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The Nagpur Hotel Owners Association and ors. Vs. the Corporation of the City of Nagpur and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Food Adulteration
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1166 of 1971
Judge
Reported inAIR1979Bom190
ActsCity of Nagpur Corporation Act, 1950 - Sections 2, 237 and 415(35); Prevention of Food Adulteration Act, 1954 - Sections 5, 8 to 13, 23, 23(1), 24 25, and 25(1); Constitution of India - Article 254; Prevention of Food Adulteration Rules, 1955 - Rules 50 and 50(5); Calcutta Municipal Act - Sections 442 and 442(1); Punjab Municipal Act - Sections 173
AppellantThe Nagpur Hotel Owners Association and ors.
RespondentThe Corporation of the City of Nagpur and anr.
Appellant AdvocateV.R. Manohar, Adv.
Respondent AdvocateH.S. Ghare and ;M.L. Vaidya, Advs.
DispositionPetition dismissed
Excerpt:
a) the court ruled that the provisions of section 237 and the byelaws of the city of nagpur corporation act, 1950 was not repealed on account of licensing provisions under the prevention of food adulteration act and the rules made there under;b) the case dealt with the interpretation of the statutes - it was held that use of preamble and the aims and objects could not be used for interpreting the statutes; it could only be used for the limited purpose for ascertaining the condition prevailing at the time of legislation and for finding out the purpose of the enactment by furnishing valuable historical material - - we will later on refer in details to these bye-laws but at this juncture it would be sufficient to state that the bye-laws as also the terms of the licence have made provision.....gadgil j.1. the only question that arises for our determination in this writ petition is as to whether the provisions of section 237 of the city of nagpur corporation act, and the bye-laws framed thereunder providing the necessity of having a licence for carrying on certain business such as hotel etc. stand repealed on account of the licensing provisions of such establishment under the prevention of food adulteration act and the rules made thereunder.2. petitioner no. 1 is an association of hotel owners at nagpur, while petitioners 2 to 5 are its members, respondent no. 1 is the corporation of city of nagpur, while the state of maharashtra is the second respondent. it is not in dispute that the petitioners 2 to 5 are carrying on their hotel business at nagpur. on 27-7-1959; certain.....
Judgment:

Gadgil J.

1. The only question that arises for our determination in this writ petition is as to whether the provisions of Section 237 of the City of Nagpur Corporation Act, and the bye-laws framed thereunder providing the necessity of having a licence for carrying on certain business such as hotel etc. stand repealed on account of the licensing provisions of such establishment under the Prevention of Food Adulteration Act and the Rules made thereunder.

2. Petitioner No. 1 is an association of hotel owners at Nagpur, while petitioners 2 to 5 are its members, Respondent No. 1 is the Corporation of City of Nagpur, while the State of Maharashtra is the second respondent. It is not in dispute that the petitioners 2 to 5 are carrying on their hotel business at Nagpur. On 27-7-1959; certain bye-laws framed by the City of Nagpur Corporation (hereinafter referred to as the Corporation) under Section 415 (35) read with Section 237 of the City of Nagpur Corporation Act (hereinafter referred to as the Corporation Act) came into force. Section 237 of the Corporation Act provides that the Corporation may by bye-laws prohibit the manufacture, sale or preparation or exposure for sale, of any specified article of food or drink, in any place or premises not licensed by the Corporation. The bye-laws so framed are at Annexure-A to the petition. We will later on refer in details to these bye-laws but at this juncture it would be sufficient to state that the bye-laws as also the terms of the licence have made provision that the premises in which the articles of food are prepared or sold, should be in a good, sanitary and hygienic condition. They should be away from the urinals and drainage and there must be necessary arrangements for proper cleanliness and lighting. The bye-laws also provides that no person should be allowed to work on the premises who is suffering from tuberculosis and who have not been vaccinated against small pox. Petitioners 2 to 5 have obtained the necessary licence on payment of the licence fees.

