Full Judgment Text
REPORTABLE
2024 INSC 183
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3866-3867 OF 2024
ARISING OUT OF SLP (C) NOS. 10361-10362 OF 2023
THE TRAVANCORE DEVASWOM BOARD ...APPELLANT(S)
VERSUS
AYYAPPA SPICES & ORS. …RESPONDENT(S)
J U D G M E N T
PAMIDIGHANTAM SRI NARASIMHA, J.
1. Leave granted.
2. Tirth and prasad offered at places of worship are regarded as
sacred and bond the worshiper with the worshipped. While in
temples and gurudwaras, prasad or bhog may be an essential part
of their religion, it is not uncommon for other places of worship to
serve some food, toast or drink as a religious offering.
3. As of 2019, it is believed that India has a place of worship for
every 400 people. While in most of these religious places, food is
Signature Not Verified
prepared and served at a large scale on special occasions, there
Digitally signed by
Indu Marwah
Date: 2024.03.06
17:51:28 IST
Reason:
are hundreds of temples and gurudwaras, which serve tens of
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thousands of devotees twice every day. Several temples and
gurudwaras have their own unique and traditional way of
preparing the prasad or bhog like the Laddu of Tirupati and Karah
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Prasad of the Golden Temple at Amritsar . Though somewhat
connected with divine blessing in the form of prasad or bhog , this
case draws us back to aggressive competing business interests -
for supply of 7000 kilograms of cardamom for making Aravana
Prasadam .
4. Travancore Devaswom Board is in appeal challenging the
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decision of the High Court of Kerala allowing the writ petition
filed as a public interest litigation by respondent company in a
contract by tender for sourcing raw material for preparation of
Aravana Prasadam in the Sabarimala Temple. By the first
impugned order dated 27.03.2023, the High Court confirmed the
order restraining distribution of Aravana Prasadam and by the
second impugned order dated 11.04.2023, the High Court finally
allowed the writ petition and directed – (i) prosecution of the
appellant board for violation of the Food Safety and Standards Act,
1
Guidance Document for Maintaining Food Safety & Hygiene in Places of Worship, Food
st
Safety and Standards Authority of India, 1 Edition, January 2018.
2
Arising out of order dated 27.03.2023 in I.A. No. 3 of 2023 and judgment and final order
dated 11.04.2023 passed by the High Court of Kerala at Ernakulam in W.P. No. 41743 of
2022.
2
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2006 ; (ii) that the appellant board is a ‘food business operator’ as
per Section 3(1)(j) of the Act; and (iii) that the seized stock shall be
destroyed in accordance with law.
Facts:
5. The appellant-Board is a statutory and an autonomous body
which manages certain temples in the southern part of India,
including the Sabarimala Temple. One of the many functions of
the appellant-Board, in so far as the Sabarimala Temple is
concerned, is the preparation and distribution of the Aravana
Prasadam. The appellant-Board is also tasked with procuring the
raw material necessary for its preparation. One such raw material
is cardamom. In order to procure the same, the appellant-Board
issues tenders in frequent intervals. Respondent no. 1 was the
successful bidder in 2021 and it supplied 9000 kilograms of
cardamom to the appellant-Board for the years 2021-2022.
6. In order to procure cardamoms for the period from
01.11.2022 to 30.09.2023, the appellant-Board issued a tender on
16.06.2022. However, this tender was cancelled as all the bidders
supplied cardamom which contained pesticides beyond the
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Hereinafter referred to as the ‘Act’.
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permissible limit. A fresh tender came to be issued on 24.08.2022
and this was also cancelled for the same reason. It is an admitted
position that respondent no. 1 has participated in these tenders.
7. Since the first two tenders had failed to fetch an appropriate
bid, the appellant-Board issued a third tender on 12.10.2022.
However, as the festive season was fast-approaching, the
appellant-Board was constrained to invoke the urgency clause and
authorise the Executive Officer of Sabarimala Temple to procure
cardamom from local sources. Accordingly, on 04.11.2022, since
a decent number of cardamom traders were present in the temple
premises, a notice inviting quotations along with samples was
published on the notice board of the Sabarimala Temple.
