REGINA

ST. ALOYSWS WGHER ELEMENTARY SCHOOL & ANR.

March 16, 1971.

(J. M. SHELAT AND C. A. V AIDIALINGAM, JJ.)

Madras Elementary EducaJjon Act (8 of 1920), s. S6(2) (h) and Part U Rules-If statutory Rules or administrative instructions-Purpose of Rules -Right oJ. teacher against management oJ Elementary School-If governed by contract or Rules.

The appellant, who was working as the Headmistress in the respondent school was reduced to the position of an Assistant Teacher. Her appeal to the District Educational Officer under r. 13(2)(vi) of Part II of tho rules published by tho State Government in the Gazette on August 29, 1939, was rejected, but on a further appeal by her to the Divisional Inspector of Schools, the management of the school was directed to restore her to the position of Headmistress.

As the management did not do so, sho filed • suit for the issue of a mandatory injunction to tho respondent and for damages.

On the question whether the rules under which the appeal was filed and the order was made wore only administrative instructions by the Gov eroment to its educational officers and not statutory rules which would give rise to a remedy enforceable at law at the instance of an employee of a school aggrieved aaalnst tho management,

HELD: (I) Section S6 of the Madras Elementary Education Act, 1920, authorised tho Government to make rules to 'carry out all or any of tho purposos of this Act', and under sub ... 2(h) for declaring the conditions subject to whicb schools may be admitted to recognition or aid, and rules were framed in 1922. The Act was amended by Amendment Act of 1939, by which Chs. II, N, VI and s. SS wore deleted. Tho existing rules therefore could not be continued as they could not be regarded as rules for 'car rying out the purposes of the Act.' Hence they were reframod 'llld published in the Gazette in 1939 in two parts. [13F, H; 14D].

(a) The lint part contained rules dealing with matters provided for in the various sections. The rules in Part II could not refer to any section because, they related to matters such as recognition and aid dealt with in sections and Chapters which were repealed by the 1939-amelldrnent, and

hoacc, Part II rules did not set out or refer to any section of the Act. [l 4B].

(b) The rules in Part I were headed 'Rules framed Uildcr the Madras

Elementary Education Act, 1920', but the Rules in Part II were not given any such hcadjna or title. [14F).

(c) There was no previous publication of the rules in Part II as required by s. S6(1). [14F-G].

(d) The rules in Part II could not be claimed to have been made under s. S6(2) {b) dealing with the conditions subject to which schools may be admitted to rocognition. or aid, because they did not satisfy tho condition proccdcnt for auch rulemal<iog, namely, that they could be made

amy 'to carry out all or any of the purposes of tho Act', (160-F].

KUMAltl ltEOINA v. ST. A. JI. E. SCHOOL (Shah, J.)

Therefore, the rules in Part II could not be said to be statutory rules framed under s. 56. [16FJ

(2) But the Government had the power de hors the Act to lay down conditions under which it could recognise and grant aid. To achieve uni formity and certainty in the exercise of such executive power and to avoid discrimination, Government could frame rules which would however only be administrative instructions to its officers. [17B-D]

The rules in the present case, relating to recognition and aid, thus governed the terms on which Government would grant recognition and aid and Government could enforce the rules on the management by the denial or withdrawal of such recognition or aid, if there was a breach or non.• compliance of the conditions laid down in the rules. But the enforcement of such rules was a matter beween the Government and the managemenr, and a third party, such as a teacher aggrieved by same order of the mana&ement, could not derive from the rules any enforceable right against the management on the grounds of a breach of or non-compliance with any of the rules. [170-E; 19~

(3) The relation between the management of the elementary school and the teachers employed in it would be governed by the terms of the contract of employment and the law of master and servant in the absence of any statute or statutory rules controlling or abrogating such a con tract and providing to the contrary. [16F-O]

T\te result is that the relations between the managements and the teachers even in a recognised elementary school have to be regarded as being governed by the contracts of employment and the terms and conditions contained therein. Part II Rules, which cannot be regarded :is having the status of statutory rules made under s. 56 cannot be said to have the effect of controlling the relations between the management of a school and its teachers. [16H; 17A-B]

Therefore, the appellant could not be said to have bad a cause of action for enforcing the directions given by the Divisional Inspector .. to restore her as the Headmistress in the appeal filed by her. Appeals against orders passed by the management against a teacher are provided for under r. 13 so as to enforce the satisfaction of conditions under which recognition and aid would be granted or withdrawn, and not for regulating as between the teacher and the management, the relations of master and servant arising under the contract qf employment. [18B-C]

Chandrasekharan Nair v. Secretary to Government of Kerala, A.I.R. 1965 Ker. 303, A. Ramaswami Ayyangar v. State of Madras, (1962) l M.L.J. 269, and Moss. v. The Management, (1970) 2 A.W.R. 157, approved.

Govindaswami v. Andhra, (1962) (I) An. W. R. 283, overruled

CIVIL APPELLATE JUIUSDICTION: Civil Appeal No. 500 of 1966.

Appeal by special leave from the judgment and order dated July 27, 1965 of the Mysore High Court in Second Appeal No. 235 of 1960.

B. R. L. Iyengar and E. C. Agrawa/a, for the appllant.

R. Gopalakrishnan, for the respondent.

A The Judgment of the Court calling for a report was delivered

Shah, J. The appellant was appointed on April 10, 1949.

Head Mistress of St. Aloysius Higher Elementary School, Urva. then in State of Madras. On June I, 1955, the Manager of the School reduced her to the post of an Assistant Teacher.

Her appeal to the District Educational Officer, South Kanarn., against the action of the Manager was rejected.

In second appeal, the Divisional Inspector of Schools, Coimbatore, by order <la.led July 5, 1956, allowed the appeal and directed the District Eductional Officer to issue instructions to the Management of the School to reinstate the appellant as Head Mistress. But no effect WB6 given to that order by the Management.

On June 26, 1957, the appellant filed the suit out of which this appeal arises claiming a• mandatory injunction directing the Management of the School to reinstate her to the post of Head Mistress and damages for loss resultin!l from the wrongful action of the Management.

It wM the appellant's case that the school was receiving grant in-aid from the Government of Madras and was subject to the supervision and control of the Eduction Department of the Government of Madras, and since the reorganisation of the Sta.tes, of the Mysore Government of the affairs of the school, said the appellent, were conducted according to the rules and regulations framed by the Government and embodied in the rules relating to the elementary schools framed under the Madras Elementary Education, Act, 1920, a.nd on that account the order passed by the Manager removing her from the post of Head Mistress stood vacated, and refusal of the Manager to reinstate her was illegal, because the Manager Wa6 bound by rr. B & 14 framed under the Madras Elementary Education Act to obey the order passed by the Divisional Inspector of Schools on an appeal preferred by her.

The suit was resisted by the Management. They contended that they were not bound by the Madras Elementary Education Act or the rules framed thereunder; that the Manager alone was responsible for the "efficiency, strength and progress" of the school and for the internal discipline, which were all matters left to his discretion and the Management could not be compelled to reinsta.te the appellant as Head Mistress when she did not command their confidence.

The Trial Court held that the appellant was not entitled to claim reinstatement as Head Mistress, because the action of the Management removing the appellant's from the post of Hea.d Mistress was not illegal. The Trial Court also held that the orders

KUMAR! REGINA V. ST. A. H E. SCHOOL (Shah, J.)

passed bv the Educational authorities were not binding on the Monager a.nd the action taken by the Manager "though severe", could not be declared illegal.

In appeal the District Court reserved the Judgment passed by the Trial Court and decreed the appellant's suit and issued a manda.tory injunction directing the Management of the School to reinstate the appellant as Head Mistress of the School. Against that decree a Second Appeal was preferred to the High Court of Mysore. The h!igh Court reversed the decree passed by the District Cocut and ordered tha.t the appellant's suit do stand dismissed. Against that order this appeal is preferred with special leave.

