High Range Marketing Society Ltd. v. Travancore Devaswom Board

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` FRIDAY, THE 16[TH] DAY OF JUNE 2023 / 26TH JYAISHTA, 1945 W.P.(C)NO.1425OF 2023 ``` ## **`PETITIONER:`** ``` HIGH RANGE MARKETING SOCIETY LTD. NO. 1578 KUTTIKKATTUTHAZHE BUILDING KPV - 731 (5) 1ST MILE KUMILY, IDUKKI DISTRICT, PIN – 685509, REPRESENTED BY ITS SECRETARY, ``` ``` BY ADVS.P.C.CHACKO(PARATHANAM) ASHA P.KURIAKOSE ``` ## **`RESPONDENTS:`** - **`1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, OFFICE OF THE TRAVANCORE DEVASWOM BOARD NANDANCODE P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695003`** - **`2 THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD, OFFICE OF THE TRAVANCORE DEVASWOM BOARD, NANDANCODE P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695003`** ``` BY ADV SHRI.G.BIJU, SC, TRAVANCORE DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 W.P.(C)No.1425 of 2023 ## **JUDGMENT** Anil K. Narendran, J. The petitioner-High Range Marketing Society Ltd., which is stated to be a society formed by the farmers in Peermedu Taluk had submitted a tender pursuant to the tender notice dated 08.08.2014 published by the 2[nd] respondent Devaswom Commissioner, Travancore Devaswom Board, for the supply of jaggery powder, sugar candy, black raisins and other raw materials in Sabarimala Devaswom, during MandalaMakaravilakku season of 1190 ME (2014-15). The petitioner has filed this writ petition, under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent Travancore Devaswom Board to consider and pass orders on Ext.P16 representation dated 21.01.2022 and pay the amount due to the society. The petitioner has also sought for a writ of mandamus commanding the 1[st] respondent Board to consider and pass orders on Ext.P13 representation dated 05.09.2016, within a time limit to be fixed by this Court and pay the amount due to the society. 2. On 20.01.2023, when this writ petition came up for admission, the learned Standing Counsel for Travancore Devaswom Board was directed to get instructions and file a 3 W.P.(C)No.1425 of 2023 counter affidavit on behalf of the 1[st] respondent Board, within four weeks. 3. On 21.03.2023, the learned Standing Counsel for Travancore Devaswom Board, on instructions, submitted that on account of the default committed by the petitioner in supplying the required quantity of materials, the Board sustained a huge loss to the tune of Rs.4 Crores, due to the shortage of Aravana Prasadam. The 2[nd] respondent Devaswom Commissioner has already placed the matter before the 1[st] respondent Board. 4. The respondents have filed a counter affidavit dated 12.04.2023, opposing the reliefs sought for in this writ petition, producing therewith Exts.R1(a) to R1(e) documents. The request made by the petitioner in Ext.P16 representation dated 21.01.2022 stands rejected vide Ext.R1(e) order dated 11.04.2023. 5. Heard the learned counsel for the petitioner and the learned Standing Counsel for Travancore Devaswom Board for the respondents. 6. As borne out from the pleadings and materials on record, the 1[st] respondent Travancore Devaswom Board issued an e-tender notification No.ROC No.51/14/Sab dated 08.08.2014 for the supply of jaggery powder, dry rice, sugar candy, black raisins, 4 W.P.(C)No.1425 of 2023 cumin seed powder, dry ginger powder, cardamom, raw rice, etc., at Sabarimala Devaswom for 1190 ME, for the period from 01.10.2014 to 30.09.2015. For food items, the tender notification prescribed the following conditions, among other conditions; (i) The food items shall conform to the standards prescribed in Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. (ii) The entire lot will be rejected if the above conditions are violated and penal provision will be imposed as decided by the Commissioner of Food Safety, Kerala as any Food Business Operator with intent to such violation. (iii) Payment will be released only to those suppliers who supply raw materials which conform to the standards under Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. (iv) The supplier should submit an analysis certificate from an accredited lab along with every lot supply. (v) All the materials should be analysed at Pampa Laboratory to ascertain whether it conforms to the required standards. The petitioner society participated in the tender process and secured the right to supply 70,000 kg sugar candy and 35,000 kg black raisins at Sabarimala and Pamba, subject to the aforesaid conditions for food items, vide Ext.P1 order dated 24.10.2014 of the 2[nd] respondent Devaswom Commissioner. As per Ext.P1, the society has to supply black raisins at Sabarimala and Pamba at the rate of Rs.192.50 per kg. and Rs.191.50 per kg. respectively 5 W.P.