# KHADYA PEYA VIKARETE MALAK SANGH v. THE CHIEF OFFICER, SANGLI MUNICIPAL COUNCIL & ANR

- **Citation:** [1977] 2 S.C.R. 139
- **Court:** Supreme Court of India
- **Decided:** 1976-11-19
- **Case number:** Civil Appeal No. 1936. of 1972
- **Bench:** Y. V. Chandrachud, P. K. Goswami, S. M. Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/khadya-peya-vikarete-malak-sangh-v-the-chief-officer-sangli-municipal-council-7015
- **Pages:** 10

## Headnote

Maharashtra Prevention of Food Adulteration Rules, 1962-Appendix ( 1 )-
Items 1, 7 and 8-Scope of-Hoteliers selling food to customers visiting themlf-manufacturers-lf liable to pay fees both as manufacturers and retailers.
Rule 2(d) of the Maharashtra Prevention of Food Adulteration
Rules.
__, 1962 defines a manufacturer as a person engaged in manufacturing any article ·
of food for the purposes of trade.
Clause ( e) defines & "retail dealer" as a
dealer in any article of food other than wholesale dealer and cl. (g) defines
a "wholesale dealer" as a person engaged in the business of sale or storage for
sale or distribution of any a,rticle of food, for the purposes of resale.
Fees
payable by a wholesale dealer or manufacturer for the grant or renewal of a
licence are prescribed in item 1 and those payable by a retail dealer in .items
7 a,nd 8 of Appendix 1.
Members of the appellant association, who are hoteliers and
restaurantkeepers prepare articles of food in a part of their respective premises and sell
them to the customers visiting them.
The respondent municipality charged
from members of the association licence fee both under item I and items 7
and 8 of Appendix 1 on the ground tha,t each of them is both a manufacturer
and a retail dealer.
The appellant's suit for declaration that the municipality
had no right to charge two sets of fees from the members who are essentially
retail dealers and for refund of excess amount rea·lised by the municipality was
dismissed by the trial court.
The first appellate court allowed the appellant's
appeal; but the High Court on further appeal by the municipality restored the
order of the trial court.
Allowing the appeal to this Court,
;
HELD : The High Court was in error in holding that the members of the
association were covered both by item 1 as also by items 3 to 8 of Appendix 1.
Members of the appellant association are liable to pay licence fee under items
~
3 to 8 of Appendix (1) and not under item 1..(148 B-CJ
1 (a) Item 1 took within its fold a wholesale dealer or manufacturer or
both.
It does not mention of a, retail dealer.
Before a trader falls within the
purview of item I it must be shown that he is either a wholesale dealer or a
manufacturer or both.
Where the dominant nature of the trading activity is
neither that of a manufacturer nor a wholesale· dealer but is a ret,,,il sale, item
I would have no application. The fact that the trader prepares the articles for
selling them to his customers would not make him either a wholesale dw!er or
manufacturer. [147H; 148 A-BJ
(b) The words 'wholesale dealer' or 'manufacturer' in item 1 will not apply
to hoteliers and restaurant-keepers whose main business is to conduct retail sale
of their articles prepared by them in a part of their premises. [143G]
A.
B
c
D·
E
F
G
( c) The word 'manufacturer' as defined in r. 2 ( d) had been used in the
widest possible sense to include not only marmfacture through a laboratory
process but also preparation of an article of food.
However li@erally the word
H
'manufacturer' is construed, it will not include the trading activity of persop.s,
the dominant nature of which is to supply articles of food prepared or produced
by them to their qistomers. [143EJ
.·
.
140
SUPREME COURT REPORTS
[l 977] 2 s.c.R.
A
· 2(:1). There i~ no force in the contention that unless th@ members of the
115soc~uon are hce~ed as manufacturers the Food Inspector cannot enter for
mspectton ~Y preI?15es where th~ articles are prepared.
The qUestion of a
trader obt&m1ng a licence has nothing to do with the statutory duties of a Food
Ins_pect~r. The Food Inspector does not derive his powers from the rules regu·
Iatmg ~1cence of. a; t~er, but his duties spring from the statutory provisions.
