Kerala High Court
Kerala Bottled Water Manufacturers ... vs State Of Kerala on 23 March, 2020
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 23RD DAY OF MARCH 2020 / 3RD CHAITHRA, 1942
WA.No.304 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 349/2020(P) OF HIGH COURT OF KERALA
APPELLANT/S/PETITIONERS:
1 KERALA BOTTLED WATER MANUFACTURERS ASSOCIATION (KBWA),
REPRESENTED BY ITS PRESIDENT, EASTERN CORPORATE OFFICE,
NH BYPASS, EDAPPALLY P.O., KOHI-682 024.
2 MOHAMED M.E.,
PRESIDENT, KERALA BOTTLED WATER MANUFACTURERS
ASSOCIATION, EASTERN CORPORATE OFFICE, NH BYPASS,
EDAPPALLY P.O., KOHI-682 024.
BY ADV. SRI.JOY THATTIL ITTOOP
RESPONDENT/S/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY, ENVIRONMENT DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 GOVERNMENT OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, THIRUVANANTHAPURAM-
695 001.
SRI. SURIN GEORGE IPE, SR. GOVERNMENT PLEADE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2020, THE
COURT ON 23-03-2020 DELIVERED THE FOLLOWING:
W.A.No. 304/2020 :2:
'CR'
JUDGMENT
SHAJI P. CHALY, J This writ appeal is preferred by the writ petitioners challenging the judgment of the learned Single Judge in W.P.(C) No. 349 of 2020 dated 10.01.2020, whereby the following reliefs sought for by the appellants were declined:
1. Issue a writ of certiorari, or any other appropriate writ, order or direction of the nature of certiorari, calling for the records leading to Ext.P7, and quash Ext.P7 as illegal;
2. Issue a writ of mandamus, order or direction to respondents to extend the date (01.01.2020) on which the plastic ban under Ext.P2 comes into force, to the extent it applies to PET/PETE drinking water bottles, by 6 months.
2. The subject issue relates to Ext. P7 notification issued by the Environment Department of the State Government dated 01.01.2020 apparently on the basis of the directions issued by this Court in W.P.(C) No. 35818 of 2019 filed by the Kerala Bottled Water Manufactures Association i.e., the appellants herein. The order reads thus:
W.A.No. 304/2020 :3:
GOVERNMENT OF KERALA Abstract Environment Department - W.P.(C) 35818 of 2019 filed by Kerala Bottled Water Manufacturers Association (KBWA) - High Court judgment dated. 24.12.2019-complied-Orders issued.
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ENVIRONMENT DEPARTMENT G.O. (Rt.) No. 1/2020/ENVT Dated, Thiruvananthapuram, 01/01/2020
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Read: High Court order dated. 24.12.2019 in W.P.(C) 35818 of 2019 filed by Kerala Bottled Water Manufacturers Association (KBWA) Kerala Bottled Water Manufacturers Association has filed W.P.(C) 35818/2019 before the Hon'ble High Court aggrieved by the hastened decision to impose complete ban on single use plastic items including PET/PETE bottles below 500 ml and they have been subjected to irreparable loss owing to the piling up of raw materials and stocks and hence prayed for court's intervention for exempting from the ban.
The Hon'ble High Court as per the judgment read above have ordered that the 1st respondent-Secretary to Environment, Government of Kerala shall consider the representation for enlargement of time and take appropriate decision in the matter adverting to the grievances of the petitioner and to take a decision at the earliest.
