The Travancore Devaswom Board vs Ayyappa Spices

2024 INSC 183 REPORTABLE

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)

JUDGMENT

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

1 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

Prasad of the Golden Temple at Amritsar 1. 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

decision of the High Court of Kerala 2 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 Safety and Standards Authority of India, 1st 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 2006 3; (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

3 Hereinafter referred to as the ‘Act’.

3 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

4 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- 5 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.”

In this application, it was asserted that the sale of prasadam 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.

6 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

7 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 8 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

Kumar Pandey v. State of West Bengal, (2004) 3 SCC 349 for

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

9 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

10 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

procurement, judicial review is restrained is well established 4. 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 12 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 13 [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

14 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

15 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.

16 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.

17