tition Nos
43 of 1981 51 53 415 1881 5465 556283 1751 5281 and 7763 7890 of 1983
676 Dr L M Singhvi B Kanta Rao Lakshmi Kant Pandy and J Eswara Prasad for the Petitioners
M section Ganesh Ms Lata Krishnamoorty and TVSN Chari for the Respondent
The Judgment of the Court was delivered by DESAI J
Should article 32 of the Constitution lend its assistance to petitioners in this group of petitions so that the poor in Andhra Pradesh can be successfully deprived of their staple simple breakfast  Even an imaginary marginal dent in the profits of the hoteliers stirs it into action by an easy resort to a writ petition under article 32 and an ex parte stay which itself is success even if the petition ultimately fails because in the meantime the measure which may possibly affect their profits is kept under suspended animation and the profit being continuously derived from scattered consumers is not refundable and the unjust enrichment is enjoyed with impunity
This case amply illustrates the point
Hoteliers of Andhra Pradesh raised a hue and cry when the Government of Andhra Pradesh the first respondent enacted and proclaimed in exercise of the powers conferred by Sec 3 of the 1955 Act for short read with the notification of the Ministry of Agriculture and Irrigation dated June 9 1978 the Andhra Pradesh Catering Establishments Fixation and Display of Prices of Foodstuffs Order
1978 1978 Order for short dated September 8 1978 whereby it was made obligatory for the catering establishments to display the prices of all foodstuffs served by the establishment and simultaneously fixed the maximum price of seven items of food comprising the poorman s menu in the State of Andhra Pradesh
The seven items enumerated in the Schedule appended to the 1978 Order include idli vada upma sada dosa puree coffee tea and a rice plate scheduled items for short
3 of the Order prescribed maximum prices of the scheduled items of food and cl 4 makes it obligatory to display in English and principal language of the area the weight or measure and price of every item of foodstuff offered for sale in the establishment
There were consequential provisions such as power to issue directions power to call for information power of entry search  seizure and power to grant exemption as also power to amend the Schedule
A clarificatory notification was issued on October 3 1978 giving certain directions
677 The Schedule and the rates set out therein were modified by the Amending Order dated December 11 1980
The amendment catered to an upward revision of the prices
It seems some further negotiations took place between the Minister of Civil Supplies and Labour on the one hand and hoteliers on the other which led to a notification dated January 5 1981 1981 Order for short giving further upward revision in maximum price of scheduled items and the scheduled items were reduced from 7 to 6 deleting rice place
Ignoring this latest order which replaced the earlier orders the petitioners approached this Court and obtained an ex parte stay of the implementation of Orders dated September 5 1978 and December 11 1980
In fact but for the intervention by the Court staying the operation of earlier orders the order dated January 5 1981 was not stayed yet effectively the petitioners succeeded in putting into cold storage the price fixation order leaving them free to charge any price unhampered and uninhibited by any governmental action
Dr LM Singhvi who led on behalf of the petitioners made two submissions which have nothing to do with the validity or legality of the impugned Orders
He submitted that the Court should give a direction to the State Government to re examine the prices of inputs and overhead charges so as to arrive at such maximum price of the scheduled commodities as to ensure a reasonable return on the investment which would render the restriction on the fundamental right to carry on trade reasonable and satisfy article 19 1 g of the Constitution
He next submitted that there are certain directions in the 1978 and 1981 orders which are impossible of compliance and therefore the petitioners should be heard before they are compelled to implement the conditions
Neither of the submissions has any impact on the validity of the impugned Orders
It may however be pointed out how the petitioners suppressing material facts succeeded in obtaining an ex parte stay order
In the counter affidavit filed by one Mr D Muralikrishna Director of Civil Supplies it was stated that after the Order dated December 11 1980 was issued the hoteliers resorted to some agitation which led to the Minister of Civil Supplies calling a meeting of the hoteliers
What transpired at this meeting may be extracted from the counter affidavit The Minister for Civil Supplies therefore convened a meeting at Hyderabad on 311280 with the representatives of hoteliers all over the State and the Joint Collectors
At the said meeting all the issues involved were thoroughly 678 discussed
After prolonged discussions the hoteliers of the districts have agreed unanimously for reducing the prices in respect of 6 items of foodstuffs excluding meals and an undertaking to that effect was signed by the hoteliers at 130 am on 111981
 A copy of the undertaking is produced at Annexure B  to the counter affidavit which inter alia also provided that the rates of the scheduled items determined with the consent of the hoteliers will be reviewed after three months