(C)No.1425 of 2023 and sugar candy at the rate of Rs.53/- per kg. and Rs.52/- per kg. respectively. 7. In the writ petition, it is stated that the petitioner society supplied 20,000 kg of sugar candy against Exts.P2 to P5 invoices dated 10.12.2014, 25.12.2014, 10.01.2015 and 31.03.2014 respectively, and 4240 kg of black raisins (dry raisin) against Exts.P6 to P9 invoices dated 31.10.2014, 11.11.2014, 13.11.2014 and 15.11.2014 respectively. According to the petitioner society, it procured sugar candy directly from Belgaum in the State of Karnataka and transported it to Kerala after conducting necessary quality control checks by the Government of India approved laboratory at Hubli. In paragraph 3 of the writ petition, the petitioner stated that the black raisins supplied at Pamba were rejected by the Food Safety Officers on the ground that there is dust in it. Due to the aforesaid reason, the 1[st] respondent Travancore Devaswom Board refused to release the amounts as mentioned in Exts.P6 to P9 invoices for the goods, i.e., black raisins already supplied. 8. According to the 1[st] respondent Travancore Devaswom Board, the petitioner society failed to supply the required quantity of sugar candy and black raisins, with the required quality as per the tender notification. Since the society failed to supply sugar 6 W.P.(C)No.1425 of 2023 candy and black raisins of the required quality, the making of Aravana prasadam had to be stopped completely on 12.11.2014, 13.11.2014, 25.11.2014 and 26.11.2014 and partially on 11.11.2014, 18.11.2014 and 24.11.2014, which had adversely affected reserve stock of Aravana prasadam, as a result of which the Executive Officer, Sabarimala had to impose restrictions in the sale of Aravana prasadam from 18.12.2014 onwards. Due to the default on the part of the society in supplying the required quantity of black raisins, the Board had to procure the same through local purchase at a higher rate, resulting in an additional expenditure of Rs.14,19,650/-. Moreover, sugar candy and black raisins supplied by the petitioner society were not of the required quality for consumption. 9. The document marked as Ext.R1(a) is a copy of report No.A/4661/14/CFS dated 25.11.2014 of the Food Safety Commissioner, Kerala, wherein it is stated that sugar candy supplied by the petitioner society during the year 2014-15 for making Aravana prasadam failed in the quality test conducted at the Quality Testing Laboratory at Pamba, as the same was found to be substandard. As per the said report, sugar candy supplied by the petitioner society during the year 2013-14 for making Aravana prasadam also failed in the quality test conducted at the 7 W.P.(C)No.1425 of 2023 Quality Testing Laboratory at Pamba. The Food Safety Officer, Pathanamthitta Circle had taken four samples of sugar candy supplied by the society and all four samples failed in the quality test conducted at Council for Food Research and Development (CFRD) Laboratory, Konni. The Food Safety Commissioner issued order No.D-1182-12 CFS dated 25.11.2013, based on which the petitioner society was imposed with a fine of Rs.50,000/- under Section 69 of the Food Safety and Standards Act, 2006. 10. As per Ext.R1(a) report dated 25.11.2014 of the Food Safety Commissioner, sugar candy supplied by the petitioner society during the year 2013-14 for making Aravana prasadam failed in the quality test conducted on 13.12.2013 by the Vigilance and Anti-Corruption Bureau at the Quality Testing Laboratory, Pamba, as the sugar candy supplied by the society was found substandard. Therefore, the Food Safety Commissioner and the Executive Officer, Sabarimala were requested to expedite the proceedings initiated against the society and the Travancore Devaswom Board was requested to take necessary steps to prevent the supply of substandard items at Sabarimala. Based on the report of the Vigilance and Anti-Corruption Bureau, which was forwarded to the office of the Food Safety Commissioner vide letter No.21223/Dev2/2014/RD dated 16.07.2014, the Assistant 8 W.P.(C)No.1425 of 2023 Food Safety Commissioner, Pathanamthitta was directed to take immediate action, vide letter No.D/2900/14 dated 20.09.2014. Since the petitioner society again supplied substandard sugar candy during the year 2014-15, in Ext.R1(a) report dated 25.11.2014, the Food Safety Commissioner found it essential to initiate proceedings against the society for an offence punishable under Section 51 of the Food Safety and Standards Act and accordingly directed the Assistant Food Safety Commissioner, Pathanamthitta to take statutory samples and sent it for analysis at the Government Analyst Laboratory and the Travancore Devaswom Board was directed to take steps to blacklist the society, since the society is repeatedly supplying substandard items. 