The principal question which fell to be determiQed before the High Court was whether the rules framed under the Madras Elementary Education Act, 1920, which conferred authority upon the educational authorities of the State, were statutory and enforceable at the instance of a person prejudically affected by breach thereof. The Madras Elementa, ry Education Act 8 of 1920 which originally contained 56 sections has been amended from time to time by Madras Acts 2 of 1932, 2 of 1934, 11 of 1935, 13 of 1938, 2 of 1939, 15 of 1951, 28 of 1943, 8 of 1946 and 23 of 1950. As a result of these amending Acts a large number of lhe provisions of the Madra~ Elementary Education Adt, 1920, have been modified or repealed. Section 41 which provided for the recognition of elementary schools and s. 42 which provided for admission of. elementary schools to grant-in-aid, stood repealed by Act 2 of 1939. Bys. 56 the State Government was authorised to make rules not inconsistent with the Act to carry out a.ti or any of the purposes of the Act, and by sub-s. (2) of s. 56 it was provided :

"In particular and without prejudice to the generality of the foregoing provisions they may make rules-

(f) laying down the registers, statements, reports, returns, budgets and other information to be maintained or furnished by local authorities, by panchayats, and by managers of elementary schools under private management and the time within which any statement, report, return, budget or other information shall be furnished;

<h> declaring the conditions subject to which schools may be admitted to recognition or aid."

Rules were framed under the Act for the first time by the Govt. of Madras in 1922. These rules provided for the grant of recognition and aid to elementary schools, and for prescribing conditions of service and qualifications of teachers and the authority of the District Educational Inspector and higher authorities.

The provisions relating to the recognition of the elementary schools and admission of primary elementary schools to gra.ntsin-aid were, as stated earlier, repealed by Act 2 of 1939, but the power to frame rules, especially for the purpose of declaring the conditions subject to which schools may be admitted to recognition or aid; wa.s retained.

It alsc appears that even after Act 2 of 1939 which repealed Ch. IV was enacted, rules relating to the power of the Educational authorities were re-published on August 29, 1949, and Part II of the Rules dea.lt with matters realating to recognition of schools and grant-in-aid. In the view of the High Court, after repeal of ss. 41 & 42 of the Act, those rules could only have effect as execu tive instructions. On this question it appears that tliere has been some difference of opinion in the High Courts. A Full Bench of the Kerala High Court in Chandrasekharan Nair and others v.

Secretary to Govt. of Kera/a and others,(') apjlroving their earlier

judgment in Joseph Valamangalam v. State of Kera/a(') held that the rules contained in Part II headed "Rules for grant of recognition and aid to Elementary Schools" framed under the Madra.s Elementary Education Act, 1920, were mere e'l:ecutive directions having no statutory authority.

The High Court of Andhra Pradesh in Jalli Venkatswarrry v.

The Correspondent, Kasturiba Gandhi Basic Senior School, Kenetipuram(') was apparently of the view that these rules had statutory operation.

The High Court of Madras in A. Ramaswami Ayyangar v.

State of Madras (Education Department)(') held that the rules were administrative and not sta.tutory in tlieir effect, and the management could dispense with the services of its employee (a teacher) after giving three months' notiee in the usual course, without assigning any special reason, and the employee could not invoke the aid of the Court for oo order to quash the proceedings of the management dispensing with his services on the ground of non-compliance with those rules.

(1) A.!. R. 1961 Kerala 303.

(3) A.(. R. 1961 A. P. !78.

(2) A. I. R. 1958 Kerala 290.

(4) A. I. R. 1962 Mad. 387.

K:UMARI REGINA •• ST. A.H. E. SCHOOL (She/at, J.)

In this case, the question whether an order made by the Educational authorities in exercise of the powers conferred upon them by rules is liable to be enforced by action in a civil court at the instance of a. person affected by the action of the school authorities falls to be determined. It is unfortunate that counsel have not been able to place before us the Act, and the rules in force at th~ material time. Counsel appearing at the Bar a.re also unable to inform us about the authority in the exercise of which the rules were originally framed and were re-issued after the repeal of Ch. IV of the Act.

Before we can decide this appeal, we must have before us a. copy of the relevant rules in force at the material time, and evidence about the authority under which the rules were framed and continued, the sanction behind the enforcement of the rules, if any, and the man::ier in which the rules were being administered by the Madras Government and thereafter by the State of Mysore when the District of South Kanara merged with that Sta.le under the States Reorganization Act, 1956.

We direct that the papers be sent down to the Trial Court and that the Trial Court do report to us after taking evidence on the questions set out earlier. The Tria.! Court may, if so advised, issue a summons to the Educational a.uthorities of the State of Madras or take other steps to ensure production of the documents bearing on the questions on which report is directed to be made.

Enquiry may especially directed to the question whether the State of Madras, or the state of Mysore, have on any earlier occasion enforced the orders passed by the Educational authorities in appeals and the power in exercise of which they have been enforced. The Trial Court to submit the report within six months from the date on which the papers reach that Court.

The judgment of the Court after receipt of the report was delivered by

Shelat, 1.- Prior to June I, 1955, the appellant was working as the Head Mistress in the respondent school.

On April 22, 1955, the management of the School served certain charges on her and called upon her to reply to the same. Her reply was found to be unsatisfactory, and thereupon, by an order passed by the m01nagement on June 1, 1955 she was reduced to the position of an Assistant Teacher. She thereafter filed an appeal against the management before the District Educational Officer, South Kanara.. Her appeal was rejected. A further appeal by her before the Divisional Inspector of Schools, Coimbatore, succeeded and the Divisional Inspector directed the mana!!JCment to restore her to her original position as the Head Mistress. The management declined to do so and she filed the suit from which this appea.l arises.

The suit was on the basis that since the school had obtained recognition and grant-in-aid under the Madras Elementary Education Act, VIII of 1920, and the rules made therefore by the Government, it was under the supervision, first of the Education Department of the Madras Government, and after reorganisation. of States, that of the Mysore Government.

According to her, the Act and the said rules were binding on the school and ga.ve her a right to enforce against the management the said order of the Divisional Inspector. The order reducing her to the position of an assistant teacher stood vacaited by the order of the Divisio nal Inspector and the respondent school, therefore, was bound to comply with that order and restore her to the position of the Head Mistress.

The management contested the suit, maintaining tha.t the order of reduction passed by it was within its power, that there was nothing in the Act or the rules which warranteil any

interferece with its right of internal management of the school and g'we no right to the appellant to enforce in a court of law the order passed by the Divisional Inspector, that order being only a matter between the Education Department and the management

The Trial Court accepted the school's contention and dismis sed the suit. In an appeal against that dismissal, the District Judge took a different view and held that the order of the Department was legally enforceable by the appellant since it was passed in Hn appeal provided by the s~.id rules. He set aside the dismissal uf the suit and passed a decree in favour of the appellant. On a second appeal by the school, the High Court went into tjie legisla

tiv~ history of the Act and on an examination of the rules accep ted the contention of the management that the relationship bet ween the parties was that of master and servant and no manda tory injunction could be issued directing restora, tion of the appellant as the Head Mistress as that would be tantamount to specific performance of a contract of personal service not pennis sible under s. 21(b) of Specific Relief Act, 1877. The High Court .ilso held that the rules, under which the appellant had filed the said appeal and the said order was made, were only administrative instructions by the Government to its educational officers and not statutory rules which would give rise to a, remedy enforceable at law at the instance of an employee of a school agrieved against its management.

Against this judgment, the appellant obtained speciaI leave from this Court and filed this appeal.

The appeal first came up for hearing in March 1970 before Shah, J. (as he then was) and Grover, J. Not satisfied with the' record before them, the learned Judges postponed the hearing of the appeal and ca.Jled for a report from the Trial Court on certain matters found wanting in the record. In accordance with that urder, the Trial Court took additional evidence, both oral and

KUMAR! REGINA v. ST. A.H. t. SCHOOL (She/at, J.)

docUillentary, and despatched its. report along with a copy of the rules, the Madras Gazette in which they were published and 'ertain other materials. From those materials. as also from the judgment of the Kerala High Court reported in Rev. Fr. Joseph

v. Kera/a(') it is possible to trace the charges which the Act and the rules have undergone from time to time. Such a legislative history of the Act is important to a certain extent as it throws light on me character of the rules and the power under which they were framed from time to time.

