# HAMDARD DWAKHANA (WAKF'), DELID & ANR v. UNION OF INDIA AND OTHERS

- **Citation:** [1965] 2 S.C.R. 192
- **Court:** Supreme Court of India
- **Decided:** 1964-11-23
- **Bench:** P. B. Gajendragadkar, M. H!Dayatullah, J. c. SHAH, B S. M. Sikri, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hamdard-dwakhana-wakf-delid-anr-v-union-of-india-and-others-3314
- **Pages:** 13

## Headnote

Fruit Products Order 1955-Issued under s. 3 Essential Commoditie•
Act, 1955-C/ause JI of the order specifying qualitative requirements for
beverages containing fruit juices-Whether order 'dealt with adulteration
of fruit products-Therefore whether invalid not having been issued under
the Food Adulteration Act, 1954-A/so whether restriction Order made
thereunder invalid for infringing Trade mark rights.
The appellants manufacture a medicated syrup "Sharbat Roob Afza"
according to a formula and containing some fruit juices.
Acting under
s. 3 of the Essential Commodities Act, 1955, the Central Go<crnment
made the Fruit Products order in 1955; as a result of an· a1nendn1ent in
September 1956 of the relevant provisions of this Order, the requirement
of the minimum percentage of fruit juices in a fruit syrup covered in
part II of the Second Schedule of the Fruit Order was raised from 10%
to 25 % . This requirement was duly notified to the Appellants.
Thereafter as a result of an inspection of their factory by the Marketing development Officer, the appellants received an order from him requiring them
to stop further manufacture and sale of 'Sharbat Rooh Afza' forthwith on
the ground that it did not contain the minimum percentage of fruit juices
prescribed by the relevant provisions of the Fruit Order. The appellants
challenged this order in a Writ Petition on the ground, inter alia, that the
Fruit Order did not apply to 'Sharbat Roob Afza' and also that the impugned
order and the Fruit Order were invalid. The High Court, however, rejected these grounds, uphdd the Yalidity of the Fruit Order and diomissed the petition.
It was contended on behalf of the appellants that the 'Sbarbat' was a
medicinal product and not a 'fruit product' as defined by cl. 2(d) of
the Fruit Order; that the Fruit Order was invalid because it could have
appropriately been issued only under the Prevention of Food Adulterntion
Act, 1954,,.,and not the Essential Commodities Act, 1955; and that the
impugned order was invalid because it affected the appellant's Trade-mark
rigts.
HELD : (i) The Sharbat was a fruit product v.ithin the meaning of cl.
2(d)(v) of the Fruit order as the residuary part of that clause tock in
any bcverazes. containing fruit juices or fruit pulp; as such, its product!on
could be contrvlled by the relevant provisions of the order.
The. High
Court was right in rejecting the appellant's contention that the Sharbat was
a medicinal nroduct in vie\v of the fact that the appellants had not claimed
exemption f;om the application of the Fruit Order by complying with Cl.
16(l)(c) thereof. [200 E-G; 201 H; 203 A]
(ii) As section 3 (i) of the Essential. Commodities A.ct authorised the
Central Government to regulate the quahtahve and quant1tat1ve production
of essential commodities, and as the pith and substance of lhe relevant
provisions of the Fruit Order was clearly to regulate the qualitative production of the Fruit Products covered by it, the contention that the regulations imposed by the order were outside the purview of s. 3(i), could
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HAMDARD DWAKHANA v. UNION (Gajendragadkar, C.J.) 193
not be accepted. The order was not therefore invalid on the ground that
it pmported to tackle the problem of adultetation and should therefore
have b-een issued under the Prevention of Food Adulteration Act, 1954.
[201 D---202 CJ
(iii) ·n1e Fruit Order and the Act under v..-hich it \\,.as issued were
constitutionally valid as the restrictions imposed by them \Vere reasonable
and in the interest of the general public.
What the impugned order purported to do was to require the appellants to comply wilh reasonable restrictions imposed by the Fruit Order and the fact that, incidentally, compliance with the Fruit Order might tend to affect the trade-mark rights,
could not render the impu';lled order invalid. [203 D-EJ
(iv) The definition of 'synthetic beverage' in cl. 2(k) of the Fruit
OrdeT which indicates that it is a beverage which contai

## Text

HAMDARD DWAKHANA (WAKF'), DELID & ANR.
A
v.
