HON’BLE THE CHIEF JUSTICE SRI G.S. SINGHVI AND HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY Writ Appeal No.848 of 2007 Between: Packaged Drinking Water Manufacturers Association, Hyderabad, represented by its President and another. … Appellants And The Union of India, represented by its Secretary, Ministry of Railways, Government of India, New Delhi and three others. … Respondents :: J U D G M E N T :: Counsel for the appellants : Sri M.V. Durga Prasad 9th October, 2007 Per G.S. Singhvi, C.J. This appeal is directed against order dated 30-4-2007 passed by the learned Single Judge in WVMP.No.1094 of 2007 in WPMP.No.34297 of 2006 in Writ Petition No.26696 of 2006 whereby he modified interim order dated 12-3-2007 and directed the respondents not to themselves sell or permit sale by any other agency within the premises of railway platforms in the State of Andhra Pradesh non-ISI certified packaged drinking water but clarified that non- packaged drinking water need not, for the present, require the BIS certification. In the writ petition filed by them, the appellants have prayed for grant of a declaration that the action of respondents 1 to 7 in proposing to install the water vending machines, which supply non-ISI certified packaged drinking water at the railway stations is illegal and violative of Indian Standards No.14543:2004 and the policy of the State under the Food Safety and Standards Act, 2006. In the alternative, the appellants prayed that their members be allowed to sell ISI marked drinking water through their water dispensers at the rate of Rs.2/- per litre. Along with the writ petition, the petitioners filed WPMP.No.34297 of 2006 for directing the respondents not to permit sale of non-ISI drinking water at the railway platforms. The learned Single Judge admitted the writ petition on 22-12- 2006 and issued notice in the petition filed for interim relief. On 12-3- 2007, the learned Single Judge passed the following order: “Pending further orders, the respondents shall not permit sale of non- ISI certified drinking water in the premises of the Railways within the territory of A.P. Notice.” Thereafter, Nuchem Weir India Ltd., to whom Indian Railway Catering and Tourism Corporation Ltd. (respondent No.2 in the writ petition) granted licence for sale of potable drinking water through automatic vending machines at the railway stations, filed an application for its impleadment as party to the writ petition and WPMP.No.34297 of 2006 and also prayed for vacating ad interim order dated 12-3-2007. The same was registered as WVMP.No.1094 of 2007. After hearing the counsel for the parties, the learned Single Judge passed the order under challenge, the relevant portions of which are extracted below: “This is an application by the 2nd respondent in the writ petition seeking vacation of the interim direction of this court dated 12.3.2007 whereby this court directed the respondents in the writ petition not to permit sale of non-ISI certified drinking water in the premises of the Railways within the territory of Andhra Pradesh. The petitioner herein contends that there is no Bureau of Indian Standards applicable to other than packaged drinking water and that the petitioner herein has notified a tender for supply of drinking water in the Railway Stations. It is stated by the petitioner herein that unless water is processed and packed, BIS certification is not to be issued and the applicable Regulations also do not ordain issuance of BIS certification for non-packaged drinking water. Per contra the learned counsel for the writ petitioner – respondent herein, would urge that the purpose of the Regulation is to make available safe and BIS certified water for human consumption and that the said purpose will be defeated if the respondents- Railway are permitted, under the colour of a cleverly engineered scheme of tenders enabled to permit the contractor to vend non-BIS certified drinking water on a premise that the water is not packaged. The relevant Regulation with regard to packaged drinking water introduced into the Food Adulteration Rules by the Prevention of Food Adulteration (76th Amendment) Rules by 2000 by GSR No. 760 (E), dated 29.9.2000, does not prima facie appear to target water other than that which is subject to the treatment specified in Rule 28 r/w Appendix-B, Item-33, which includes a process of treatment and packaging. In the aforesaid circumstances the interim order dt. 12.03.2007 is modified and the respondents shall now be directed not to themselves sell or permit sale by any agency within the premises of Railway Platforms in the State of Andhra Pradesh, non-ISI certified packaged drinking water whether the packaging be by the Railways or by the contractor entrusted with function of vending the water. Non-packaged drinking water however need not and for the present, require the BIS certification.” We have heard Sri M.V. Durga Prasad, learned