8. Pursuant to the above notice, four bids were received.
Respondent no. 1 was not one of them. The cardamom samples
submitted by these four bidders was subjected to testing at the
Quality Testing Laboratory at Pamba, a place located close to the
Temple. Two out of the four samples failed to meet the minimum
standards. Subsequent to price negotiations with the remaining
two bidders, respondent no. 2 was given supply orders aggregating
to 7000 kilograms of cardamom. However, at the instance of the
other bidders, the samples submitted by respondent no. 2 were
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sent for re-examination to Government Analysts Lab,
Thiruvananthapuram, and the report dated 03.12.2022 said that
the cardamom samples submitted by respondent no. 2 contained
pesticides above the permissible threshold.
9. It is at this stage that respondent no. 1 filed a writ petition
before the High Court seeking the following two reliefs:
“ Issue a writ of mandamus or appropriate writ, direction
or order to the respondents to conduct an analysis of the
cardamom which was purchased after cancellation of
Ext. P9 tender at Government Analytical Lab
Thiruvananthapuram under the supervision of this
Court.
Issue a writ of Certiorari or appropriate writ, direction to
the respondents to cancel the local purchase of
cardamom as it was done without competition and
newspaper advertisement. ”
10. After taking cognizance of the matter, the High Court passed
an order dated 23.12.2022 directing the sample to be subjected to
re-examination at the Government Analyst Laboratory,
Thiruvananthapuram. The resultant report dated 28.12.2022 was
nothing different from the previous report, labelling the cardamom
as ‘unsafe’. In fact, even the Commissioner of Food Safety through
his report dated 05.01.2023 termed the product as ‘unsafe’.
Further, the High Court through its order dated 06.01.2023
directed the samples to be sent to the FSSAI Office at Kochi for re-
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examination. Even FSSAI, Kochi, termed the product as ‘unsafe’
through its report dated 11.01.2023. Therefore, placing reliance on
these developments, the High Court of Kerala by its order dated
11.01.2023 restrained the appellant-Board from distributing the
Aravana Prasadam and directed the sealing of the warehouse
where the Aravana Prasadam was stored.
11. Pending disposal of the writ petition, the appellant-Board filed
I.A. No. 3 of 2023 on 17.01.2023 before the High Court. Through
this application, it sought the following relief:
“[…] permit the petitioners to draw sample, from the
stock of Aravana kept sealed, through the food safety
officers and to send the same for analysis to any
laboratory accredited by FSSAI to test whether the
Aravana prasadam confirms to the food standards
prescribed by FSSAI and is safe for human consumption,
in the interest of justice, pending disposal of the writ
petition. ”
prasadam
In this application, it was asserted that the sale of was
stopped on 11.01.2023. It stated that the available stock of
6,65,159 cans of prasadam , balance stock of 800 grams of
cardamom, and 43.92 kilograms of cardamom powder were sealed.
While this was to be sampled by the Government Analyst’s
Laboratory, Thiruvananthapuram, the appellant-Board sought
that the same be sampled by another laboratory in parallel.
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12. The writ petition itself came to be partly disposed of by the
High Court through the impugned interim order dated 27.03.2023,
where the High Court dismissed the I.A. No. 3 of 2023. The High
Court relied on the tests conducted previously to dismiss the said
application. It further held that the appellant-Board falls under the
definition of “ food business operator ”, for the purposes of section
3(1)(j) of the Act, with a co-relative obligation to ensure that the
food sold / distributed, and the raw material used for its
preparation are safe and pure. Eventually, the final impugned
order came to be passed on 11.04.2023 where the High Court
allowed the writ petition, and the impugned interim order dated
27.03.2023 was affirmed. It further ordered the destruction of the
seized stock and directed that appropriate criminal proceedings be
initiated. The appellant-Board has filed the instant appeals against
the above-referred two orders.
Before this Court:
13. This Court issued notice on 15.05.2023, and stayed the
orders impugned herein. By the same order FSSAI was directed to
get an analysis of the Aravana Prasadam and file a report before
this Court. The relevant portion of this direction is as follows:
“Further, the competent authority under the Food
Safety and Standards of India (FSSAI) shall, in the
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meanwhile, take random samples for the stock of
Aravanam Prasadam available and get an
analysis done with regard to the quality and as to
whether the same is fit for human consumption.”