UNION OF INDIA AND OTHERS
November 23, 1964
[P. B. GAJENDRAGADKAR, C.J., M. H!DAYATULLAH, J. c. SHAH,
B
S. M. SIKRI AND R. S. BACHAWAT, JJ.]
Fruit Products Order 1955-Issued under s. 3 Essential Commoditie•
Act, 1955-C/ause JI of the order specifying qualitative requirements for
beverages containing fruit juices-Whether order 'dealt with adulteration
of fruit products-Therefore whether invalid not having been issued under
the Food Adulteration Act, 1954-A/so whether restriction Order made
thereunder invalid for infringing Trade mark rights.
The appellants manufacture a medicated syrup "Sharbat Roob Afza"
according to a formula and containing some fruit juices.
Acting under
s. 3 of the Essential Commodities Act, 1955, the Central Go<crnment
made the Fruit Products order in 1955; as a result of an· a1nendn1ent in
September 1956 of the relevant provisions of this Order, the requirement
of the minimum percentage of fruit juices in a fruit syrup covered in
part II of the Second Schedule of the Fruit Order was raised from 10%
to 25 % . This requirement was duly notified to the Appellants.
Thereafter as a result of an inspection of their factory by the Marketing development Officer, the appellants received an order from him requiring them
to stop further manufacture and sale of 'Sharbat Rooh Afza' forthwith on
the ground that it did not contain the minimum percentage of fruit juices
prescribed by the relevant provisions of the Fruit Order. The appellants
challenged this order in a Writ Petition on the ground, inter alia, that the
Fruit Order did not apply to 'Sharbat Roob Afza' and also that the impugned
order and the Fruit Order were invalid. The High Court, however, rejected these grounds, uphdd the Yalidity of the Fruit Order and diomissed the petition.
It was contended on behalf of the appellants that the 'Sbarbat' was a
medicinal product and not a 'fruit product' as defined by cl. 2(d) of
the Fruit Order; that the Fruit Order was invalid because it could have
appropriately been issued only under the Prevention of Food Adulterntion
Act, 1954,,.,and not the Essential Commodities Act, 1955; and that the
impugned order was invalid because it affected the appellant's Trade-mark
rigts.
HELD : (i) The Sharbat was a fruit product v.ithin the meaning of cl.
2(d)(v) of the Fruit order as the residuary part of that clause tock in
any bcverazes. containing fruit juices or fruit pulp; as such, its product!on
could be contrvlled by the relevant provisions of the order.
The. High
Court was right in rejecting the appellant's contention that the Sharbat was
a medicinal nroduct in vie\v of the fact that the appellants had not claimed
exemption f;om the application of the Fruit Order by complying with Cl.
16(l)(c) thereof. [200 E-G; 201 H; 203 A]
(ii) As section 3 (i) of the Essential. Commodities A.ct authorised the
Central Government to regulate the quahtahve and quant1tat1ve production
of essential commodities, and as the pith and substance of lhe relevant
provisions of the Fruit Order was clearly to regulate the qualitative production of the Fruit Products covered by it, the contention that the regulations imposed by the order were outside the purview of s. 3(i), could
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HAMDARD DWAKHANA v. UNION (Gajendragadkar, C.J.) 193
not be accepted. The order was not therefore invalid on the ground that
it pmported to tackle the problem of adultetation and should therefore
have b-een issued under the Prevention of Food Adulteration Act, 1954.
[201 D---202 CJ
(iii) ·n1e Fruit Order and the Act under v..-hich it \\,.as issued were
constitutionally valid as the restrictions imposed by them \Vere reasonable
and in the interest of the general public.
What the impugned order purported to do was to require the appellants to comply wilh reasonable restrictions imposed by the Fruit Order and the fact that, incidentally, compliance with the Fruit Order might tend to affect the trade-mark rights,
could not render the impu';lled order invalid. [203 D-EJ
(iv) The definition of 'synthetic beverage' in cl. 2(k) of the Fruit
OrdeT which indicates that it is a beverage which contains no fruit juice
cannot be said to conflict with the requirements of c:!. 11 (2) that beverages
containing Jess than 25% fruit juices should be ~:>-Id as 'synthetic' products.
Furthermore, cl. 11 contains a positive provis~on and the validity
of the mandatory requirements of cl. 11 could f!'.•t ne impaired by the
alleged inconsistency bet\ll·een that provision and the Je!:inition of 'synthetic'
beverage prescribed by cl. 2(k).
[203 A-BJ
Amrit Banaspati Co. Ltd. \". The Stale of U.P. Gr. A. No. 141 of 1959
Ja:ed 30-11-60, referred to.
CIVIL AP PELLA TE JURISDICTION : Civil Appeal No. 934 of
1964.