3. The Prevention of Food Adulteration Act (hereinafter referred to as the Food Act) came into force in 1955. Section 23 of this Act empowers the Central Government to make certain rules for the purpose of carrying out the provisions of the Act. Sub-section (1-A) states that in particular, these Rules may provide for a number of matters, Including the maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class of articles. The Central Government has framed such Rules in 1955 and they are known as the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules), Rule 50 enumerates the conditions for licence that are to be issued under the Food Act and Sub-rule (5) provides that the premises where the food is to be sold must be free from any sanitary defects. Section 24 of the Food Act empowers the State Government to frame rules. In particular, those rules can prescribe the forms of licences for the manufacture, sale and storage of articles of food. The State of Maharashtra has accordingly framed such rules in the year 1962. Annexure B to this petition is a form of licence prescribed by these rules. It enumerates the conditions on which the licence is issued. Some of the conditions pertain to the sanitation and hygiene; e.g. there is a condition that the floor and the drain should be thoroughly cleaned every day and that only the water from municipal or other approved source should be used. The surface of the walls is required to be rendered smooth. There is a prevention of mixing cow milk, with buffalo milk or goat milk. The licensee is not permitted to keep on a public road any vessels intended to be used for keeping the licensed articles. Petitioner Nos. 2 to 5 have obtained licences under the Food Act in 1962 (i.e. the year in which the Maharashtra Rules came into force), it seems that thereafter the Corporation did not insist on a separate licence under the Corporation Act, However on 11-3-1971, the Corporation issued a press-note directing that the licences required by the Abovementioned bye-laws of the Corporation should be got renewed. The similar press-note was issued on 4-6-1971. The two press-notes are annexure C and D to this petition. The petitioners made a representation to the Corporation challenging the necessity of having a separate licence under the Corporation Act when they were possessing licence under the Food Act, The Corporation rejected that representation and issued fresh notices directing that the licences under the Corporation Act should be obtained. These directions are Annexure-F to the petition. The petitioners have filed this writ petition for quashing the said directions on the ground that the Corporation bye-laws framed under Section 237 read with Section 415 (35) of the Corporation Act, stand impliedly repealed after the introduction and the application of the Food Act under which the petitioners are required to take a licence. Another contention of the petitioners is that the said provision of Section 237 as also the bye-laws framed thereunder stand repealed in view of the provisions of Section 25 of the Food Act, That section says that if immediately before thecommencement of Food Act, there is inforce in any State to which this Actextends any law corresponding to FoodAct, that corresponding law shall, uponsuch commencement stand repealed.According to the petitioners, the Corporation Act and the bye-lawsrequiring the hoteliers to obtain alicence would stand repealed as a similar provision for the licences by hoteliers is made under the Food Act.

4. The Corporation resisted this claim by filing its return. There was no denial about the framing of the bye-laws under Section 237 of the Corporation Act requiring the hotel owners to have a licence. It was also not disputed that these very hotel owners are bound to take a licence under the Food Act after the said provision of licence came into force in 1962. The Corporation admitted that since 1962 to 1971 it did not insist upon the hotel owners to have licence under the Corporation Act. But it was pleaded that this was on account of misconception and wrong interpretation of the provisions of the two enactments. The Corporation denied that there was any implied repeal of Section 237 and the bye-laws framed thereunder on account of the provisions of the Food Act. It was also denied that there was any express repeal contemplated by Section 25 of the Food Act. It was contended that the objects of the two provisions, viz. Section 237 of the Corporation Act (coupled with the bye-laws framed thereunder) and the Food Act are quite different. The provisions of the Corporation Act are meant for the purpose of maintaining and securing sanitation and cleanliness of the premises where the food is prepared or sold while the Food Act is primarily meant for preventing adulteration of food. It was, therefore, contended that the two provisions are capable of being in existence independently of each other and that there is no conflict or contradiction. Similarly, the provisions of the Corporation Act would not be 'law corresponding to', as contemplated by Section 25 of the Food Act. The State of Maharashtra has filed its return. It is not necessary to reproduce the details of that return.

