Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
PETITIONER:
HAMDARD DWAKHANA (WAKE), DELHI & ANR.
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT:
23/11/1964
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
SHAH, J.C.
SIKRI, S.M.
BACHAWAT, R.S.
CITATION:
1965 AIR 1167 1965 SCR (2) 192
CITATOR INFO :
D 1974 SC 175 (11)
ACT:
Fruit Products Order 1955-Issued under s. 3 Essential
Commodities Act, 1955-Clause 11 of the order specifying
qualitative requirements for beverages containing fruit
juices-Whether order -dealt with adulteration of fruit
products-Therefore whether invalid not having been issued
under the Food Adulteration Act, 1954-Also whether
restriction Order made thereunder invalid for infringing
Trade mark rights.
HEADNOTE:
The appellants manufacture a medicated syrup "Sharbat Rooh
Afza" according to a formula and containing some fruit
juices. Acting under s. 3 of the Essential Commodities Act,
1955, the Central Government made the Fruit Products order
in 1955; as a result of an amendment in September 1956 of
the relevant provisions of this Order, the requirement of
the minimum percentage of fruit juices in a fruit syrup
covered in part II of the Second Schedule of the Fruit Order
was raised from 10% to 25%. This requirement was duly
notified to the Appellants. Thereafter as a result of an
inspection of their factory by the Marketing development
Officer, the appellants received an order from him requiring
them to stop further manufacture and sale of ’Sharbat Rooh
Afza’ forthwith on the ground that it did not contain the
minimum percentage of fruit juices prescribed by the
relevant provisions of the Fruit Order. The appellants
challenged this order in a Writ Petition on the ground,
inter alia, that the Fruit Order did not apply to ’Sharbat
Rooh Afza’ and also that the impugned order and the Fruit
Order were invalid. The High Court, however, rejected these
grounds, upheld the validity of the Fruit Order and dis-
missed the petition.
It was contended on behalf of the appellants that the
’Sharbat’ was a medicinal product and not a ’fruit product’
as defined by cl. 2(d) of the Fruit Order; that the Fruit
Order was invalid because it could have appropriately been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
issued only under the Prevention of Food Adulteration Act,
1954, and not the Essential Commodities Act, 1955; and that
the impugned order was invalid because it affected the
appellant’s Trade-mark rigts.
HELD : (i) The Sharbat was a fruit product within the
meaning of cl. 2(d) (v) of the Fruit order as the residuary
part of that clause took in any beverages containing fruit
juices or fruit pulp; as such, its production could be
controlled by the relevant provisions of the order. The
High Court was right in rejecting the appellant’s contention
that the Sharbat was a medicinal product in view of the fact
that the appellants had not claimed exemption from the
application of the Fruit Order by complying with Cl.
16(1)(c) thereof. [200 E-G; 201 H; 203 A]
(ii)As section 3(1) of the Essential Commodities Act
authorised the Central Government to regulate the
qualitative and quantitative production of essential
commodities, and as the pith and substance of the relevant
provisions of the Fruit Order was clearly to regulate the
qualitative production of the Fruit Products covered by it,
the contention that the regulations imposed by the order
were outside the purview of s. 3(1), could
193
not be accepted. The order was not therefore invalid on the
ground that it purported to tackle the problem of
adulteration and should therefore have been issued under the
Prevention of Food Adulteration Act, 1954. [201 D-202 C]
(iii)The Fruit Order and the Act under which it was
issued were constitutionally valid as the restrictions
imposed by them were reasonable and in the interest of the
general public. What the impugned order purported to do was
to require the appellants to comply with reasonable restric-
tions imposed by the Fruit Order and the fact that,
incidentally, compliance with the Fruit Order might tend to
affect the trade-mark rights, could not render the impugned
order invalid. [203 D-E]
(iv)The definition of ’synthetic beverage’ in cl. 2(k) of
the Fruit Order which indicates that it is a beverage which
contains no fruit juice cannot be said to conflict with the
requirements of cl. 11(2) that beverages containing less
than 25% fruit juices should be sold as ’synthetic’ pro-
ducts. Furthermore, cl. 11 contains a positive provision
and the validity of the mandatory requirements of cl. 11
could not be impaired by the alleged inconsistency between
that provision and the definition of ’synthetic’ beverage
prescribed by cl. 2(k). [203 A-B]
Amrit Banaspati Co. Ltd. v. The Stale of U.P. Cr. A. No.