There is no prov1s1on m the rules which in any way prevenrs or interferes with
the discharge of his duties. (147C-E; !46C]
·
B
c
D
E
F
G
H
(b) Apart from the wide powers given to the Food Inspector by the Statute,
Rules framed by the Central Governme

## Text

139
KHADYA PEYA VIKARETE MALAK SANGH
v.
THE CHIEF OFFICER, SANGLI MUNICIPAL COUNCIL & ANR.
November 19, 1976
(Y. V. CHANDRACHUD, P. K. GOSWAMI AND S. M. FAZAL ALI, JJ.]
Maharashtra Prevention of Food Adulteration Rules, 1962-Appendix ( 1 )-
Items 1, 7 and 8-Scope of-Hoteliers selling food to customers visiting themlf-manufacturers-lf liable to pay fees both as manufacturers and retailers.
Rule 2(d) of the Maharashtra Prevention of Food Adulteration
Rules.
__, 1962 defines a manufacturer as a person engaged in manufacturing any article ·
of food for the purposes of trade.
Clause ( e) defines & "retail dealer" as a
dealer in any article of food other than wholesale dealer and cl. (g) defines
a "wholesale dealer" as a person engaged in the business of sale or storage for
sale or distribution of any a,rticle of food, for the purposes of resale.
Fees
payable by a wholesale dealer or manufacturer for the grant or renewal of a
licence are prescribed in item 1 and those payable by a retail dealer in .items
7 a,nd 8 of Appendix 1.
Members of the appellant association, who are hoteliers and
restaurantkeepers prepare articles of food in a part of their respective premises and sell
them to the customers visiting them.
The respondent municipality charged
from members of the association licence fee both under item I and items 7
and 8 of Appendix 1 on the ground tha,t each of them is both a manufacturer
and a retail dealer.
The appellant's suit for declaration that the municipality
had no right to charge two sets of fees from the members who are essentially
retail dealers and for refund of excess amount rea·lised by the municipality was
dismissed by the trial court.
The first appellate court allowed the appellant's
appeal; but the High Court on further appeal by the municipality restored the
order of the trial court.
Allowing the appeal to this Court,
;
HELD : The High Court was in error in holding that the members of the
association were covered both by item 1 as also by items 3 to 8 of Appendix 1.
Members of the appellant association are liable to pay licence fee under items
~
3 to 8 of Appendix (1) and not under item 1..(148 B-CJ
1 (a) Item 1 took within its fold a wholesale dealer or manufacturer or
both.
It does not mention of a, retail dealer.
Before a trader falls within the
purview of item I it must be shown that he is either a wholesale dealer or a
manufacturer or both.
Where the dominant nature of the trading activity is
neither that of a manufacturer nor a wholesale· dealer but is a ret,,,il sale, item
I would have no application. The fact that the trader prepares the articles for
selling them to his customers would not make him either a wholesale dw!er or
manufacturer. [147H; 148 A-BJ
(b) The words 'wholesale dealer' or 'manufacturer' in item 1 will not apply
to hoteliers and restaurant-keepers whose main business is to conduct retail sale
of their articles prepared by them in a part of their premises. [143G]
A.
B
c
D·
E
F
G
( c) The word 'manufacturer' as defined in r. 2 ( d) had been used in the
widest possible sense to include not only marmfacture through a laboratory
process but also preparation of an article of food.
However li@erally the word
H
'manufacturer' is construed, it will not include the trading activity of persop.s,
the dominant nature of which is to supply articles of food prepared or produced
by them to their qistomers. [143EJ
.·
.
140
SUPREME COURT REPORTS
[l 977] 2 s.c.R.
A
· 2(:1). There i~ no force in the contention that unless th@ members of the
115soc~uon are hce~ed as manufacturers the Food Inspector cannot enter for
mspectton ~Y preI?15es where th~ articles are prepared.
The qUestion of a
trader obt&m1ng a licence has nothing to do with the statutory duties of a Food
Ins_pect~r. The Food Inspector does not derive his powers from the rules regu·
Iatmg ~1cence of. a; t~er, but his duties spring from the statutory provisions.