Appeal from the judgment and order dated January 13, 1964,
of the Punjab High Court (Circuit Bench) at Delhi in Civil Writ
No. 258-D of 1957.
Hardayal Hardy, B. Dutta, M. S. K. Sastri and J. B· D~
chanii, for the appellants.
C. K. Daphtary, Attorney-General R. K. P. Shan_kardass and
R. H. Dhebar, for the respondents.
The Judgment of the Court was delivered by
Gajen:fraga~, C.J. . The two appellants, th6 Hamdard
Dawakhana (Wakf), Delhi, and its Mutawalli Haji Hakim Hame.-
ed, represent the Hamdard Dawakhana institution which was initially established in or about 1906 as a dawakhana and was subsequently declared and founded as a Wakf. Since its in~eption,
the institution has been running dispensaries and clinics for the
treatment of patients and has been manufacturing and supplying
medicines and medicinal products according to Ayurvedic and
Unani Systems of medicines.
Appellant No. 1 also manufactures
medicated syrups which contain some fruit juices for medicinal
use and they are prepared according to a certain fonnula devised
by it.
"Sharbat Rooh Afza" which is a medicated syrup manufactured by appellant No. 1 is made of the following ingredients :-
"Kasni seeds, Khus, PumDkin Juice, Water melon
Juice, Chharila, Ripe grapes, Spinach, Nilofar, Sandal,
194
SUPREME COURT REPORTS
(1965] 2 S.C.R.
Gu! Gaozaban, Coriandar, Carrot, Mint, Kulfa, Keora,
A
Rose, Citrus flower, Otange Juice, Pine-apple Juice,
Water, Sugar",
The formula determining the ratio and proportion in which each
one of the ingredients has to be used, has been evolved by appellant No. 1 as a result of various experiments spread over a long
B
period.
The manufacture of this Sharbat began in 1920. It is
intended ·to be w;ed for common ailments during hot seasoD,
particularly for ailments like loss of appetite, sun stroke, nausea,
sleeplessness, etc.
This Sharbat Rooh Afza is not a foodstuff,
and cannot be regarded as an essential commodity under s. 2 of
the Essential Commodities Act, 1955 (No. 10 of 1955) (hefeinC
after called 'the Act').
In substance, this is the case as set out
by the appellants in their petition.
Purporting to act under s. 3 of the Act the Central Government made an Order called the Fruit Products Order,
1955
(hereinafter called 'the Fruit Order') under Notification No. D
S.R.O. 1052 dated May 3, 1955. Under clause 3 of the Order,
respondent No. 4, the Central Fruit Products Advisory Committee, has been constituted. It appears that on the 22nd September, 1956, the Central Government purporting to act under
s. 3 of the Act, made certain amendments in the Fruit Order.
The result of one of the amendments thus made was to direct ·E
that the minimum percentage of fruit juice in the final product
of a fruit syrup. as indicated in Part II of the Second Schedule to
the Fruit Order should be raised from
10% to 25%.
The
change so made was notified to the appellants by respondent No·
2, the Marketing Development Officer, Fruit Products, Central
Zone, Delhi, on January 29, 1957.
As a result of this intimaF
tion, certain correspondence followed between the appellants and
respondent No. 2.
The appellants had urged in the course of
this correspondence that Sharbat Rooh Afza did not fall within
the scope of the Act and the Fruit Order.
On March 25,. 1957, respondent No. 3, the Agricultural
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Marketing Adviser to the Government of India, New Delhi, invited
a representative of the appellants for discussions, and as a result
of the said discussion, Mr. Sood, the Marketing Development
Officer, Delhi, inspected the factory of the appellants and watched
the process of manufacture of Sharbat Rooh Afza on April 29,
1957. Thereafter, on May 10, 1957, the appellants received a H
communication from Mr. Sood ordering the appellants to stop
further manufacture and sale of Sharbat Rooh Afza forthwith on
HAMDARD DWAKHANA v. UNION (Gajendragadkar, C.J.) 195·
A the ground that it did not contain the minimum percentage of fruit
juice prescribed by the relevant clause of the Fruit Order. Thi&
communication mentioned the fact that the appellants had been
specifically asked to prepare fruit syrups strictly in accordance with
the specifications prescribed, but in utter disregard of the said
instructions, the appellants had wilfully continued to contravene
B the provisions of the Fruit Order.
That is why by virtue of the
powers conferred on him by clause 13 ( f) of the Fruit Order, the
present order was served on the appellants·
It is this order which
was challenged by the appellants by their writ petition filed before
the Punjab High Court on the 18th May, 1957 (No. 258-D of
c 1957).