Counsel for the appellant urged that in spite of the changes made from time to time in the Act, the rules with which we are concerned in this appeal have retained their original character of being statutory rules. They must, therefore, be held to have been made under s. 56 and particularly under cl. (h) of its sub-s. (2), which empowers the Government to make rules in respect of recognition as a, n elementary school and the aid which the Government gives to it from public funds. The argument was that despite the changes in the Act, particularly the deletion of certain provsions of the Act, to which we shall presently come, the definition ot an 'elementary school' in the Act takes in schools recognised by the Director of Public Instruction of the State Government, and since such a recognised school is the essence of the scheme of elementa.ry education provided by the Act, the rules have to be \Teated as statutory rules made under cl. (h) of s. 56(2) which is still retained in the Act.

Before we proceed to consider these contentions, it is necessary to examine briefly the Act and its legislative history.

The Act was first passed as Madra~ Act, VIII of 1920, and then contained seven chapters with 56 sections. It underwent several changes from time to time and particularly when the Madias Elementary Education (Amendment) Act, II of 1939 was passed by which Chapter II, IV, VI and s. 55 in Ch. VII were deleted.

The Act was passed with the ob1ect ot making better provisions for elementary education and envisaged imparting of such education through elementary schools, including those run by private ma.nagements, but recognised by Government through its Education Department. Sec. 3(vi) of the Act defines such an elementary school one recognised by the Director of Public Instruction or by such authority as may be empowered by him in that behalf. Sec. 56 "uthorised the Government to make rules not inconsistent with the provisions of the Act "to carry out a.II or any of the purposes

(I) A. I. R. 1958 Kerala 290.

SUPlll!JIE COURT .REPORTS [1971] SUPP. s.c.R.

of this Act", and in particular cl. (h) of sub-s. (2) for "declaring the conditions subject to which schools may be admitted to recognition or aid." Ch. II, before its deletion in 1939, provided for the constitution of District Educational Councils, their duties, their funds, budget and audit Ch. VI, by ss. 41 to 43 in it, dealt with recognition of schools a.nd admission of private managed schools to grant-in-aid. These chapters, as stated earlier, were repealed in

1939.

The Rules were first framed in 1922 under s. 56 and contained provisions regarding recognition and aid. These Rules were clearly statutory rules. Curiously, although Chs. II and IV were deleted in 1939, cl. (h) of s. 56(2) was allowed to remain in the Act. It appears that the rules regulating recognition and aid were framed in 1922 because so long as Chs. II and IV were in the Sta-tute, they had to be made to implement the purposes set out in those chapters.

But with the repeal of those chapters, those Rules could not be continued as they could no longer be regarded as rules for carrying out the purposes of the Act as s. 56(1) enjoins The Madras Government appears to have appreciated such a result arising from the repeal of those chapters and therefore, reframed the rules and published them in the Gazette of August 29,

1939. The new Rules were divided into two parts. The first part contained rules dealing with matters provided for in ss. 3(i)(v) and (viii), s. 36(1) and (2), s. 44, s. 48, s. 50(iii) and (v) ands. 51.

Part II Rules did not set out or refer to any of the sections in the Act as Part I Rules did. The reason was that rules in Part JI dealt with recognition and aid in respect of which there were, after the 1939 amendment, no corresponding provisions in the Act. It is also of some significance that when published in 1939 the rules in Part I were headed "Rules frame:! under the Madras Elementary Eduction Act, 1920", while the rules contained separately in Part II were not given any such heading or title.

Further, it appears that when these Part II Rules were published in August 1939 there was no previous publication of them as required by s. 56(1) of the Act.

Ch. I in Part II Rules deals with recognition. The power to grant or withdraw such a recognition is conferred on the officers of the Education Department. Under r. 5, applications for recognition of schools or additional standards in such schools are to be made to the District Educational Officer.

An appeal is provided against his decision before the Divisiona~ Officer. The rules then Jay down certain requirements on the basis 0f which recognition would be given or withheld.

Rule 13(1) r, irovides, inter a/ia, for the maintenance of a teacher's service register by the manager of the school specifying therein the terms of service under which a teacher is recruited. The register would include

' "

KUMAlll llEGINA v. ST. A. H. E. SCHOOL (Sh~/at, J.) 15

particulars showing whether a teacher is appointed temporarily or on probation or on a permanent basis, his salary, the scale of pay, if any, etc. Under the rule, the manager has to get the register countersigned by the Deputy Inspector of Schools.

The rule further provides that no qualified teacher ca.n be appointed on :a temporary basis or for a stipulated period. All appointments to permanent posts have initially to be made on probation and on expiry of the probation period the teacher would be deemed to be permanent. Cl. (2) of r. 13 provides that no teacher ca11 leave the service of a school without giving three months' notice, or three months' salary in lieu thereof. Under sub-cl. (ii) of cl. (2) of that rule, the management has the power to terminate the service of any member of the staff. whether permanent, temporary or probationary, without any notice on the grounds set out therein.

But, three months' notice would be required if the termination of service is for reasons other than those set out in sub-cl. (ii), e.g., for wilful neglect of duty, serious misconduct, gross insubordination, incompetence etc.

The first provision to sub-cl. (ii) requires, however, that before such notice of termination is given the teacher has to be informed in writing of the charges against him and a reasonable opportunity to be heard has to be given to him. The second proviso to that subclause requires the management to consult the Deputy Inspector and obtain his approval about the propriety of the actioo proposed against a teacher. The rule then provides :

"When, on a teacher's appeal, the District Educational Officer orders reinstatement, the management shall forthwith reinstate him within 10 days of the receipt of the orders, notwithstanding a further appeal submitted or proposed to be submitted by the management to the Divisional Inspector and shall inform in writing the Deputy Inspector of Schools and the District Educational Officer of the fact of having done so. Failure to comply with such orders of the District Educational Officer may entail action against the management under rule 14 below."

Sub-cl. (vi) of r. 13(2) provides for appeals, first, before the District Educational Officer, and then, before the Divisional Inspector of Schools.

Under r. 14, the Director of Public Instructions has the power to declare, after enquiry, a teacher to be unfit for employment in a recognised school. Under r. 14-A, he ca, n refuse or withdraw recognition from a school in which is employed a teacher whom he has declared to be unfit, or when the school is under the management of a person declared unfit by him. Recognition can also be withdrawn under rr. 26 to 28. 28-A and 28-B on the grounds set out therein. Ch. II of Part II Rules contain rules in regard to aid, such as teaching grants, maintenance grant etc.,

and Ch. III contains rules with regard to grants for school buildings, building sites and play-grounds.

Chs. II and IV of the Act, which contained provisions for recognition and aid, having been repealed, these rules, reissued and published afresh in August 1939, cannot be said to be rules "to carry out all or any of the purposes of this Act", as provided by s. 56(1). No doubt, cl. (h) of sub-s. (:2) of s. 56 was still retained even after Chs. II and IV were deleted, and therefore, the Government could perhaps claim to ha.ve the power to frame statutory rules "declaring the condihOns subject to which schools may be admitted to recognition or aid".

But even if the Government were to claim to have framed rules under the sanction contained in cl. (h) of s. 56(2), such rules would not satisfy the condition precedent for such rule-making, namely, that they ca.n be made only "to carry out all or any of the purposes of this Act". Such rules, therefore, even if made, would not be rules made under s.

56. Besides, the fact is that when Part II Rules were published in the gazette of August 28, 1939, they were not claimed to have been made under the power reserved to the Government under s.

56. If they were claimed to have been so made, they would, firstly, have been pre-published as required by s. 56(1), and secondly, the Government wouM not have made the distinction oetween Part I and Part II Rules, which it did, by giving a title to the former, namely, that they were made under the Act, and omitting to give such a title to the latter. These fa.els support the contenion of the respondent-school that Part II Rules cannot be said to be statutory rules framed under s. 56, although the power to make such rules is still retained with the Government by reason of cl. (h) being still there in s. 56(2).

