Andhra HC (Pre-Telangana)
K. Narasinga Rao And Etc. vs State Of Andhra Pradesh on 1 August, 1986
ORDER
1. In exercise of his powers under Ss. 395 and 482 of the Criminal P.C. the Special Judge appointed for trial of cases under the Essential Commodities Act referred the above matters to this Court raising the question as to the validity of G.O.Ms. No. 610, Food and Agriculture (C.S. III) Department, dt. 23rd November, 1984. G.O.Ms. No. 610 is an order made by the State Government under the Essential Commodities Act whereby all Two Star and above Two Star Hotels and also those hotels which are approved by the Tourism Department of Government of India for awarding Two Star and above Two star Hotels status are exempted from the purview of the Andhra Pradesh Catering Establishments (Fixation and Display of Prices of Food Stuffs) Order, 1978. The effect of G.O.Ms. No. 610 is to make the Andhra Pradesh Catering Establishments Order applicable only to the hotels which are below Two Star status. The accused in these cases are such hoteliers.
2. The accused in these cases were charged with violating the directions contained in Clauses 1, 2 and 6(b) of the above G.O.Ms. No. 610. They were being tried under S. 7 of the essential Commodities Act, 1955. They have objected to their being tried on the ground that while the law provided exemption to the Two Star Hotels and above Two Star Hotels from the operation of the penal provisions, they are being prosecuted for the violation of the abovementioned law. Their contention in essence is that directions, 1, 2 and 6(b) contained in G.O.Ms. No. 610 issued under Clause 12 of the Andhra Pradesh Catering Establishments (Fixation and Display of Prices of Food Stuffs) order, 1978 are discriminatory and are, therefore, unconstitutional. Unable to resist the attraction of these none too novel constitutional submissions made by the suitors from time to time the learned Special Judge had held that the exemption granted to the Two Star and above Two Star hotels is discriminatory and is, therefore, not justified. He had, therefore, referred these matters for the decision of this Court on the constitutional validity of the exemption granted to the Two Star and above Two Star Hotels from the purview of the abovementioned provisions of law. On 13th May of 1986, when these references have come before me, I have summarily rejected them for reasons to be given later. Now on an application field by the accused in Crl. M.P.S.R. No. 2835 of 1986, I have reached these matters.
3. In Criminal Appeals Nos. 443 and 444 of 1985, our Supreme Court had considered a similar arguments relating to an exactly similar order passed under the Essential Commodities Act. The Supreme Court by its order dt. 6th May, 1986 rejected the contentions of the accused in those cases in the following wards.
"The contentions raised by the appellants and petitioners challenging the grant of exemption in favour of hotels having Two Stars and above are devoid of any substance and are therefore rejected."
I thought that in view of the above pronouncement of the Supreme Court, these references should be rejected outright. It is not denied by Sri P. Sithapathi, the learned counsel for the accused that the above ruling of the Supreme Court would entail such a summary rejection of these references because the law declared by the Supreme Court by reason of Art. 141 of the Constitution binds this Court. However Sri Sithapathi raised and argued a somewhat interesting and intriguing question of law. He said that the above order of the Supreme Court gave no reasons why it considered that the contentions of the accused were devoid of substance and that in the absence of such statement of reasons, the above order passed by the Supreme Court on 6th May, 1986 should not be considered as making any declaration of law. For that reason Sri Sithapathi argued that the above order of the Supreme Court loses its binding force which it would have otherwise derived from Art. 141 of the Constitution. His argument plainly is that this Court should disregard the above order of the Supreme Court though passed exactly on a similar provision of the Essential commodities Act.
