Roji Paul vs. State Of Kerala
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR WEDNE AY, 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 J U D G M E N T 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
W.P.(C) No.15538 of 2021 4 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 7M3 is Rs.150 and for cylinders exceeding 7M3 is Rs.20 for every additional cubic meter.
According to the petitioners, distribution of Medicinal Gas in cylinder involves, in addition to transportation
W.P.(C) No.15538 of 2021 5 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
W.P.(C) No.15538 of 2021 6 in this proceedings, the fixation of transportation cost made for filled cylinders in terms of Ext.P3 order.
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
W.P.(C) No.15538 of 2021 7 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.
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
W.P.(C) No.15538 of 2021 8 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
W.P.(C) No.15538 of 2021 9 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. P.B.SURESH KUMAR, JUDGE. YKB
W.P.(C) No.15538 of 2021 10 APPENDIX OF WP(C) 15538/2021 PETITIONER EXHIBITS Exhibit P1OF THE LICENSE DATED 3.6.2021 ISSUED TO THE 1ST PETITIONER BY THE SECRETARY,ADIMALI GRAMA PANCHAYAT Exhibit P1(A)OF THE LICENSE RETENTION LETTER DATED 11.6.2020 ISSUED TO THE 1ST PETITIONER BY THE ASSISTANT DRUGS CONTROLLER, IDUKKI Exhibit P1(B)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)OF THE CERTIFICATE OF PROVISIONAL REGISTRATION DATED 28.6.2017 ISSUED TO THE 1ST PETITIONER UNDER THE GST ACT Exhibit P2OF THE ORDER DATED 25.9.2020 PUBLISHED IN THE GAZETTE OF INDIA (EXTRAORDINARY)DATED 25.9.2020 Exhibit P3OF THE G.O. (RT)NO.1518/2021/H&FWD DATED 20.07.2021 OF THE 1ST RESPONDENT Exhibit P4OF THE BILL OF SUPPLY DTED 15.7.2021 ISSUED BY THE 1ST PETITIONER TO DISTRICT HOSPITAL, IDUKKI Exhibit P5OF THE REPRESENTATION DATED 26.7.2021 SUBMITTED BY THE 1ST PETITIONER BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.