, distribution, etc., of essential commodities. -- (1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide--
(a) for regulating by licences, permits or otherwise the production or manufacture of any essential commodity;
(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops generally or of specified food-crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops.
(c) for controlling the price at which any essential commodity may be bought or sold;
(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity;6 OWP No. 424/2017 c/w OWP No. 422/2017
(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;
[(f) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity,--
(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him or,
(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order."
09. The question arises as to whether such an order can be passed by the Government under the provisions of Section 3 of the Essential Commodities Act, 1955 or whether such an order is violative of fundament rights of a citizen.
10. Perusal of Section 3 of the Essential Commodities Act indicates that if the Government is of the opinion that it is necessary or expedient so to do for maintaining or increasing supply of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order provide for regulating or prohibiting the production, supply and distribution thereof or trade or commerce therein.
11. From the provision referred to above, it cannot be said by any stretch of imagination that the legislature intended by the said provision that the Government can issue such an order or regulate the personal affairs of the life of an individual and infringe upon the freedom of a citizen to live with dignity. The main object for which Section 3 of the Act has been enacted is that the provision is made for making the essential commodities available to the citizens at a reasonable price and is 7 OWP No. 424/2017 c/w OWP No. 422/2017 distributed equitably. The order in question has not been passed for fixing the price of the essential commodity and making the same available to the citizens at reasonable price or making its distribution equal but the order fixed the number of guests, who can attend the function and the quantity of food stuffs which are to be served to the guests.
12. In P. J. Irani v. State of Madras & anr. reported as AIR 1961 SC 1731, the Hon'ble Apex Court while interpreting the scope of judicial review vis-à-vis legislative policy has held as under:-
"The order passed by the Government can be the subject of judicial review by the Courts, for finding out where (a) it was discriminatory so as to offend Article-14 of the Constitution, (b) the order was made on grounds which were germane or relevant to the policy and purpose of the Act, and (c) it was not otherwise mala fide."
13. In Ugar Sugar Works Ltd. V. Delhi Administration & ors. reported as AIR 2001 SC 1447, the Hon'ble Supreme Court has held as under :-
"The policy decision can be reviewed if it is ultra vires to the provisions as contained in Constitution of India & the Act and is arbitrary, unfair and unreasonable. In the case in hand, the Government has no power under the Act to regulate with regard to calling of guests in any function nor the Government has the power to impose restrictions regarding serving of food stuffs and imposition of any such restriction would amount to interference in the personal life of a citizen which amounts to vilation of Article-21 of the Constitution of India. Every citizen has a fundamental right to live with dignity as per his means and the Government has no power to regulate the personal life of a citizen. If such order is to be interfered, a citizen has to give information about the number of guests who will attend the function and the quantity of food stuff along with the menu which is to be served to them and to enforce 8 OWP No. 424/2017 c/w OWP No. 422/2017 such notification, the Government to keep a watch over the functions.
A citizen has a right to perform the wedding ceremonies according to his tradition and culture and as per the tradition in the society, they have to call the nears and dears to attend the wedding functions and other allied ceremonies. The guests are to be called as per the tradition prevalent in the community and the citizens spend the money on said functions as per their capacity. The imposition of such restriction would amount the violation of Article 21 of the Constitution of India and any such order which violates the fundamental rights or inflict with the provisions of Constitution of India cannot sustain. The Government can ask the citizen about the source of money which has been spent on the wedding ceremonies and if a person spends ill-gotten money, the Court has every right to take action against such an individual."
14. In Ramsharan Autyanprasi & anr. vs. Union of India & ors. reported as AIR 1989 SC 746, the Hon'ble Apex Court wile interpreting life and personal liberty of an individual has held as under:-
"It is true that life in its expanded horizons today includes all that gives meaning to a man's life including his tradition, culture and heritage and protection of that heritage in its full measure would certainly come within the encompass of an expanded concept of Article 21 of the Constitution. Yet, when one seeks relief for breach of Article 21, one must confine oneself to some direct, overt and tangible act which threatens the fullness of his life or the lives of others in the community."
15. It will be appropriate and advantageous herein to refer the judgment of this Court in case titled All J&K Banquet Hall and Caterers Association and ors. etc vs. State of J&K & ors., reported as 2007 AIR (J&K) 27 wherein it has been held as under:-
"20. Law is a regulator of human conduct but no law can effectively work unless there is an element of acceptance by the people in the society. The present order which is a public policy as 9 OWP No. 424/2017 c/w OWP No. 422/2017 asserted by the learned Additional Advocate General is against the wishes of the citizens and is ultravires to the Constitution as well as against the Act, which demonstrates from the fact that order issued in the year 1973 had to be kept in abeyance. The contention raised by the learned Additional Advocate General is that the impugned order has been issued after the sub-committee obtained the public opinion but from the record, it reveals that the impugned order has not been issued after obtaining the public opinion, rather the subcommittee was constituted after issuance of order and subsequently, the opinion from the public was obtained. There is no legal bar that after the issuance of order, the State Government cannot obtain suggestions from the public but the order can be enforced only if the same is legal and enforceable.
21. The contention has been raised by the State counsel that the impugned order has been issued with the aim and object that people may not indulge in extravagance and can save the foodgrains as the country is facing scarcity of food. I have considered this aspect of the case. The State had issued SRO 455 on 11th Sept' 73 i.e. more than three decades earlier. At that time, the country was facing acute shortage of food grains and was importing the food grains to meet the demand but due to green revolution, the country has not only become self sufficient in the production of food grains and eatables but is also exporting the same in substantial quantity. The country is today facing the problem of storing the food grains and these are being kept in the open and are being damaged. Petitioners have pleaded that about 15% of the food stock is only being consumed and more than 20% of the food stock gets rotten in godowns because of the non user and non consumption. Respondents have not controverted this fact.
22. The State has also taken a plea that this policy decision has been taken so that people may not indulge in extravagance. For that the State has to make the people aware that they should not indulge in extravagance and should save the money as well as the food which can be utilized for the welfare of the Society, but the State has no power to frame any such policy which is violative of the fundamental rights of the citizens.10 OWP No. 424/2017 c/w OWP No. 422/2017
23. As it has been noticed above, the impugned order is beyond the scope of Section 3(1) of the Act and is unenforceable. It is violative of the fundamental rights of the citizens, and therefore, cannot be sustained. It has not been mentioned in the policy decision in case anyone violates the same, who is competent to take cognizance of, whether the offence will be cognizable or non- cognizable, bailable or non-bailable and which court will be competent to try the offence."
16. Having regard what has been stated above, the impugned order passed by the Government being beyond the scope of Section 3(1) of The Essential Commodities Act, 1955 is unenforceable which is also violative of fundamental rights of the citizens.
17. Therefore, for the reasons stated above, this petition is allowed and the order impugned i.e., Government order No. 39-FCS&CA of 2017 dated 20.02.2017 is quashed.
(VINOD CHATTERJI KOUL) Judge JAMMU RAM MURTI/PS 30.11.2023 Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No