Government have examined the matter in detail. The ban has come at a time when the proliferation of single-use disposables has resulted in a massive increase in the amount of waste generated per person. Being a very densely populated consumerist state, this has taken a serious toll on our fragile ecology. Our river, mangroves, hills, seas and even forests are overflowing with large quantities of unprocessed waste. More than 3000 tons of waste were removed from our forest in the past one year alone under Project Green Grass. The Government of Kerala has through the Suchitwa Mission, over the past five years sensitized citizens towards the adoption of a green Protocol for Government institutions and public functions by completely replacing disposable items with reusable and eco-friendly substitutes. The programme has been met with wide acceptance across the State. Despite the Government's best effort, we have not been able to completely eliminate the indiscriminate pollution of our dumping of large W.A.No. 304/2020 :4: quantities of waste into our nature. These circumstances have necessitated the ban. In this circumstance, Government feel no need for the enlargement of time and Government stick on to the earlier decided date i.e, from 01.01.2020.
The Hon'ble High Court order dated 24.12.2009 in 35818 of 2019 is thus complied with.
(By order of the Governor) VALSA V Additional Secretary.
3. The issue pertains to the blanket banning of single- use plastic (disposable plastic) in the State of Kerala on and with effect from 01.01.2020 issued vide GO(Ms) No. 6/2019/Envt. dated 27.11.2019 and the modifications and detailed clarifications issued as per Ext.P2 notification dated 17.12.2019, whereby orders are issued by the State Government under the Plastic Waste Management Rules, 2016, taking into account the fact that cases were being filed before the National Green Tribunal and this Court by many non-gazetted officers and individuals praying for directions to take steps to ban single use plastic. The learned Single Judge, after taking into account the contentions put forth by the appellants, has taken a view that though the first appellant association claims to be a registered one, no materials like inventories or stock register has been placed on W.A.No. 304/2020 :5: record to prima facie establish the existence of already manufactured stock. It was further found that many NGOs and other environmentalists have been agitating the issue qua plastic-ban since long and in such circumstances, the manufacturers like the appellants ought to have been sceptical that single usage plastic results into generation of waste, and while walking or travelling pile of plastic wastes, including bottles, are seen lying on the road side, and they are not bio- degradable, which are causing harm to the mother earth. Therefore, it was held that the reasoning assigned in the impugned order is based upon the overall impact of the plastic pollution and it need not necessarily be on the particular point; but be that as it may, the ban must have taken care of the disposal of the exiting stock, if any. In case the appellant association have any such grievance, they are at liberty to approach the competent authority with relevant materials.
4. The paramount contention advanced by the appellants in the writ appeal assailing the judgment of the learned Single Judge is that the learned Single Judge ought to have considered Exts.P3 and P4 notifications issued by the State of Tamil Nadu and Maharashtra respectively, whereby W.A.No. 304/2020 :6: reasonable and sufficient time was granted to the stakeholders before bringing into effect the plastic ban. It is also urged that the Government have not addressed the issue of hasty implementation of the plastic ban without giving reasonable and sufficient time to the stakeholders to mitigate their losses and take rehabilitative measures, and therefore, the learned Single Judge should have found that the ban must have taken care of the existing stock, and having not done so, the findings rendered thereunder are not based on any material and also in contra distinction to the earlier finding that there is no specific address of the issue of hasty implementation. That apart, it is contended that the important aspect is that originally the plastic ban notified on 27.11.2019 was banning only plastic bottles of less than 300 ml capacity, thus prompting the manufacturers to manufacture and stock bottles of 300 ml and above capacity. But, however, by Ext.P2 issued within 20 days from the original notification, the ban was modified to 500 ml and below, thus resulting in banning of bottles having capacity upto 500 ml. At this juncture, we feel it appropriate that Ext.P2 notification dated 17.12.2019 is extracted and it reads thus:
W.A.No. 304/2020 :7:W.A.No. 304/2020 :8: W.A.No. 304/2020 :9: W.A.No. 304/2020 : 10 : W.A.No. 304/2020 : 11 :
5. According to the appellants, the modification resulted in manufactures' holding sizeable stock of bottles of 300 ml capacity to 500 ml which had to be disposed of within 14 days, which action is violative of the fundamental rights guaranteed under Article 19(1) (g) of the Constitution of India and the said action of the Government is arbitrary and interfering with the life and liberty of the appellants and the members of association, thus violating Articles 14, 21 and 300A of the Constitution of India.
