# [1973] 3 S.C.R. 777

- **Citation:** [1973] 3 S.C.R. 777
- **Court:** Supreme Court of India
- **Decided:** 1973-03-28
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1973-3-s-c-r-777-5949
- **Pages:** 6

## Headnote

777
BISHAMBAR NATH AND OTHERS
l'
TIJE AGRA NAGAR MAHAP ALlKA AGRA AND ANO;HER
March 28, 1973
·
[J. M. $HELAT, ACTING C.J., 5. N. DWIVEDI AND
B
.
Y. V. CHANDRACHUD, JJ.] .
u.P. Municipalities Act, Sec. 244, "An article of food or drink
apptars to be intended for tire conswnptio1r of man,"-Un{it condition
._
fl/ foodstuff i~ to ~e determine~ by . an objccth·e
test and not
011
c
subjective salls/actlOii of the mspectmg o[Jicer-Whethl!r the order re·
gu/ating sale of alia for animal consumplioli ~·a/id undu Sec. 244.
The appellant purchased certain quantity of wheat flour from the
~Jilitary Dairy Farm, Agra. which was declared
unfit for human consumption. He exposed it for sale with a sign-board that the wheat flour
11'015 uniit for human consumption.
The appellant wanted to sell it for
lchi or for manure or for animal consumption.
On complaint by the
second respondent, the District l\(agistrate, Agra, passed an order proD hibiting the sale umler section 144 of the Cr. P.C. The appellant was
also prosecuted under U.P. Prevention of Food Adulteration Act, but
was acquitted: The appellant applied to the Corporation for permission
to sell the wheat flour.
On September !7, !945, Respondent No. 1 passed
~n order under section 44 of the U.P. Municipalities Act permitting the
disposal of the flour under certain conditions.
On representation made
lty the appellant, Respondent No. 1 passed a second order on October_ 8,
19~5. int~r alia, directing that tile flour should not be s~ld for f~edm~
E
aJJ~J is kept for dairy purposes. The appellant filed. a sm.t fo: damage,
az;~r?>t the respondents for stopping the sale and for IIDJ?OSID,!l' illegal restnctJo:JS elfcc:tively preventing the s:J!e, resulting in dctenoratt~n of
t~c
nour and Ia<..~ of profit,.
The trial
court • decreed . the swt but tnc
All;,habad High Court set it aside.
On app.:al to th1s Court, the ques·
1'0:1 for consideration wa5 whether the order purported to be passcJ by
ropondt:llt no. 1 under section 2-U was a valid order, and whether res-
•. PoJL!ent No. 1 was liable to pay damages.
1. HElD~ The phrase, "an article of foou or drink appea~s t!-> b~a:~=
f~~d fo• con~umption of man," does not conte~ptate subJt'C{;~~ 5ellcr
,11ct1011 of the inspecting officer :u held by t.he Htgll Court:
Hi~ in-
~~tulrJ i.nll:nJ tn sell nn article of food for human consun;;~~iJence as a
r~,.'on It <in ohjective fact which shoulJ. be pro~ ny,;ucis intent.kd fc>t
{;
hu,;~nJble rn:.n will believe that lh>! -:~rt,de of f
' 111
40 con\lllnption.
(781 11
~ .
f
huntan con~umption. It
~
~Iron 244(1) contempbte' a direct safe •'f·IJ
indirect sal~ for
hum not contemplate, a~ the I ligh Court ha~ ~~ ·t' th~ nour is sold for
ftc,/0 con~umption. The Ili!:h Court hdd t_ ~ 1 n it would be a sale
for
1h~ OJih.:h animal~ or animal'S who~e lles~JS n~tt\;r;:nd prevention or
11
l~le roman consumptio:1.
The legi~lature \. 1 J by sub-section ( 1) 0
St<: ,or con\umption of animal~ to be regu a.: .