141 of 1959 dated 30-11-60, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 934 of 1964.
Appeal from the judgment and order dated January 13, 1964,
of the Punjab High Court (Circuit Bench) at Delhi in Civil
Writ No. 258-D of 1957.
Hardayal Hardy, B. Dutta, M. S. K. Sastri and J. B.
Dadachanji, for the appellants.
C. K. Daphtary, Attorney-General R. K. P. Shankardass and
R. H. Dhebar, for the respondents.
The Judgment of the Court was delivered by
Gajendragadkar, C.J. The two appellants, the Hamdard
Dawakhana (Wakf), Delhi, and its Mutawalli Haji Hakim
Hameed, represent the Hamdard Dawakhana institution which
was initially established in or about 1906 as a dawakhana
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
and was subsequently declared and founded as a Wakf. Since
its inception, the institution has been running dispensaries
and clinics for the treatment of patients and has been
manufacturing and supplying medicines and medicinal products
according to Ayurvedic and Unani Systems of medicines.
Appellant No. 1 also manufactures medicated syrups which
contain some fruit juices for medicinal use and they are
prepared according to a certain formula devised by it.
"Sharbat Rooh Afza" which is a medicated syrup manufactured
by appellant No. 1 is made of the following ingredients
"Kasni seeds, Khus, Pumpkin Juice, Water melon
Juice, Chharila, Ripe grapes, Spinach,
Nilofar, Sandal,
194
Gul Gaozaban, Coriandar, Carrot, Mint, Kulfa,
Keora, Rose, Citrus flower, Orange Juice,
Pine-apple Juice, Water, Sugar".
The formula determining the ratio and proportion in which
each one of the ingredients has to be used, has been evolved
by appellant No. 1 as a result of various experiments spread
over a long period. The manufacture of this Sharbat began
in 1920. It is intended to be used for common ailments
during hot season, particularly for ailments like loss of
appetite, sun stroke, nausea, sleeplessness, etc. This
Sharbat Rooh Afza is not a foodstuff, and cannot be regarded
as an essential commodity under S. 2 of the Essential
Commodities Act, 1955 (No. 10 of 1955) (hereinafter called
’the Act’). In substance, this is the case as set out by
the appellants in their petition.
Purporting to act under s. 3 of the Act the Central Govern-
ment made an Order called the Fruit Products Order, 1955
(hereinafter called ’the Fruit Order’) under Notification
No. S.R.O. 1052 dated May 3, 1955. Under clause 3 of the
Order, respondent No. 4, the Central Fruit Products Advisory
Committee, has been constituted. It appears that on the
22nd September, 1956, the Central Government purporting to
act under S. 3 of the Act, made certain amendments in the
Fruit Order. The result of one of the amendments thus made
was to direct that the minimum percentage of fruit juice in
the final product of a fruit syrup as indicated in Part 11
of the Second Schedule to the Fruit Order should be raised
from 10% to 25%. The change so made was notified to the
appellants by respondent No. 2, the Marketing Development
Officer, Fruit Products, Central Zone, Delhi, on January 29,
1957. As a result of this intimation, certain
correspondence followed between the appellants and
respondent No. 2. The appellants had urged in the course of
this correspondence that Sharbat Rooh Afza did not fall
within the scope of the Act and the Fruit Order.
On March 25, 1957, respondent No. 3, the Agricultural
Marketing Adviser to the Government of India, New Delhi,
invited a representative of the appellants for discussions,
and as a result of the said discussion, Mr. Sood, the
Marketing Development Officer, Delhi, inspected the factory
of the appellants and watched the process of manufacture of
Sharbat Rooh Afza on April 29, 1957. Thereafter, on May 10,
1957, the appellants received a communication from Mr. Sood
ordering the appellants to stop further manufacture and sale
of Sharbat Rooh Afza forthwith on
195
the ground that it did not contain the minimum percentage of
fruit juice prescribed by the relevant clause of the Fruit
Order. This communication mentioned the fact that the
appellants had been specifically asked to prepare fruit
syrups strictly in accordance with the specifications
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
prescribed, but in utter disregard of the said instructions,
the appellants had wilfully continued to contravene the
provisions of the Fruit Order. That is why by virtue of the
powers conferred on him by clause 13(f) of the Fruit Order,
the present order was served on the appellants. It is this
order which was challenged by the appellants by their writ
petition filed before the Punjab High Court on the 18th May,
1957 (No. 258-D of 1957).