5. Before proceeding with the discussion of the rival contentions of the parties, we would like to make a mention of the fact that the petition also contains certain averments about the validity of a provision of levying double fees for the licences as also the legality of the imposition of such fees. However, that aspect has not been argued by Mr. Manohar and hence we have not made any detailed reference thereto in this judgment.

6. Thus, the main contention of Mr. Manohar is twofold; that the provisions under the Corporation Act stand repealed under Section 25 of the Food Act and that there was also an implied repeal. This second contention is based on the general principles of implied repeal. It will be convenient to refer to certain provisions of the Corporation Act, as also the Food Act. Sections 237 and 415 of the Corporation Act read as follows:

'237. The Corporation may, and if required by the State Government, shall by bye-laws-

(a) prohibit the manufacture, sale or preparation of any specified article of food or drink, in any place or premises not licenced by the Corporation;

(b) to (d).........

(e) provided for the grant and withdrawals of licences and the levying of fees therefor under this section ......

415. The Corporation may, and if so required by the State Government ehall, make bye-laws for carrying out the provisions and intentions of this Act, and in particular and without prejudice to the generality of the foregoing power, it may make bye-laws to regulate all or any of the following matters, namely:--

(1) (a) ..............

.....................

35 (a) to (e) ...............

(f) the manufacture for Bale and the sale of articles of food and drink or drugs either by licence or otherwise;...

As stated earlier, the bye-law' have been framed by the Corporation. The relevant bye-laws:--

(4) The licence shall be subject to the following conditions:--

(i) Any room in which any articles mentioned in bye-laws 1 is sold or exposed for sale preparation for shall have the following provisions:

(a) No urinal, water closet, earth closet, privy or other sanitary convenience shall be in such room or shall communicate directly with it or shall be otherwise so placed that offensive odours therefrom can penetrate to such room.

(b) No cistern for supplying water to such room shall be in direct communication with or directly discharged into. such sanitary convenience.

(c) ............

(d) the floor of such room shall be of impervious material and aiming in one direction.

(e) an efficient drain shall be maintained or connected with cesspool or public drain.

(f) such room shall be thoroughly cleaned and its walls time washed at least once in six months.

(g) except in the case of room used as a cold storage adequate means for lighting and ventilation shall be provided in such shop or hotel (the ventilation area shall not be less than one-eighth of the area of the floor, exclusive of the door or doors)

(h) appliances (including furniture) used in a shop or hotel shall be kept clean and free from dust.

(ii) such shops or hotels and all articles, apparatus and utensils used therein shall be kept scrupulously clean at all times.

(iii) The licencee and every person employed in the shop or hotel shall be free from infectious or contagious disease and be clean, both in person and clothes.

(iv) All employees in such shop or hotel shall be subject to medical examination by the Medical Officer of the Health Department or any other medical man appointed by the Corporation for the purpose, once in three months or more frequently if the Corporation considers It desirable.

(v) .....................

(vi) No milk shall be sold or kept for sale at a shop or hotel unless it has been boiled on the premises.

(vii) All milk, meat and other article of food shall be fully protected from dust and flies in the manner directed or approved of by the Health Officer.

(viii) All premises licensed under these bye-laws shall be provided with proper washing place for dishes, cups and other articles for use, such washing place shall be made of materials impervious to water and shall be properly drained.

(ix) Drinking water shall be stored in clean and properly covered receptacles.

(ix-a) on the imminence or occurrence of an outbreak of cholera, no person shall be allowed by the licencee to work on the premises or handle foodstuffs unless he has been protected against cholera by inoculation.

(ix-b) No person in whose household there is case of tuberculosis, cholera, enteric fever or dysentery shall be permitted by the licensee to take any part in the work of the shop.

(ix-c) The licensee shall not use further the spent-coffee, tea. leaves or tea-dust for any purpose whatsoever but shall destroy the whole quantity thereof every day by burning in the premises.