6. Per contra, a statement is filed by the State Government basically contending that ban of single use plastic has come at a time when the proliferation of the plastic products has resulted in a massive increase in the amount of waste generated per person. Being serious toll on our fragile ecology, our rivers, mangroves, hills, seas and even forest are over-flooding with large quantities of W.A.No. 304/2020 : 12 : unprocessed waste. Despite continuous genuine attempts made by various NGOs, media houses and Local Self Government Department to create awareness and reduce and regulate the use of single use plastic products, all those plastic materials have dominated the water bodies, rivers, drains and finally the ocean. Though the Local Self Government Department through 'Suchithwa Mission', a programme that stresses on the importance of use of eco- friendly reusable substitutes for single use plastics, has been prompting green protocol for the last 5 years, that aim could not be achieved. It was accordingly that the Government initiated steps for imposing a complete ban of plastics, irrespective of its thickness and accordingly appointed an expert technical committee as per G.O(Rt) No. 134/2018/Envt. dated 12.12.2018 in order to study and list out the plastic products to be banned and to suggest substitutes for them. In the said committee, a representative of the Kerala Plastic Manufacturers Association was included, and it was in the public domain, that the Government has taken serious initiatives to impose W.A.No. 304/2020 : 13 : complete ban on plastics. It is further submitted that all stakeholders were well aware in advance that the Government is preparing to ban single use plastics. It is also submitted that by this time, many of the State Governments have banned plastics, and that as per the notification issued by the State of Tamil Nadu evident from Ext.P3 dated 25.06.2018 and Maharashtra dated 11.04.2018, six months' and 3 months' time respectively were granted for implementation of the same and it was over by 01.01.2020. Therefore, considering the gravity of plastic waste generation, the Government was constrained to take a policy decision and it was accordingly that the Government issued G.O (Ms) No. 6/2019/Envt. dated 27.11.2019 and G.O (MS) No. 7/2019/Envt. dated 17.12.2019 imposing complete ban on single-use plastic in the State with effect from 01.01.2020. It is also the specific contention that all the stakeholders were well aware of the steps taken by the State Government in the matter of banning plastic, and the contentions raised by the appellants contrary to the same cannot be sustained under W.A.No. 304/2020 : 14 : law.
7. We have heard learned counsel appearing for the appellants, Sri. Joy Thattil Ittoop, and learned Senior Government Pleader, Sri. Surin George Ipe, and perused the pleadings and documents on record.
8. The paramount contention advanced by the learned counsel for the appellants is that the appellants are not standing in the way of the Government imposing plastic ban, however, the action of the Government banning the same, issuing Ext.P2 order dated 17.12.2019 without providing reasonable time for the disposal of the stock available with the Bottled Water Manufacturers is arbitrary and interfering with the right conferred on the manufacturers under Article 19(1)(g) of the Constitution of India, and in turn it interferes with the life and liberty of the manufacturers and the people depending on them, including the labour class.
9. On the other hand, it is the contention of the learned Government Pleader that already the ban imposed by various other States, including the State of Tamil Nadu, W.A.No. 304/2020 : 15 : had come into force on and with effect from 01.01.2020 and therefore, if the notification is not issued by the State Government implementing the ban on and with effect from 01.01.2020, it can only achieve adverse results thus, diluting and interfering with the policy of the Government to ban the plastics in accordance with the notification issued. It is also pointed out that the constitution of the Committee and the inclusion of the representative of the Plastic Manufacturers' Association was a transparent approach made by the State Government to deal with the issue and the constitution of the committee and its meeting, were in public domain and therefore, any person interested in the issues could have approached the Committee and made their suggestions. That apart, it is submitted that the first appellant, being an association of Kerala Bottled Water Manufacturers, it is not at liberty to seek the protection granted under Article 19(1)(g) of the Constitution of India. That apart, it is submitted that the first appellant being an association of manufacturers of bottled water, all the members are liable individually to pay the court fee and W.A.No. 304/2020 : 16 : therefore, the writ petition itself was not maintainable under law.