There is no prov1s1on m the rules which in any way prevenrs or interferes with
the discharge of his duties. (147C-E; !46C]
·
B
c
D
E
F
G
H
(b) Apart from the wide powers given to the Food Inspector by the Statute,
Rules framed by the Central Government confer additional PO\Ji.'ers on the Food
Inspector. The ~laharashtra Rules do not contain a·ny provision \Vhich in any
way runs counter to either the Central Rules or the Act. The ruleS~merely contain certain additional provisions regarding the conditions of licence and additional duties to be performed by the Food Inspector. [147B]
.
· (c) EvCn assuming that a particular State Government did not frame any
rules under the Act it ca.nnot be said that the Food Inspector would be absolutely
powerless and cannot exercise
effective
control.
His duties and
functions
spring from the parent statute and are not in any way correlated to the additiona·l
duties provided for in the rules fr~med by the State Government. [147G]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1936. of 1972.
Appeal by Special Leave from the Judgment and Order dated the
2nd and 3rd day of August, 1971 of the Bombay High Court in
Second Appeal No. 1064 of 1970.
V. M. Tatk1111de, S. B. Wad, (Mrs.) J. Wad and AMiss) Manek
Tarkwuk for the Appellant.
D. V. Patel, S. C. Pratap and P. H. Parekh for RespDndent No. l
M. N. Shroff for respondent No. 2.
·
The Judgment of the Court was delivered by
'
FAZAL Au. J.
This appeal by special leave is directed against the
judgment of the High Court of Bombay dated August 2/3, 1971 by
which the plaintiff's suit for declaration and injunction has
been
dismissed.
The plaintiff is an association of hoteliers and restaurant keepers doing business within the local limits of Sangli Municipality in the State of Maharashtra. . Under the provision of the
Prevention of Food Adulteration ;\ct, 1954--hereinafter referred to
as 'the Act'-and the rules framed tliereunder by the Maharashtra
Government thei members of the plaintiff association were required
to take a licence for the businei;s conducted by them.
The Municipality insisted that the members of !}le plaintiff-Association should
pay two sets of fees--0ne under item l and another under items 3
to 8 of Appendix (1) to the Schedule.
These fees were demanded
by the Municipality on the ·ground that the members were' both manufacturers and retail dealers and were, therefore, liable to pay fees
in both: these capacities.
The Appendix ( l) to. the Schedule was
a part of the rules framed by the Maharashtra Government under
s. 24 of the Act.
The plaintiff, however, contended that the members of thei plaintiff-Association were not liable to pay twoi fees as
they were essentially retail dealers· and woiild have to pay fees under
items 3 to 8 of the appendix because they could not be said to be
either wholesale dealers or manufacturers.
The plaintiff
also
r-,
KHADYA PEYA v. CHIEF OFFICER (Fazal Ali, J.)
141
~
claimed a declaration that the Municipality had no right to charge
two fees from the plaintiff and also prayed for an injunction restraining the Municipality from doing so.
There was a prayer for refund
of Rs. 3,990/- being the excess amount realised by the Municipality
from the\ plaintiff.
The suit was resisted by the Municipality on the
ground that under the rules framed by the Maharashtra Government,
''··
the Municipality was legally entitled to levy two sets of fees from t?e
plaintiff as indicated above.
The suit was dismissed by the Tnal
court of the Joint Civil Judge, Junior Division,
Sangli, who held
that the plaintiff was not entitled to the declaration sought for and
neither to the refund as the Municipal.it_y ~as fully j_ustifi. e~ in r~a~is
ing the two sets of fees from the plamt1ff.
Agamst this dec1s1on
the plaintiff went up in appeal to the Extra Assistant Judge, Sangli
who by his judgment dated August 27, 1970 reversed the judgment
of the Trial Court and decreed the plaintiff's suit holding that the
plaintiff was entitled to the declaration sought for as the Municipality
was not entitled' to realise two sets of fees under Appendix ( 1 )
referred to above.
The learned Judge also passed a decree for
refund of Rs. 3,990/-
in favour
of the,
plaintiff.