What is now demanded is that the State Government should examine the prices of inputs and overhead charges and determine afresh the maximum prices of the scheduled items which was very much an integral part of an over all agreement between the State Government and the hoteliers
After suppressing this material fact from the Court in the petition the petitioners obtained an ex parte stay order on January 12 1981 and this was suppression of such a material fact as would disentitle the petitioners to any relief at the hands of this Court
That apart review at reasonable interval is implicit in any price fixation measure
The second submission that the petitioners be heard to point out the impossibility of complying with some of the conditions of the Orders is merely to be stated to be rejected
If the real bone of contention was the maximum price of scheduled items which was to be thrashed out by discussion it is not possible to accept the submission that the petitioners would not have put forth their grievances about the impossibility of complying with some of the conditions of the impugned orders
There is not a whisper about it in the agreement Annexure B  and we do not find anything very unusual or impracticable in the conditions prescribed in the impugned orders
Mr B Kanta Rao who appeared for some of the petitioners urged that the State Government is not competent to issue any price control measure in respect of cooked food because the which confers power to issue orders in respect of essential commodities does not confer any power to issue any order in respect of cooked food
3 of confers power on the Central Government by an order to provide for regulating or prohibiting the production distribution and supply and trade in essential commodity or for securing their equitable distribution and availability at fair prices
The power to fix price of essential commodity is implicit in the power conferred by of the Act and what is implicit in Sec
3 1 is made explicit by cl
c of sub section 2 of Sec 3 which provides that an order made under Sec 3 1 may provide c for controlling the price at which essential commodity may be bought or sold
Clause a of Sec
2 defines essential commodity  to mean any of the items which include v foodstuffs including edible oilseeds and oils
The submission is that the expression foodstuffs  in its etymological and grammatical sense would mean raw foodstuffs or appropriately called food grains such as wheat rice jawar bazra maize etc
but not cooked food which is a perishable commodity
We see no justification for giving a restricted meaning to the expression foodstuffs 
If power to control prices of raw foodstuffs such as rice or wheat is conferred by Sec 3 we see no justification for that power not comprehending within its fold the power to regulate prices of articles made out of such raw foodstuffs
Expression such as foodcrops  spices  and condiments  indicate different species of articles of food but the general expression foodstuffs  was interpreted to include spices and condiments also
In the State of Bombay vs Virkumar Gulabchand Shah1 this Court construed the expression foodstuffs  in cl
3 of the Spices Forward Contract Prohibition Order of 1944 read with Sec 2 a of the Essential Supplies Temporary Powers Act 1946 to include turmeric
After examining the definition of expression foodstuffs  in Oxford English Dictionary and Webster s International Dictionary and some decisions bearing on the subject this Court held that the expressions food  and foodstuffs  can be used in both a wide and a narrow sense and that the circumstances and background can alone determine which is proper in any given case
After examining the object and the intendment underlying enactment of Essential Supplies Temporary Powers Act 1946 this Court held that if turmeric is a commodity essential to the life of the community it must be covered by the expression foodstuffs 
Accordingly it was held that the expression foodstuffs  has been used in a wider sense in 1946 Act
It may be recalled that the was enacted for the control of the production supply and distribution of and trade and commerce in essential commodities
It has the same object as the 1946 Act and therefore the expression foodstuffs  in 1955 Act must receive the same construction
If that be so the expression foodstuffs  must obviously include cooked food also
Further the expression food  has generally been understood to mean nutritive material absorbed or taken into the body of an 680 organism which serves for purposes of growth work or repair and for the maintenance of the vital process
What human beings consume is styled as food and what animals consume is described as animal feed
This distinction has to be borne in mind
Expression foodstuffs  is made of two expressions food  plus stuff 
In other words the stuff which is used as food would be foodstuff
Therefore foodstuff is that which is taken into the system to maintain life and growth and to supply waste of tissue
If the raw foodstuff with a view to making it consumable by human beings undergoes a change of its condition by the process of cooking the derivative is none the less foodstuff
If raw rice is foodstuff does rice when boiled in water cease to be foodstuff