By their writ petition, the appellants prayed that the
impugned order as well as the several orders passed
preceding it, should be quashed and a writ of mandamus
should be issued against the respondents restraining them
from seeking to enforce the material provisions of the Fruit
Order in respect of the appellants’ product ’Sharbat Rooh
Afza’. The appellants urged that the said Sharbat is not a
foodstuff, but a medicinal product and as such, its produc-
tion cannot be regulated under the provisions of s. 3 of the
Act. According to them, the said Sharbat was not an
essential commodity, nor was it a ’fruit product’ as defined
by clause 2(d) of the fruit Order. They also urged that the
impugned order was invalid, because it contravened the
fundamental rights of the appellants under Art. 19(1)(f)&(g)
of the Constitution; the Sharbat in question was in fact a
medicinal product and as such, the impugned order was
inconsistent with clause 16 (1) (c) of the Fruit Order. It
is on these grounds that the appellants sought relief by way
of an appropriate writ or order quashing the impugned order
issued against them on May 10, 1957. To this petition, the
appellants impleaded the Union of India as respondent No. 1.
This petition was resisted by the respondents on several
grounds. It was alleged that the Sharbat in question fell
within the scope of the Act and the Fruit Order. The
respondents referred to the fact that the Hamdard Dawakhana
had duly applied and was granted a licence in 1955 as a
manufacturer engaged in the business of manufacturing fruit
products for sale. The Dawakhana is holding this licence
since 1955. The bottles in which the Sharbat in question is
sold by the appellants do not bear labels containing the
words "for medicinal use only". It appears that the
Dawakhana obtained a licence for the year 1952 under the
Fruit Products Order 1948 for the manufacture of the Sharbat
in question. On analysis, it was found that the said
Sharbat did not
196
contain fruit juice, though it was sold as fruit juice. The
label ,on the bottle of the Sharbat depicts pictures of
fruits. Under the said Order of 1948 the synthetic syrups
containing no fruit juice were required to be clearly marked
as ’synthetic’ and to abstain from using labels with
pictures of fruits. In 1954 when it was found that the
Dawakhana did not get the licence renewed, the appellants
were asked either to get their licence renewed or to get
exemption by complying with the necessary conditions. When
the appellants did not comply with these directions, some of
the bottles of the Sharbat were detained in the market.
That led to a writ petition filed by the appellants in 1.954
(No. 11-D/1954) in the Punjab High Court. When the
petition, however, came for final hearing, it was not
pressed, and so, was dismissed on June 5, 1954. The
Dawakhana then filed a suit for injunction, but the said
suit became infructuous with the expiry of the Fruit
Products Order, 1948 on January 25, 1955. The present Fruit
Order came into force on May 3, 1955; and the Dawakhana
filed another suit for injunction, but pending the suit, the
appellants applied for and obtained a licence under the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
Fruit Order and in consequence, the suit was withdrawn on
October 18, 1955. Even after obtaining the licence, the
requirements of the relevant provisions of the Fruit Order
as to the minimum percentage of fruit juice were not
complied with by the appellants; and that led to the
impugned order. That is the background of the present writ
petition.
In the present writ petition, the respondents urged that the
Sharbat in question is not sold for medicinal purposes; it
is manufactured by the appellants as a fruit product and
sold as such. No exemption was claimed by the appellants
under clause 16 of the Fruit Order. The Sharbat in question
is foodstuff within the meaning of S. 2 of the Act and it
falls within the purview of the Fruit Order. The impugned
order is not unconstitutional, because the restriction
imposed by it is consistent with the relevant provisions of
the Act and the Fruit Order, and the said provisions are
perfectly valid, because they impose a reasonable
restriction in the interest of general public.