'-44. f7BIHJ
,
~~~ ~ppeal was partly
·· l1~sl snmg the quantum
P. CIJ73
aii.Jwed and remanded
0 ( Jamagi:S.
to the High Court for
,·
.... ,..-·
.i
I I
J
778
SUPREME COURT REPORTS
[1973] 3 S.C,R.

## Text

777
BISHAMBAR NATH AND OTHERS
l'
TIJE AGRA NAGAR MAHAP ALlKA AGRA AND ANO;HER
March 28, 1973
·
[J. M. $HELAT, ACTING C.J., 5. N. DWIVEDI AND
B
.
Y. V. CHANDRACHUD, JJ.] .
u.P. Municipalities Act, Sec. 244, "An article of food or drink
apptars to be intended for tire conswnptio1r of man,"-Un{it condition
._
fl/ foodstuff i~ to ~e determine~ by . an objccth·e
test and not
011
c
subjective salls/actlOii of the mspectmg o[Jicer-Whethl!r the order re·
gu/ating sale of alia for animal consumplioli ~·a/id undu Sec. 244.
The appellant purchased certain quantity of wheat flour from the
~Jilitary Dairy Farm, Agra. which was declared
unfit for human consumption. He exposed it for sale with a sign-board that the wheat flour
11'015 uniit for human consumption.
The appellant wanted to sell it for
lchi or for manure or for animal consumption.
On complaint by the
second respondent, the District l\(agistrate, Agra, passed an order proD hibiting the sale umler section 144 of the Cr. P.C. The appellant was
also prosecuted under U.P. Prevention of Food Adulteration Act, but
was acquitted: The appellant applied to the Corporation for permission
to sell the wheat flour.
On September !7, !945, Respondent No. 1 passed
~n order under section 44 of the U.P. Municipalities Act permitting the
disposal of the flour under certain conditions.
On representation made
lty the appellant, Respondent No. 1 passed a second order on October_ 8,
19~5. int~r alia, directing that tile flour should not be s~ld for f~edm~
E
aJJ~J is kept for dairy purposes. The appellant filed. a sm.t fo: damage,
az;~r?>t the respondents for stopping the sale and for IIDJ?OSID,!l' illegal restnctJo:JS elfcc:tively preventing the s:J!e, resulting in dctenoratt~n of
t~c
nour and Ia<..~ of profit,.
The trial
court • decreed . the swt but tnc
All;,habad High Court set it aside.
On app.:al to th1s Court, the ques·
1'0:1 for consideration wa5 whether the order purported to be passcJ by
ropondt:llt no. 1 under section 2-U was a valid order, and whether res-
•. PoJL!ent No. 1 was liable to pay damages.
1. HElD~ The phrase, "an article of foou or drink appea~s t!-> b~a:~=
f~~d fo• con~umption of man," does not conte~ptate subJt'C{;~~ 5ellcr
,11ct1011 of the inspecting officer :u held by t.he Htgll Court:
Hi~ in-
~~tulrJ i.nll:nJ tn sell nn article of food for human consun;;~~iJence as a
r~,.'on It <in ohjective fact which shoulJ. be pro~ ny,;ucis intent.kd fc>t
{;
hu,;~nJble rn:.n will believe that lh>! -:~rt,de of f
' 111
40 con\lllnption.
(781 11
~ .
f
huntan con~umption. It
~
~Iron 244(1) contempbte' a direct safe •'f·IJ
indirect sal~ for
hum not contemplate, a~ the I ligh Court ha~ ~~ ·t' th~ nour is sold for
ftc,/0 con~umption. The Ili!:h Court hdd t_ ~ 1 n it would be a sale
for
1h~ OJih.:h animal~ or animal'S who~e lles~JS n~tt\;r;:nd prevention or
11
l~le roman consumptio:1.
The legi~lature \. 1 J by sub-section ( 1) 0
St<: ,or con\umption of animal~ to be regu a.: .
'-44. f7BIHJ
,
~~~ ~ppeal was partly
·· l1~sl snmg the quantum
P. CIJ73
aii.Jwed and remanded
0 ( Jamagi:S.
to the High Court for
,·
.... ,..-·
.i
I I
J
778
SUPREME COURT REPORTS
[1973] 3 S.C,R.