11. The Executive Officer, Sabarimala forwarded Ext.R1(b) report dated 03.12.2014 to the 2[nd] respondent Devaswom Commissioner, wherein it was stated that the petitioner society did not supply sugar candy and black raisins in time. On account of the default committed by the petitioner society, the production of Aravana prasadam could not be completed as per the production plan. Ext.R1(b) report contains a statement of the production of Aravana prasadam during that year. As the stock of Aravana prasadam was very low, the Department was compelled 9 W.P.(C)No.1425 of 2023 to reduce the sale. The 2[nd] respondent Devaswom Commissioner considered the report of the Executive officer and the Food Safety Commissioner and issued notice Ext.R1(c) notice dated 11.12.2014 to the Secretary of the petitioner society stating the difficulties faced by the Board in the distribution of Aravana prasadam due to the failure of the society in promptly supplying the items, whereby it was informed that the Board had suffered a loss of Rs.7,41,68,160/- due to the failure on the part of the society. Therefore, the society was asked to show cause why the said loss shall not be recovered from it and the society shall not be blacklisted. 12. The petitioner society submitted Ext.R1(d) reply dated 02.01.2015, wherein it was stated the society had supplied 12,000 kgs of black raisins and 26,000 kgs of sugar candy during the season. The society procured sugar candy from Hugli in Karnataka and black raisins from Bandari Sangal Varshi in Maharashtra, which were having the required food safety standards. However, the items brought to Sabarimala were seized by the Food Safety Officers at Pampa. The 2[nd] respondent Devaswom Commissioner considered Ext.R1(d) reply submitted by the society and found that the reply was not satisfactory and convincing. The supply of Aravana prasadam had to be 10 W.P.(C)No.1425 of 2023 completely stopped for four days and partially for 3 days. To overcome the situation the Board was compelled to procure the items through local purchase, which had resulted in a loss to the tune of Rs.14,19,650/-, apart from the loss due to shortage in the sale of Aravana prasadam. Therefore, the 2[nd] respondent issued Ext.P10 order dated 28.05.2015 blacklisting the society so as to prevent the society from participating in future in the tender process in respect of Devaswoms under the management of the Travancore Devaswom Board, thereby confirming the provisional decision already taken, and to recover the monetary loss caused to the Board to the tune of Rs.14,19,650/- from the earnest money deposit and the bank guarantee provided by the society and any other payments. 13. Nearly two years after the issuance of Ext.P10 order of the 2[nd] respondent Devaswom Commissioner, the petitioner society filed W.P.(C)No.1196 of 2017 before this Court seeking reliefs in writ jurisdiction to direct the Travancore Devaswom Board to pay amounts allegedly due for the supply of sugar candy and black raisins to the Board. In Ext.P14 judgment dated 19.01.2017, this Court noticed that the contract between the petitioner society and the Board is not a statutory contract or one that can be adjudicated upon in writ jurisdiction, particularly 11 W.P.(C)No.1425 of 2023 because disputed questions of facts would also arise. Preserving the right of the petitioner society to suit or other proceedings, that writ petition was disposed of by Ext.P14 judgment, whereby the competent among the respondents were directed to take up Ext.P13 representation dated 05.09.2016 and decide upon it, within a period of two months. 14. The request made by the petitioner society in Ext.P13 representation was to remove its name from the list of contractors blacklisted, so as to enable the society to participate in future tender proceedings and also to release the payments withheld by the Board. From the judges’ papers in W.P.(C)No.1196 of 2017 we notice that one of the reliefs sought for in that writ petition was a writ of certiorari to quash Ext.P10 order dated 28.05.2015 of the 2[nd] respondent Devaswom Commissioner, whereby the society was blacklisted, in order to prevent it in participating in future tender proceedings, and to recover Rs.14,19,650/- from the earnest money deposit and bank guarantee provided by the society and other payments. In the said writ petition, filed nearly two years after the issuance of Ext.P10 order, this Court declined interference on that order vide Ext.P14 judgment dated 19.01.2017, preserving the right of the petitioner society to file suit or other proceedings, since the 12 W.P.