By their writ petition, the appellants prayed that the impugned
order as well as the several orders passed preceding it, should be
quashed and a writ of mandamus should be issued against the
respondents restraining them from seeking to enforce the material
provisions of the Fruit Order in respect of the appellants' product
D
'Sharbat Rooh Afza'. The appellants urged that the said Sharbat
is not a foodstuff, but a medicinal product and as such, it' production cannot be regulated under the provisions of s. 3 of the Act.
According to them, the said Sharbat was not an essential commodity, nor was it a 'fruit product' as defined by clause 2 ( d) of
the fruit Order.
They also urged that the impugned order was
E invalid, because it contravened the fundamental rights of the
appellants under Art. 19(1)(f)&(g) of the Constitution;
the
Sharbat in question was in fact a medicinal product and as such,
the impugned order was inconsistent with clause 16 ( i) ( c) of the
Fruit Order.
It is on these grounds that the appellants sought
relief by way of an appmpriate writ or order quashing the impugF
ned order issued against them on May 10, 1957. To this petition,
the appellants impleaded the Union of India as respondent No. 1.
G
This petition was resisted by the respondents on several
grounds. It was alleged that the Sharbat in question fell within
the scope of the Act and the Fruit Order.
The respondents referred to the fact that the Hamdard Dawakhana had duly applied and
was granted a licence in 1955 as a manufacturer engaged in the
business of manufacturing fruit products for sale.
The Dawa·
khana is holding this licence since 1955.
The bottles in which
the Sharbat in question is sold by the appellants do not bear labels
H
containing the words "for medicinal use only". It appears that
the Dawakhana obtained a licence for the year 1952 under the
Fruit Products Order 1948 for the manufacture of the Sharbat in
question.
On analysis, it was found that the said Sharbat did not
196
SUPREME COURT REPORTS
[1965) 2 S.C.R.
contain fruit juice, though it was sold as fruit juice.
The label
A
-On the bottle of the Sharbat depicts pictures of fruits.
Under the
said Order of 1948 the synthetic syrups containing no fruit juice
were required to be clearly marked as 'synthetic' and to abstain
from using labels with pictures of fruits.
In 1954 when it was
found that the Dawakhana did not get the licence renewed, the
appellan.ts were asked either to get their licence renewed or to get
B
exemption by complying with the necessary conditions. When
the appellants did not e-0mply with these directions, some of the
bottles of the Sharbat were detained in the market. That led to
a writ petition filed by the appellants in 1954 (No. 11-D/1954)
in the Punjab High Court.
When the petition, however, came for
final hearing, it was not pressed, and so, was dismissed on June 5,
1954.
The Dawakhana then filed a suit for injunction, but the
said suit became infructuous with the expiry of the Fruit Products
Order. 1948 on January 25, 1955.
The present Fruit Order came
into force on May 3, 1955; and the Dawakhana filed another suit
c
for injunction, but pending the suit, the appellants applied for and
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obtained a licence under the Fruit Order and in consequence, the
suit was withdrawn on October 18, 1955.
Even after obtaining
the licence, the requirements of the relevant provisions of the
Fruit Order as to the minimum percentage of fruit juice were not
complied with by the appellants; and that led to the impugned
order.
That is the background of the present writ petition.
E
In the present writ petition, the respondents urged that
the
Sharbat in question is not sold for medicinal purposes; it is manufactured by the appellants as a fruit product and sold as such. No
exemption was claimed by the appellants under clause 16 of the
Fruit Order. The Sharbat in Question is foodstuff within the meanF
ing of s. 2 of the Act and it falls within the purview of the Fruit
Order.
The impugned order is not unconstitutional, because the
restriction imposed by it is consistent with the relevartLprovisiom
of the Act and the Fruit Order, and the said provisions are perfectly valid, because they impose a reasonable restriction in the G
interest of general public.
This writ petition came on for final disposal before the Punjab
liigh Court on January 13, 1964. The High Court has rejected
t11e pleas raised by the appellants and dismissed their writ petition.
The High· Court has held that there was no substance in the appellants' grievance that the Fruit Order was invalid.