The Sangli
Municipality went up in second appeal to the High Court of Bombay
which ultimately succeeded and the High Court, agreeing with the
view taken by the Trial Court, dismissed the plaintiff's suit. There-
}' after the plaintiff obtained special leave· from this Court and hence
this appeal.
As seen above, the 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 the Act and
the Rules made by the Maharashtra Government. Before, however,
analysing! thel provisions of the Act and the Rules made thereunder
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 a_ndi selling the samei to their customers.
It is also not dist
puted that by and large, the
members of the. plaintiff-association
prepare the articles in a part! of the premises where the hotel or restaurant is situated ~1!~ after preparing ~he eatables they sell .the same
to the customers v1S1ting those places.
There was some controversy
on the question as fo the import and ambit of the word "manuf~cture", but counsel for the appe!lant did not dispute seriously, and
rightly, that for the purpose of this case the preparation of the articles of food would be included! within t!Ie ambit of the term "manu-
\
facture".
In ·these circumstances, therefore, we need not dilate on
this point any further.
1-
. Mr. V. M.
Tark~de, learned counsel lfor the appellant, submitted that as the mam business of the members
of the plaintiffassociation 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 ol1 items 3 to 8 of Appendix (1).
It
was v~hemently argued that by no stretch of imagination could the
c
D
E
F
G
H
A
c
D
E
F
G
142
SUPREME COURT REPORTS
[1977] 2 s.c.R.
association's members be charged fees as manufacturers or wholesale
dealers in view of the nature of their trading activity.
The plaintiff
also placed reliance on a communication by the Director of Health
to the Municipal Council expressing his opinion that the Municipality was not justified in realising tw~ sets of fees from the plaintiff's members and that they were liable to pay fees only under items
3 to 8 oll Appendix (1).
This, however, was merely an opinion of
an Officer and would not carry any weight when we are interpreting
the statutory provisions of the Act and the Rules.
On the other hand, Mr. D. V. Patel appearing fgr the respondent
Municipal Council submitted that the trading activity of the appellant's members and two separate capacities--0ne as manufactures
and another as retail dealeirs, and, there~ore, the Municipality was
entitled to realize fees on both these counts.
It was further argued
by Mr. Patel that if the Municipality
was not allowed to realise
fees from the appellant's members as manufacturers, the Food Inspector appointed by the Municipality would have no jurisdiction to
inspect the premises and check the articles manufactured by them
for the purpose of sale.
We have given our anxious and careful consideration to the arguments o~ both the parties and we are clearly of the opinion that the
argumen~ of learned counsel for the appellant is well founded and
must prevail.
To begin with, the Rules framed by the Maharashtra
Government which were published in the Maharashtra Government
Gazette dated April 26, 1962, as amended upto date, define "manufacturer" thus :
" 'maunfacturer' means a person engaged in manufacturing
any article of food for the purpo.se o.f trade;"
"Retail dealer" is defined thus :
" 'retail dealeir' means a dealer in any article of food, other
than a wholesale dealer;" ·
"Wholesale dealer" has been defined as the person engaged in the
business of sale or storage for sale or distribution of any article of
food for the purposes of resale.
Appendix ( 1) runs thus:
H
"Schedule of Licence Fees chargeable under Section 24(2) of
Prevention of Food Adulteration
Act, 1954, for licensing
certain
ti:ades.
.l
j
_,,
KHADYA PERA v. CHIEF OFFICER (Fazal Ali. J.)
Appendix ( 1)
Fees. for the grant or renewal of a licence.
[See rule 5 (3) and ( 4A)]
Sr.
No.
Category
2
I. Wholesale dealer or manufacturer or both (other
than those covered b} Appendix (2)
2. Hawker or itinerant vendor or both
3. Retail dealer with annual turnover upto Rs. l ,OCO
4. Retail dealer with annual turnover exceeding Rs.
l,000 but not exceeding Rs. 5,0CO
5. Retail dealer with annual turnover exceedir.g R>.
5,000 but not exceeding Rs. 10,000 •
6. Retail dealer with annual turnover exceedir.g Rs.
10,000 but not exceeding Rs. 15,000
7. Retail deale~ with annual turnover exceding Rs.
15,000 but not exceeding Rs. 25,000
.