This writ petition came on for final disposal before the
Punjab High Court on January 13, 1964. The High Court has
rejected the pleas raised by the appellants and dismissed
their writ petition. The High Court has held that there was
no substance in the appellants’ grievance that the Fruit
Order was invalid. In support of this conclusion, the High
Court has relied upon a decision of this
197
Court in M/s. Amrit Banaspati Co., Ltd. v. The State of
Uttar Pradesh(1). The High Court negatived the appellants’
argument that the Sharbat in question was either prepared or
sold as a medicinal product. In this connection the High
Court has commented’ on the fact that the label borne by the
bottles containing the Sharbat did not show that it was for
medicinal use only as required by cl. 16 (1) (c) of the
Fruit Order- According to the High Court, clause 1 1 of the
Fruit Order covered the case of the Sharbat prepared by the
appellants, and so, the impugned order was justified. The
High Court also found that there was no substance in the,
grievance made by the appellants that as a result of this
impugned order, their registered trade-mark label had been
affected.
The High Court then examined the question as to whether the
provisions of the Fruit Order could be said to be invalid,
and it held that the said provisions were perfectly valid
inasmuch as the restrictions imposed by them were reasonable
and in the interests of’ the general public. It is on these
grounds that the High Court dismissed the appellants’
petition.
Thereafter, the appellants applied for and obtained a
certificate from the High Court to come to this Court in
appeal. This certificate was granted on July 22, 1964-
After the appeal. was admitted in due course, the appellants
moved this Court on October 26, 1964 for stay; in fact,
during all the seven years that the writ petition was
pending before the High Court, the appellants had obtained
stay and they wanted the stay to continue pending the final’
disposal of this appeal. When we found that the writ
petition had taken an unusually long time in the Punjab High
Court, we directed that the stay should continue in favour
of the appellants, but that the appeal should be heard on
November 9, 1964. That is how the hearing of this appeal
has been specially expedited.
Before we deal with the points which have been raised before
us by Mr. Pathak, we would refer very briefly to the scheme
and the relevant provisions of the Act and the Fruit Order.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
The Act was passed in 1955 for the purpose of controlling
the production, supply and distribution of, and trade and
commerce in, certain commodities in the interests of the
general public. The commodities which were intended to be
brought within the purview of the Act were essential
commodities as defined by s. 2(a) of the Act. Amongst them
are included foodstuffs, including edible oil seeds and oils
covered by s. 2 (a) (v), and any other class of’ commodity
which the Central Government may, by notified order,
(1) Criminal Appeal No. 141 of 1959 decided on 30-11-1960.
198
declare to be an essential commodity for the purposes of
this Act, being a commodity with respect to which Parliament
has power to make laws by virtue of entry 33 in List III of
the Seventh Schedule to the Constitution; this is included
in the definition by s. 2 (a) (xi). Section 3 (1 ) provides
that if the Central Government is of opinion that it is
necessary or expedient so to do for maintaining or
increasing supplies of any essential commodity or for
securing their equitable distribution and availability at
fair prices, it may, by order, provide for regulating or
prohibiting the production, supply and distribution thereof
and trade and commerce therein. Sub-section (2) by clauses
(a) to (h) provides for different categories of orders which
may be passed by the Central Government without prejudice to
the generality of the powers conferred on it by sub-section
(1). It would thus be clear that the Act confers power on
the Central Government to regulate the production, supply
and distribution of essential commodities. This power is
conferred in a very general and wide sense by s. 3 ( 1 ).
There can be little doubt that the power to regulate the
production of an essential commodity will include the power
to regulate the production of essential commodities which
may operate either qualitatively or quantitatively. In
other words, in regard to essential commodities, the Central
Government is given the power to direct how certain
essential commodities should be produced and in what
quantity. This power, of course, can be exercised only if
the condition precedent prescribed by s. 3(1) is satisfied,
and that is that the Central Government should be of opinion
that it is necessary or expedient to regulate the production
of any essential commodity for one of the purposes mentioned
by it. This position cannot be, and is not, disputed before
us. In fact in M/s. Amrit Banaspati Co. Ltd.(1) this Court
whilst dealing with the provisions of the Vegetable Oil
Products Control Order, 1947, issued under s. 3 (1 ) of the
Act, has definitely ruled that a qualitative regulation in
respect of the production of an essential commodity is
permissible under s. 3(1) of the Act.