As the Chinese by an accidental fire in a hut where there were pigs learnt the advantage of consuming cooked food in place of raw food the submission of Mr Kanta Rao would make us march backward by centuries and be a disgrace to modern culinary article And food crop  is another expression defined in the 1955 Act
Therefore the expression foodstuff  as used in the 1955 Act comprehends cooked food
The contention of Mr Kanta Rao therefore must be negatived
It was next contended that the maximum price of scheduled items fixed under the impugned orders is economically unprofitable and the same have been arrived at without scientifically examining the price of inputs and overhead charges and the reasonable return on investment and therefore the exercise of fixing maximum price suffers from the vice of arbitrariness and must be declared unconstitutional as being violative of article 14
While canvassing the submission some attempt was made both on the side of the petitioners as well as on the side of the State to take us through the labyrinth of the tables drawn up by both side showing prices of inputs and overhead charges
We declined to be involved in the vortex of this cost accountant s exercise as we are neither experts of the subject nor we consider it necessary to undertake this exercise
The argument proceeded that the prices of inputs have escalated so high that the maximum prices determined by the impugned orders have become uneconomical
For this malaise petitioners have to thank themselves because it was an integral part of their agreement with the Minister of Civil Supplies on December 31 1980 that the maximum prices fixed by the impugned orders would be re examined on the expiration of the three months from the date of the agreement
Instead of honoring this agreement the petitioners within a span of 12 days rushed to this Court and obtained ex parte stay order wholly suppressing the fact that the orders 681 impugned in these petitions have already been replaced by the latest order dated January 5 1981
Petitioners who have behaved in this manner are not entitled to any consideration at the hands of the Court
In order to illustrate how the Court is not the forum for scientifically structuring prices of commodities it may be pointed out that the petitioners in their price structure tables have added in respect of each scheduled item 24 of wages
Totalling the wages for seven items the wage bill accumulates at 175
And that is equally true of other overhead charges
Add to this numerous other items of food sold by petitioners in their establishments and the utter unsustainability of their claim becomes manifest
We would however reject the contention about the mechanics of price fixation on the short ground that petitioners ordinarily do not serve only the scheduled items but they have large establishments catering to various tastes and delicacies
No price fixation order need guarantee profit to an establishment in respect of each unit of article served or sold
It is the over all picture in the trade or commerce that needs to be examined
Petitioners have not shown that in their over all turnover they have since the promulgation of impugned orders suffered losses
And this situation never fructified because the 1978 Order was kept in suspended animation for a period of two years and when the latest order dated January 5 1981 was promulgated it was still born at the hands of the Court because of the ex parte stay order obtained by the petitioners
And we reject this contention for the additional reason as laid down by a Constitution Bench of seven learned Judges of this Court in Prag Ice  Oil Mills  Anr
vs Union of India1 where Chandrachud CJ observed as under In the ultimate analysis the mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators the processual basis of price fixation has to be accepted in the generality of cases as valid 682 Not the slightest case is made out for departure from the proposition laid down by this Court as extracted hereinabove
Before we conclude we would like to pin point the unfair advantage which the petitioners have obtained by ex parte stay suppressing the material fact that the later order had already replaced the earlier orders and the latest order was issued with their consent
In the Writ Petition No 4381 the prayer clause reads as under Issue a writ of mandamus or any other appropriate writ or order holding that GO Ms No 548 dated 891978 and GO Ms No 626 dated 11121980 of the Government of Andhra Pradesh and the notification issued by the Collector the second respondent herein dated 16121980 in pursuance of the said impugned Orders as ultra vires unconstitutional and void and quash the same
 The bone of contention was not the power exercised by the State Government but the maximum prices fixed in exercise of the power conferred on the State Government
The maximum prices were to be regulated as per the order dated January 5 1981 and even though this Court was moved for ex parte stay on January 12 1981 the fact that the latest order dated January 5 1981 has replaced the earlier orders was suppressed from the Court
And peculiarly the State Government did not pursue vigorously its latest notification dated January 5 1981 because its operation was not stayed by the Court
However the entire notification fixing the price of the menu of the poormen was put under suspended animation leaving the hoteliers to extort any price to suit their greed
