Hamdard Dwakhana (Wake), Delhi & ANR
Vs. Union of India & Ors  INSC 269 (23 November 1964)
23/11/1964 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. SHAH, J.C.
CITATION: 1965 AIR 1167 1965 SCR (2) 192
CITATOR INFO :
D 1974 SC 175 (11)
Fruit Products Order 1955-Issued under s. 3
Essential Commodities Act, 1955-Clause 11 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-Also whether restriction Order made
thereunder invalid for infringing Trade mark rights.
The appellants manufacture a medicated syrup
"Sharbat Rooh Afza" according to a formula and containing some fruit
juices. Acting under s. 3 of the Essential Commodities Act, 1955, the Central
Government made the Fruit Products order in 1955; as a result of an amendment
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 Rooh Afza' and also that the impugned order and the Fruit Order were
invalid. The High Court, however, rejected these grounds, upheld the validity
of the Fruit Order and dismissed the petition.
It was contended on behalf of the appellants
that the 'Sharbat' 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
Adulteration Act, 1954, and not the Essential Commodities Act, 1955; and that
the impugned order was invalid because it affected the appellant's Trade-mark
HELD : (i) The Sharbat was a fruit product
within the meaning of cl. 2(d) (v) of the Fruit order as the residuary part of
that clause took in any beverages containing fruit juices or fruit pulp; as
such, its production could be controlled by the relevant provisions of the
order. The High Court was right in rejecting the appellant's contention that
the Sharbat was a medicinal product in view of the fact that the appellants had
not claimed exemption from the application of the Fruit Order by complying with
16(1)(c) thereof. [200 E-G; 201 H; 203 A]
(ii)As section 3(1) of the Essential Commodities Act authorised the Central
Government to regulate the qualitative and quantitative production of essential
commodities, and as the pith and substance of the 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(1), could 193 not be accepted. The order
was not therefore invalid on the ground that it purported to tackle the problem
of adulteration and should therefore have been issued under the Prevention of
Food Adulteration Act, 1954. [201 D-202 C] (iii)The Fruit Order and the Act
under which it was issued were constitutionally valid as the restrictions
imposed by them were reasonable and in the interest of the general public. What
the impugned order purported to do was to require the appellants to comply with
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 impugned order invalid. [203 D-E] (iv)The
definition of 'synthetic beverage' in cl. 2(k) of the Fruit Order which
indicates that it is a beverage which contains no fruit juice cannot be said to
conflict with the requirements of cl. 11(2) that beverages containing less than
25% fruit juices should be sold as 'synthetic' products. Furthermore, cl. 11
contains a positive provision and the validity of the mandatory requirements of
cl. 11 could not be impaired by the alleged inconsistency between that
provision and the definition of 'synthetic' beverage prescribed by cl. 2(k).
[203 A-B] Amrit Banaspati Co. Ltd. v. The Stale of U.P. Cr. A. No. 141 of 1959
dated 30-11-60, referred to.
CIVIL APPELLATE 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. Dadachanji, for the appellants.
C. K. Daphtary, Attorney-General R. K. P.
Shankardass and R. H. Dhebar, for the respondents.
The Judgment of the Court was delivered by
Gajendragadkar, C.J. The two appellants, the Hamdard Dawakhana (Wakf), Delhi,
and its Mutawalli Haji Hakim Hameed, 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 inception, 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 formula 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, Pumpkin Juice, Water melon Juice,
Chharila, Ripe grapes, Spinach, Nilofar, Sandal, 194 Gul Gaozaban, Coriandar,
Carrot, Mint, Kulfa, Keora, Rose, Citrus flower, Orange 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 period. The manufacture of this Sharbat began in 1920. It is intended to
be used for common ailments during hot season, 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) (hereinafter
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. 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 that the minimum percentage of fruit juice
in the final product of a fruit syrup as indicated in Part 11 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 intimation, 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 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 communication from Mr. Sood ordering the appellants to stop further
manufacture and sale of Sharbat Rooh Afza forthwith on 195 the ground that it
did not contain the minimum percentage of fruit juice prescribed by the
relevant clause of the Fruit Order. This 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 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 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 'Sharbat Rooh Afza'. The
appellants urged that the said Sharbat is not a foodstuff, but a medicinal
product and as such, its 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 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 (1) (c) of the Fruit Order. It is on these grounds that the appellants
sought relief by way of an appropriate writ or order quashing the impugned
order issued against them on May 10, 1957. To this petition, the appellants
impleaded the Union of India as respondent No. 1.
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 Dawakhana is holding this licence since 1955. The bottles in which the
Sharbat in question is sold by the appellants do not bear labels 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 contain fruit juice, though it was sold as fruit
juice. The label ,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 appellants were asked either to get their
licence renewed or to get exemption by complying with the necessary conditions.
When the appellants did not comply 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 1.954 (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 for injunction, but pending the
suit, the appellants applied for and 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.
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 meaning 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
relevant provisions of the Act and the Fruit Order, and the said provisions are
perfectly valid, because they impose a reasonable restriction in the interest
of general public.
This writ petition came on for final disposal
before the Punjab High Court on January 13, 1964. The High Court has rejected
the 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 197 Court in M/s. Amrit Banaspati Co., Ltd. v.