Ordinarily, the relations between the management of an elementary school and the teachers employed in it would be governed by the terms of the contract of employment and the Jaw of master and servant in the absence of any statute controlling or abrogating such a contract of employment and providing to the contrary. The mere fact that such a school has obtained recognition and aid from the educa.tion department would not mean that the relationship between its management and its employees has ceased to be governed by the contra.els of employment under which the employees are recruited and by the law of master and servant unless there is some provision in the Act overriding that law as one finds in statutes dealing with industrial disputes a.nd similar other matters. There is in fact no such provision in the Act and none was pointed out to us. The result is that the relations between the management and the teachers even in a recognised elementary school have to be regarded as being governed by the contracts of employment

KUMAR! REGINA' ST. A. ff, E. SCllOOL (She/at, J.)

and the terms and conditions contained therein. Part II Rules,

'Yhich cannot be regarded as having the slatus of statutory rules made under s. 56, cannot be said to have the effect of controlling the relations between the management of a school and its teachers or the terms and conditions of employment of such teachers or abrogating the law of master and servant which ordinarily would govern those relations.

But it cannot also be ga.insaid that as the Government has the power, to admit schools to recognition and grants-in-aid, it can, de hors the Act, lay down conditions under which it would grant recognition and aid. To achieve uniformity and certainty in the exercise of such executive power a.nd to avoid discrimination, the Government would have to frame rules which, however, would be in the form of administrative instructions to its officers dealing with the matters of recognition and aid. If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition ood aid and that a breach or non-compliance of such conditions would entail either the denial or withdrawal of recognition and aid. The management of school, therefore, would commit a breach or non-compliance of the conditions laid down m the rules on pain of dcpriv&tion of recognition and aid. The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce those rules upon the management. But the enforcement of such rules is a matter between the Government and the management, and a third party, such as a. teacher aggrieved by some order of the management, cannot derive from the rules any enforceable right against the management on the ground of a. breach or noncompliance of any of the rules. To illustrate the point, suppose the management of a school were to terminate the service of a teacher after giving one month's notice, or one month's salary in lie•1 thereof in accordance with the contract of employment between the teacher and the management, such a termination would be valid. But the Government can insist that since its rules provide for three months' notice, the management cannot terminate the service of a teacher by giving only one month's notice. Though, in the absence of statutory provision having the effect of controlling or superseding the contract of employment agreed to between the parties, the termination would in law be valid, nevertheless, the Government can withdraw, under Part II Rules, the recognition and aid it has given to the school since its rules governing recognition and aid were not complied with. But that does not mean that Part II Rules confer upon a third party, viz .• an aggrieved employee of a school, a.ny remedy enforceable at law in the event of the management of an elementary school refusing to comply with these.

2-1 S, C. lndia/71

rules which, inter alia, enjoin upon a school to abide by the directions given thereunder by the education officers of the Government named therein.

In the absence of any prov1s1on in the Act governing the relations between the ma.nagement and a teacher employed by it or controlling the terms of employment of such a teacher and Part II Rules not being statutory rules, the appellant coufd not be said to have had a cause of action for enforcing the directions given by the Divisional Inspector to restore her as the Head Mistress in the appeal filed by her. Appeals against orders pa.ssed by the management against a teacher ace provided for under r. 13 so as to enforce the satisfaction of conditions under which recognition and aid would be granted or withdra.wn, and not for regulating, as between the teacher and the management, the relations of master and serva.nt arising under the contract of employment.

In Rev. Fr. Joseph v. Kera/a,(') the Kerala High Court had to consider the question of these rules being statutory or not as one of the schools, whose writ petition among others it was trying, was governed by the Madra.s Elementary Education Act, 1920 and the rules made by the Madras Government.

After tracing the legislative history of the Act, as also of the rules, the High Court held that Pact II Rules did not have any statutory origin and were, therefore, only administrative instructions by the Government to its educational officers, and therefore, did nof vest in the school any statutory right for grant-in-a.id. This decision was later approved by a full bench of that High Court in Chandrasekharan Nair v. Secretary to Government of Kerala(') where that Court once again held fhat Part II Rules were administrative rules.

Similarly, in A. Ramaswami Ayyangar v. Madras,(') the High Court of Madras negatived the contention fhat these rules, dealmg with recognition aind aid, could be invoked by an employee against the management of a private elementary school to enforce a right allegedly arising under the rules. The High Court held that the rules were not staitutory rules, and that therefore, they could not enlarge the scope of fhe contract of employment between such an employee of the school and the management embodied in the school register, and that the rules affected the relations between the school and fhe Government, and not a fhird party. In Govindaswami v. Andhra,(') a learned Single Judge of the Andhra High

Court. took the view fhat fhe powers and functions of the State's educational officers under these rules in relaition to recognition a ad aid were quasi judicial and held that fhese rules were statutory

(!) A. I. R. 19S8 Kerala 290.

(3) 1962(1) M. L. 1. 269.

(2) A. J. R. 1961 Kerala 303.

(4) 1962(1) An. W.R. 263.

KU.MARI R~O!NA v. sr. A.H. B. SCHOOL (She/at, J.) 19

A rules.

But this view was on an assumption that even Part II Rules were made under s. 56(2)(h) of the Act. Such an assumption , " was made without any enquiry whether they were so made and without taldng into account the fact of the deletion of Chs. 11 and IV from the Act in 1939, and its impact on the rule-making power of the Government, the re-issuance of the rules thereafter and the distinction made by the Madras Government itself between Part I and Part II Rules in the headings which it gave to those two parts. The more recent view of the Andhra. High Court, however, is reflected in Moss v. The Management(') where a Division Bench of that High Court has held that Part II Rules relating to recog nition and aid are not statutory rules but are only executive instructions, a.nd therefore, are not legally enforceable in a court of law.

On the reasons aforesaid. the suit filed by the appellant must be held to be misconceived, and consequently, the High Court righty dismissed her suit. The appeal fails and is dismissed. But in the circumstances of the case, we decline to make any order

as to costs.

V. P. S.

Appeal dismissed.

(I) !970(II) An. W. R. 157.

ST. ALOYSIUS HIGHER ELEMENTARY SCHOOL & ANR

M. SHELAT

Madras Elementary EducaJjon Act

Madras Elementary Education Act, 1920

Rules framed Uildcr the Madras

s. 56

Part II Rules

s. 56

Section 41

s. 42

s. 56

Part II of the Rules

ss. 41 & 42

Elementary Education Act, 1920

States Reorganization Act, 1956

s. 21(b)

Specific Relief Act, 1877

s. 56

s. 56(2)

s. 55

Sec. 3(vi)

Sec. 56

ss. 41 to 43

s. 56

s. 56(2)

s. 56(1)

ss. 3(i)(v)

s. 36(1)

s. 44

s. 48

s. 50(iii)

Madras Elementary Eduction Act, 1920

Part II Rules

s. 56(1)

Part II Rules

II of Part II Rules

II and IV of the Act

s. 56(1)

s. 56

s. 56(2)

s.

56

Part II Rules

s.

56

s. 56(1)

Part II Rules

s. 56

s. 56(2)

Part II Rules

s. 56

Part II Rules

that does not mean that Part II Rules

Part II Rules

Elementary Education Act, 1920

s. 56(2)(h)


., 16

INAYAT ALI KHAN

STATE OF U. P.

May 6, 1971.

B [S. M. Suoo, C. J., G. K. MITTER, C. A. V AIDL.u.INGAM, A. N. RAY

AND P. JAGANMOHAN REDDY, JJ.J

U.P. Imposition of Ceiling on Land Holdings Act, 1960 (U.P. Act I of 1961), s. 6(vii)--Exemption from ceiling-Horse-breeding farm whether exempt as a specialised Jann-Word 'and' in clause whether can be read as equivalent to 'or'.

The appellant was a horse-breeder.