That takes us to the Fruit Products Order which was issued
by the Central Government on May 3, 1955, in exercise of the
powers conferred on it by s. 3 of the Act. Clause 2 of the
Fruit Order defines ’fruit product’. Cl. 2(d) (1) takes in
synthetic beverages, syrups and sharbats; cl. 2 (d) (v)
takes in squashes crushes, cordials, barley water, barreled
juice and ready-to-serve beverages or any other beverages
containing fruit juices or fruit pulp. Clause 2 (d) (xiv)
takes in any other unspecified items relating to fruits or
vegetables. Clause 2(j) defines "sharbat" as
199
meaning any non-alcoholic sweetened beverage or syrup
containing non-fruit juice or flavoured with non-fruit
flavours, such as rose, khus, kewra, etc; and cl. 2(k)
defines "synthetic beverage" as meaning any non-alcoholic
beverage or syrups, other than aerated waters, containing no
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
fruit juice but having an artificial flavour or colour
resembling as fruit. Clause 7 of the Fruit Order prescribes
that every manufacturer shall manufacture fruit products in
conformity with the sanitary requirements and the
appropriate standard of quality and composition specified in
the Second Schedule to this Order; it adds that every other
fruit and vegetable product not so specified shall be
manufactured in accordance with the standard of quality and
composition laid down in this behalf by the Licensing
Officer.
That takes us to clause II; it is necessary to read this
clause fully : -
(1)Any beverage which does not contain at
least 25 per centum of fruit juice in its
composition shall not be described as a fruit
syrup, fruit juice, squash or cordial or crush
and shall be described as a synthetic syrup.
(2) Every synthetic syrup shall be clearly
and conspicuously marked on the label as a
’SYNTHETIC’ product, and no container
containing such product shall have a label,
whether attached thereto or printed on the
wrapper of such container or, otherwise, which
may lead the consumer into believing that it
is a fruit product, Neither the word ’FRUIT’
shall be used in describing such a product,
nor shall it be sold under the cover of a
label, which carries the picture of any fruit.
Aerated water containing no fruit juice or
pulp shall not have a label which leads the
consumer into believing that it is a fruit
product.
Part II of the Second Schedule to the Fruit Order prescribes
the specifications for fruit juice and other beverages. In
regard to fruit syrup, it provides, inter alia, that the
minimum percentage of fruit juice in the final product must
be 25%. The respondents’ contention is that since the
Sharbat in question produced by the appellants does not
comply with this specification, it contravenes the mandatory
provision of cl. 11(1). Part IV of the Second Schedule
prescribes the specifications for synthetic syrups and
sharbats. Under this Part, there is no requirement as to
any minimum of fruit juice in the said syrups and sharbats.
200
Clause 16 of the Fruit Order provides for cases to which
this Order does not apply, Clause 16 (1) (c) provides that
nothing in this Order shall be deemed to apply to any syrups
which are sold in bottles bearing a label containing the
words "For medicinal use only" which does not exhibit any
picture of fruits. It is common ground that the appellants
do not sell the Sharbat in question in bottles bearing a
label containing the words "For medicinal use only" and so,
cl. 1 6 (1) (c) does not apply and the appellants can claim
no exemption on that account.
Mr. Pathak no doubt attempted to argue that the Sharbat in
question is not an essential commodity and as such, it does
not fall within the purview of the Act or within the purview
of the Fruit Order. It appears that this plea was not urged
by the appellants before the Punjab High Court. It was
argued by them before the High Court that the Sharbat in
question was a medicinal product; and that point had been
considered and rejected by the High Court; and so, it has
assumed that the Sharbat in question is an essential
commodity within the meaning of S. 2 of the Act; that
question cannot now be allowed to be argued for the first
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
time before this Court.
Mr. Pathak wanted to suggest that the Sharbat in question is
not a fruit product and as such, is outside the purview of
the Fruit Order. We are not impressed by this argument. We
have already referred to cl. 2 (d) (v) of the Fruit Order
which refers to several beverages, and the residuary part of
this clause takes in any other beverages containing fruit
juices or fruit pulp. The suggestion that this clause
should be read ejusdem generis with the previous categories
of beverages cannot obviously be accepted because an
examination of the said beverages will disclose the fact
that there is no genus by reference to which the rule of
ejusdem generis can be properly invoked. Besides, the
context of the clause clearly suggests that it is intended
to take in all beverages other than those earlier specified,
provided they contain fruit juices or fruit pulp.