(C)No.1425 of 2023 contract is not a statutory contract, and the adjudication involves disputed question of facts. Instead of approaching the competent civil court, by filing a suit, the petitioner society submitted Ext.P16 representation dated 21.01.2022 before the 2[nd] respondent Devaswom Commissioner, with a request to waive 50% of Rs.14,19,650/- directed to be paid vide Ext.P10 order dated 28.05.2015 towards the loss sustained to the 1[st] respondent Board by procuring items through local purchase. 15. During the pendency of this writ petition, the 1[st] respondent Board issued Ext.R1(e) order dated 11.04.2023, whereby the request made by the petitioner society in Ext.P13 representation dated 05.09.2016 stands rejected for the reason that on account of the default committed by the society in supplying sugar candy and black raisins as per the tender conditions, the Board has sustained loss during MandalaMakaravilakku festival season of 1190 ME. A reading of Ext.R1(e) order would show that as per the report dated 16.02.2022 of the Executive Officer, Sabarimala, due to the non-supply of the required items by the petitioner society, the Board sustained a loss of Rs.16,26,650/and a consequential loss of Rs.4,01,21,042/- due to the shortage in sale of Aravana prasadam. 13 W.P.(C)No.1425 of 2023 16. Food Safety and Standards Act, 2006 is enacted by Parliament to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for - laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto. 17. In **Centre for Public Interest Litigation v. Union of India and others [(2013) 16 SCC 279]** , the Apex Court held that any food article which is hazardous or injurious to public health is a potential danger to the fundamental right to life guaranteed under Article 21 of the Constitution of India. A paramount duty is cast on the States and its authorities to achieve an appropriate level of protection to human life and health which is a fundamental right guaranteed to the citizens under Article 21 read with Article 47 of the Constitution of India. 18. In **Swami Achyutanand Tirth v. Union of India [(2016) 9 SCC 699]** the Apex Court noticed that some of the objectives of the Food Safety and Standards Act are as follows; (i) to consolidate the laws relating to food, (ii) to establish Food Safety and Standards Authority of India for laying down science- 14 W.P.(C)No.1425 of 2023 based standards for articles of food, (iii) to regulate their manufacture, storage, distribution, sale and import, (iv) to ensure availability of safe and wholesome food for human consumption. The Act, apart from making more stringent provisions (e.g. prescribing higher penalties, etc.) to curb food adulteration, also ushers in new concepts such as putting in place food safety management systems and food safety audits to realise its ultimate goal of ensuring the availability of safe and wholesome food for human consumption. In order to ensure food safety, effective food safety systems implementation and to ensure that food producers and suppliers operate responsibly and supply safe food to consumers, the Act further stipulates (i) licensing for the manufacture of food products, which is presently granted by the Central agencies under various Acts and orders, would stand decentralised to the Commissioner of Food Safety and his office, (ii) single reference point for all matters relating to food safety and standards, regulations and enforcement, (iii) shift from mere - regulatory regime to self compliance through food safety management systems, (iv) responsibility on food business operators to ensure that food processed, manufactured, imported or distributed is in compliance with the domestic food laws. 19. In the instant case, the blacklisting of the petitioner 15 W.P.