(x) The licensee shall not employ on the licensed premises any person who has not been vaccinated against small pox within the preceding seven years. Employee; shall be re-vaccinated in the event of a small pox epidemic and inoculated against other epidemics when the health officer so directs. Failure to comply with this condition shall entitle the Health Officer to cancel the licence forthwith.

(xi) The licensee shall provide and maintain in good repair a metal dust-bin with a lid. All waste food and sweepings of the floor shall be placed daily in such dust-bin and its contents shall be emptied daily into the nearest municipal dust-bin ......... '

It is not necessary to reproduce the conditions of licence as mentioned in the form of the licence as they practically cover all the abovementioned points. .

The relevant provisions of the Food Act are as follows:--

'2 (i-a) 'Adulterated'.- an article of food shall be deemed to be adulterated:--

(a) to (d) .....................

(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;

(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption.

................

(23) The Central Government may, after consultation with the Committee and after previous publication by notification in the official gazette, make rules to carry out the provisions of this Act .....................

(1-A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters namely:

(a) and (b) ............... ...

(c) laying down special provisions for Imposing rigorous control over the production, distribution and sale of any article or clasp of articles of food which the Central Government may. by notification in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such articles or class of articles;

(d) to (f) ..................

(g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health.; ......'

(24) (1) The State Government may, after consultation with the Committee and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act in matters not falling within the purview of Section 23.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may-

(a) ..................

(b) prescribe the forms of licences for the manufacture for sale, for the storage, for the sale and for the distribution of articles of food or any specified article of food or class of articles of food, the form of application for such licences, the conditions subject to which such licences may be issued, the authority empowered to issue the same, the fees payable therefor, the deposit of any sum as security for the performance of the conditions of the licences and the circumstances under which such licences or security may be (suspended, cancelled or forfeited ............

(25) (1) If, immediately before the commencement of this Act, there is in force in any State to which this Act extends any law corresponding to this Act, that corresponding law shall, upon such commencement stand repealed.

The following is the relevant extract from Rule 50:

'50 (1) No person shall manufacture, sell, stock, distribute or exhibit for sale any of the following articles of food, except under a iicence:--

..............................

(5) Before granting a licence for manufacture, stock or exhibition of any of the articles of food in respect of which a licence is required, the licensing authority shall inspect the premises and satisfy itself that it is free from sanitary defects. The applicant for the licence shall have to make such alteration in the premises as may be required by the licensing authority for the grant of a licence.

..............................

(10) No person shall manufacture, store or expose for sale or permit the sale of any article of food in any premises not effectively separated to the satisfaction of the licensing authority from any privy, urinal, sullage. drain or place or storage of foul and waste matter ...... '

As stated earlier, the petitioners possess licence under the Food Act, as prescribed by the said Rules. The following are the relevant conditions of those licences;

1. to 3 ..................

4 (a) The licensee shall cause every part of the internal surface of walls and ceiling of the kitchen and every room in which is manufactured (hereinafter referred to as the operation room) by him to be thoroughly whitewashed at least once in every year, or at such shorter interval, as the person authorised to inspect may require where the premises are oil-painted all such premises except the operation room shall be repainted once in five years.

(b) The licensee shall also cause the floor of every such room or place to be paved so as to ensure its effectual cleaning and washing.

(c) The licensee shall also cause the floor and drain of every such room or place and every counter, shelf or Bench on which vessels containing the licensed article(s) are kept to be thoroughly cleaned daily.

5. The licensee shall cause every vessel used in the distribution of the licensed article(s) to be used with boiling water by thoroughly cleaning them before and after use.

6. The license shall not use any water for drinking, washing and cleaning of vessels except water drawn from the municipal main or from a source which is previously approved by the Health Officer concerned or the Local Authority.

7. Any counters or tables used for keeping vessels 'for the manufacture, sale, storage or distribution shall be covered with zink sheets or other suitable impervious material, so as to be easily washed and cleaned.

8. and 9. ...............