Therefore, we feel no difficulty in holding that the Sharbat
in question falls within the purview of cl. 2 (d) (v) of the
Fruit Order and as such, its production can be controlled by
its relevant provisions
Then it is urged by Mr. Pathak that the Fruit Order itself
is invalid, because it does not purport to say that before
it was issued, the Central Government had formed the opinion
that it was necessary or expedient to issue the Order for
maintaining or increasing supplies of the commodity in
question. Mr Pathak
201
contends, and rightly, that the condition prescribed by the
first part of s. 3(1) of the Act is a condition precedent
and it is only when and after the said condition is
satisfied that the power to issue a regulatory order can be
exercised by the Central Government. This contention again
cannot be allowed to be raised for the first time in appeal,
because if it had been raised before the High Court, the
respondents would have had a chance to meet it. It is true,
as Mr. Pathak contends, that in the absence of any specific
averment made by the Fruit Order that the Central Government
had formed the necessary opinion, no presumption can be
drawn that such opinion had been formed at the relevant
time; but it would have been open to the respondents to
prove that such an opinion had been formed at the relevant
time; and it cannot be suggested that the failure to mention
that fact expressly in the Fruit Order itself would preclude
the respondents from proving the said fact independently.
That is why we think Mr. Pathak cannot be permitted to urge
this contention at this stage.
Mr. Pathak, has, however, strenuously argued before us that
the Fruit Order is invalid, because its relevant provisions
indicate that it is an Order which could have been
appropriately issued under the Prevention of Food
Adulteration Act, 1954 (No. 37 of 1954). In support of this
argument, Mr. Pathak has relied on the fact that Act 37 of
1954 is relatable to the legislative power conferred by
Entry 18 in List III of the Seventh Schedule to the
Constitution which refers to adulteration of foodstuffs and
other goods; and so, the material provisions of the Fruit
Order which really prevent the adulteration of fruit
products could be legitimately enacted under this Act. On
the other hand, the Essential Commodities Act, 1955 is
relateable to Entry 33 in List III and the Fruit Order
issued under it would, therefore, be inappropriate, having
regard to the object which this Order is intended to
achieve. He argues that the two powers are distinct and
separate, and the Fruit Order with which we are concerned,
cannot be said properly to have been issued under the Act.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
It is true that the Prevention of Food Adulteration Act does
deal with the problem of preventing adulteration of food;
but it is not easy to accept Mr. Pathak’s assumption that
the regulatory Order of the kind with which we are concerned
which imposes regulations Of a qualitative character in the
production of essential goods, could have been issued under
this Act. But quite apart from this consideration if s.
3(1) of the Act authorises the Central Government to
regulate the qualitative and quantitative production of
essential commodities, it is idle to contend that the
regulations
p /65--14
202
imposed by the Fruit Order in respect of fruit products are
outside the purview of s. 3 (1). The pith and substance of
the relevant provisions of the Fruit Order clearly is to
regulate the qualitative production of fruit products
covered by it. This object is illustrated by the
specification with which we are concerned. Part II of the
Second Schedule to the Fruit Order 1which has imposed the
obligation on the manufacturers of fruit ’Syrups to include
at least 25% of fruit juice in the final product of the
fruit syrup produced by them, shows that by virtue of its
powers under s. 3 (1) of the Act, the Central Government
thought it necessary to require that a particular quality of
fruit syrup should be put on the market as fruit syrup and
no other. This object plainly falls within the purview of
s. 3(1), and so, the contention that the Fruit Order is
invalid inasmuch as it purports to tackle the problem of
adulteration of fruit product, cannot be accepted.
Then Mr. Pathak suggested that there was some inconsistency
between the definition of ’synthetic beverage’ prescribed by
cl. 2 (k) and the provisions of cl. 11 (2) of the Fruit
Order. We have already read cl. 11. The effect of cl. 11
(1) is that if any beverage does not contain at least 25 per
cent of fruit juice, it shall not be described, inter alia,
as ’fruit syrup’, but shall be ,described as a ’synthetic
syrup’, and sub-cl. (2) of cl. 11 therefore provides that if
any syrup which has to be described as a ’synthetic syrup’
by virtue of the provisions of sub-cl. (1) is put on the
market, it would be necessary to describe it as a
’Synthetic’ product clearly and conspicuously. It is with
the object of bringing it to the notice of the customers at
large that the synthetic product does not contain the
minimum fruit juice prescribed by the Fruit Order that sub-
cl. (2) imposes an obligation that whoever puts the
synthetic product in the market shall mark it with a label
"Synthetic" and no attempt would be made to describe the
product as though it was a fruit product. That is why a
specific provision is made by sub-cl. (2) that neither the
word "Fruit" shall be used in describing such a product, nor
will it bear a label which carries the picture of any fruit.
