JUDGMENT

PATHAK, J. (With TULZAPURKAR, J.):— These Review Petitions are directed against the judgment of this Court dated September 7, 1978 disposing of Civil Appeals Nos. 1768 and 1769 of 1972.

2. Northern India Caterers (India) Ltd. run a hotel in which besides providing lodging and meals to residents it also operates a restaurant where meals are served to non-residents or casual visitors. In a reference made to the High Court of Delhi under S. 21 (3) of the Bengal Finance (Sales Tax) Act, 1941 as extended to the Union Territory of Delhi, the High Court expressed the opinion that the service of the meals to casual visitors in the restaurant was taxable as a sale. On appeal, this Court took a contrary view and held that when meals were served to casual visitors in the restaurant operated by the appellant the service must be regarded as providing for the satisfaction of a human need and could not be regarded as constituting a sale of food when all that the visitors were entitled to do was to eat the food served to them and were not entitled to remove or carry away uneaten food. Supporting considerations included the circumstances that the furniture and furnishings, linen, crockery and cutlery were provided, and there was also music, dancing and perhaps a floor show.

3. Mr. Soli J. Sorabjee, the learned Additional Solicitor General, who had been briefed by the respondent to appear at this stage in the case has, with his usual thoroughness and ability, succeeded in putting together a mass of legal material which we greatly wish had been before the Court when the appeals were originally heard. On the basis of that material, he submits that the judgment delivered by this Court ought to be reviewed. We have no hesitation in saying that had this material been available earlier, it would have enabled the Court to consider still further aspects of the problem and examine it more comprehensively. But having regard to the basis on which the appeals proceeded. We are unable to say that the result would necessarily have been different.

4. The learned Addition Solicitor General contended that the judgment of this Court is amenable to review because, he says, it proceeds on the erroneous assumption that a restaurant can, for the purposes of the point of law decided by us, be linked to an inn. We have been referred to Halsburys Laws of England *(1) and the Hotel Proprietors Act, 1956 mentioned therein. Our attention has also been invited to a statement in Benjamins Sale of Goods *(2) that when a meal is served to a customer in a restaurant there is a sale of goods, the element of service being subsidiary. As regards judicial opinion in England, reliance has been placed on Rex v. Wood Gren Profiteering Committee; Boots Cash Chemists (Southern) Lim. Ex parte, (1920) 89 LJKB 55, Rex v. Birmingham Profiteeirng Committee; Provincial Cinematograph Theatres, Lim. Ex parte, (1920) 89 LJ KB 57 and Lockett v. A. & M. Charles Ltd., (1938) 4 All ER 170. It appears, however, that the first and third of these three cases cannot be said to bear directly on the point. It was also urged that Marrill v. Hodson, L.R.A. 1915 B 481 and Mary Nisky v. Childs Company, 50 ALR 227, on which this Court relied, represent the Connecticut-New Jersey rule, but the opposite view emboided in the Massachusetts-New York rule and expressed in Friend v. Childs Dining Hail Co., 5 ALR 1100 represents the true law. it was said that the subsequent enactment of the Uniform Commercial Code *(1) in the United States has prepared the Massachusetts-New York rule by providing that for the purpose of the implied warranty of merchantability, the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale *(2). We were invited to consider Vishnu Agencies (Pvt.) Ltd. v. Commercial Tax Officer, (1978) 2 SCR 433 for the proposition that the concept of sale of goods as understood in the legislative entry in List II of the Seventh of our constitutional enactment