14. Pursuant to our direction, the FSSAI got the sample analysed
and filed a report of its opinion before this Court on 12.06.2023.
The relevant portion of the opinion is as follows:
“Opinion:
1. Pesticides mentioned in the analytical report are
below limit of quantification and is satisfactory.
2. Microbiological parameters conforms to ready to
eat grain products and is not substandard. Based
on the above analytical report it is fit for
consumption.”
:
Submissions
15. At the outset, Sri V. Giri, learned senior counsel appearing
for the appellant-Board, submitted that even though the report of
FSSAI called by this Court clarifies that the Aravana Prasadam is
fit for human consumption, the appellant-Board is no longer
desirous to distribute the Prasadam in view of the long lapse of
time. We had taken note of the statement and proceeded to hear
the submission of the parties.
15.1 On merits, Sri Giri submitted that the writ petition was a
motivated one. It was submitted that respondent no. 1 had
concealed the fact that he had supplied cardamom in the past and
also that he had contested the earlier two tenders which later came
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to be cancelled. It was further submitted that the filing of the writ
petition suggests unresolved business conflicts and underlying
rivalry. In this light, it was contended that the High Court should
not have entertained the writ petition and should have dismissed
it at the very threshold. He relied on the decisions of this Court in
S.P. Gupta v. Union of India , 1981 Supp SCC 87 and Ashok
for
Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349
this purpose.
15.2 The second leg of Mr. Giri’s submission is against the
determination of appellant-Board as a “ food business operator ”. It
is contended that Aravana Prasadam is not a sale for revenue or
profits, but considered as an offering to devotees. It was submitted
that the Aravana Prasadam holds religious significance to
devotees, and is treated as an offering from the deity itself.
Therefore, subjecting it to stringent regulations under the Act
would hinder its object, purpose and functions. He also submitted
that the Board itself takes all measures to ensure that the health
of the devotees is never compromised. As a matter of principle, it
is submitted that Food Safety and Standards (Licensing and
Registration of Food Businesses) Regulations, 2011, do not
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contemplate regulating religious offerings integral to religious and
cultural practices.
16. Learned counsel appearing for respondent no. 1 made
submissions regarding their bonafide action in initiating the PIL in
this case. It asserted that its primary intent was not to hinder the
distribution of Aravana Prasadam but to highlight malpractices
within the administration of the Sabarimala Temple, one such
issue is the opaque manner in which the supply order was issued
to respondent no. 2 i.e., without open tenders. The respondent no.
1 also raised an issue regarding the supply order being issued
without a proper quality check.
17. Sri Natraj, learned ASG, representing the Ministry of Health
& Family Welfare and FSSAI, submitted that he is not concerned
with the factual matrix of the case but confined his arguments to
the legal issue. He submitted that prasadam is understood as
offerings made to a deity and returned to devotees. It is considered
sacred. While it is sacred and symbolical, it is not meant for
appetite satiation. He also submitted that there is no fundamental
or statutory right to enforce a specific form or standard of
prasadam . He would submit that judicial review based on an
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individual’s claim of quality is not permissible, and therefore, the
High Court should not have interfered in the matter.
18. Two questions emerge for our consideration – (i) whether the
writ petition at the behest of respondent no. 1 should have been
entertained by the High Court; and (ii) whether the appellant-
Board qualifies as a “ food business operator ” as defined under
Section 3(1)(j) of the Act.
Re: Whether the writ petition at the behest of Respondent No.
1 should have been entertained by the High Court?
19. The principle that in matters of public tenders for
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procurement, judicial review is restrained is well established . In
cases where a party invoking writ jurisdiction has been a
participant in the tender process, courts should be slow and
cautious in exercising the power of judicial review. In a recent
decision,
UFLEX Ltd. v. Government of Tamil Nadu , Civil
Appeal Nos. 4862-63 of 2021 , this Court has held that
constitutional courts should exercise caution while interfering in
contractual and tender matters, disguised as public interest
litigations. The following observations are important for the
purpose of this case:
4
Tata Cellular v. Union of India, (1994) 6 SCC 651, Michigan Rubber v. State of Karnataka ,
(2012) 8 SCC 216, Caretel Infotech Ltd. v. Hindustan Petroleum Corporation Limited & Ors .,
(2019) 14 SCC 81.