. .
.
8. Retail dealer wit~ annual turnover exceedmg Rs.
25,000 .
Fresh
Licence
3
Rs.
30
3
3
5
10
15
20
25
143
Renewal
of
Licence
4
Rs.
20
1
2
3
5
10
15
There cannot be, the, slightest doubt that thfl word "manufacturer"
as defined in cl. (d) of r. 2 had been used in the widest possible
sense so as to include not only manufacture through a laboratory process
but also preparation of an article of food.
In our opinion, however
liberally the word "manufacture" may be construed, it will not
include the trading activity of persons, the dominant nature of which
is to supply articles of food prepared or produced by them to their
customers.
In other words, where the. bulk of food articles sold
by the restaurant-keepers are prepared by them in what· may be
reasonably called a part of the premises of the restaurant where the
articles are sold, the preparation of manufacture of those articles is
incidental Oil ancillary to 1the retail §ale, the dominant purpose of the
trading activity! being sale of food articles by retail.
We, therefore,
tltlnk that the words ''wholesale dealer" or "manufacturer" in item
1 of Appendix (1) willj not apply to hoteliers and restaurant-keepers
whose main business is to conduct retail sale of their articles prepared
by them in what may be termed a part of the same premises.
A
B
c
D
E
F
G
It was, however, argued by Mr. Patel that .tf this view is taken,
it would debar the Food Inspector from inspecting the premises where
the articles of .food are prepared and checking the same inasmuch as
under the conditions of the licence, the Food Inspector has to maintain certai~ standards and norms and comply with cenain conditions in
H
the process of preparation of the articles. We are, however, unable to
find any provision in the Act which fa any way prevents the Food
Inspector from making routine inspection and check of persons whe-
A
B
c
D
144
SUPREME COURT REPORTS
[1977) 2 S.C.R.
ther licensed or not.
This . will be clear from an analysis of the
various provisions of the Act which we shall show presently. It
seems to us that the Food Inspector being a creature of the parent
statute, namely, the Prevention of Food Adulteration Act, 1954 being
referred to as 'the Act' has got an independent statutory status, whose
duties and functions are defined by the Act itself.
The powers of the
Food Inspector are derived from and flow from the statute itself. It
is a different matter that under the Rules framed by the Government
of a State the food Inspector may be entrusted with certain additional
duties but that does not take away the statutory powers possessed ·
by the Food Inspector.
To begin with, s. 2(xi) of the Act defines
"premises" thus :
" 'premises' include any shop, stall, or place where any
article of food is sold or manufactured or stored for sale;"
A perusal of this definition would manifestlyf reveal that "premises"
include any place where any article of food is sold or manufactured
or stored irrespective of the question whether the manufacturer or
the seller is licensed or not.
The word "premises" does not contain
any limitation so as to confine it only 'to those premises which
are licensed.
Section 7 0£ :the Act contains an express prohibition
preventing any person from manufacture or .sale of any adulterated
article of food.
The relevant provision of s. 7 runs thus :
"No person shall himsel~ or by any person on his beE
half manufacture for sale, or store, sell or distributeF
G
H
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a licence
is prescribed,
except in accordance
with
the
conditions of the licence;
(iv) any
article
of
food
the
sale
of
which
is
j
for
the time being prohibited by the Food
~
(Health Authority
in the interest
of
public
health;
(v) any article of food in contravention of any other
provision of this Act or of any rule made thereunder, or
(vi) any adulterant."
This privision also does not contain any restriction br limitation
and takes within its fold any person whether licensed or not who
manufactures, stores or sells any adulterated food.
Clause· (iii) of
s. 7 no doub1l. makes sale of any article of food without a licence an
offence but clause (i) is independent of clause (iii). Clause
(iv)
KHADYA PEYA v. CHIEF OFFICER (Fazal Ali, !.)
14 5
of s. 7 authorises the Food (Health) Authority to prohibit the sale
A
of any article of food in the interest of public health.