10. The licensee shall not, at any time, knowingly mix with other milk, or sell or use for human food the milk, of any cow or buffalo, which is suffering from tuberculosis, render pest, foot or mouth disease or from any disease of the udder.

11. The licensee shall clearly indicate on every can or container of milk as to whether It contains milk of cow, buffalo or goat or skim milk.

12. The licensee shall not at any time (a) mix milk of cow with that of buffalo or goat and vice versa or (b) sell, store, distribute or exhibit for sale, such mixed milk.

13. The licensee shall not keep or permit to be kept outside the said premises or on the public road or street any vessels used for containing the licensed article(s).

7. The contention of Mr. Manohar is that even a cursory look at the bye-laws and the terms of license under the Corporation Act would show that a similar provision has been made under the rules and in the conditions of licence under the Food Act and hence the provisions of the Corporation Act and the bye-laws thereunder, which correspond to the provisions of the Food Act and its Rules would stand repealed as provided by Section 25(1) of the Food Act. His submission is that the similarity of the purposes of the two enactments viz. the Corporation Act and the Food Act may be gathered by reference to the above Rules and the terms of licence.

8. We are not able to accept this contention of Mr. Manohar inasmuch as the Rules and the terms of licence would simply be the means by which the main provisions and the objects of the Act are implemented. We have to look to the substantive provisions of the two enactments in order to see as to whether any provision of the Corporation Act is law 'corresponding to' the Food Act and then to decide as to whether the applicability of Section 25(1) comes into play. Section 237 of the Corporation Act contemplates prohibition of manufacture, sale and preparation of an article of food in a place or premises not licensed by the Corporation. The bye-laws framed by the Corporation are meant to achieve this object. Obviously the emphasis of Section 237 and the bye-laws made thereunder is on the place where the manufacture, preparation or sale of an article of food takes place. The purpose and object of these provisions is to secure public health and maintain sanitation. This can very well be seen by taking an illustration. Let us assume that wholesome and unadulterated food is manufactured or prepared or sold in the premises which do not observe and maintain the hygienic and sanitary conditions contemplated by the terms of the licence and by the Corporation bye-laws. Bye-law No. 5 of the Corporation Act provides that a person committing breach of the bye-laws shall be punishable with fine which may extend to Rs. 25/- and if the breach is continued one, with a further fine of Rs. 5/- every day. There cannot be any doubt that such a person, though dealing with wholesome and unadulterated food, would suffer this penal consequence. However, it would not be positively and definitely stated that a licensee under the Corporation Act can be punished for breach of the said bye-laws and the licence conditions If he sells linseed oil mixed with ground-nut oil (which is am adulterated article under the Food Act) but if he observes the conditions of sanitation and hygiene of the premises, as contemplated by the licence conditions. Thus, it appears to us clear that the main purpose of the provisions of the Corporation Act and its bye-laws Is maintenance of sanitation and securing hygiene.

9. The position, however, appears to be different when we go to the provisions of the Food Act. Obviously the main and primary object of that Act is the prevention of adulteration of food. The preamble states that it is an Act to make provision for the prevention of food adulteration. Mr. Vaidya for the respondent No. 1 also drew our attention to the following portion of the 'Aims and Objects' of the Act:--

'Laws exist in a number of States in India for the prevention of adulteration of food stuffs, but they lack uniformity, having been passed at different times without mutual consultation between states......... The Bill will replace local adulteration laws where they exist and also apply to those States where there is no local laws on that subject. .........

The offence under the Act is now a cognizable offence and a great many sections have been brought in after consultation with all States and after close scrutiny of all existing measures in the States in order to see that it becomes easier for the State Government to deal with companies or individuals who go in for terrible crime of adulterating food because it is a crime against humanity to adulterate food. This Act will go a long way towards checking the evil or at any rate giving the State Government means to check the evil. Though legislation alone cannot get rid of dishonesty, deterrent punishment does have some effect'

10. It is true that the preamble and the aims and objects cannot be used for interpreting the statute. However in the present case, we are not much concerned with interpretation of the statute as such. We have only to see as to whether relevant provisions of the Corporation Act and the bye-laws constitute a law corresponding to the Food Act so that such corresponding law should stand repealed, as contemplated by Section 25. We feel that the preamble as well as the aims and objects of the Act can be used for this limited purpose of ascertaining the conditions prevailing at the time of legislation and for finding out the purpose of the enactment by furnishing valuable historical material. It has been so held by the Division Bench of this Court in Baboolal v. Director of Municipal Administration : AIR1974Bom219 .