(C)No.1425 of 2023 society and the recovery of a sum of Rs.14,19,650/- from the earnest money deposit and the bank guarantee provided by the society vide Ext.P10 order dated 28.05.2015 of the 1[st] respondent Board was on account of supply of substandard sugar candy and black raisins for making Aravana prasadam in Sabarimala during Mandala-Makaravilakku festival season of 1190 ME. As evident from Ext.R1(a) report dated 25.11.2014 of the Food Safety Commissioner, sugar candy supplied by the petitioner society during the previous season of 1189 ME for making Aravana prasadam failed in the quality test conducted at the Quality Testing Laboratory at Pamba and later at CFRD Laboratory, Konni. Accordingly, the petitioner society was imposed with a fine of Rs.50,000/-, under Section 69 of the Food Safety and Standards Act, 2006, by the order dated 25.11.2013 of the Food Safety Commissioner. It is thereafter that the petitioner society supplied substandard items for making Aravana prasadam in Sabarimala during the festival season of 1190 ME. Therefore, in Ext.R1(a) report dated 25.11.2014, the Food Safety Commissioner found it essential to initiate proceedings against the petitioner society for the offence punishable under Section 51 of the said Act. 20. The learned counsel for the petitioner society would 16 W.P.(C)No.1425 of 2023 submit that the petitioner may be permitted to challenge Ext.R1(e) order dated 11.04.2023 of the 1[st] respondent Board by filing a fresh writ petition. 21. We find absolutely no merits in the aforesaid submission made by the learned counsel for the petitioner society. Having failed to challenge Ext.P10 order dated 28.05.2015 of the 2[nd] respondent Devaswom Commissioner by filing a suit before the competent civil court in terms of Ext.P14 judgment of this Court dated 19.01.2017 in W.P.(C)No.1196 of 2017, the petitioner cannot raise a challenge against the decision taken in Ext.P10 order to blacklist the society and to recover the monetary loss caused to the Board to the tune of Rs.14,19,650/from the earnest money deposit and the bank guarantee provided by the society. In the result, the petitioner is not entitled to the reliefs sought for in this writ petition. The writ petition fails and the same is accordingly dismissed. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/20/6 17 W.P.(C)No.1425 of 2023 ## **`APPENDIX OF WP(C) 1425/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit-P1 TRUE COPY OF THE ORDER 24.10.2014 ISSUED BY THE 1ST RESPONDENT. ``` ``` Exhibit-P2 TRUE COPY OF INVOICE DATED 10.12.2014 FOR SALE OF 4000 KGS OF SUGAR CANDY ISSUED BY THE PETITIONER. ``` ``` Exhibit-P3 TRUE COPY OF INVOICE DATED 25.12.2014 FOR SALE OF 10000 KGS OF SUGAR CANDY ISSUED BY THE PETITIONER ``` - **`Exhibit-P4 TRUE COPY THE INVOICE DATED 10.01.2015 FOR SALE OF 5000 KGS OF SUGAR CANDY ISSUED BY THE PETITIONER .`** - **`Exhibit-P5 TRUE COPY OF INVOICE DATED 31.03.2014 FOR SALE OF 1000KGS OF SUGAR CANDY ISSUED BY THE PETITIONER.`** - **`Exhibit-P6 TRUE COPY OF INVOICE DATED 31.10.2014 FOR SALE OF 2350 KGS OF BLACK RAISIN ISSUED BY THE PETITIONER.`** - **`Exhibit-P7 TRUE COPY OF INVOICE DATED 11.11.2014 FOR SALE OF 650 KGS OF BLACK RAISIN ISSUED BY THE PETITIONER.`** |**`Exhibit-P8`**|**`TRUE COPY OF INVOICE DATED 13.11.2014 FOR`**| |---|---| ||**`SALE OF 600 KGS OF BLACK RAISIN ISSUED BY`**| ||**`THE PETITIONER.`**| |**`Exhibit-P9`**|**`TRUE COPY OF INVOICE DATED 15.11.2014 FOR`**| ||**`SALE OF 640 KGS OF BLACK RAISIN ISSUED BY`**| ||**`THE PETITIONER.`**| |**`Exhibit-P10`**|**`TRUE COPY OF THE ORDER DATED 28.05.2015`**| ||**`ISSUED BY THE 2ND RESPONDENT.`**| |**`Exhibit-P11`**|**`TRUE COPY OF THE RTI APPLICATION DATED`**| ||**`31.05.2016 SUBMITTED BY V. THANKAPPAN TO`**| ||**`THE 2ND RESPONDENT`**| 18 W.P.(C)No.1425 of 2023 ``` Exhibit-12 TRUE COPY OF THE RTI REPLY DATED 03.10.2016 ISSUED BY THE PUBLIC INFORMATION OFFICER, SABARIMALA DEVASWOM TO V THANKAPPAN VIDE NO. EOP 945/16/P10 ``` ``` Exhibit-P13 TRUE COPY OF THE REPRESENTATION DATED 05.09.2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT ``` ``` Exhibit-P14 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO. 1196 OF 2017 DATED 19.01.2017. ``` - **`Exhibit-P15 TRUE COPY OF THE REPRESENTATION DATED 18.02.2017 SEND BY THE PETITIONER TO THE PRESIDENT OF THE 1ST RESPONDENT .`** ``` Exhibit-P16 TRUE COPY OF THE REPRESENTATION DATED 21.01.2022 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. ``` - **`RESPONDENT EXHIBITS`** - **`EXHIBIT-R1(A) TRUE COPY OF THE REPORT OF THE FOOD SAFETY COMMISSIONER DATED 25-11-2014`** ``` EXHIBIT-R1(B) TRUE COPY OF THE REPORT DATED 03-12-2014 FORWARDED BY THE EXECUTIVE OFFICER, SABARIMALA TO THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD ``` - **`EXHIBIT-R1(C) TRUE COPY OF THE NOTICE DATED 11-12-2014 ISSUED BY THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD TO THE PETITIONER`** - **`EXHIBIT-R1(D) TRUE COPY OF THE REPLY DATED 02.01.2015 SUBMITTED BY THE PETITIONER TO THE DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD`** ``` EXHIBIT-R1(E) TRUE COPY OF THE PROCEEDINGS OF THE TRAVANCORE DEVASWOM BOARD, VIDE ROC 293/2014/SAB DATED 11.04.2023 ```