Section 9
of -the Act is the provision for appo~ntment of Food Inspectors and
may be extracted thus :
...
"9. Food Inspectors.-(1) The Central Government or the
· State Government may, by
notification
in the
Official
Gazette, appoint such persons as it thinks fit,
having the
B
prescribed qualifications to be Food
Inspectors for such
local areaf\ as may be assigned to them
by the Central
Government or the State Government, as the case may be :
Provided that no person who has any financial interest
in the manufacture, impor~ or sale of any article of food
shall be appointed to be a food inspector under this section.
C
(2) Every Food Inspector shall be
deemed to be a
public servant within the meaning of
Section 21 of the
Indian Penal Code and shall be officially subordinate to
such authority as the Government
appointing him
may
specify in this behalf."
Section 10 of the Act contains the powers, duties and functions of the
Food Inspectors. The relevant portion of this statutory provision may
be extracted thus :
·
·
"10. Powers of Food Inspectors.-
( 1) A food inspector shall have power-
( a) to take samples of any article of food from-
( i) any person selling such article;
(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser
or consignee;
*
*
*
(2) Any food inspector may enter and inspect any place
where any article of food is manufactured, or stored for sale,
or stored for the manufacture of any other artide of food for
sale, or exposed or exhibited for sale or where any adulterant
is manufactured or kept, and take samples of such article
D
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of food or adulterant for analysis;
G
*
.,.
•
( 4) If any article intended for food appears to any food
inspector to be adulterated or mis-branded, he may seize and
carry aW\J.Y or keep in the safe custody of the vendor such
article in order that it may be dealt with as hereinafter provided and h~ shall, in either case, take a sample of such artiH
cle and submit the same for analysis to public analyst;
*
1 l-1458SCJ/76
A
B
c
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II·
146
SUPRE!vlE COURT REPORTS
[1977] 2 s.c.R.
It would be seen that sub-ss. (2) and (4) of s. 10 clearly empower the
Food Inspector \Vithout any restriction or lin1itation to enter and inspect
any place where any article of food is manufactured, or stored for sale,
or exposed or exhibited for sak and inspect the article for the purpose
of finding out whether or not the article is adulterated. Sub-section ( 4)
of s. 10 empowers the Food Inspector even to seize any adulterated or
misbranded article and carry away the same and keep it in safe custody.
It is, ther~forc, clear \Vhcther an activity is licensed or not, the place
where the activity is carried on is al\vays subject to inspection by the
Food Inspector under the provisions of s. 10. Section 16(1) clauses
(c) and (d) particularly provide for penalties and punishment for any
person \Yho prevents a ~ood Inspector either from taking a sample or
from exercising any po\vcr~ conferred on hin1 by the Act.
Thus it is
pbin that the question of a trader obtaining a licence or not has absolutely nothing to do with the statutory duties which a Food Inspector has
to perform and any perso11 whether he is licensed or not would be liable
to penalties under the 1\ct if he t~ies to prevent or interfere in the due
discharge of the duties by the Food Inspector. Section 23 of the Act is
the provision which empowers the Central Government to make rules
in order to carry out the provisions of the Act.
Clause (cl
of
s. 16 (I) provides
for laying down special provisions
for
in1posing
rigorous
control
over
the
production,
distrib~1tion
and
sale
of
any
artick and
clause (g) authorises the Central
Government
to
define
the , conditions
of
sale
or
conditions
for licence of sale of any article of food in the interest of public
State Government to make rules for the purpose of giving effect to the
provisions of the Act. Clause (a) of sub-s. (2) of s. 24 empowers the
State Government to define the powers and duties of the Food (Health)
1\uthority.
The section also contains provisions for levy of a fee.
It
is under this prmision that the Maharashtra Rules were made by the
Government.
The Central Rules,
namely, the Prevention of Food
Adulteration Rules, 1955, framed under s. 23 of the Act also contain
provisions defining the duties of a f'ood Inspector.
