Bishambar Nath & Ors Vs. The Agra
Nagar Mahapalika Agra & ANR  INSC 61 (28 March 1973)
CITATION: 1973 AIR 1289 1973 SCR (3) 777 1973
SCC (1) 788
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.
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 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.
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
C. K. Daphtary and Rameshwar Nath, for the
R. N. Sharma and C. P. Lal, for the
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
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 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 examining
the account books.
We do not think that the respondents are
liable for the stoppage of sale from July 26 to September 20, 1945. During that
period the sale was stopped 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
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 therefore,
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 therefore. 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 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
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 decision of the High
Court on the question of damages.
S.B.W. Appeal allowed.