On receipt of a notice un.der s. 10(2) of the U .P. Imposition of Ceiling on Land Holdings Act, 1960 h~ claimed exemption under s. 6(vii) of the Act on the ground that his farm was a specialised farm within the meaning of that sub-clause. The prescrib-- ed authority under the Act, the appellate court and the High Court in revision held against the appellant. In appeal by special leave,

HELD : The sub-clause specially mentions two types of specialised farms, namely, those devoted to poultry-farming and dairying. As reaards others it leaves them to be prescribed by rules under s. 44 of the Act. In this context it is impossible to read the word 'and' as 'or'.

Rule 4(4) prescribes those specialised farms. but farms used for horse-breeding are not included. The appeal must therefore fail. [718F]

OVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2018, 2019 and 2020 of 1968.

Appeals by special leave from the judgments and orders dated March 2S, 1968 and March 20, 1968 of the Allahabad High Court in Criminal Revision No. 528, 576 and 518 of 1967.

S. C. Agarwala and D. P. Singh, for the appellants (in all the appeals).

S. c;. Manchanda and 0. P. Rana, for respondent (in all the appeals).

The Judgment of the Court was delivered by

Sikri, C. 1.-These appls by special leave raise a common question as to the interpretation of Section 6, Clause (xvii) of the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (U. P. Act I of 1961)-hereinafter referred to as the Act-and can conveniently be disposed of together.

In Writ Petition 261 of 1968 the vires of this provision is challenged.

This Writ Petition was heard alongwith these civil appeals and will be disposed of by a separate judgment.

In order to appreciate the point a few relevant facts in the case of Civil Appeal No 201~ of 1968 may be given. On receipt

INAYAT ALI KHAN V. u. P. STATB (Sikri, CJ.) 71 '1

of a notice under Section 10(2) of the Act the appellant, Inayat A Ali Khan, filed objections.

He is a horse-breeder. One objection was that he has a specialised farm and certain plots were being used for growing grass or for growing special types of crops which were used as fodder for horses.

He relied on Section 6 (xvii) of the Act, which reads as follows : -

"6. Exemption of certain land from imposition of B ceiling:- Notwithstanding anything contained in this Act, land falling in any of the categories mentioned below, shall not be taken into consideration for the purposes of determining the ceiling area applicable to, and the surplus land of, a tenure-holder- C ..................• ·····<!!

(xvii) land, other than land used for purely agricultural purposes, included in specialized farm and exclusively devoted to poultry farming or dairying or other such purposes, as may be prescribed:

Exp/anation.-Land for the purposes. of this clause shall include land, exclusively used by the tenure-holder for growing of fodder for purposes of his dairy." A rule was framed exempting certain farms, and it reads as follows:-

"4(4). The following latid, included in specialised farms and exclusively devoted for purpose of sericulture, ericulture, lacculture or pisciculture shall, to the extent mentioned below, be exempt under clause (xviii> of Section 6 :

(i) land under actual plantation of mulberry, castor and lac-host trees-Kusum, Khair, Palse and ber-which constitute a grove,

(ii) land on which buildings, necessary for the rearing of worms or insects producing silk andi or lac, as the case may be, and for preparation of raw silk, andi and Jae, are situate, and

(iii) land, not less than one acre in area, which is covered with water throughout the year and has been used for pisciculture for a continuous period of three years, duly certified as such by an officer of the Fisheries Department, not below the rank of an Inspector : Provided that the land to be exempted under items (i) and (ii) above is justifiable with reference to

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

the production of raw silk, andi or lac during a series of years, not exceeding three. ·

The Prescribed Authority, Tahsil Sadar, held that the exemption claimed was not sustainable.

The Additional District Judge, on appeal, concurred.

He observed :

"The word 'and' in clause (xvii) of section 6 makes it clear that for purposes of exemption it is necessary that the land should be used for specialised farm and should be exclusively devoted to growing such articles or for such purposes as are specified in clause (xvii) and in Rule 4.

It cannot, therefore, be said that because this land is I" ing used for growing a particular type of crop it will come under the definition of specialised farming.

In the explanation, appended to clause (xvii), a case of growing fodder has been referred to.

This explanation says that the land used for growing fodder purposes of dairy will be exempted. This explanation will, therefore, make it clear that the land used for growing fodder for other purposes will not come under the definition of specialised farming".

The appellant filed a revision before the High Court. S. N.

Singh, J., held that the lower appellate court had correctly interpreted the section.

The appellant having obtained special leave, the appeal is now before us for disposal.

The learned counsel for the appellant urged that the word 'and' in sub-clause (xvii} should, in the context, be read as 'or', and that all specialised farms used for non-agricultural purposes are entitled to exemption.

We see no force in this contention.

The sub-clause specially mentions two types of specialised farms, namely, those devoted to poultry farming and dairying. As regards others, it leaves them to be prescribed by rules under Section 44 of the Act.

In this context it is impossible to read the word 'and' as 'or'.

Rule 4(4) prescribes those specialised farms, but farms used for horse-breeding are not included.

We agree with the interpretation placed by the High Court.

In the result Civil Appeal No. 2018 of 1968 fails.

The facts in the other two appeals are similar.

These must also fail.

There will be no order as to costs.

G.C.

Appeals dismissed.

16

INAYAT ALI KHAN

STATE OF U. P

G. K. MITTER

A. N. RAY

P. JAGANMOHAN REDDY, JJ

s. 6(vii)

s. 10(2)

s. 6(vii)

s. 44

Section 6

Section 10(2)

Section 6

Section 6

section 6

Section 44


LATAFAT ALI KHAN AND ORS. f

THE STATE OF U. P.

May 6, 1971. [S. M. Snw, C.1., G. K. MITTER, C. A. VAID!ALINGAM, A. N. RAY B

AND P. JAGANMOHAN REDDY, JI.)

U.P. Imposition of Ceiling on Land Ho/dints Act (U.P. 1 of 1961), .s. 6(xvlr) and r. 4(4) of the Rules made thereunder-If protect•' bv Arts.

31A and 3lB.

Section 6(xvii) of the U.P. Imposition of Ceiling on Land Holdings C Act, 1960, and rule 4(4) of the rules made thereunder are protected by Arts. 31A and 31B of the Constitution. [720C-D) ·

(a) They are part of a scheme of land reform in U.P. and would th~ fore be protected fromattack under Art. 31A. [720D]

(b) The rule does not go beyond the powers conferred by the section read withs. 44 of theAot, andthe Act is included to the Ninth Schedule to the Constitution. If a statutory rule is within the power conferred by a section of a statute protected by Art. 31B the rule cannot further be scrutinised under Arts. 14, 19 and 31.

[720C]

ORIGINAL JURISDICTION : Writ Petition No. 261 of 1968.

Petition under Article 32 of the Constitution of India for the enforcement of fundamental rights.

S. C. Agarwala and D. P. Singh, for the petitioner.

S. C. Manchanda and 0. P. Rana, for the.respondent

The Judgment of the Court was delivered by

Sikri, C. J.-This petition under Art. 32 has been filed by the three appellants in Civil Appeals No. 2018-2020 of 1968, in which we have just delivered judgment. In .this petition the vires of s. 6, cl. (xvii), of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (U. P. Act 1 of 1961)-bereinafter referred to as the Act-and rule 4(4) of the U. P. Imposition of Ceilings and Land Holdings Rules, 1961, have been challenged.

It is urged that these provisions violate Art. 14, 19(1)(f) and (g) and 31 (!) of the Constitution. The learned counsel for the State contended that the impugned provisions are protected by Art. 3 IB of the Constitution, as the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 is included in the Ninth Schedule as item 58. The learned counsel for the petitioners, in reply, urged (!) that the impugned provisions have nothing to do with land reform, and (2) that rules made under the Act do not enjoy the protection of Art. 318. It is admitted that the land

SUPllEME COUllT 11.EPOllTS [1971] SUPP. s.c.11..

in dispute is a 'holding' within s. 3(d) of the Act. The definition reads :

"Holding" l!leans the land or lands held by a person as a bhumidhar, slrdar, asami of Gaon Samaj or an asami mentioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, or as. a tenant under the U.P. Tenancy Act, 1939, other than

a sub-tenant, or as a Government lessee, or as a 11ublessee of a Government lessee, where the period of the sub-lease is co-extensive with the period of the !eaie.'•

It seems to us that if a statutory rule is within the powers: conferred by a section of a statute protected by Art. 3 lB, it is difficult to say that the rule must further be scrutinised under

Arts. 14, 19, etc.

