'State Govt. Lacks Jurisdiction' : Kerala High Court Stays GO Fixing Price Of Packaged Drinking Water At Rs.13

The Kerala High Court on Wednesday stayed the government order fixing the price of bottled water in the State at Rs 13 citing the State's lack of jurisdiction.

Justice P.V. Kunhikrishnan observed that the State Government has no power to regulate the price of drinking water under the Food Security Act and sought the Centre's view on the matter.

In 2019, Kerala Bottled Water Manufacturers Association preferred a representation before the Government to take measures to control the selling price of bottled drinking water. According to them, it was being sold at exorbitant prices and different maximum retail prices within the State.

The government after considering the representation, issued a notification (Ext P1) declaring bottled drinking water as an essential article under Kerala Essential Articles Control Act 1986.

Subsequently, based on this notification, the State passed an order (Ext P3) fixing the price of packaged drinking water as Rs.13/-.

Three petitions reached the Court against the impugned Government Order and they urged for an early hearing of the petition or to stay the GO pending disposal of the writ petition.

The case of the petitioners was that the Government orders were unsustainable and liable to be interfered with by the Court invoking the powers under Article 226 of the Constitution.

The Court upon perusing the orders noted that it was not necessary to dispose of the petitioner at this stage and thereby granted an interim order in favour of the petitioners. 

It also observed: 

"The intention behind the Government to issue Exts P1 and P3 orders is genuine and perfectly laudable. But whether Exts P1 and P3 will legally sustainable is the question."

The Court then examined the Kerala Essential Articles Control Act 1986 and found that as per Section 3, the power to control production, supply, distribution of essential commodities are vested with the Centre. 

The respondents themselves admitted that the State Government has no power to control the price of drinking water.

To this, the State submitted that it is not the drinking water that is regulated but the composite product of bottled drinking water and therefore there is the power to the Government to regulate the price rate of bottled drinking water as per Act 1986.

However, this argument did not convince the bench. The Judge noted that the Food Safety and Standards Authority of India has issued Food Safety and Standards (Food Products, Standard and Food Additives) Regulations 2011 bringing in various food products under the purview of the aforesaid regulation. "Packaged drinking water" comes under Article 2.10.8 of the said regulation. 

Article 254 says that if any provision of law made by a State legislature is repugnant to any provisions of law made by Parliament, which Parliament is competent to enact or to any provisions of existing law with respect to one of the matters enumerated in the concurrent list, the existing law shall prevail and the law made by the legislature of the State shall to the extent of repugnancy, be void.

Based on these provisions, the Court came to the conclusion that the State lacks jurisdiction in declaring "packaged drinking water" as an essential article under the Kerala Essential Articles Control Act, 1986 in the light of the Food Safety Act 2006. 

"In such circumstances, I am of the prima facie opinion that respondent No.1 lacks jurisdiction in declaring packaged drinking water as an essential article based on Ext P1 notification, and consequently, Ext P3 order regulating the price of the packaged drinking water is legally unsustainable." 

The Court noted that although it could allow the petitions on the above discussion, it did not want to do so since the grievance raised by the Kerala Bottled Water Manufacturing Association was 'genuine'.

"The packaged drinking water is now sold at different prices at different places. According to me, the State Government should come with a proposal to regulate the same in consultation with the Union of India."

Consequently, the Centre has been directed to file an affidavit about the manner in which the price of packaged drinking water can be regulated. 

Advocate Mary Benjemin appeared for the petitioners while the respondents were represented by Additional Advocate General K.P. Jayachandran and Advocates Joy Thattil Ittoop, Bijish B. Tom, Gens George Elavinamannil, Jacob Tomlin Varghese, Baby Sonia, Afitha P. Beeran, Ponnu Tom Padinjarekara and Mathew Joseph Balummel. 

Case Title: Kerala Packaged Drinking Water Manufacturers Association v. State of Kerala & Ors

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