CIVIL APPELLATE JURISDICTION : . Civil Appeal No. 1809 of
J 967.
Appeal by certificate from the judgment and decree dated May
25, 1962 of the Allahabad High Court in Appeal No. 328 of 1950.
C. K. Daphtary and Rameshwar Nath, for the appellants.
R. N. Sharma and C. P. Lal, for the respond~n<ts.
The Judgment of the Court was delivered by
DWIVEDI, J.-The appellants instituted a suit against the res~
pondents for recovery of Rs. 34,000 as damages.
The suit wus
grounded on tortious liabtility. The trial coun decreed the suit,
but the High, Court of Allahabad reversed the decree and dismissed
the suit. The present appeal is directed against the decree of the
High Court.
The appellants are the partners of the firm Shiam Lal Radhey
Lal. The first respondent is the Agra Mahapalika; the second
respondent is the Health Officer of the Mahapalika. The Military
Dairy Farm at Agra was in possession of a certain quantity of
wheat flour.
It was declared unfit for human consumption .. It
was purchased for the firm.
According to the
appellants,
it
was fit for being used as lehi, manure and ratab for consumption
by animals. Broadly stated, their case was that the respondents
initially stopped them from selling the flour and subsequently im~
posed restriction on its sale, "which effectively prevented the sale."
Loss was cause to them on account of delay in sale due to their
intervention.
The respondents denied their liability. They said that their
action was bona fide and in the interest of public safety and health
and in pursuance of the directions given by the magistrate. According to themt the appellants took no steps to prevent the sale
of flour for hl,Iman consumption.
The two central issues are : ( i) whether the respondents are
liable to pay damages in the circumstances of the case; and (2)
if so, what is tiJ8. quantum of their liability. On the first issue
the High Court has held that the respondents are not liable at alt.
On the second issue the High Court has given no finding.
The appeHM!s started selling the flour from March 20, 1945.
On May 17, f945, the second respondent reported to the Administrator of the Nagarpalika that the flour was in a decomposed and
deteriorated condition and was unfit for human consumption. He
admitted in the report that the firm of the appellants "has set up
a placard to say it (flour) is condemned atta and unfit for consumotion." The Nagarpalika reported the matter to the District
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BISHAMBAR NATH v.· AGRA NAGAR MAHAPALIKA (Dwivedi, J.) 779
Magistrate, Agra. On July 26, 1945 an order was issued under
s. 144 Cr. P. C. prohibiting the appellants from selling the flour
for one month. This order was extended till September 20, 1945
by another order, dated September 18, 1945.
The appellants
were prosecuted for offences under ss. 4 and 14 of the U.P. Prevention of Adulteration Act and s. 273 I.P.C, . The flour was
seized by the order of the magistrate ru1d kept in the custody of
the appellants until further orders. the magistrate acquitted the
appellants on September 5, 1945. In the operative portion of
the judgment he gave this direction : "Since this Atta is noxious
·to public health and it is not possible to prevent its reaching consumers (even though the accused had best intention)
without
effective regulation 1 order that the entire Atta still be taken possession oi by the Municipal medical officer of Health who will
kindly regulate its disposal in consonance with considerations to
the owner as is necess~ry to prevent its being used as food. The
Atta has already been kept frozen for too long a time and I would
request the medical officer to kindly expedite action in this. Copy ,
of this order may be sent to medical officer of Health immediately."