10. We have evaluated the contentions advanced by the respective counsel and also gone through the pleadings and documents put forth by the appellants and the report of the committee appointed by the State Government made available to us during the course of arguments. As is stated above, the contentions advanced by the appellants are limited in nature that the action of the Government not providing sufficient time to dispose of the manufactured goods is arbitrary and violative of the fundamental rights guaranteed under the Constitution of India. In fact, that was the predominant contention advanced by the appellants before the learned Single Judge, who has categorically entered into a finding that there is no evidence on record to establish that there is existence of already manufactured stock. Appellants have not chosen to produce any documents before this Court also to establish the said aspect and the liability of the appellants to produce the same before this Court was more, since the learned W.A.No. 304/2020 : 17 : Single Judge has entered into a finding that in order to consider any such contentions, materials are lacking. Therefore, the appellants, who have approached the court without sufficient materials on record to advance even such a contention, are not entitled to get any orders enabling them to dispose of any stock if already manufactured. The issuance of a writ of certiorari or mandamus is not a as matter of right, however, a court while considering a writ petition under Article 226 of the Constitution of India can issue such writs only on being satisfied that there are sufficient materials before court for granting any such relief. Therefore, basically and fundamentally, the appellants were not entitled to get any extended time for disposal of alleged stock available with them, as contended, before the issuance of Ext.P2 notification by the State Government on 17.12.2019, imposing ban on and with effect from 01.01.2020. Moreover, it is well settled that, a policy evolved by the Government is not subject to judicial review, unless it is demonstrably arbitrary, capricious, irrational, discriminatory or violative of constitutional W.A.No. 304/2020 : 18 : provisions, or of any statute.
11. In this regard, it is worthwhile to discuss some of the judgments of the Apex Court:
In Union of India v. Dinesh Engineering Corporation [(2001) 8 SCC 491], the Apex Court delineated the principle of judicial review in the policy matters at paragraph 12 as follows:-
"12. There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to the policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record.... Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution." In Gopal Narain v. State of U.P [AIR 1964 SC 370], the Apex Court had considered the relevance of the policy W.A.No. 304/2020 : 19 : decisions and the realm of interference in judicial review. Paragraph 11 is relevant to the context, which reads thus:
"11. Looking at the policy disclosed by Sections 7 and 8 and Section 128 of the Act and applying the liberal view a law of taxation receives in the application of the doctrine of classification, it is not possible to say that the policy so disclosed infringes the rule of equality. This Court in more than one decision held that equality clause does not forbid geographical classification, provided the difference between the geographical units has a reasonable relation to the object sought to be achieved. This principle has been applied to a taxation law in Khandige Sham Bhat Case [AIR 1963 SC 591]. In that case, this Court also accepted the principle that the legislative power to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable ways. It is indicated in "Willis on Constitutional Law", at p. 590, that a State can make a territory within a city a unit for the purpose of taxation. So, the impugned section in permitting in the matter of taxation geographical classification, which has reasonable relation to the object of the statute, namely, for providing special amenities for a particular unit the peculiar circumstances whereof demand them, does not in any way impinge upon the equality clause."
The freedom of the executive to take economic decision was considered by the Apex Court in R.K. Garg v. Union of India [(1981) 4 SCC 675]. Paragraph 8 reads thus: W.A.No. 304/2020 : 20 :
"Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The court should feel more inclined to give judicial deference to legislative judgment in the field of economic Regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitously expressed than in Morey v. Doud 1 L Ed 2d 1485 (1957) where Frankfurter, J., said in his inimitable style:
'In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic Regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events - self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.' The Court must always remember that "legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract W.A.No. 304/2020 : 21 : symmetry"; "that exact wisdom and nice adaption of remedy are not always possible" and that "judgment is largely a prophecy based on meagre and uninterpreted experience". Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as pointed out by the United States Supreme Court in Secy. of Agriculture v. Central Roig Refining Co. [94 L Ed 381 : 338 US 604 (1950)] be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing W.A.No. 304/2020 : 22 : with complex economic issues."