4. I am afraid that it is not possible for me to countenance this contention of the counsel for the accused. It is true that Lord Chief Justice Coke described that the soul of law consists in its special reason that speaks only to Judges but eludes the grasp of the kings like the Ghost in Hamlet. It is also true that what distinguishes law from policy is the logic that is immanent in a judgment and the reason that lies behind a decision. The ratio decidendi of a case is not the decision but the reason behind the decision. It must, therefore, be accepted that statement of reasons is an integral and inseparable part of declaration of law. Clearly in our system of hierarchy of Courts, even the lowest of Courts cannot be absolved of its duty and responsibility to find out what the ratio decidendi of a decision rendered by the higher court is before it seeks to apply it. All this clearly presupposes that the higher court has given its reasons for the decision. The question then is whether the above reasoning can be applied to an order and judgment of the Supreme Court. I have considered in Soloman Raj v. Accountant General (1983) 1 Andh WR 54 : (1983 Lab IC 230) a closely allied question. There the question considered is whether a judgment of the Supreme Court can be held to be not binding on the ground that it is delivered per incuriam. Seervai among others wrote that a decisions of the Supreme Court can be denied binding force on per incuriam grounds. I have attempted to show in any judgment in Solomon Raj's case that the view of Seervai was influenced by a judgment of the Court of Appeal which was later overruled on that point by the House of Lords. I accordingly ruled that it is not open for any court to treat a judgment of the Supreme Court as per incuriam. Although the discussion in Solomon Raj's case centred round the question of her incuriam which is not exactly the same as the problem of a judgment without reasons with which we are confronted in this case, I am inclined to adopt the reasoning of Solomon Raj's case to the facts of this case. The consideration that impels me for doing so is that in a hierarchical system of judicial administration the doctrine of per incuriam should be held inapplicable to the judgments of the highest Court. For the reasons I hold that these references should be rejected on the basis of the above order of the Supreme Court dated 6th May, 1986.
5. In addition to the above, I also wish to draw the attention of the lower Courts that the Essential Commodities Act is an Act that is mainly intended for ensuring availability of consumer items to the commoner. It is a mechanism that has been set up by the Parliament for repairing the failure of market operations. Its mechanism is mainly designed to help those that will not be able to withstand the consequences of free play of market forces. From that point of view, I find nothing unreasonable in the state giving primacy to the task of protecting the ordinary people that visit lower categories of hotels. For that purpose distinction drawn between hotels of certain level which are frequented by the relatively affluent sections of the society and the hotels that are visited by the commoners should not be treated to be discriminatory by the constitutional Courts. As Holmes said in Buck v. Bell (See (1927) 274 US 200, equal protection clause is not a pedagogic requirement of the impracticable. Unless law is blind, it cannot fail to notice the practical differences that are present between those haunting the Star Hotels not needing the protection of the Essential Commodities Act and those who are frequenting the ordinary hotels to satisfy their bare necessities. There is nothing in Art. 14 of the Constitution that compels the State to make its laws uniformly applicable to all. Law does not deny the State to make reasonable classifications. The legislature could direct its laws against what is deemed to be the evil as it actually existed 'without covering the whole field of possible abuses', and it might do so even though the forbidden act did not differ in kind from those that were allowed. (See the Equal Protection of the Laws by Polyvios G. Polyviou, page 73). All that the law requires is uniform application of a policy indicated by it to those who are within the limits of that policy. Further Courts should notice that duly constituted Legislative Bodies know the needs of their people. In Middleton v. Texas Power and Light Company (1918) 249 US 152 at 157, the American Supreme Court said :
"It must be presumed that a legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds." It is for the above reasons Chief Justice, Subba Rao in Syed Mohamed & Co. v. State of Andhra, 1956 Andh LT 706 : (AIR 1957 Andh Pra 408) upheld differing with Madras High Court the differential Classification embodied in Ss. 5 and 6-A of the Madras General Sales Tax Act.
6. Following the above reasoning I reject these references.
7. I may, however, add for the guidance of the lower Courts that those who presume to decide questions of constitutional limitations of State power should clearly be aware of the awesome responsibility of the courts in declaring the Statutes passed by the Legislatures to be void and the complexity and multiplicity of considerations that are involved in consideration of such problems. Except in rare cases, the question is not so simple as Justice Roberts says it is in US v. Butler (See (1935) 297 US 1), that the constitutional questions can be decided merely by comparing the Arts. of the Constitution with the challenged statute. Constitutional questions require for their solutions more than verbal formulations. Where the challenge to the statute is based on the general and unspecified language of Equality Clause contained in Articles like Art. 14 of our Constitution, these considerations become overwhelming. In the judgment under reference, there is a mere reference to the decisions of the Supreme Court. Those cases merely deal with situations of discriminatory classifications but would not in the nature of things furnish guidance to hold the G.O. under the Essential Commodities Act to be discriminatory. That G.O. requires a special consideration to be given befitting an economic measure and also requires taking into account the economic needs of the community. The judgment does not examine the matter from that angle.
8. For the above reasons, these references are rejected.
References rejected.