11. Thus, the preamble and the aims and objects of the Food Act would given indication that, that legislation is meant to prevent the adulteration of food. The position would not be different even if we leave out of consideration the preamble as well as the aims and objects. The entire scheme of the Act would give an idea about' the purpose of the Act as also the exact implications of that enactment. We have already referred to a part of the definition of the term 'adulterated.' That term enumerates about 13 categories of the food, which are treated as adulterated. Section 5 prohibits import of adulterated or misbranded food. The provisions of Sections 8 to 13 deal with taking of food samples and their analysis for the purposes of finding out as to whether those samples were adulterated. Penalties are provided by Section 16. All these provisions, therefore, indicate that the Food Act mainly deals with the prevention of food adulteration, while as discussed above, the provisions of the Corporation Act and the bye-laws are in connection with sanitation and hygiene of the premises. It would not, therefore, be possible to accept the contention of Mr. Manohar that the concerned provisions of the Corporation Act are the provisions corresponding to that of the Food Act. This result follows by comparison of the provisions of the two enactments without going to the rules, bye-laws of the licence conditions.

12. The same would be the position even if the matter is considered after keeping in mind the various rules and the licence conditions under the two respective enactments. It is true that some of the rules and licence conditions are analogous to each other but that would not make the provisions so similar as to treat the provisions of the Corporation Act Correspond to the provisions of the Food Act. It cannot be forgotten that some of the rules and licence conditions under both the enactments though similar in nature would be necessary for achieving two different objects of the said Food Act. For example, to secure good hygienic and sanitary conditions, it would be necessary that premises, utensils used therein as also the persons who work therein are free from any sanitary defects, or disease. The same would also be necessary to prevent adulteration of food, if one considers a very wide definition of 'Adulterated food' under abovementioned els. (e) and (f) of the Food Act. Reproducing the said clauses again for the sake of convenience, they are:--

'An article of food shall be deemed to be adulterated-

(e) if the article had been prepared packed or kept under insanitary conditions, whereby it has become contaminated or injurious.

(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption.'

13. The conditions pertaining to hygiene and sanitation in the licence under the Food Act are, therefore, meant to achieve the object of the prevention of adulteration of the above type. We are not, therefore, inclined to hold that the provisions of the Corporation Act and the bye-laws made thereunder are corresponding to the provisions of the Food Act so as to invite the application of Section 25.

14. Mr. Manohar relied upon the two decisions of the Calcutta High Court in this connection. The first decision is reported in Model Electric Oil Mills v. Corpn. of Calcutta : AIR1960Cal388 . In that case, the question was as to whether the provisions of Section 442 of the Calcutta Municipal Act contained a provision corresponding to that of the Prevention of Food Adulteration Act. Section 442 (1) reads as under:--

'No person shall, without or otherwise than in conformity with the terms of a licence granted by the Commissioner in this behalf, keep any eating house, tea shop, hotel, boarding house, bakery, aerated water factory, ice factory or other place where food is sold or prepared for sale.'

