1976 Supreme(SC) 455

SUPREME COURT OF INDIA
Y.V. CHANDRACHUD, P.K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.
The Khadya Peya Vikarate Malka Sangh, Appellant
Versus
The Chief Officer, Sangli Municipal Council and another, Respondents.
Civil Appeal No. 1936 of 1972,
D/- 19-11-1976.
Advocates appeared
Mr. V. M. Tarkunde, Sr. Advocate, (Mr. S. B. Wad, Mrs. J. Wad and Miss Manek Tarkunde, Advocates with him), for Appellant; Mr. D. V. Patel, Sr. Advocate, (M/s S. C. Pratap and P. H. Parekh, Advocates with 528 him), (for No. 1) and Mr. M. N. Shroff, Advocate, (for No. 2), for Respondents.

Headnote:

Prevention of Food Adulteration Act 1954 - Section 24 (2) - Suit for declaration and injunction - Grant or renewal of a license – Claim of compensation - Whether licensed or not - Whether manufacturer or seller is licensed or not - Whether licensed or not who manufactures stores or sells any adulterated food - Whether or not article is adulterated - Facts of this case lie within a very narrow compass and the point involved is a pure question of law which depends upon the interpretation of certain provisions of Act and the Rules and the Rules made by Maharashtra Government - Before however analyzing provisions of the Act and the Rules made there under it may be necessary to state a few admitted facts - It is not disputed that the appellant is an Association of hoteliers and restaurant-keepers who are engaged in preparing eatables and other articles of food and selling the same to their customers - It is also not disputed that by and large members of the plaintiff-association prepare articles in a part of the premises where the hotel or restaurant is situated and after preparing the eatables they sell same to the customers visiting those places - There was some controversy on the question as to import and ambit of the word manufacture but counsel for the appellant did not dispute seriously and rightly that for purpose of this case preparation of the articles of food would be included within the ambit of term manufacture - In these circumstance therefore court need not dilate on this point any further - Learned counsel for the appellant submitted that as the main business of the members of plaintiff-association was retail sale of the articles prepared by them they were essentially retail sellers and they could be charged fees only in this capacity - It is thus contended that the case of the appellant would clearly fall within the ambit of items 3 to 8 of Appendix – Held, There is no provision in the Rules which in any way prevents or interferes with the discharge of the duties of a Food Inspector - Power to inspect and check is a plenary power which has been conferred on the Food Inspector by the statute itself and no rule made by the Government can ever interfere with this power - In these circumstances it is difficult to accede to the contention that unless the members of plaintiff-association are licensed as manufacturers also will not be possible for the Food Inspector to inspect and check the premises where the articles are prepared - Act is a social piece of legislation meant to control and curb adulteration of articles of food and being in the interest of public health it has to be liberally construed and no limitations can be inferred on powers of the Food Inspector whose primary duty is to see that adulterated articles are neither manufactured, nor stored, nor sold - For these reasons therefore main contention on this score is overruled - Contention of counsel for respondent regarding powers of the Food Inspector may be tested from another angle of vision on the touch-stone of practical reality - Suppose a particular State Government does not choose to frame any Rules at all under the provisions of the parent Act can it be argued with any show of force that in such cases the Food Inspector would become absolutely powerless and wholly ineffective - Answer must be in the negative because it is manifest that the duties and functions of the Food Inspector spring from the parent statute and are not in any way correlated to additional duties provided for in the Rules which may be framed by the State Government - Thus even from this point of view, the argument put forward by the respondent fails - Court have already pointed out that where the dominant nature of the trading activity of a person is neither that of a manufacturer nor as a wholesale dealer but he is engaged in retail sale item 1 would have no application - Mere fact that trader prepares the articles for the purpose of selling same to his customers would not make him either a wholesale dealer or a manufacturer - In first place appellants members cannot be wholesale dealers because there is nothing to show that they deal in articles for purpose of re-sale - On the other hand nature of their trading activity is one of retail sale - In these circumstances the case of the appellant clearly falls within items of Appendix - High Court was therefore in error in taking the view that the case of the appellant was covered both by item of Appendix and was therefore not justified in reversing judgment of the Extra Assistant Judge - On a consideration therefore of the facts and circumstances of case court are clearly of opinion that in the instant case members of plaintiff-association who are mostly restaurant-keepers conducting business of retail sale preparation of articles being merely an ancillary activity are liable to pay license fee under items of Appendix (1) and not under item 1 of the Appendix (1) to Schedule - Plaintiff is therefore entitled to the declaration sought for and is also entitled to refund - Appeal allowed