In support of
this conclusion, the High Court has relied upon a decision of this
H
HAMDARD DWAKHANA v. UNION (Ga;endragadkar, C.J.) 197
A Court in M/s. Amrit Banaspati Co., Ltd. v. The State of Uttar
Pradesh('). The High Court negatived the appellants' argument
that the Sharbat in question was either prepared or sold as a medi- •
cinal product. In this connection the High Court has commented
on the fact that the label borne by the bottles containing the Sharbat did not show that it was for medicinal use only as required by
B cl. 16(i)(c) of the Fruit Order· According to the High Court,
clause 11 of the Fruit Order covered the case of the Sharbat prepared by the appellants, and so, the impugned order was justified.
The High Court also found that there was no substance in the
grievance made by the appellants that as a result of this impugned
C order, their registered trade-mark label had been affected.
The High Court then examined the question as to whether the
provisions of the Fruit Order could be said to be invalid, and it
held that the said provisions were perfectly valid inasmuch as the
restrictions impo~ed by them were reasonable and in the interests of
the general public. It is on these grounds that the High Court
D dismissed the appellants' petition.
Thereafter, the appellants applied for and obtained a certificate
from the High Court to come to this ~ourt in appeal.
This certificate was granted on July 22, 196'1. Affer the appeal was admitted in due course, the appellants moved this Court on October 26,
E
1964 for stay; in fact, during all the seven years that the writ petition was pending before the High Court, the appellants had obtained stay and they wanted the stay to continue pending the final
disposal of this appeal.
When we found that the writ petition
had taken an unusually long time in the Punjab High Court, we
directed that the stay should continue in favour of the appellants,
F
but that the appeal should be heard on November 9, 1964. That
is how the hearing of this appeal has been specially expedited.
Before we deal with the points which have been raised before
us by Mr. Pathak, we would refer very briefly to the scheme and
the relevant provisions of the Act and the Fruit Order.
The Act
G was passed in 1955 for the purpose of controlling the production,
supply and distribution of, and trade and commerce in, certain
commodities in the interests of the general public.
The commodities which were intended to be brought within the purview of
the Act were essential commodities as defined by s. 2 (a) of the
Act.
Amongst them are included foodstuffs, including edible
H
oilseeds and oils covered by s. 2(a)(v), and any other class of
commodity which the Central Government may, by notified order,
{!) Criminal Appeal No. 141of1959 decided on 30-11-1960.
198
SUPREME COURT REPORTS
[1965] 2 S.C.R.
declare to be an ·essential commodity for the purposes of this
A
Act, being a commodity with respect to which Parliament has
power to make laws by virtue of entry 33 in List III of the Seventh
Schedule to the Constitution; this is included in the definition by
s. 2 (a)( xi). Section 3 (1) provides that if the Central Government is of opinion that it is necessary or expedient so to do for
maintaining or increasing supplies of any essential commodity or B
for securing their equitable distribution and availability at fair
prices, it may, by order, provide for regulating or prohibiting the
production, supply and distribution thereof and trade and commerce therein.
Sub-section (2) by clauses (a) to (h) provides
for different categories of orders which may be passed by the CenC
tral Government without prejudice to the generality of the powers
conferred on it by sub-section ( 1 )-
It would thus be clear that
the Act confers power on the Central Government to regulate the
production, supply and distribution of essential commodities. This
power is conferred in a very general and wide sense by s. 3 (1).
There can be little doubt that the power to regulate the production
D
of an essential commodity will include the power to regulate the
production of essential commodities which may operate either
qualitatively or quantitatively. In other words, in regard to
essential commodities, the Central Government is given the power
to direct how certain essential commodities should be produced
and in what quantity.
This power, of course, can be exercised
E
only if the condition precedent prescribed by s. 3 ( 1) is satisfied,
and that is thai the Central Government should be of opinion that
it is necessary or expedient to regulate the production of any
essential commodity for one of the purposes mentioned by it. This
position cannot be, and is not, disputed before us.
In fact in
M/s. Amrit Banaspati Co. Ltd.(') this Court whilst dealing with F
the provisions of the Vegetable Oil Products Control Order, 1947,
issued under s. 3 ( 1) of the Act, has definitely ruled that a qualitative regulation in respect of the production of an essential commodity is permissible under s. 3 ( 1) of the Act.
That takes us to the Fruit Products Order which was issued
G
by the Central Government on May 3, 1955, in exercise of the
powers conferred on it by s. 3 of the Act.
Clause 2 of the Fruit
Order defines 'fruit product'.
Cl. 2( d)(i) takes in synthetic
beverages, syrups and sharbats; cl. 2(d)(v) takes in squashes,
crushes, cordials, barley water, barreled juice and ready-to-serve
beverages or any other beverages containing fruit juices or fruit
H
pulp.