From this provision aerated waters are exempted, because it
was thought that no customer would ever mistake aerated
water for fruit juice. Now, if we bear in mind this scheme
of clause 11, it is difficult to see where the inconsistency
lies between cl. 11 and the definition of a ’synthetic
beverage’ as prescribed by cl. 2(k). The definition of
synthetic beverage indicates that it is a beverage which
contains no fruit juice, and clause 11 which contains a
positive provision that beverages
203
containing less than 25 per cent fruit juice should be shown
as a ’synthetic’ product. The definition of ’synthetic
beverage’ cannot be said to conflict with the requirement
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
that the products falling under cl. 11(2) should be sold as
’synthetic’ products. Besides, clause 1 1 contains a
positive provision and the validity of the mandatory
requirements of cl. 11 cannot be said to be impaired by any
alleged inconsistency between the said provision and the
definition of ’synthetic beverage’ prescribed by cl. 2 (k)
of the Fruit Order.
The last contention which Mr. Pathak urged before us is that
the impugned order is invalid, because it affects the
appellants’ trade-mark right. It is not easy to appreciate
this argument. We have already held that the Act and the
Fruit Order issued by the Central Government by virtue of
its powers conferred by s. 3(1) of the Act are valid. If
that be so, the impugned order which is fully justified by
the provisions of the Act and the Fruit Order cannot be
challenged as being invalid. The conclusion that the Act
and the Fruit Order issued under it are constitutionally
valid proceeds on the basis that the restrictions imposed by
them are reasonable and in the interests of general public.
What the impugned order purports to do is to require the
appellants to comply with the reasonable restrictions
imposed by the Fruit Order. The fact that incidentally
compliance with Fruit Order may tend to affect their trade-
mark right cannot, in our opinion, render the impugned order
invalid. In this connection, it is necessary to bear in
mind that appellant No. I would not be justified in con-
tending that the registered trade-mark which is usually
intended to distinguish one manufactured article from
another can be used by it even though it is likely to
mislead the customers, or its use would mean a breach of
some other law. Besides, it is significant that the
impugned order does not really compel the appellants to
change their trade-mark. If the appellants desire that the
Sharbat in question should be put on the market without
complying with the requirements of clause 1 1 ( 1 ), all
that they to do is to comply with cl. 1 1 (2) of the Fruit
Order. In the process of complying with cl. 1 1 (2), if
their trade-mark right is likely to be affected, that would
not render the impugned order invalid, because the
restriction which is sought to be enforced against them is
found to be reasonable and in the interests of the general
public. Besides, we would like to add that if the
appellants wanted to urge this point seriously, they should
have placed before the Court more material in respect of
their alleged trade-mark right. The appellants had alleged
in their writ petition that they are putting the
204
Sharbat on the market as a medicinal product. In that case,
they may claim exemption by complying with cl. 16 (i) (c) of
the Fruit Order. We are, therefore satisfied that the
Punjab High Court was right in holding that no case had been
made out by the appellants for quashing the impugned order.
Before we part with this appeal, we would like to refer to
one unfortunate aspect of the present proceedings. We have
already indicated that the present writ petition was filed
by the appellants in the Punjab High Court on May 18, 1957,
and it was finally decided on January 13, 1964. It is very
much to be regretted that the final disposal of this writ
petition should have taken such an unusually long period.
The appellants have been agitating this matter since 1957
and as a result of the long duration of the present writ
petition in the High Court, they have had the benefit of the
stay order all this time, though ultimately it was found
that there was no substance in the petition. It is hardly
necessary to add that writ petitions in which orders of stay
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
and injunction are passed, should be decided as
expeditiously as possible. That is why when it came to the
notice of this Court that this writ petition has taken an
unusually long period in the High Court, we directed that it
should be set down for hearing within a fortnight after it
was brought to us on a notice of motion for stay.
The result is, the appeal fails and is dismissed with costs.
Appea1 dismissed.
205