On September 17, 1945 the second respondent issued an order
under s. 244 of the U.P. Municipalities Act. The order was with
respect to 2048 bags of Atta seized by the magistrate in connection
with the crimmal case. The order permitted the appellants to
dispose of the ftour subject to the following conditions, : ( 1) they
E
should engage a salesman approved by the second respondent to
sell the Atta; (2) they should keep -a separate stock book and
sales-book in respect of the Atta. In the sales book the nan1.es
and addresses of all buyers should be mentioned. There should
be a column for the signature of the buyers; (3) the Atta should
be sold onlyfor being used as lehi to recognised book-binders and
F
shoe-merchants etc.; and ( 4) they should submit weekly return
of sale to the Nagarpalika. By their letter, dated September 22,
1945, the appellants replied to this letter. They said that the Atta
could also be used for animal food and wanted pennission to :.eH
it for animal food after mixing gram dal chuni with it.
They
ended the letter by saying that immediate attention should be paid
to their request as they have "already suffered great loss at their
G
hands due to wrongful seizure etc. and as the delay affects the
quality of the Atta." They sent a reminder on September 24,
1945. The respondents, by their letter, dated September 27, 1945.
infonned them that the appointment of Nanu Mal as salesman
was awroved. It was emohasised in the letter that the directions
mentioned in the letter of September 17, 1945 should be carried
It out by them .. ;J'hey gave no reply to the request of the appellants
for the sale of flour for animal food. By his letter, dated October
6, 1945, the second respondent, however, oennitted them to sell
the flour for animal food under certain conditions. By the letter,
780
SUPREME COURT REPORTS
[1973] 3 S.C,R.
dated October 8, 1945, the second respondent issued the followjng
directions to the appellants under · s. 244 of the Municipalities
Act : (1) The Atta should not be sold for feeding animals kept
for dairy purposes; (2) flour less than one full bast should not
be sold to one individual; (3) there should be a distinctive label
on every bag containing the warning that the conte:q.ts could be
used for animals only and were unfit for human consumption; and
( 4) any officer of the N agarpalika not below the rank of a Sanitary Inspector would be allowed free access ·to the shop in which
the Atta was stored for the purpose of inspecting sales and examining the account books.
We do not think that the respondents are liable for the stoppage of sale from July 26 to September 20, 1945. During that
period the sale was stopped biY an order of the magistrate under
s. 144 Cr. P.C. The question is whether they are liable tor loss
incurred by the appellants for any period after September 20,
1945.
The appellants ground their claim on the respondents'
orders passed under section 244 of the Municipalities Act between
September 17 and October 8, 1945. They say that the orders arc
invalid and malafide.
The IJ'Spondents seek to escape -liability
in two ways : (1) firstly, they acted in accordance with the order
of the magistrate, dated September 5, 1945; secondly, their orders
under s. 244 were valid and made bonafide.
The magistrate's
order can 'afford them no protection. The magistrate had no
power to make that order. Counsel ·for the respondents did not
bring to our notice any provision of law empowering the magistrate to make that order. It is now to be seen whether the respondent's ·action is protected by the provisions of section 244.
Section 244 finds place in Chapter VIII of the Municipalities
Act. Chapter VIII deals with markets, slaughter houses and sale
of food etc.
Sections 239, 242 and 243 are also included in
Chapter VIII.
Section 239 materially provides ·that "whenever
it appears to the District Magistrate to be necess~ry for the preservation of the pub1ic peace or order, he may .. ; ... prohibit or
regulate, the slaughter within the limits of a municipality of animal
or animals of any specified description for purposes other than sale
and prescribe the mode and· route in and by which such animals
shall be brought to, and meat shall be conveyed from, the place
of slaughter.'' Section 242 reads : "Whoever feeds or allows to
be fed, an animal which is kept for dairy purposes, or may be
used for food, on filthy or deleterious substance, shall be liable
to conviction to a fine which may extend to fifty rupees. Section
243 is in these words : "The President, the executive officer, or
the medical officer of health and, if authorised in this behalf by
resolutjon, any other member, officer or servant of the board may.
without notice, at any period of the day or night, enter into and
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BISHAMBAR NATH V. AGilA NAGAR MAHAPALIKA (Dwivedi, J.) 781
.
