Kerala High Court
Roji Paul vs State Of Kerala on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA,
1943
WP(C) NO. 15538 OF 2021
PETITIONER/S:
1 ROJI PAUL
AGED 45 YEARS, S/O.PAULOSE, PROPRIETOR, MUTUAL
GAS AGENCIES, ADIMALI, IDUKKI DISTRICT, RESIDING
AT 'POTTACKAL', ADIMALI, IDUKKI-685561.
2 JOHNSON ISSAC,
AGED 52 YEARS, S/O.ISSAC ULAHANNAN, PROPRIETOR,
NATIONAL GAS AGENCIES, ADIMALI, IDUKKI DISTRICT,
RESIDING AT PUNNASSERY HOUSE, KOTHAMANGALAM.P.O,
ERNAKULAM-686691.
3 SARIMOL SURESHBABU,
AGED 43 YEARS, W/O.SURESH BABU, PROPRIETRIX,
EVERGREEN ENTERPRISES, ATHANI, ALUVA,
ERNAKULAM DISTRICT, RESIDING AT KOOTHATTU HOUSE,
CHENGAMANADU, ATHANI, ERNAKULAM-683578.
4 CHANDRAN.P.S,
AGED 57 YEARS, S/O.SIVASANKARAN NAIR,
PROPRIETOR, CHAITHANYA GAS AGENCIES,
THODUPUZHA, RESIDING AT KRISHNA MANDIRAM,
VENGALLOOR, THODUPUZHA, IDUKKI-685608.
BY ADVS.
D.KISHORE
MEERA GOPINATH
R.MURALEEKRISHNAN (MALAKKARA)
ARYA JOSEPH
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL
W.P.(C) No.15538 of 2021 2
SECRETARY TO GOVERNMENT, HEALTH AND FAMILY
WELFARE(F)DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE KERALA MEDICAL SERVICES CORPORATION LTD,
REPRESENTED BY ITS MANAGING DIRECTOR, BEHIND W &
C HOSPITAL, THYCAUD, THIRUVANANTHAPURAM-695014.
3 THE GENERAL MANAGER
KERALA MEDICAL SERVICES CORPORATION LTD,
BEHIND W & C HOSPITAL, THYCAUD,
THIRUVANANTHAPURAM -695014.
4 THE STATE MISSION DIRECTOR,
NATIONAL HEALTH MISSION, GENERAL HOSPITAL
JUNCTION, THIRUVANANTHAPURAM-695035.
5 THE KERALA STATE DISASTER MANAGEMENT AUTHORITY,
REPRESENTED BY ITS SECRETARY, 2ND FLOOR, PUBLIC
OFFICE BUILDING, REVENUE COMPLEX,
THIRUVANANTHAPURAM-695033.
6 THE DIRECTOR GENERAL OF HEALTH SERVICES,
OFFICE OF THE DIRECTOR GENERAL OF HEALTH
SERVICES, GENERAL HOSPITAL JUNCTION,
THIRUVANANTHAPURAM-695035.
7 THE COMMITTEE FOR DECIDING THE TRANSPORTATION
COST AND FOR MONITORING THE EFFECTIVE
IMPLEMENTATION OF THE ORDERS ISSUED BY UNDER THE
DRUGS (PRICES CONTROL)ORDER, 2013 REPRESENTED BY
ITS CHAIRMAN, OFFICE OF THE GENERAL MANAGER,
KERALA MEDICAL SERVICES CORPORATION LTD, BEHIND
W & C HOSPITAL, THYCAUD, THIRUVANANTHAPURAM-
695014.
BY ADV M.AJAY SC
ADV.V.MANU GP SR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.15538 of 2021 3
P.B.SURESH KUMAR, J.
-----------------------------------------
W.P.(C) No.15538 of 2021
-----------------------------------------------
Dated this the 20th day of October, 2021
JUDGMENT
On 25.09.2020, in exercise of the powers conferred
under the Drugs (Prices Control) Order, 2013 and Section 10(2)
(l) of the Disaster Management Act, 2005, the competent
authority in the Ministry of Chemicals and Fertilizers,
Government of India, having regard to the extraordinary
circumstances prevailing in the country on account of the
spread of Covid-19, prescribed the maximum price (ex-factory)
exclusive of Goods and Services Tax as applicable in respect of
Liquid Medical Oxygen as Rs.15.22 per cubic meter and
Oxygen Inhalation (Medicinal Gas) in cylinder as Rs.25.71 per
cubic meter. Ext.P2 is the order issued by the competent
authority in this regard. It is clarified, however, in Ext.P2 order
that the prices fixed therein do not include transportation cost
from the filler point. As it was not possible to give effect to
Ext.P2 order without fixing the transportation cost, the
Government constituted the seventh respondent committee to
fix the transportation cost. The seventh respondent committee
has now fixed the transportation cost in terms of Ext.P3 order.
The petitioners who are engaged in the business of distribution
and sale of Oxygen Inhalation (Medicinal Gas) in cylinder to
hospitals are aggrieved by the fixation of transportation cost
made by the seventh respondent committee for the filled
cylinders. In terms of Ext.P3 order, the maximum
transportation charges exclusive of GST for cylinders
measuring 1.5M3 is Rs.50, for cylinders measuring 7M 3 is
Rs.150 and for cylinders exceeding 7M 3 is Rs.20 for every
additional cubic meter.
