Sale of goods exceeding MRP violates legal provisions on fair pricing.

1. Aggrieved with the Order of the learned District Commission, Jalpaiguri dated 22.9.2017, passed in CC / 30/2017, this Appeal is moved by Ashiyana Hotel & Restaurant.

2. The core issue to be decided in this Appeal is whether or not a bottle of mineral water can be sold at a higher price vis - a - vis MRP by a Restaurant.

3. Piggybacking on the legislation, viz., S.36 of the Legal Metrology Act, 2009 together with Circular No. 173/8/2013 - ST dated 7.10.2013, issued by the Ministry of Finance, Govt. of West Bengal, and Guidelines on Fair Trade Practices relating to charging of service charge from consumers by hoteliers / restaurants, issued by the Ministry of Consumer Affairs, Food and Public Distribution, Govt. of India vide No. J - 24/9/2014 - CPU (pt.) dated 21.4.2017, the Respondent alleged that he was subjected to unfair trade practice by the Appellant. On the other hand, the Appellant claimed that the Respondent availed of due amenities at the restaurant knowing its full financial implications beforehand and thus, it was highly improper of him to initiate the instant complaint case.

4. Before I dwell on the issue, let me first put in place some of the relevant facts hereunder:
According to Cambridge dictionary, Retailer is a person, shop or business that sells goods to the public. Maximum Retail Price or MRP is the higher price at which product can be sold in India. According to R.18(2) of The Legal Metrology (Packaged Commodities) Rules, 2011, no retail including manufacturer, packer, importer and dealer or other person wholesale dealer shall make any sale of any commodity in packed form at a price exceeding the retail sale price thereof.

5. In this case, the disputed mineral water bottle was sold to the Respondent by the Appellant. It is important to note that the aforesaid rule covers all retail dealers and other persons and does not exclude hoteliers / restaurants. It is the settled position of law that a Court of Law cannot override a legal legislation. Without elaborating sufficient reason as to why a particular legislation is not applicable for a niche group, a Court of Law cannot simply say that the same is not applicable for someone. Therefore, notwithstanding the Appellant claimed immunity from the aforesaid Rule, the provision of law being amply clear in its content, I do not endorse such view.

6. It is true that one gets certain amenities at a restaurant or hotel which is generally not available at a roadside shop. However, let us appreciate that such services are provided only to promote the hotel / restaurant and draw customers. Moreover, one does not visit a restaurant or hotel merely for the purpose of drinking mineral water, but together with the same, more often than not a customer places order for different food items / beverage. So, I am not inclined to buy Appellant's contention that since serving mineral water at its restaurant entailed extending certain services, it was fully justified realizing service charge for the same from the Respondent.

7. In my considered opinion, if we give in to such alibi, it would open Pandora's Box. Nowadays, in any modern shopping mall, you get AC facility. Similarly, several roadside shops make sitting arrangements for customers where cold drinks are served at no extra cost. Not only that; on demand, straws are provided absolutely free of cost. Now, if a Restaurant / Hotel can charge extra amount for serving mineral water to a customer, by such parity of reasoning, shopping malls and roadside shops that provide sitting arrangements for their customers, would also demand similar privilege. If that ha