Rule 4(4) seems to us to be a rule which does not go beyond the powers conferred under s. 6(xvil), read with s. 44 of the Act. At any rate, s. 6(xvii) and rule 4(4) arepart of a scheme of land reform in U.P. and would be protected from attack under Art. 31 A of the Constitution.

In the result we hold that s. 6(xvii) and rule 4(4) aro valitl.

The petition accordingly fails.

In the circumstances there will" be no order as to costs.

~.P. S.

Petition dismissed.

LATAFAT ALI KHAN AND ORS

f

THE STATE OF U. P

G. K. MITTER

A. N. RAY

P. JAGANMOHAN REDDY

s. 6(xvlr)

Arts.

31A and 3

Section 6(xvii)

Arts. 31A and 31B

Art. 31A

Ninth Schedule

Art. 31B

Arts. 14, 19 and 31

Article 32

Constitution of India

Sikri

Art. 32

s. 6

Art. 14, 19(1)(f)

Art. 3

Ninth Schedule

Art. 318

s. 3(d)

Section 11

Tenancy Act, 1939

Art. 3

Arts. 14, 19

s. 6(xvil)

s. 44

s. 6(xvii)

Art. 31

s. 6(xvii)


72J

FOOD INSPECTOR, CALICUT C0Rl'ORA't10N A

CHERUKATrlL GOPALAN AND ANR.

May 6, 1971.

[C. A. VAIDIALINGAM AND A. N. RAY, JJ.]

Prevention of Food Adulteration Act, 1954 (37 of 1954)-Section 16 (l)(a)(i)-Sale of Food for ana/ysit-To be guilty of offence under section, food need not be intended for sale and person selling need not be a dealer.

A sale of an article of food for analysis being "sale" within the meaning of s. 2(xiii) of the Prevention of Food Adulteration Act, 1954, an anicle of food sold to the Food Inspector, if found to be adulterated. the M:Cuse<i will be guilty of an offence punishable under s. l6(1)(a)(i) read with s. 7 of the Act. The article of food purchased by the Food Inspector need not nave been taken out from a largr quantity intended for .sale and

Ibo person from whom the article of food has been purchased need not be a dealer as such in that article, [729 G]

Where sugar purchased by the Food Inspector from the Respondents' tea stall was found to be adulterated and the Respondents were charged with an offence under s. 16(1) (a) (i) of the Act, the respondents must be held guilty of tLe oIIt:nct: charged wilh, even though the tiugac purchasec( was not intended for sale as such and the respondents were not dealers in ar.

Mangaldas Raghavii Ruparel and Anr. v. The State of Maharashtra JJnd Anr., (1965] 2 S.C.R. 849, State of Gujarat v. Asa11tlas Kimmairai

Kevalramanni, Al.R. 1.964 Guj. 191, Municipal Board, Faizabad v. Lal Chand Sura; ma/ and Anr., A.I.R. 1964 All. 199 and The Public Prosecutor

v. Palanisami, A.l.R. 1965 Mad. 98, referred to.

Public Prosecutor v, Kandasamy Reddiar, A.l.R. 1959 Mad. 33, Explained.

ln re : Govinda Rao, A.I.R. 1960 Andhra Pradesh 366, disapproved.

CR!MINAL AB.PELLATB JURISDICTION : Criminal Appeal No. 281 of 1968.

Appeal by special leave from the judgment and order dated June 26, 1968 of the Kerala High Court in Criminal Appeal No. 113 of 1968.

A. Sriedharan Nambiar, for the appellant.

S. K. Mehta, K. L. Mehta, and K. R. Nagaraja, for the respondents.

The Judgment of the Court was delivered by

Valdlallnpm, J~This appeal, by special leave, by the Food H Inspector, Calicut Corporation, is directed against the judgment and order dated 1.une 26, 1968 of the. Kerala High Court in

46-1 S.C. fodia/71

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

Criminal Appeal No. 113 of 1968 confirming the acquittal of the respondents of an offence under s. 16(1)(a)(i) of the Prevention ot Food Adulteration Act, 1954 (Act No. 37 of 1954) (hereinafter to be referred to as the Act).

The first respondent is the Manager and the second respondent, his wife, are the owner and licencee of a tea stall in the premises No. 41777 Customs Road, Calicut. They were accused Nos. 1 and 2 respectively.

On November 17, 1965 at about 9.45 AM., the Food Inspector, Calicut Corporation, purchased from the first respondent 600 grams of sugar for a price of 78 paise for analysis from the stock of sugar kept in the premises to be used in the preparation of tea sold to customers in the said tea stall run by the second respondent under the licence issued by the Corporation. The quantity of sugar so purchased was sampled as per the rules in the presence of the first accused and the witnesses.

One portion of the sample was sent to the Public Analyst for analysis. The Analyst in his report Ex. P. 3 dated December 28, 1965 has certified that the sample contained artificial sweetner saccharin equivalent to about seven percent of cane sugar and therefore it was adulterated. In fact the analysis is as follows

"Ash

Total sugar as cane sugar

Saccharin

0.02 per cent

96.00 per cent

14.0 mgs. per 100 gms."

On the basis of this report the Food Inspector filed un March 21, 1966 a complaint against the two accused in the Court of the District Magistrate, (Judicial), Calicut. After setting out the necessary facts and the report of the Public Analyst, the complaint alleged that the sale of such sub-standard food which was adulterated is prohibited under s. 7 read with item A. 07.01 in appendix to the rules framed under the Act and therefore, it was an offence.

There is a reference to the conviction of the first accused on prior occasions. It is not necessary for us now to refer it.

Both the accused were charged of an offence under s. 16(l)(a)(i) of the Act for having sold on November 17, 1965 600 gm. of sugar for a price of 78 paise to the Food Inspector from the tea stall and which sugar was found to be adulterated by the Public Analyst.

Both the accused pleaded not guilty and even denied having sold sugar to the Food Inspector.

POOD INllPECTOR v. c. OOPALAN (Vaidlalingam, J.) 723

The learned District Magistrate recorded the following findings : The "sugar" is an article of food as defined under s. 2(v) of the Act ; the Food Inspector purchased sugar from the tea stall of the accused, sampled it then and there and handed over to the first accused..

There 'was a sale as defined in the Act of sugar to the Foo"d Inspector by the first accused; the purchase and the sampling by the Food Inspector were done in strict compliance with the provisions of the Act. The report of the Public Analyst establishes that the sugar purchased from the tea stall of the accused was adulterated.

But in order to hold that the accused have committed an offence, it must be established that the accused were selling sugar as such in the tea stall, which is not the fact in this case. On the other hand, the accused were selling tea and the sugar was kept only for the purpose of being mixed with tea which was sold to the customers and the Food Inspector has clearly admitted that sugar as such is not in the tea stall of the accused.

Inasmuch as sugar was not kept for sale by the accused, they are not guilty of any offence.

In this view, both the accused were acquitted under s. 258(1) of the Code of Criminal Procedure.

The State filed an appeal before the Kerala High Court challenging the acquittal of the respondents. The High Court agreed with the findings of the District Magistrate that there was a sale as defined in the Act of sugar to the Food Inspector by the accused on November 17, 1965 and the said article was adulterated as is established by the report of the Public Analyst.

The High Court set before it the principle that the prosecution will have to establish, under such circumstances, that the persons from whom the. article of food had been purchased are those

"selling those articles as such".

The High Court applied the test to find out whether the respondents "are persons selling sugar as such" and answered the question in the negative.