Now that we are dismissing these petitions and vacate the stay orders the notification fixing the maximum prices will revive and can be enforced
But in the meantime the poor of Andhra Pradesh were made to pay by their nose for their simplest menu and the difference between maximum price fixed by the impugned notification and the prices charged by the hoteliers would be unjust enrichment of the hoteliers undeservedly enjoyed with the assistance of the court by the exercise of the constitutional power under article 32 of the Constitution and there is no way of depriving this unjust enrichment The Court 683 set up for justice including socio economic justice unfortunately lent its assistance to such unjust enrichment and yet we are helpless
For the reasons herein discussed we find no merits in any of the contentions canvassed on behalf of the petitioners and therefore these petitions fail and they are dismissed with costs in each
HLC Petition dismissed


Summary:
The Government of Andhra Pradesh in exercise of powers conferred under the promulgated the Andhra Pradesh Catering Establishments Fixation and Display of Prices of Foodstuffs Order 1978 fixing the maximum prices of seven items of cooked food listed in the Schedule thereto
As the hoteliers in the State raised a hue and cry the State Government effected an upward revision of the prices fixed by an Amending Order dated December 11 1980
The hoteliers were not satisfied with that and negotiations were held between them and the Minister of Civil Supplies and as a consequence another order dated January 5 1981 was issued effecting yet another upward revision in the maximum prices fixed and also reducing the number of scheduled items from seven to six
Ignoring this order which replaced the earlier orders the petitioners approached this Court questioning the validity of the earlier orders and obtained an ex parte stay
The contentions raised were i that the State Government was not competent to issue any price control measure in respect of cooked food  as the expression foodstuffs  under the Act means raw foodstuffs only and ii that the fixation of maximum prices of scheduled items under the impugned orders was arbitrary and violative of article 14 inasmuch as the prices were economically unprofitable as the same had been arrived at without scientifically examining the prices of inputs over head charges etc
Dismissing the petitions  HELD 1
The expression foodstuffs  in section 2a v of the includes cooked food
If power to control prices of raw foodstuffs such as rice or wheat in conferred by section 3 there is no justification for that power not comprehending within its fold the power to regulate prices of articles made out of such raw foodstuffs
678 A C i The has the same object as the 1946 Act and therefore the expression foodstuffs  in the 1955 Act must receive 675 the same construction which it received under the 1946 Act
Expressions such as food crops  spices  and condiments  indicate different spices of articles of food but the general expression foodstuffs  was interpreted in the context of the 1946 Act to include spices and condiments also
It was pointed out that although expressions food  and foodstuffs  could be used in both a wide and a narrow sense the expression foodstuffs  had been used in a wider sense in the 1946 Act
679 D G State of Bombay vs Virkumar Gulabchand Shah  referred to
ii The expression food  has generally been understood to mean nutritive material absorbed or taken into the body of an organism which serves for purposes of growth work or repair and for the maintenance of the vital process
What human beings consume is styled as food and what animals consume is described as animal feed
This distinction has to be borne in mind
The expression foodstuffs  is made of two expressions food  and stuff 
In other words the stuff which is used as food would be foodstuff
Therefore foodstuff is that which is taken into the system to maintain life and growth and to supply for waste of tissue
If raw foodstuff with a view to making it consumable by human beings undergoes a change in its condition by the process of cooking the derivative is none the less foodstuff
679 H 680 A B iii That the expression foodstuff  as used in the 1955 Act comprehends cooked food is also clear from the fact that food crop  has been separately defined in the Act
680 D 2
a The mechanics of price fixation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class of operators the processual basis of price fixation has to be accepted in the generality of cases as valid
681 G H Prag Ice  Oil Mills  Anr
vs Union of India  relied on
b The petitioners ordinarily do not serve only the scheduled items but they have large establishments catering to various tastes and delicacies
No price fixation order need guarantee profit to an establishment in respect of each unit of article served or sold
It is the overall picture in the trade or commerce that needs to be examined
The petitioners have not shown that in their overall turnover they have since the promulgation of impugned orders suffered losses
And this situation never fructified because the 1978 Order was kept in suspended animation for a period of two years and when the latest order dated January 5 1981 was promulgated it was still born at the hands of the Court because of the ex parte stay order obtained by the petitioners
681 D F