11
“ 1. The enlarged role of the Government in economic
activity and its corresponding ability to give economic
“largesse” was the bedrock of creating what is
commonly called the “tender jurisdiction”. The objective
was to have greater transparency and the consequent
right of an aggrieved party to invoke the jurisdiction of
the High Court under Article 226 of the Constitution of
India, beyond the issue of strict enforcement of
contractual rights under the civil jurisdiction. However,
the ground reality today is that almost no tender remains
unchallenged. Unsuccessful parties or parties not even
participating in the tender seek to invoke the jurisdiction
of the High Court under Article 226 of the Constitution.
The public interest litigation (PIL) jurisdiction is also
invoked towards the same objective, an aspect normally
deterred by the Court because this causes proxy
litigation in purely contractual matters.
2. The judicial review of such contractual matters has its
own limitations. It is in this context of judicial review of
administrative actions that this Court has opined that it
is intended to prevent arbitrariness, irrationality,
unreasonableness, bias, and mala fides. The purpose is
to check whether the choice of decision is made lawfully
and not to check whether the choice of decision is sound.
In evaluating tenders and awarding contracts, the
parties are to be governed by principles of commercial
prudence. To that extent, principles of equity and natural
justice have to stay at a distance.
3. We cannot lose sight of the fact that a tenderer or
contractor with a grievance can always seek damages
in a civil court and thus, “attempts by unsuccessful
tenderers with imaginary grievances, wounded pride
and business rivalry, to make mountains out of molehills
of some technical/procedural violation or some prejudice
to self, and persuade courts to interfere by exercising
power of judicial review, should be resisted.”
20. We find merit in the argument of the appellant-Board that
respondent no. 1 could not have invoked the jurisdiction of the
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High Court, being an interested party. The reliance placed by the
appellant-Board on the precedent of this Court in
Ashok Kumar
Pandey ( supra ) is apposite. In a similar context, this Court held:
“ 4. When there is material to show that a petition styled
as a public interest litigation is nothing but a camouflage
to foster personal disputes, the said petition is to be
thrown out. Before we grapple with the issue involved in
the present case, we feel it necessary to consider the
issue regarding public interest aspect. Public interest
litigation which has now come to occupy an important
field in the administration of law should not be “publicity
interest litigation” or “private interest litigation” or
“politics interest litigation” or the latest trend “paise
income litigation”. If not properly regulated and abuse
averted it also becomes a tool in unscrupulous hands to
release vendetta and wreak vengeance as well. There
must be real and genuine public interest involved in the
litigation and not merely an adventure of a knight errant
or poke one's nose into for a probe. It cannot also be
invoked by a person or a body of persons to further his
or their personal causes or satisfy his or their personal
grudge and enmity. Courts of justice should not be
allowed to be polluted by unscrupulous litigants by
resorting to the extraordinary jurisdiction. A person
acting bona fide and having sufficient interest in the
proceeding of public interest litigation will alone have a
locus standi and can approach the court to wipe out
violation of fundamental rights and genuine infraction of
statutory provisions, but not for personal gain or private
profit or political motive or any oblique consideration.
These aspects were highlighted by this Court in Janata
Dal case [(1992) 4 SCC 305 : 1993 SCC (Cri) 36] and Kazi
Lhendup Dorji v. Central Bureau of Investigation [1994
Supp (2) SCC 116 : 1994 SCC (Cri) 873] . A writ petitioner
who comes to the court for relief in public interest must
come not only with clean hands like any other writ
petitioner but also with a clean heart, clean mind and
clean objective. See Ramjas Foundation v. Union of India
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[1993 Supp (2) SCC 20 : AIR 1993 SC 852] and K.R.
Srinivas v. R.M. Premchand [(1994) 6 SCC 620].
12. Public interest litigation is a weapon which has to be
used with great care and circumspection and the
judiciary has to be extremely careful to see that behind
the beautiful veil of public interest an ugly private malice,
vested interest and/or publicity-seeking is not lurking. It
is to be used as an effective weapon in the armoury of
law for delivering social justice to citizens. The attractive
brand name of public interest litigation should not be
used for suspicious products of mischief. It should be
aimed at redressal of genuine public wrong or public
injury and not publicity-oriented or founded on personal
vendetta. As indicated above, court must be careful to
see that a body of persons or a member of the public,
who approaches the court is acting bona fide and not for
personal gain or private motive or political motivation or
other oblique consideration. ...