2. According to the petitioners, distribution of
Medicinal Gas in cylinder involves, in addition to transportation
cost, various incidental costs such as the cost involved in
periodical maintenance of the cylinders, the cost involved in
maintaining support office, the additional cost involved for
supply during odd hours etc. It is the case of the petitioners
that the transportation cost provided for in Ext.P2 order takes
within its scope the incidental cost incurred by the distributors
of Medicinal Gas cylinders also and the seventh respondent
committee has not taken note of the incidental cost of
distribution, while fixing the transportation cost. It is also the
case of the petitioners that cost fixation has been made by the
seventh respondent committee without affording an
opportunity of hearing to at least the representatives of the
distributors to have an idea about the ground realities. It is the
further case of the petitioners that in the light of the fixation of
the transportation cost for Medicinal Gas cylinder, the
distribution business has now become non-viable, affecting the
fundamental right guaranteed to the petitioners under Article
19(1)(g) of the Constitution. The petitioners therefore challenge
in this proceedings, the fixation of transportation cost made for
filled cylinders in terms of Ext.P3 order.
3. Heard the learned counsel for the petitioners,
the learned Government Pleader as also the learned Standing
Counsel for respondents 2 and 3.
4. Ext.P2 is an order issued under Section 3 of the
Essential Commodities Act, 1955 which provides, among
others, measures for controlling the price of essential
commodities for securing their equitable distribution and
availability at fair prices. Insofar as the authority to fix
transportation cost of the commodities mentioned in Ext.P2 has
been delegated to the seventh respondent, the exercise of that
delegated power shall also be made with the same object
namely for securing equitable distribution of the commodities
and their availability at fair prices. In other words, the orders
issued towards this direction shall not affect in any manner the
viability of the trade of the commodity. Looking at the issue in
the above perspective, it is seen that there is force in the case
set out by the petitioners in the writ petition that the
transportation cost referred to in Ext.P2 order takes within its
scope the incidental cost incurred by persons involved in the
distribution as well.
5. As far as the case on hand is concerned, the
petitioners are persons involved in the business of distribution
of Medicinal Gas cylinders. They are concerned only about the
fixation of the transportation cost made for distribution of
Medicinal Gas cylinders. The specific case of the petitioners in
the writ petition is that after Ext.P2 order, the hospitals are
disbursing to them only the price of the Medicinal Gas fixed in
terms of Ext.P2 order and the transportation cost fixed by the
Government in terms of Ext.P3 order. No doubt, the petitioners
are entitiled to claim the said amount, but insofar as the
petitioners are getting only the said amounts in the matter of
distributing the Medicinal Gas cylinders, the transportation cost
fixed in terms of Ext.P3 order should not only take care of the
actual transportation cost involved in the distribution but also
all the incidental expenses and the profit which the petitioners
can legitimately expect. On a query, the Standing Counsel for
the second respondent submitted that persons like the
petitioners who are engaged in the distribution of Medicinal
Gas cylinder to various hospitals after collecting the same from
the suppliers or their representatives were not heard by the
seventh respondent committee in the matter of making its
recommendations to the Government, on the basis of which
Ext.P3 order was issued. On an examination of the materials on
record, I am of the view that the seventh respondent
committee ought to have heard at least the representatives of
persons like the petitioners also, in the matter of fixing the
transportation cost.
In the result, the writ petition is allowed and Ext.P3
order, insofar it relates to the transportation costs of the
Medicinal Gas cylinders referred to in Clause 4 of paragraph 2
of the said order, is set aside. Government is directed to obtain
a fresh recommendation from the seventh respondent
committee after affording an opportunity of hearing to the
petitioners, and their associations, if any, and issue a fresh
order fixing the transportation and other incidental costs
involved in the distribution of Medicinal Gas cylinders. This
shall be done within one month. It is also directed that until a
fresh decision is taken by the Government as directed above,
the arrangement in terms of Ext.P3 shall continue, subject to
the decision to be taken by the Government.
Sd/-
P.B.SURESH KUMAR, JUDGE.
YKB
APPENDIX OF WP(C) 15538/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE LICENSE DATED 3.6.2021
ISSUED TO THE 1ST PETITIONER BY THE
SECRETARY,ADIMALI GRAMA PANCHAYAT
Exhibit P1(A) TRUE COPY OF THE LICENSE RETENTION
LETTER DATED 11.6.2020 ISSUED TO THE
1ST PETITIONER BY THE ASSISTANT DRUGS
CONTROLLER, IDUKKI
Exhibit P1(B) TRUE COPY OF THE PRIOR APPROVAL
NO.A/G/SE/KL/06/348(G70335) DATED
5.10.2020 ISSUED TO THE 1ST PETITIONER
BY THE CONTROLLER OF EXPLOSIVES
Exhibit P1(C) TRUE COPY OF THE CERTIFICATE OF
PROVISIONAL REGISTRATION DATED
28.6.2017 ISSUED TO THE 1ST PETITIONER
UNDER THE GST ACT
Exhibit P2 TRUE COPY OF THE ORDER DATED 25.9.2020
PUBLISHED IN THE GAZETTE OF INDIA
(EXTRAORDINARY)DATED 25.9.2020
Exhibit P3 TRUE COPY OF THE G.O.
(RT)NO.1518/2021/H&FWD DATED 20.07.2021
OF THE 1ST RESPONDENT
Exhibit P4 TRUE COPY OF THE BILL OF SUPPLY DTED
15.7.2021 ISSUED BY THE 1ST PETITIONER
TO DISTRICT HOSPITAL, IDUKKI
Exhibit P5 TRUE COPY OF THE REPRESENTATION DATED
26.7.2021 SUBMITTED BY THE 1ST
PETITIONER BEFORE THE HONOURABLE CHIEF
MINISTER OF KERALA