The relevant part
of r. 9 of the Central Rules may be extracted thus :
"9. Duties of Food Inspcctor.-lt shall be the duty of the
food inspectcr
(a) to inspect as frequently as may be prescribed by the
Food (Health) Authority or the local authority all establishments licensed for the manufacture, storage or sale of an article of food \Vithin the area assigned to him;
• (f) to make such enquiries and inspections as may be
necessary to detect the manufacture, storage or sale of articles
of food in contravention of the Act or rules framed thereunder;
*
•
(h) when so authorised by the health officer, having jurisdiction in the local area concerned or the Food (Health)
Authority, to detain imported packages which he has reason
KHADYA PEYA v. CHIEF OFFICER (Fazal Ali, J.)
147
to suspect contain food, the import or sale of which is proA
hibited;
Thus it is clear that apart from the wide powers given to the Food
Inspector by the statute itself, even the Central Rules framed by the
Central Government confer additional powers on the Food Inspector.
The Maharashtra Rules referred to above do not contain any provision
which in any way runs counter to either the Central Rules framed by
the Central Government or the provisions of the Act. The rules merely contain certain additional provisions regarding the conditions of licence and certain other additional duties to be performed by the Food
Inspectors.
Thus an analysis of these provisions would plainly reveal that the
Food Inspector does not derive his powers from the Rules regulating
licence of a trader, but the fountain of his authority flows from the
statutory provisions itself. There is no provision in the Rules which in
any way prevents or interferes with the discharge of the duties of a Food
Inspector.
The 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 of Mr.
Patel that unless the members of the plaintiff-association are licensed as
manufacturers also, it will not be possible for the Food Inspector to inspect and check the premises where the articles are prepared. The 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 the powers of
the Food Inspector whose primary duty is to see that the adulterated
articles are neither manufactured, nor stored, nor sold. For these reasons, therefore, the main contention of Mr. Patel on this
score is
overruled.
·
The contention of counsel for the respondent regarding powers of the
Food Inspector may be tested from another angle of vision on the touchstone of practical reality. Suppose a particular State Government does
not choose to frame any Rules at all under the provisions of the parent
Act (the Prevention of Food Adulteration Act), can it be argued with
any show of force that in such cases the Food Inspector would become
absolutely powerless and wholly ineffective
The 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
co-related to th~ 3:9ditional 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.
Coming now to the Appendix ( 1) itself, it would appear that item
1 and items 3 to 8 postulate two different contingencies. Item 1 takes
within its fold wholesale dealer or manufacturer or both. There is no
mention of a retail dealer in this item. Thus before a trader falls. within
the purview of item 1 of Appendix (1), it must be shown that he is
either a wholesale dealer or a manufacturer or both. We have already
pointed out that where the dominant nature of the trading activity of a
B
c
D
E
F
G
H
A
B
c
D
148
SUPREME COURT REPORTS
[1977) 2 S.C.R.
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.
The mere fact that the trader prepares the articles for the purpose o~ selling the same to his customers would not make him either a wholesale
dealer or a manufacturer. Iri the first place, the appellant's members
cannot be wholesale dealers, because there is nothing to show that they
deal in articles for the purpose of re-sale. On the other hand, the nature
of their trading activity is one of retail sale. In these circumstances the
case of the appellant clearly falls within items 3 to 8 of Appendix (1).
The High Court was, therefore, in error in taking the view that the
case of the appellant was covered both by item 1 as also items 3 to 8
of Appendix ( 1) and was, therefore, not justified in reversing the judgment of the Extra Assistant Judge.
On a consideration, therefore, of the facts·and circumstances of the
case, we are clearly of th~ opinion that in the instant case the members
of plaintiff-association whp are mostly restaurant-keepers conducting the
business of retail sale, the preparation of the articles being merely an
ancillary activity, are liable to pay the licence fee under items 3 to 8
of Appendix (1) and not _under item 1 of the Appendix (1) to the Schedule.
The plaintiff is, therefore, entitled to the declaration sought for
and is also entitled to the refund of Rs. 3,990/-.
We, therefore, allow this appeal, set aside the judgment of the High
Court, decree the plaintiff's suit and restore tl1e judgment and decree of
the Extra Assistant Judge. In the peculiar circums_tances of this case,
there will be no order as to costs ..
P.B.R.
Appeal allowed.