”
21. In the present case, respondent no. 1, the writ petitioner, is
an interested party. It had supplied cardamom to the appellant-
Board for the year 2021-2022. It had also participated in the two
tenders released by the appellant-Board, which later came to be
cancelled. Although this information has not been concealed, it is
quite evident that the writ petitioner was interested in the outcome
of the writ petition. The second prayer in the writ petition, which
has been extracted before, is for cancellation of the purchase of
cardamom from respondent no. 2. This prayer makes it clear that
the real grievance is about the grant of contract in favour of
respondent no. 2. The High Court should not have entertained the
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writ petition on behalf of an interested person who sought to
convert a judicial review proceeding for enhancing personal gain.
22. This writ petition also challenged the manner in which the
cardamom was sourced. We cannot lose sight of the fact that the
appellant-Board initially tried to purchase cardamom by issuing
tenders and calling for bids, not just once, but twice over. However,
these tenders were cancelled since none of the bidder’s supplied
cardamom of appropriate quality. It is in these compelling
circumstances, considering the impending festive season and the
imminent need to prepare a humungous quantity of Aravana
Prasadam , that the appellant-Board invoked the urgency clause in
its regulations and authorised the Chief Executive Officer of the
Sabarimala Temple to procure cardamom from local sources.
Thus, it cannot be said that the decision is arbitrary, irrational or
unreasonable. There is neither arbitrariness nor malice in the
decision of the appellant-Board as all the prospective bidders were
given a fair chance as the notice to purchase cardamom was
published on the notice board. The cardamom samples submitted
by the bidders were then tested in a nearby lab, which was also
established by the Commissioner of Food Safety as per an order of
the High Court. Thereafter, price negotiations were conducted, and
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respondent no. 2 was given supply orders after quoting the lowest
rates. We are of the opinion that the decision of the appellant-
Board is legal, fair and transparent. For the above reasons, we are
of the view that the High Court committed an error in entertaining
the writ petition filed by respondent no. 1.
23. In view of the above discussion we are of the opinion that the
High Court should have dismissed the Writ Petition on the
question of maintainability itself. In this view of the matter, issue
no. 2 relating to applicability of the Act to the appellant Board does
not arise for consideration in this case.
24. After hearing the parties and at the time of reserving the
judgment on 03.11.2023, we passed the following order:-
“…
At this stage, the learned senior counsel for the
petitioner(s) would submit that the stock of Aravanam
Prasadam, which was to be distributed earlier, but
prevented pursuant to the interim and final orders of
the High Court, is still lying in the premises but the
petitioner-Board is not intending of using the same.
In that regard, we take note of the report filed on
behalf of the Food Safety and Standard Authority of
India (FSSAI) which would indicate that Aravanam
Prasadam is fit for human consumption.
However, as the petitioner-Board itself has taken
a decision that the Aravanam Prasadam will not be
distributed, the stock presently existing will have to be
destroyed as per the appropriate procedure as
indicated by the State Government.
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Under these circumstances, we direct the State
Government to destroy/dispose of the existing stock of
Aravanam Prasadam in an appropriate manner by
following the necessary procedure. For this purpose, we
also direct the Travancore Devaswom Board to extend
complete co-operation and ensure that the stock is
destroyed/disposed as it is stated that the next season
for opening of the temple is due and fresh Aravanam
Prasadam will have to be stored.
All necessary steps may be taken by the State
Government and the Travancore Devaswom Board as
expeditiously as possible.”
25. In conclusion, we allow the appeals and set aside the
Impugned Interim Order dated 27.03.2023 in I.A. No. 3 of 2023
and the impugned final judgment dated 11.04.2023 passed by a
Division Bench of the High Court in W.P. No. 41743 of 2022, and
hold that there was no illegality or arbitrariness in awarding the
contract to respondent no. 2.
26. Pending application(s) shall be disposed of accordingly.
27. There shall be no order as to costs.
……..………………………………. J.
[A.S. Bopanna]
…………….…………………………. J.
[Pamidighantam Sri Narasimha ]
New Delhi.
March 06, 2024.
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