Clause 2 ( d) (xiv) takes in any other unspecified items
relating to fruits or vegetables· Clause 2 (j) defines "sharbat" as
•
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HAMDARD DWAKHANA v. UNION (Gajendragadkar, C.J.) 199
meaning any non-alcoholic sweetened beverage or syrup containing non-fruit juice or flavoured with non-fruit flavours, such
as
rose, khus, kewra, etc; and cl. 2 (k) defines "synthetic beverage"
as meaning any
non-alcoholic beverage or syrups,
other than
aerated waters, containing no fruit juice but having an artificial
flavour or colour resembling as fruit.
Clause 7 of the
Fruit
Order prescribes that every manufacturer shall manufacture fruit
products in conformity with the sanitary requirements and
the
appropriate standard of quality and composition specified in the
Second Schedule to this Order; it adds that every other fruit and
vegetable product not so specified shall be manufactured in accordance with the standard of quality and composition laid down in
this behalf by the Licensing Officer.
That takes us to clause 11; it is necessary to read this clause
fully:-
( 1 ) Any beverage which does not contain at least 25
per centum of fruit juice in its composition shall not
be described as a fruit syrup, fruit juice, squash or cordial
or crush and shall be described as a synthetic syrup.
(2) Every synthelic syrup shall be clearly and cons1Jicuously marked on the label as a 'SYNTHETIC' product,
and no container containing such product shall have a
label, whether attached thereto or printed on the wrapper
of such container or, otherwise, which may lead the consumer into believing that it is a fruit product, Neither
the word 'FRUIT' shall be used in describing such a
product, nor shall it be sold under the cover of a label,
which carries the picture of any fruit.
Aerated water
containing no fruit juice or pulp shall not have a label
which leads the consumer into believing that it is a fruit
product.
Part II of the Second Schedule to the Fruit Order prescribes the
specifica rions for fruit juice and other beverage<;.
In regard to
fruit syrnp, it provides, inter alia, that the minimum percentage of
fruit juice in the final product must be 25 % . The respondents'
contention is that since the Sharbat in question produced by the
appellants does not comply with this specification, it contravenes
the mandatory provision of cl. 11 (I ) . Part IV of the Second
Schedule prescribes the specifications for synthetic syrups
and
sharbats.
Under this Part, there is no requirement as to any
minimum of fruit juice in the said syrups and sharbats.
200
SUPREME COURT REPORTS
1965] 2 S.C.R.
Clause 16 of the Fruit Order provides for cases to which !hi!
A
Order does not apply, Clause 16(i)(c) provides that nothing in
this Order shall be deemed to apply to any syrups which are sold
in bottles bearing a label containing the words "For medicinal use
only" which does not exhibit any picture of fruits.
It is common
ground that the appellants do not sell the Sharbat in question in
bottles bearing a label containing the words "For medicinal use B
only" and s9, cl. 16 ( i) ( c) does not apply and the appellants can
claim no exemption on that account.
Mr. Pathak no doubt attempted to argue that the Sharbat in
question is not an essential commodity and as such, it does not fall
within the purview of the Act or within the purview of the Fruit C
Order. It appears that this plea was not urged by the appellants
before the Punjab High Court.
It was argued by them before the
High Court that the Sharbat in question was a medicinal product;
and that point had been considered and rejected by the High
Court; and so, it has assumed that the Sharbat in question is an
essential commodity within the meaning of s. 2 of the Act; that D
question cannot now be allowed to be argued for the first time
before this Court.
Mr. Pathak wanted to suggest that the Sharbat in question is
not a fruit product and as such, is outside the purview of the Fruit
Order.
We are not impressed by this argument. We ~ave already
E
referred to cl. 2 ( d) ( v) of the Fruit Order which refers to several
beverages, and the residuary part of this clause takes in any other
beverages containing fruit juices or fruit pulp.
The suggestion
that this clause should be read ejusdem generis with the previous
categories of beverages cannot obviously be accepted because an
examination of the said beverages will disclose the fact that there F
is no genus by reference to which the rule of ejusdem generis can
be properly invoked. Besides, the context of the clause clearly
suggests that it is intended to take in all beverages other than those
earlier specified, provided they contain fruit juices or fruit pulp.
Therefore, we feel no difficulty in holding that the Sharbat in
question falls within the purview of cl. 2(d) (v) of the Fruit Order G
and as such, its production can be controlled by its relevant provisions
Then it is urged by Mr. Pathak that the Fruit Order itself is
invalid, because it does not purport to say that before it was
issued, the Central Government had formed the opinion that it was
H
necessary or expedient to issue the Order for maintaining or increasing supplies of the commodity in question.