In Parisons Agrotech Private Limited and another v. Union of India and others [(2015) SCC 657], the Apex Court had occasion to conduct a detailed survey of the judgments rendered in respect of policy decisions and held as follows:
"14. No doubt, the writ court has adequate power of judicial review in respect of such decisions. However, once it is found that there is sufficient material for taking a particular policy decision, bringing it within the four corners of Article 14 of the Constitution, power of judicial review would not extend to determine the correctness of such a policy decision or to indulge into the exercise of finding out whether there could be more appropriate or better alternatives. Once we find that parameters of Article 14 are satisfied; there was due application of mind in arriving at the decision which is backed by cogent material; the decision is not arbitrary or irrational and; it is taken in public interest, the Court has to respect such a decision of the Executive as the policy making is the domain of the Executive and the decision in question has passed the test of the judicial review."
So also, in Balco Employees' Union (Regd.) v. Union of India [(2002) 2 SCC 333, the Apex Court, after considering various judgments rendered by the Apex Court, has held as follows in paragraphs 32, 33 and 34:
W.A.No. 304/2020 : 23 :
32. It was submitted by the learned Attorney General that the wisdom and advisability of economic policies of Government are not amenable to judicial review. It is not for Courts to consider the relative merits of different economic policies. Court is not the forum for resolving the conflicting clauses regarding the wisdom or advisability of policy. It will be appropriate to consider some relevant decisions of this Court in relation to judicial review of policy decisions.
33. While considering the validity of the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance 1969, this Court in Rustom Cavasjee Cooper v. Union of India [(1970) 1 SCC 248], SCC at page 294 observed as under:-
"It is again not for this Court to consider the relative merits of the different political theories or economic policies... This Court has the power to strike down a law on the ground of want of authority, but the Court will not sit in appeal over the policy of the Parliament in enacting a law..."
34. Applying the analogy, just as the Court does not sit over the policy of the Parliament in enacting the law, similarly, it is not for this Court to examine whether the policy of this disinvestment is desirable or not. Dealing with the powers of the Court while considering the validity of the decision taken in the sale of certain plants and equipment of the Sindri Fertilizer Factory, which was owned by a Public Sector Undertaking, to the highest tenderer, this Court in Fertilizer Corporation Kamgar Union (Regd.) v. Union of India [(1981) 1 SCC 568], SCC 568 at W.A.No. 304/2020 : 24 : page 584, while upholding the decision to sell, observed as follows:- (SCC para 35) "We certainly agree that judicial interference with the administration cannot be meticulous in our Montesquien system of separation of powers. The Court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a Government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super-auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration."