counsel for the appellant and scrutinised the record. Although we have serious reservation on the very locus of the appellants to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India for frustrating the licence granted by respondent No.2 for sale of potable drinking water to the members of public through vending machines installed at railway platforms, we do not consider it proper to express any conclusive opinion on this issue because the writ petition is pending adjudication before the learned Single Judge. However, we do not have slightest doubt that the learned Single Judge did not commit any error by modifying the ad interim order passed in absolute terms. It is neither the pleaded case of the appellants nor any material was placed before the learned Single Judge to show that the water supplied at the railway platforms through the vending machines operating on the Reverse Osmosis system is harmful to the consumers. Rather, counter affidavit dated 10-4-2007 filed by Sri B. Ramakrishna Rao, Director, Bureau of Indian Standards shows that the sale of potable drinking water through vending machines installed at the railway stations is neither injurious to public health nor it violates any provision of law. In paragraphs 4 and 5 of his affidavit, Sri B. Ramakrishna Rao has averred as under: “4. It is submitted that the objective behind installation of WVMs at Railway stations is to provide pure drinking water for passengers at an affordable price, keeping in view the hygienic and cleanliness of environment and provision of modern facilities. This would be in addition to the existing system of Packaged Drinking Water (PDW) and normal tap water. Further, the WVMs were provided in major Railway stations to cater to the needs of the travelling public at affordable price. However, the packaged drinking water as available to the public still exists and there is no curb for the sale of packaged drinking water. Hence, the entire relief sought by the petitioners is hypothetical and no cause of action other than to pursue their own business cause at the cost of travelling public has arisen to file the present writ petition. It is the policy declared by the 1st respondent to provide safe drinking water to the travelling public at cheaper rate and in order to fulfil the said policy the 2nd respondent invited Expression of Interest from reputed manufacturers or their franchisee holders or authorised agents for installation of Reverse Osmosis (RO) based Automatic Potable Water Vending Machines (WVMs). The entire contentions of the petitioners are liable to be rejected on the sole ground that the said process is yet to be commenced and the quality of the water etc. cannot be a subject matter at this stage. Further, no rights of the petitioner were affected much less Articles 19(1)(g) and 19(6) of the Constitution. Hence, the petition is liable to be dismissed in limini. 5. It is submitted that the endeavour of the petitioner in filing the writ petition is to force their business objective on the 2nd respondent under the guise of fundamental rights, when other market players also have equal rights to respond to the policy of the respondents since any market force can expand their business subject to fulfilling the conditions laid down in the bid document issued by the 2nd respondent. It is imperative that the petitioner while agitating upon infringement of fundamental rights is not recognising the rights of the other traders which are equally available to them. This tendency of the petitioners may ultimately lead to monopolistic control over the affairs of the drinking water industry. The construction placed by the petitioner and the inferences brought therein are misplaced in the light of the policy of the 2nd respondent, as it would be improper to expect that the 2nd respondent should give up their objective and accommodate the objective of the petitioner. The 2nd respondent in implementing the policy of the 1st respondent has adopted a classification in the larger public interest and the petitioner cannot bring extraneous issues to fault with the action of the 2nd respondent as the respondents have not adopted any pick and choose policy to discriminate between the equally situated business groups. Hence, there is no violation of any fundamental rights.” In view of the stand taken by the Bureau of Indian Standards, we do not find any valid ground or justification to interfere with the discretion exercised by the learned Single Judge to modify the ad interim order and facilitate the installation and operation of vending machines at the railway platforms through which water could be made available to the members of the public more so because the elements of irreparable injury, balance of convenience and public interest are clearly against the appellants. In the result, the appeal is dismissed. G.S. SINGHVI, C.J. 9th October, 2007 C.V. NAGARJUNA REDDY, J. ARS