Mr. Pathak
HAMDARD DWAKHANA v. UNION (Gajendragadkar, C.J.) 201
A
contends, and rig;btly, that the condition prescribed by the first
part of s. 3 (1) of the Act is a condition precedent and it is only
when and after the said condition is satisfied that the power to
issue a regulatory order can be exercised by the Central Govern·
ment.
This contt:.ntion again cannot be allowed to be raised for
the first time in appeal, because if it had been raised before the
B High Court, the respondents would have had a chance to meet it.
c
D
It is true, as Mr. Pathak contends, that in the absence of any
specific averment made by the Fruit Order that the Central Gov·
emment had formed the necessary opinion, no presumption can
be drawn that such opinion had been formed at the relevant time;
but it would have been open to the respondents to prove that such
an opinion bad been formed at the relevant time; and it cannot be
suggested that the failure to mention that fact expressly in the Fruit
Order itself would preclude the respondents from p10ving the said
fact independently.
That is why we think Mr. Pathak cannot be
permitted to urge this contention at this stage.
Mr. Pathak, bas, however, strenuously argued before us that
the Fruit Order is invalid, because its relevant provisions indicate
that it is an Order which could have been appropriately issued
under the Prevention of Food Adulteration Act, 1954 (No. 37 of
1954). In support of this argument, Mr. Pathak bas relied on the
i: fact that Act 37 of l •954 is relateable to the legislative power con·
ferred by Entry 18 in List III of the Seventh Schedule to the
Constitution which r<efers to adulteration of foodstuffs and other
goods; and so, the material provisions of the Fruit Order which
really prevent the adulteration of fruit products could be legitimately enacted under this Act. On the other hand, the Essential
., Commodities Act, 1955 is relateable to Entry 33 in List ill and
the Fruit Order issued under it would, therefore, be inappropriate,
having regard to the object which this Order is intended to achieve.
He argues that the two powers are distinct and separate, and the
Fruit Order with which we are concerned, cannot be said properly
to have been issued under the Act. It is true that the Prevention
G of Food Adulteration Act does deal with the problem
of preventing adult1eration of food;
but it is not easy
to acceP.t Mr. Pathak's assumption that the regulatory Order of
the kinl with which we are concerned which imposes regulations
of a qualitative cha.racter in th~ production
o~ essential good~,
could have been issued under thlS Act.
But qmte apart from this
H consideration if s .. 3 ( 1 ) of the Act authorises the Central Gov·
emment to regulate th1: qualitative and quantitative productio~ of
essential commodities, it is idle to contend that the regulations
L3Sup./65-- 14
202
SUPl.l!MI OOUllT REPORTS
(1965] 2 S.C.R.
imposed by the Fruit Order in ~pect of fruit products are ou!iide
A
the purview of s. 3 ( 1). The pith and substance of the relevant
provisions
of
the
Fruit
Order
clearly
is to
regulate
the qualitative production
of
fruit
prod1~cts covered
by
it.
This object is illustrated by the specification with which we
are concerned. Part II of the Second Schedule to the Fruit Order B
which has imposed the obligation on the manufacturers of fruit
syrups to include at least 25 % of fruit juice in the final product
of the fruit syrujJ produced by them, shows tlhat by virtue of its
powers under s. 3.( 1) of the Act, the Central Government thought
it necessary to require that a particular qma!ity of fruit syrup
should be put on the market as fruit syrup and no other. This C
object plainly falls within the purview of s. 3 ( 1), and so, the
contention that the Fruit Order is invalid inasmuch as it purports
lO tackle the probkm of adulteration of fruit produc!, cannot be
ac.cepted.
Then Mr. Pathak suggested that there was some inconsistency
D
between the definition of 'synthetic beverage' prescribed by cl.
2(k) and the provisions of cl. 11 (2) of the Fruit Order.
We
have already read cl. 11. The effect of cl. 11 (1} is that if any
beverage does not contain at least 25 per cent of fruit juice, it
shall not be described, inter a/ia, as 'fruit syrup', but shall be
described as a 'synthetic syrup', and sub-cl. ( 2) of cl. 11 therefore E
provides that if any syrup which has to be de,scribed as a 'synthetic
syrup' by virtue of the· provisions of sub-c;J. ( 1) is put on the
market, it would be necessary to describe it as a 'Synthetic' product
clearly and conspicuously.