Agreeing with the findings of the District Magistrate that the sugar in the tea stall of the accused was not kept for sale as such but for being utilised in the preparation of tea which was being sold to the customers, the High Court finally held that the purchase by the Food Inspector of sugar from the respondents cannot be considered to be a purchase under the Act so as to make them liable of the offence with which they were charged.

Mr. A. S. Nambiar, learned counsel for the appellant, urged that the views of boTh the High Court as well as the District Magistrate that. the respondents are not guilty as they are not dealers in sugar as such, is erroneous, specially after a finding that there has been a sale to the Food Inspector under the Act and the article was found . to be adulterated.

According to Mr. Nambiar when once the article of food is sold to the Food

SVPlBMB eoUll.T RBPOllTB (19'flJ SUPP. S.o.Jt.

Inspector for analysis, it is of no consequence that the said' '1rticle was not intended to be sold as sucb by the accused, a sale of an article of food under the Act attracts all the consequences that fiow from such sale as provided under the Act.

On the other hand, Mr. S. K. Mehta, learned counsel forthe 1e:>p<>111.lents, urged that in order to make the respo!'!dents liable, it must be established that they were dealers in sugar as such.

In view of the concurrent findings based upon the ad mission of the Food Inspector that the accused were not clea!ers in sugar as such and that the sugar kept by them was intenaed to be used in the preparation of tea, their acquittal is justified.

Before we proceed to deal with these contentions with reference to the provisions of the Act and certain decisions placed before us by both the learned counsel, it is to be recorded that Mr. Nambiar has made it clear that his clients do not want the respondents to be convicted, in case his contentions are acceptea.

On the other hand, he stated that the Corporation is only anxious to have a decision of this Court on the legal point.

We will now refer to some of the material provisions of the Act.

Section 2(1) defines the various expressions enumerated 'therein. In particular it is only necessary to refer to clauses 5, 12, 13 and 14 defining the expressions "food''. "prescribe", _"sale" and "sample" respectively. They are as follows :

"(v) "food" means any article used as food or drink for human consumption other than drugs and water and includes-

(a) any article which ordinarily enters into. or is used in the composition or preparation of human food, and

(b) any fiavouring matter or condiments : "

"(xii) "Prescribed means prescribed by rules made under this Act."

(xiii) "sale" with its grammatical variations and cognate ex ·

pressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale. the exposing for sale or having in possession for sale of any such article and includes also an attempt to sell any sueh article;

POOD INIPECl'OR J, (l, QOP4UK (Y(dd/Q/111gam, J.)

.(xiv) "samplo" means a samplo of any articlo of food taken

under tho provisions of this Act or of any rules made thereunder."

There is no controversy that sugar with which we aro oeoncemed in this case is an article used as food for human consumption or at any rate it is an article which ordinarily entered into or is used in the composition or preparation of human food.

Even accordng to the respondents the sugar so kept in their tea stall was intended to be used in the preparation of tea which was being sold to the customers. A reference to the definition >Of 'sale' will also show that a sale of any article of food for analysis comes within .that definition.· That the sample of food purchased by the Food Inspector in this case satisfies the defini- .tion of 'sale' in clause 14 is also beyond controversy.

Before we refer to certain other sections, it is necessary to 11tate that ss. 4(2) & 23(1) of the Act give power to the Central Government to make rules in respect of the matters referred to in those sub-sections.

By virtue of the powers conferred under ss. 4(2) and 23(1) the Central Government have framed the Prevention of Food Adulteration Rules, 1955 (hereinafter to be referred to as the Rules). Rule 5 provides that the standards of quality of the various articles of food specilied in Appe:idix B to the Rules are as defined tn that Appendix. Appendix B deals with the definition and standards of quality. Item A. 07.01 of -_the appendix deals with cane sugar and enumerates its contents. -It is not necessary for us to deal with the definition of the expression 'adulterated' in s. 2(i) as well as the requirements under -item A. 07.01 of the Appendix B .. of the Rules as there is no challenge to the report of the PuWic Analyst that the sugar in question was adulterated, as it does not conform to the requirements of the item mentioned above.

In fact the High Court as well as the District Magistrate have also proceeded on that basis.

We will now revert back to the Act.

Section 7 prohibita the manufacture, sale etc. of certain articles of food.

It is not necessary to refer to the various items enumerated therein. But we will refer only to the main part of s. 7, whicl> is as follows

"Section 7. No person shall himself or by any person <>n his behalf manufacture for sale, or store, sell or rlistribute--- ..

It will be seen that. s. 7 deals not only with manufacture, we, storing or distributing but also selling. We are particular1y

emphasisin11 this aspect because it has been missed in this case

SUPREME COURT REPORTS (1971] SUPP. s.c.R.

not only by the two courts but also in some of the decisions, to which our attention has been drawn. Section 10 deals with the powers of the Food Inspector.

Under sub-section IO(l)(a) the Food Inspector has power to take samples of any article of food from any of the persons enumerated in sub-clauses (i) to (iii) Section 12 gives a right even to a purchaser, wh6 is not the Food Inspector of having the article of food analysed by a Public Analyst in accordance with that section. Section 16(1)(a)(i), breach of which is alleged against the respondents is as follows :

"S. 16(1) If any person-

(a) whether by himself or by any other person on bis behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food-

(i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health; ..

Here again it is to be noted that any person who sells any article of food which is adulterated shall be punishable. in accordance with that section. The Food Inspector purchased sugar on November 17, 1965, from the tea stall of the respondents on payment of price. The said transaction clearly amounts to a sale under s. 2(xiii) of the Act. From the definition of "sale" already quoted, a sale of an article of food for analysis is a sale. Under such circumstances it amounts to a sale under the Act as has been laid down by this Court in Mangaldas Raghavji Ruparel and another v.

The State of Maharashtra and another(').

It was held in the said decision that there is a special definition of "sale" in s. 2(xiii) of the Act whcih specifically includes within its ambit the sale for analysis.

Mr. Nambiar referred us to certain decisions to the effect that when once there is a sale as defined in the Act of an article of food, it is not necessary to establish that the accused are dealers in that article as such.

In the decision reported in Municipal Board, Faizabad v. Lal Chand Surajmal and another(")

the accused had a shop wl'.ere tea was sold and for the purpose of preparing tea, they had stored milk which was a necessary ingredient for the preparation of tea. The Food Inspector took a sample of milk from the tea shop and on analysis it was found to be adulterated. The question was whether the accused could be convicted for an offence under s. 16(1)(a)(i) read witlt s. 7 of the Act. The plea of the accus¢ was that the milk kept in

965) 2 S.C.R. 894, .R. 1964 All. 199.

POOD INSPECTOR v.c. <JOPALAN (Valdlalingam, J.)

the tea shop was not intended to be sold as such but was kept for being used in the preparation of tea. The High Court held that though the accused could not be convicted for storing the milk, which was found to be adulterated as the milk was .not stored for sale as such, nevertheless, they did 'sell' milk to the Food Inspector.

As the said sale was of adulterated milk, the accused have committed an offence. It is not necessary for us in the case before us to consider whether the expression 'stored/ occurring in s. 7 and s. 16 should be interpreted as storage for purpos•s of sale. The case on hand can be disposed of without deciding that aspect.

In the State of Gujarat v. Asandas Kimmatrai Kevalramanni(') the Food Inspector purchased 'Dahi' (Curd) and on ana lysis it was found to contain fifty percent fat deficiency. The accused was prosecuted for an offence under s. 16(1)(a)(i) of the Act.

The accused pleaded that he had not stored 'Dahi' for purposes of .sale but he was keeping it only for the preparation of 'Lachhi' and he further pleaded that the 'Dahi' purchased by the Food Inspector was not taken from a larger quantity which was stored by him for the purpose of sale as 'Dahi'. Here again we are - 11ot concerned with the observations of the learned Judge as to what constitutes storing under the Act.

But the learned Judge held that it is not necessary that the accused should be a dealer in 'Dahi' as such and it is also not necessary that the 'Dahi' sold to the Food Inspector must have been taken out of a larger quantity intended for sale. It was held that so long as there has been a sale as defined under the Act to the Food Inspector of Dahi and when it was found adulterated, the accused is gulity of the offence.