12. Therefore, it is quite clear and unequivocal that there is clear separation of powers recognised under the Constitution by and between the legislature, executive and the judiciary and the said 3 organs of the Government should function without transgressing into the powers so granted under the Constitution. There can be no doubt that the legislature and the executive have to take policy decisions and carry out the administration in accordance with law in the larger public interest, but unless the power exercised by the legislature and the executive are arbitrary and violative of the fundamental rights guaranteed under W.A.No. 304/2020 : 25 : the Constitution of India, interference of the judiciary in the policy matters taken so by the legislature and executive may not be conducive and appropriate. Taking into account the principles of law and the proposition of law laid down by the Apex Court, it is better that the intention behind the policy of the State Government to ban plastic is identified so as to have a proper appreciation of the issue raised by the appellants. On a reading of the Government Order as discussed above, it is clear that the use of one time plastic has become a menace to the environment, which was causing all sorts of havoc to the normal human life and creating lot of adverse impact on the environment. The littering of plastic by the public was interfering with the smooth flow of the drainages and the water bodies became contaminated and useless due to the filling up of the same by plastic materials. Therefore, the laudable object of the Government was to eradicate the menace from the society and it was accordingly that the policy decision was taken by the Government prohibiting use of plastic as ordered in the Government Order dated 19.12.2019. Therefore, while W.A.No. 304/2020 : 26 : considering a decision taken by the Government in the larger interest of the public, courts should always have a pragmatic, rather than a narrow and pedantic approach. So also, we are of the opinion that a reasonable time was granted for the business houses to dispose of their products, since the order dated 19.12.2019 was implemented on and with effect from 01.01.2020 alone. Moreover, since the ban order issued by the other States have come into force as on 01.01.2020, the policy of the State Government to ban it from 01.01.2020 has a reasonable object sought to be achieved, failing which there are chances that such plastic bottles are carried by the people visiting the State of Kerala, to other States wherein the ban was already in existence.
13. That apart, the paramount contention advanced by the appellants is based on their right conferred under Article 19(1)(g) of the Constitution of India. However, understanding the policy of the State Government, it was issued with the intention of protecting the life and liberty of the people guaranteed under Article 21 of the Constitution W.A.No. 304/2020 : 27 : of India. Therefore, when a situation arises by and between the individual rights conferred on the citizens under Articles 19(1)(g) and 21 of the Constitution of India, we have the definite opinion that the right conferred under Article 21 for life and liberty should have the primacy and superiority, in larger public interest.
14. As is discussed above, the banning of non- reusable plastic was not under challenge before the learned Single Judge. Rather the challenge, as is pointed out above was only against depriving sufficient time for the disposal of the stock alleged to be remaining with the manufacturers as on the date of issuance of the notification. Therefore, unless the appellants produced proof before the learned Single Judge that, such an eventuality existed as on the date of the notification issued by the State Government, it cannot be said that the finding rendered by the learned Single Judge that there was any material to consider such a contention, was in any manner bad, illegal or improper exercise of discretionary jurisdiction. Apart from all these aspects, there is no material even before us, to legally W.A.No. 304/2020 : 28 : consider the contention put forth by the appellants that the bottled water manufacturers were having stocks available with them as on the date of Ext.P2 notification dated 17.12.2019. So much so, the reasons assigned in the notification are convincing, that if such a course of action was not adopted by the Government, it would not achieve the desired result intended as per the policy, which thus also means indepth study was conducted before implementing the policy and there is no established material produced by the appellant so as to sit over the policy decision of the State Government and arrive at a different conclusion.
15. Be that as it may, eventhough the learned Government Pleader has advanced a contention that the members of the first appellant Organisation were liable to pay the court fee individually in the writ petition and since they have not done so, they are not entitled to get any relief from this Court, it is evident that at the time of filing of the writ petition registry has raised such an objection, and accordingly, list of the members was provided by the appellants and each member has paid court fee, the said contention may not have any force at all. We are also of the view that even if the first W.A.No. 304/2020 : 29 : appellant is an Association, the second appellant is one of the manufacturers and therefore, the contention advanced by the learned Senior Government Pleader that the appellants are not entitled to seek any relief harping upon Article 19(1)(g) cannot be sustained, since, if we had entered into any finding that the notification is bad for illegality, arbitrariness or unreasonableness, the said finding would be a judgment in rem enabling the members of the Association to take advantage of that situation.
16. Having regard to the facts and circumstances of the case, we are of the opinion that the appellants have not made out any case so as to interfere with the correctness of the judgment of the learned single Judge, in an intra-court appeal, filed under Section 5 of the Kerala High Court Act.
Needless to say, writ appeal fails, accordingly, it is dismissed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv W.A.No. 304/2020 : 30 :