It is with the object of bringing it to
the notice of the customers at large that the synthetic product does
not contain the minimum fruit juice prescribed by the Fruit Order
F
that sub-cl. (2) imposes an obligation th at whoever puts
the
synthetic product in the market shall mark it with a label "Synthetic" and no attempt would be made to de:icribe the product
a~
though it was a fruit product.
That is why a specific provision is
made by sub-cl. (2) that neither the word "Fruit" shall be used in
describing such a product, nor will it beai: a label which carries
G
1he picture of any fruit.
From this proviBion aerated waters are
exempted, because it was thought that no customer would ever
mistake aerated water for fruit juice.
Now, if we bear in mind
this scheme of clause 11. it is difficult to :see where the inconsistency lies between cl. 11 and the definition of a 'synthetic beverage' as prescribed by cl. 2(k). The definition of synthetic beverH
age indicates that it is a beverage which contains no fruit juice,
and clause 11 which contains a positive provision that beverages
HAMDARD J:•WAKHANA v. UNION (Gajendragadkar, C.J.) 203
A containing less than 25 per cent fruit juice should be shown as a
'synthetic' prodmct. The definition of 'synthetic beverage' cannot
be said to conflict with the requirement that the products falling
under cl. 11 (2) should be sold as 'synthetic' products.
Besides,
clause 11 contains a positive provision and the validity of the mandatory requirements of cl. 11 cannot be said to be impaired by
B any alleged incomistency between the said provision and the
definition of 'synthetic beverage' prescribed by cl. 2(k) of the
Fruit Order.
The last co.ntention which Mr. Pathak urged before us is that
C the impugned •order is invalid, because it affects the appellants'
trade-mark right.
It is not easy to appreciate this argument.
We
have already held that the Act and the Fruit Order issued by the
Central Govemment by virtue of its powers conferred by s. 3 ( 1)
of the Act are valid. If that be so, the impugned order which is
fully justified by the provisions of the Act and the Fruit Order
D cannot be chalUenged as being invalid.
The conclusion that the
Act and the Firuit Order issued under it are constitutionally valid
proceeds on the basis that the restrictions imposed by them are
reasonable and in the interests of general public.
What the impugned order purports to do is to require the appellants to comply
with the reasomable restrictions imposed by the Fruit Order. The
E fact that incidentally compliance with Fruit Order may tend to
affect their tr21de-mark right cannot, in our opinion, render the
impugned ord,er invalid.
In this connection, it is necessary to
bear in mind tthat appellant No. 1 would not be justified in contending that the registered trade-mark which is usually intended
to distinguish one manufactured article from another can be used
F by it even tho•ugh it is likely to mislead the customers, or its use
would mean a breach of some other law.
Besides, it is significant
that the impugned order does not really compel the appellants to
change their trade-mark. If the appeilants desire that the Sharbat
in question should be put on the market without complying with
the requirememts of clause 11 ( 1), all that they to do is to comply
G with cl. 11 (2) of the Fruit Order. In the process of complying
with cl. 11 (2), if their trade-mark right is likely to be affected,
that would not render the impugned order invalid, because the
restriction which is sought to be enforced against them is found
to be reasonable and in the interests of the general public. Besides,
we would like to add that if the appellants wanted to urge this
H point seriously, they should have placed before the Court rqore
material in respect of their alleged trade-mark right.
The appellants had alleged in their writ petition that they are putting the
204
SUPREME
COURT
REPORTS
[1965] 2 S.C.R.
Sharbat on the market as a medicinal product. In that case, they
A
may claim exemption by complying with cl. 16(i) (c) of the Fruit
Order.
We are, therefore satisf:ed that the Punjab High Court
was right in holding that no case had been made out by the appellants for quashing the impugned order.
Before we part with this appeal, we would like to refer to one
:a
unfortunate aspect of the present proceedings.
W "' have already
indicated that the present writ petition was filed by the appellants
in the Punjab High Court on May 18, 1957, and it was finally
decided on January 13, 1964.
It is very much to be regretted
that the final disposal of this writ petition should have taken such
an unusually long period.
1'he appellants have been agitating
C
this matter since 1957 and as a result of the long duration of the
present writ petition in the High Court, they have had the benefit
of the stay order all this time. though ultimately it was found that
there was no substance in the petition. It is hardly necessary to
add that writ petitions in which orders of stay and injunction are
passed, should be decided as expeditiously as possible.
That is D
why when it came to the notice of this Court that this writ pe:hion
has taken an unusually long period in the High Court, we directed
that it should be set down for hearing within a fortnight after it
was brought to us on a notice of motion for stay.
The result is, the appeal fails and is dismissed with costs.
E
A ppea/ dismissed.
•