Apex Court upholds Travancore Devaswom Board’s decision of awarding supply order of cardamom for preparation of Sabarimala Aravana Prasadam to contractor
Justices A.S. Bopanna & Pamidighantam Sri Narasimha [06-03-2024]

Read Order: THE TRAVANCORE DEVASWOM BOARD v. AYYAPPA SPICES & ORS [SC- CIVIL APPEAL NOS. 3866-3867 OF 2024]

LE Correspondent

New Delhi, March 7, 2024:The Supreme Court has set aside a Kerala High Court’s order allowing a public interest litigation filed by the respondent-company challenging a supply order awarded to a rival contractor for sourcing cardamom for preparation of AravanaPrasadam in the Sabarimala Temple.

Travancore Devaswom Board was in appeal, before the Top Court, challenging the decision of the Kerala High Court 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 AravanaPrasadam in the Sabarimala Temple. By the first impugned order, the High Court confirmed the order restraining distribution of AravanaPrasadam and by the second impugned order, the High Court finally allowed the writ petition and directed prosecution of the appellant board for violation of the Food Safety and Standards Act, 2006. The appellant board was held to be a food business operator as per Section 3(1)(j) and the seized stock was ordered to be destroyed in accordance with law.

The facts of the case suggested that in order to procure cardamom, the appellant-Board issued 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.In order to procure cardamoms for the period from 01.11.2022 to 30.09.2023, the appellant-Board issued a third tender as the other two tenders were not initialised. 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, a notice inviting quotations along with samples was published on the notice board of the Sabarimala Temple.

Pursuant to the above notice, four bids were received. Respondent no. 1 was not one of them. 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 sent for re-examination to Government Analysts Lab, and the report said that the cardamom samples submitted by respondent no. 2 contained pesticides above the permissible threshold.It was at this stage that respondent no. 1 filed a writ petition before the High Court

It was the appellant’s case that even though the report of FSSAI clarified that the AravanaPrasadam is fit for human consumption, the appellant-Board was no longer desirous to distribute the Prasadam in view of the long lapse of time. It was also contended that Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011, do not contemplate regulating religious offerings integral to religious and cultural practices.

The respondents submitted that the primary intent behind initiating the litigation was not to hinder the distribution of AravanaPrasadam but to highlight malpractices within the administration of the Sabarimala Temple. One such issue was the opaque manner in which the supply order was issued to respondent no. 2 i.e., without open tenders. The respondent no. 1-successful bidder also raised an issue regarding the supply order being issued without a proper quality check.

Two issues before the Division Bench of Justice A.S. Bopanna & Justice Pamidighantam Sri Narasimha were whether the writ petition at the behest of respondent no. 1 should have been entertained by the High Court; and whether the appellant- Board qualified as a food business operator as defined under Section 3(1)(j) .

Placing reliance on the judgements in Tata Cellular v. Union of India  [LQ/SC/1994/685]; Michigan Rubber v. State of Karnataka  [LQ/SC/2012/666]Caretel Infotech Ltd. v. Hindustan Petroleum Corporation Limited &Ors., [LQ/SC/2019/661], the Bench reaffirmed the principle that in matters of public tenders for procurement, judicial review is restrained. 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.

The Top Court also opined that the respondent no. 1, the writ petitioner, was 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. It was quite evident that the writ petitioner was interested in the outcome of the writ petition.

One of the grievances raised before the Top Court was about the grant of contract in favour of respondent no. 2. The Bench noticed 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 bidders supplied cardamom of appropriate quality. It was in these compelling circumstances, considering the impending festive season and the imminent need to prepare a humungous quantity of AravanaPrasadam, 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, the Bench opined that it couldn’t be said that the decision was arbitrary, irrational or unreasonable. There was 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 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”,the Bench held while also clarifying, “…issue no. 2 relating to applicability of the Act to the appellant Board does not arise for consideration in this case.”

Thus, allowing the appeals, the Bench held that there was no illegality or arbitrariness in awarding the contract to respondent no. 2.