The State of Uttar Pradesh(1). The High Court negatived the appellants'
argument that the Sharbat in question was either prepared or sold as a
medicinal 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 cl. 16 (1) (c) of the Fruit OrderAccording
to the High Court, clause 1 1 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 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 imposed by them were reasonable and in the interests of' the
general public. It is on these grounds that the High Court dismissed the
Thereafter, the appellants applied for and
obtained a certificate from the High Court to come to this Court in appeal.
This certificate was granted on July 22, 1964After the appeal. was admitted in
due course, the appellants moved this Court on October 26, 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, 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 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 oil seeds and oils covered by s. 2 (a) (v), and
any other class of' commodity which the Central Government may, by notified
order, (1) Criminal Appeal No. 141 of 1959 decided on 30-11-1960.
198 declare to be an essential commodity for
the purposes of this 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 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 Central 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 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 only if the condition precedent prescribed by s. 3(1) is
satisfied, and that is that 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.(1) this Court
whilst dealing with 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 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) (1) 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 pulp. Clause 2 (d) (xiv) takes in any other unspecified
items relating to fruits or vegetables. Clause 2(j) defines "sharbat"
as 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 II; 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
(2) Every synthetic syrup shall be clearly
and conspicuously 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 specifications for fruit juice and other beverages. In
regard to fruit syrup, 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(1).
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 Clause 16 of the Fruit Order provides for
cases to which this Order does not apply, Clause 16 (1) (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 only" and so, cl. 1 6 (1) (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 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 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 have already 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
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 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 necessary or expedient to
issue the Order for maintaining or increasing supplies of the commodity in
question. Mr Pathak 201 contends, and rightly, 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 Government. This contention
again cannot be allowed to be raised for the first time in appeal, because if
it had been raised before the High Court, the respondents would have had a
chance to meet it. It is true, as Mr. Pathak contends, that in the absence of
any specific averment made by the Fruit Order that the Central Government 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 had 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 proving the said
That is why we think Mr. Pathak cannot be
permitted to urge this contention at this stage.
Mr. Pathak, has, 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 has relied on the fact that Act 37 of 1954 is
relatable to the legislative power conferred by Entry 18 in List III of the
Seventh Schedule to the Constitution which refers 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 III 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 of Food
Adulteration Act does deal with the problem of preventing adulteration of food;
but it is not easy to accept Mr. Pathak's
assumption that the regulatory Order of the kind with which we are concerned
which imposes regulations Of a qualitative character in the production of
essential goods, could have been issued under this Act. But quite apart from
this consideration if s. 3(1) of the Act authorises the Central Government to
regulate the qualitative and quantitative production of essential commodities,
it is idle to contend that the regulations p /65--14 202 imposed by the Fruit
Order in respect of fruit products are outside 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 products 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 1which 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 syrup produced by them, shows that by virtue of
its powers under s. 3 (1) of the Act, the Central Government thought it
necessary to require that a particular quality of fruit syrup should be put on
the market as fruit syrup and no other. This object plainly falls within the
purview of s. 3(1), and so, the contention that the Fruit Order is invalid
inasmuch as it purports to tackle the problem of adulteration of fruit product,
cannot be accepted.
Then Mr. Pathak suggested that there was some
inconsistency 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 alia, as
'fruit syrup', but shall be ,described as a 'synthetic syrup', and sub-cl. (2)
of cl. 11 therefore provides that if any syrup which has to be described as a
'synthetic syrup' by virtue of the provisions of sub-cl. (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 that sub cl. (2) imposes an
obligation that whoever puts the synthetic product in the market shall mark it
with a label "Synthetic" and no attempt would be made to describe the
product as 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 bear a label which carries the picture
of any fruit.
From this provision 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 beverage indicates that it is a beverage which contains no fruit
juice, and clause 11 which contains a positive provision that beverages 203
containing less than 25 per cent fruit juice should be shown as a 'synthetic'
product. 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 1 1 contains a positive provision and the
validity of the mandatory requirements of cl. 11 cannot be said to be impaired
by any alleged inconsistency between the said provision and the definition of
'synthetic beverage' prescribed by cl. 2 (k) of the Fruit Order.
The last contention which Mr. Pathak urged
before us is that 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
Government 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 cannot be challenged as being invalid. The
conclusion that the Act and the Fruit 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 reasonable restrictions imposed by
the Fruit Order. The fact that incidentally compliance with Fruit Order may
tend to affect their trademark right cannot, in our opinion, render the
impugned order invalid. In this connection, it is necessary to bear in mind
that appellant No. I 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 by it even though 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 appellants desire that the Sharbat in question
should be put on the market without complying with the requirements of clause 1
1 ( 1 ), all that they to do is to comply with cl. 1 1 (2) of the Fruit Order.
In the process of complying with cl. 1 1 (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 point seriously, they
should have placed before the Court more material in respect of their alleged
trade-mark right. The appellants had alleged in their writ petition that they
are putting the 204 Sharbat on the market as a medicinal product. In that case,
they may claim exemption by complying with cl. 16 (i) (c) of the Fruit Order.
We are, therefore satisfied that the Punjab High Court was right in holding
that no case had been made out by the appellants for quashing the impugned
Before we part with this appeal, we would
like to refer to one unfortunate aspect of the present proceedings. We 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.
The appellants have been agitating 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 why when it came to the notice of this Court that this writ petition
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.