The accused (who was the petitioner in that case) did not obtain any such licence for the manufacture of mustard oil. He was prosecuted. His defence was that he had already obtained licence under the Prevention of Food Adulteration Act and as such there was no necessity to obtain second licence under the Corporation Act. The Calcutta High Court held that the licensing of the manufacture or sale of mustard oil in relation to particular premises is fully covered by the provisions of the Food Act and. as such, Section 442 must be deemed to be corresponding law and it would stand repealed under Section 25. This case, no doubt, to a certain extent, supports the contention of Mr. Manohar. However, we are not able to agree with the proposition laid down therein. According to us, the law covered by Section 237 of the Corporation Act and the bye-laws thereunder have different connotation than the law under the Food Act and, as such, the Corporation Act would not be a corresponding State law within the meaning of Section 25. The abovementioned view of the Calcutta High Court needs consideration along with another decision of the said High Court in M/s. Sen Mahasay v. Corporation of Calcutta : AIR1966Cal203 . The same provisions of Section 442 of the Calcutta Municipal Act and of the Food Act were before the High Court for interpretation. It was a case where the accused person had kept an eating-house without licence under Section 442. On being prosecuted, his contention was that no such licence was necessary as he possessed a licence under the Food Act. The High Court rejected this contention and it was held that an eating-house cannot be run without the licence under Section 442, though the accused had taken licence under Rule 50 of the Food Act. Apart from that, on a plain reading of the provisions of the Corporation Act and the Food Act, we are satisfied that the Corporation Act cannot be said to be a law corresponding to the Food Act as contemplated by Section 25. Hence, it will not be possible for the petitioners to allege that they are not bound to obtain a licence under the Corporation Act.

15. The above position becomes more clear if the decision of the Supreme Court in Pyare Lal v. New Delhi Municipal Committee : [1967]3SCR747 is considered. There the Delhi Municipality had initially granted permission to the petitioner to sell potato chops on public streets. The petitioner had obtained licence under the Food Act. The Municipality later on found that such type of permission of selling eatables on public streets should be stopped. The grant and withdrawal of permission was provided for under Section 173 of the Punjab Municipal Act. In effect it states that the committee may grant a permission and may under its discretion withdraw It. The Municipality withdrew that permission. The case of the petitioner was that the said provisions of Section 173 stood repealed on account of Section 25(1) of the Food Act. The Supreme Court negatived this contention on the ground that provisions of Section 173 of the Punjab Municipal Act were principally for the purposes of sanitation and hygiene, while the Food Act deals with the prevention of food adulteration. We would like to reproduce the following observations at p. 137 of the judgment:--

'The object of Section 23(1) and the different Sub-rules under Rule 50 was entirely different from that behind Section 173 (1) of the Punjab Municipal Act. The object of the Food Adulteration Act, as its preamble shows, was to make provision for the prevention of adulteration of food and adulteration in this connection had a special significance under Section 2 of the Act. The object of this Act was to ensure that food which the public could buy was inter alia prepared, packed and stored under sanitary conditions so as not to be injurious to the health of the people consuming it. The rules framed thereunder would only over-ride rules or bye-laws, if any, made by municipality if they covered the same field. Under Section 173 (1) of the Punjab Municipal Act it is open to a municipal committee to take steps to prevent sale of any cooked food however pure if the sale thereof on public streets would offer obstruction to passersby or create insanitary conditions because waste matter was bound to be thrown on the street and washing up of articles used in the trade introduce unhygienic condition in the neighbourhood and create nuisance. ...... '

16. It was next urged by Mr. Manohar that at any rate, the provisions of the Corporation Act should be treated as impliedly repealed on account of applicability of the Food Act. He drew our attention to the Supreme Court decision in Municipal Corporation of Delhi v. Shiv Shanker : 1971CriLJ680 . The said decision enunciates the principle that when two Acts are inconsistent or repugnant, the latter will be read as having impliedly repealed the earlier. This can be seen from the observations in para 5 of the judgment However, in the present case, although on the reading of Section 25(1) of the Food Act, the said question does not fall for our consideration, in any event we are not able to find any inconsistent or repugnant provisions in the said two Acts. It is true that there are certain similar provisions, particularly with respect to the licence conditions, but the overlapping of some of those conditions would not make the two enactments repugnant or inconsistent with each other.

17. In this view of the matter, thepetition fails. The rule is, therefore,discharged with costs. The interim staygranted, if any. stands vacated.

18. Rule discharged.


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