To a similar effect is the decision of The Public Prosecutor

v. Palanisami Nadar(') where it was held that when there has been a sale to the Food Inspector for analysis of an article o~ food, which, when found to be adulterated, the accused is guilty of an offence.

Mr. Mehta, learned counsel for the respondents, referred us

to the decisions reported in Food Inspector, Kozhikode v. Punsl G Desai.I!) Narain Das v. State,(') and Rameshwar Das Radhey Lal v. The State,('). In all those decisions the Court has considered the qnestion as to whether the storage of an article under

(1) A.I.R. 1964 Gui. 191.

(2) A.I.R. 1965 Mad. 98.

(3) A.I.R. 1959 Kerala 190.

(4) A. J.R. 1962 All. 82.

(5) A.I.R. 1967 Puniab 132.

, ..

SUPIU!MB COUB.T RIPOl.TS

[1971] BUPP. 8.C.L

the Act must be for the purpose of sale. We have already indicated that the said question does not arise for consideration bef'JN us and we do not propose to refer to those decisions in detail. But we may point out that the decision in Narain Das v. State(') has been distinguished by the same Court in Municipal Board, Faizabad v. Lal Chand Surajmal and another,(') to which we have already referred.

Mr. Mehta referred us to two decisions; The Public Prosecutor

v. Kandasamy Reddiar(') and in Re. Govinda Rao(') in support of his contention that the article of food purchased by the Food Inspector must be shown to have been kept by the accused for purposes of sale as such. In other words, according to the learned counsel the person "from whom an article of food is pvrchased by the Food Inspector must be a dealer in such article".

In the Public Prosecutor v. Kandasamy Reddiar(') the findings of the two courts were that the accused was carrying the milk taken from his own buffalo for his own use.

This decision does not assist the respondents. But it must be stated that the said decision does not consider the legal effect of a sale to a Food Inspector under the Act and its consequences. But we may point out that under s. lO(l)(a) the Food Inspector has got power to take samples of any article of food from the persons enumerated in sub-clauses

(i) to (iii). It will be seen in particular from sub-clause (ii) of s. IO(l)(a) that the Food Inspector can take samples from "any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee".

In the case before us if the accused had purchased, the sugar and it was in the process of being conveyed to be delivered to the accused, the Food Inspector could have taken the sample under s. 10 from any person in the course of conveying the article for delivery. Similarly, even if the sugar had been delivered to the accused, under sub-clause (iii) of s. !O(l)(a), the Food Inspector could have taken the samples from them as consignee of the article.

In the In Re. Govinda Rao(') lhe accused who was the proprietor of a Coffee and Meals Hotel was prosecuted for having sold adulterated ghee to the Food Inspector. The defence was that. the accused was not a dealer in ghee as such and that the said article was stored in the Hotel for the purpose of being served along with the meals to the customers or for using it in the preparation of other articles of food. The accused was acquitted on the ground that in order to constitute an offence, the

(I) A.LR.. 1962 All. 82.

(2) A.I.R.. 1964 All. 199.

(3) A.I.R.. 1959 Mad. 333.

(4) A.I.R.. 1960 Andhra Pradesh 366.

' }

roGD INSP!CTOll Y, o. GOPALAN (Jlo(dkz/lngam, 1.)

accused should have been a dealer in ghee as such and that the prosecution cannot succeed by the Food Inspector merely taking adulterated ghee which was stored by the hotel keeper for being served with the meals or for preparing other articles of food.

We are not inclined to agree with this decision because it has not considered. the legal effect of a sale to a Food Inspector under the Act.

We do not also find any indication in the Act that when a Food Inspector purchases an article of food from a person, the latter must be a dealer in that article as such.

Mr. Mehta, learned counsel for the respondents relied on ss. 12 and 14 to support his argument that the Act contemplates that the person from whom an article of food is purchased must be a dealer of that article as such and if that article is found to be adulterated, a person can be found guilty under the Act.

If article A is stored for the purpose of being used in the preparation of other articles of food, the fact that article A purchased by the Food Inspector is found to be adulterated will not make the person selling that article liable under the Act. Section 12 gives a right to any purchaser, other than the Food Inspector, to have the article purchased by him analysed by the Public Analyst in accordance with that section. Section 14 makes it mandatory on a manufacturer, distributor or dealer of any article of food to give a warranty when he sells an article about the nature and quality of that article to the vendor. We are not able to find how these two sections support the propositions enunciated by Mr. Mehta. If a third party had purchased sugar from the tea stall of the accused and if the said purchase constitutes a "sale" under the Act, s. 12 gives such a party to have the article analysed by a Public Analyst. Similarly, s. 14 is also of no assistance to the respondents.

To sum up we are in agreement with the decisions reported in Municipal Board, Faizabad v.

Lal Chand Surajma/ and another(') and The Public Prosecutor v.

Palanisami Nadar('') to the extent to which they lay d<;.>wn the principle that when there is . a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under s. 16(1)(a)(i) read with s. 7 of the Act. We further agree that the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale. We are also of the opi nion that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article. We are not inclined to agree with the decisions laying the contrary propositions.

(1) A.I.R. 1964 All. 199.

(2) A.I.R. 1965 Mad. 98.

7at

''130

!UPRBMB COURT REPORTS

[1971) SUPP. S.C.R.

Coming to the case on hand, on the finding of the two courts the sugar in question has been found to be adulterat@d.

The purchase by the Food Inspector from the accused of sugar for purposes of analysis is a sale under s. 2(13) of the Act.

Section 7 prohibits a person from selling adulterated article of food.

Similarly, under s. 16(1)(a)(i) any person who sells adul terated food commits an offence and is punishable therein. The sugar which is the commodity before us is food under s. 2(5) of the Act.

We have already pointed out that sugar by itself js an article used as food or at any rate it is an article whiclr ordinarily enters into or is used in the composition or preparation of human food.

In this case the sale was for analysis and the article was an article of food and in view of the concurrent findings of both the courts that it was adulterated, the respondents have contravened ss. 7 and I 6(l)(a)(i) of the Act. Hence it must be held that the respondents are technically guilty of the offence with which they were charged and they have been wrongly acquitted by the High Court and the District Magistrate.

But in view of the fact that the appellant has argued the appeal only as a test case and does not challenge the acquittal of the res pondents, we merely set aside the order and judgment of the High Court. But we may make it clear that apart from holding the respondents t.echnically guilty, we are not setting aside the order of acquittal passed in their favour.

In the result the judgment and order of the High Court are set aside and the appeal allowed.

We find that on December 12, 1968 when granting special leave this Court had directed the appellant to deposit Rs. 1000 /- to be used by the respondents for their costs and liberty has been given to the respondents to withdraw the amount to pay fee to the counsel, in case they engage a counsel. As the respondents have engaged a counsel, they are entitled to withdraw from the court deposit the amount representing the costs incurred by them and the fee payable to the counsel under the relevant rules. Surplus, if any, will be refunded to the appellant.

K.B.N.

Appeal allowed.

A

CHERUKATrlL GOPALAN AND ANR

A. N. RAY, JJ.

Section 16

s. 2(xiii)

s. 7

s. 16(1)

(1965] 2 S.C.R. 849

s. 16(1)(a)(i)

s. 7

s. 16(l)(a)(i)

s. 2(v)

s. 258(1)

Code of Criminal Procedure

Section 2(1)

clause 14

ss. 4(2) & 23(1)

ss. 4(2) and 23(1)

s. 2(i)

Section 7

s. 7

Section 7

s. 7

Section 10

Section 12

Section 16(1)(a)(i)

S. 16(1)

s. 2(xiii)

s. 2(xiii)

s. 16(1)(a)(i)

s. 7

s. 7

s. 16

s. 16(1)(a)(i)

s. 10

Food Inspector under the Act

ss. 12 and 14

Section 12

Section 14

s. 12

s. 14

s. 16(1)(a)(i)

s. 7

s. 2(13)

Section 7

s. 16(1)(a)(i)

s. 2(5)

ss. 7