.
inspect a market, shop, stall or place used for the sale of food or
drink for man, or as a slaughter-house, or for the sale of drugs
and inspect and examine any articles of food or drink, or any
animal or drug which may be therein." Section 244 reads : ( 1 )
If, in the course of the inspection of a place under the preceding
section, an article of food or drink or an animal appears to be
intended for the consumption of man and to be unfit therefor, the
board may seize and remove the same, or may cause it to be destroyed,. or to be so disposed of as to prevent its bein~ exposed· for
sale or use for such consumption." Section 244( 1) IS not happily
worded. However, when the phrase "an article of food or drink
or an animal appears to be intended for the consumption of man"
is read in the context of s. 243, the implication of the phrase
becomes plain. It implies that' the sale of an article of food or
drink or an animal should appear to be intended for human consumption and should be unfit therefor. Admittedly, th~ flour was
unfit for human consumption. So the real issue js as to whether
its sale appeared to be intended for human oonsuinption.
According to the High Court, the phrase "appears to hie intend~
ed lor the consumption of man'' connotes that the sale of an article
of food should appear to the inspecting officer to be intended for
humari consumption. His subjective satisfaction about this matter
is decisive. The High Court has also taken the view that subE section ( 1 ). aims to prevent a direct as well as an indirect sale for
human consumption. According to the High Court, if the flour is
sold for feeding milch animals or animals whose flesh is eaten, it
would be a :;ale for human consumption. In our opinion, s. 244( 1)
is not susceptible of those meanings.
~e phrase "an article of
food or drink appears to be intended for the consumption of man''
does not contemplate any subjective satisfaction. The seller
F
should intend to sell an article of food for human .consumption.
His intention is an objective fact. There should be present some
facts or circu.nma.nces which would incline a reasonable man to
believe that the sale of an article of food or drink or an -animal
was intended for human consumption. The language of subsection ( 1) of s. 244 is radically different from the lan~uage of
G
s. 239. Under s. 239 the District Magistrate is empowered to act
whenever it appears to him to bte necessary for the preservation
of public peace. or order.
These words are not used in s. 244( 1).
Again, the phrase "an article of food or drink or animal appears
to be intended for the consumption of man, does not contemplate
an indirect purpose of sale. It contemplates sale for human conH
sumption, If an article mentioned in sub-section ( 1) of s. 244
is sold for feeding an animal which is kept for dairy purposes, the
seller shall be liable on conviction to a fine which may extend to
fifty rupees.
(See section 242) . If the Legislature had intanded
782
SUPREME COURT REPORTS
[1973] 3 S.C,R.
to prevent sale for animal consumption also, it would have clearly
said so in sub-section ( 1) of s. 244.
It is true that the object of s. 244 (1) is laudable. But it is
not legitimate to strain the language of the section as the High
Court has done in aid of such object. It is open to the legislature
to amend the section if it intends to give greater protection to
municipal action.
It is clear from the evidence on record that the appellants had
taken steps to inform the buyers that the flour was unfit for human
consumption. They had pla<::ed a sign-board in which it was
clearly stated that the flour was unfit for human consumption. The
oral evidence adduced by the appellants is to the same effect. It
is admitted by the respondents that the appellants had placed a placard informing that the flour was unfit for human consumption.
Their oral evidence does not show that the appellants were selling
flour for human consumption. The appellants mixed mai2Je flour
with the condemned flour. But this act also would not show thatthey intended to sell the mixed flour for human food. The respondents could not therefore take action under s. 244. The orders
passed by them under section 244 are invalid.
It is immaterial that the respondents had acted bona fide and
in the interest of preservation of public health. There motive may
be good but their orders are illegal. They would accordingly be
liable for agy loss caused to the appe~ants. by their action.
The High Court has not recorded any finding on the quantum
of their liability. In view of our finding that the respondents are
liable, the, case will now have to go back to the High Court for
giving a finding on the issue regarding damages.
We allow the appeal and set aside the judgment and decree of
the High Court. The case is remanded to the High Court ior
deciding the issue about damages. Costs will abide the decision
of the High Court on the question of damages.
S.B.W.
Appeal allowed.
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