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PETITIONER: BISHAMBAR NATH AND OTHERS

       Vs.

RESPONDENT: THE AGRA NAGAR MAHAPALIKA AGRA AND ANOTHER

DATE OF JUDGMENT28/03/1973

BENCH: DWIVEDI, S.N. BENCH: DWIVEDI, S.N. SHELAT, J.M. CHANDRACHUD, Y.V.

CITATION:  1973 AIR 1289            1973 SCR  (3) 777  1973 SCC  (1) 788

ACT: U.P.  Municipalities Act, Sec. 244, "An article of  food  or drink  appears to be intended for the consumption of  man,"- Unfit  condition  of  foodstuff is to be  determined  by  an objective  test  and not on subjective satisfaction  of  the inspecting  officer whether the order regulating  sale  of atta for animal consumption valid under Sec. 244.

HEADNOTE: The appellant purchased certain quantity of wheat flour from the Military Dairy Farm, Agra, which was declared unfit  for human consumption., He exposed it for sale with a sign-board that  the wheat flour was unfit for human consumption.   The appellant  wanted to sell it for lehi or for manure  or  for animal  consumption. on complaint by the second  respondent, the  District Magistrate, Agra, passed an order  prohibiting the  sale under 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  17, 1945, Respondent No. 1  passed  an  order under  section 44 of the U.P. Municipalities Act  permitting the  disposal  of the flour under  certain  conditions.   On representation  made  by  the appellant,  Respondent  No.  1 passed  a  second  order on October  8,  1945,  inter  alia, directing  that  the flour should not be  sold  for  feeding animals kept for dairy purposes.  The appellant filed a suit for  damages against the respondents for stopping  the  sale and for imposing illegal restrictions effectively preventing the  sale, resulting in deterioration of the flour and  loss of  profits.   The  trial court decreed  the  suit  but  the Allahabad High Court set it aside.  On appeal to this Court, the  question  for  consideration  was  whether  the   order purported to be passed by respondent no. 1 under section 244 was a valid order, and whether respondent No., 1 was  liable to pay damages. HELD  : The phrase, "an article of food or drink appears  to be  intended for consumption of man," does  not  contemplate subjective satisfaction of the inspecting officer as held by the High Court.  The seller should intend to sell an article of  food  for  human  consumption.   His  intention  is   an objec

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tive fact which should be proved by such evidence as a reasonable man will believe that the article of foodstuff is intended for human consumption. [781F] Section   244(1)  contemplates  a  direct  sale  for   human consumption.  It does not contemplate, as the High Court had held,  an  indirect sale for human  consumption.   The  High Court  held  that  if the flour is sold  for  feeding  milch animals or animals whose flesh is eaten, it would be a  sale for  human  consumption.   The legislature  did  not  intend prevention  of  sale  for  consumption  of  animals  to   be regulated by sub-section (1) of Sec. 244. [781H] The appeal was partly allowed and remanded to the High Court for ascertaining the quantum of damages. L797Sup.CI/73 778

JUDGMENT: CIVIL APPELLATE JURISDICTION Civil Appeal No. 1809 of 1967. 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 respondents. The Judgment of the Court was delivered by DWIVEDI,  J.-The  appellants instituted a suit  against  the respondents for recovery of Rs. 34,000 as damages.  The suit was grounded on tortious liability.  The trial court 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 imposed 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 them, the appellants  took no steps to prevent the sale of flour for human consumption. The two central issues are : (1) whether the respondents are liable to pay damages in the circumstances of the case;  and (2)  if so, what is the quantum of their liability.  On  the first issue the High Court has held that the respondents are not  liable at all.  On the second issue the High Court  has given no finding. The  appellants  started selling the flour  from  March  20, 1945.   On May 17, 1945, 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 consumption." The  Nagarpalika reported the matter to the District 779

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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  And 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 of  by  the  Municipal  medical officer  of Health who will kindly regulate its disposal  in consonance with considerations to the owner as is  necessary 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 criminal case’ The  order  permitted the  appellants  to  dispose of the  flour  subject  to  the following  conditions  : (1) they 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 names and addresses  of all  buyers should be mentioned.  There should be  a  column for the signature of the buyers; (3) the Atta should be gold only  for being used as lehi to recognised book-binders  and 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  permission  to sell 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 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, informed them that the appointment of Nanu Mal  as salesman was approved.  It was emphasised in the letter that the directions mentioned in the letter of September 17, 1945 should  be carried out by them.  They 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, permitted them to sell the  flour  for animal food under certain conditions.  By the letter, 780 dated  October  8, 1945, the second  respondent  issued  the following  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  bag should not, be sold to  one  individual;  (3) there should be a distinctive label on every bag  containing the warning that the contents could be used for animals only and were unfit for human consumption; and (4) any officer of the  Nagarpalika 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  examin-

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ing 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  by  an  order  of  the magistrate  under s. 144 Cr.  P.C. The question  is  whether they are liable for 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 are invalid  and malafide.  The respondents 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 necessary for the preservation  of the  public  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 resolution, any other  member, officer or servant of the board may, without notice, at  any period of the day or night, enter into and 781 inspect a market, shop, stall or place used for the sale  of food  or drink for man, or as a slaughterhouse, 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 being 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, the flour was unfit for  human consumption.   So the real issue is as to whether  its  sale appeared to be intended for human consumption. According  to  the High Court, the phrase  "appears  to  be- intended for the consumption of man" connotes that the  sale of  an  article  of food should  appear  to  the  inspecting

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officer   to  be  intended  for  human   consumption.    His subjective, satisfaction about this matter is decisive.  The High Court has also taken the view that sub-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 sale for human consumption.   In  our opinion,  S.  244(1) is not susceptible of  those  meanings. The  phrase  "an  article of ,food or drink  appears  to  be intended  for the consumption of man" does  not  contemplate any  subjective satisfaction.  The seller should  intend  to sell  an  article  of  food  for  human  consumption.    His intention  is  an objective fact.  There should  be  present some facts or circumstances 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 sub-section (1) of s. 244 is radically different from  the  language of s. 239.  Under s.  239  the  District Magistrate is empowered to act whenever it appears to him to be 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 consumption.  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 intended 782 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 placed 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 maize  flour  with the condemned flour.  But this  act  also would  not show that they 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 any loss caused to the  appellants 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  for deciding  the  issue about damages.  Costs  will  abide  the

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decision of the High Court on the question of damages. S.B.W.                                 Appeal allowed. 783