Rameshwarlal Vs. Municipal Council, Tonk and ors. - Court Judgment

Excerpt:
- prevention of food adulteration act, 1954[c.a. no. 37/1954]section 23 & prevention of food adulteration rules, 1955, rule 37-d; [p.p. naolekar& lokeshwar singh panta, jj] labelling of edible oils and fats - prohibition to use of expression like super refined, anti-cholesterol etc. etc. and such other expressions exaggerating quality of product held, keeping the principle of ejusdem generis, in mind, the words such other as used in rule 37d is to be read along with the subject matter in which they have been used. the residuary clause of the rule has to be read in the light of the ten prohibited expressions, and it becomes clear that what is prohibited are only the expressions which are an exaggeration of the quality of the product. in the present case, it is true that the appellant has used pictures of vegetables on the label of the product which is refined soyabeen oil, which according to the appellant is to depict the purpose for which the oil can be used, viz., preparation of the vegetables depicted thereon. unless the picture depicted on a label of edible oils and fats exaggerates the quality of the product, it would not fall within the mischief of rule 37d. in the present case, the vegetables shown on the label of soyabean oil does not in any way indicate that the quality of soyabean oil is super-refined, extra-refined, micro-refined, double refined, ultra-refined, anti-cholesterol, cholesterol fighter, soothing to heart, cholesterol friendly, saturated fat free etc., nor it indicates the exaggeration towards the quality of the product to come within the mischief of rule 37d of the pfa rules. high court has committed a serious error in arriving at a finding that the article of food (soyabean oil) was misbranded since the picture contained on the label has nothing to do with the articles of food in question, completely ignoring the fact that the article of food can be used for cooking the vegetables shown in the picture which cannot be said to be exaggerating the quality of the food in question. impugned finding of the high court as regards misbranding and violation of rule 37d of the p.f.a,. rules was set aside. - it is axiomatic that the exercise of the power under article 226 being discretionary, the learned single judge as well as the division bench have not exercised the same to direct the respondent to pay the alleged arrears of salary alleged to be due and payable to the petitioner. 3. normally for application of section 14, the court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter.order1. the petitioner claims that he has been denied the salary for period from september 10, 1987 to august 18, 1988. he claims to have worked in the office of the municipal council, tonk. he filed writ petition in the high court in february 1990. the learned single judge held that since it is a claim recoverable in a civil action, the discretionary power under article 226 of the constitution is not exercisable. accordingly, he dismissed the writ petition. the same came to be confirmed in the impugned order of the division bench made on may 6, 1996 in special appeal no. 218/96. thus, this special leave petition.2. it is not necessary for us to go into the question of the legality of the order of the high court in refusing to grant the relief. it is axiomatic that the exercise of the power under article 226 being discretionary, the learned single judge as well as the division bench have not exercised the same to direct the respondent to pay the alleged arrears of salary alleged to be due and payable to the petitioner. under these circumstances, the only remedy open to the petitioner is to avail the action in the suit. since the limitation has run out to file a civil suit by now, which was not so on the date of the filing of the writ petition, the civil court is required to exclude, under section 14 of the limitation act, 1963, the entire time taken by the high court in disposing of the matter from the date of the institution of the writ petition.3. normally for application of section 14, the court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. however, since the high court expressly declined to grant relief relegating the petitioner to a suit in civil court, the petitioner cannot be left remedyless. accordingly, the time taken in prosecuting the proceedings before the high court and this court, obviously pursued diligently and bona fide, needs to be excluded. the petitioner is permitted to issue notice to the municipality within four weeks from today. after expiry thereof, he could tile suit within two months thereafter. the trial court would consider and dispose of the matter in accordance with law on merits.4. the special leave petition is disposed of accordingly.

Judgment:
ORDER

1. The petitioner claims that he has been denied the salary for period from September 10, 1987 to August 18, 1988. He claims to have worked in the office of the Municipal Council, Tonk. He filed writ petition in the High Court in February 1990. The learned single Judge held that since it is a claim recoverable in a civil action, the discretionary power under Article 226 of the Constitution is not exercisable. Accordingly, he dismissed the writ petition. The same came to be confirmed in the impugned order of the Division Bench made on may 6, 1996 in Special Appeal No. 218/96. Thus, this special leave petition.

2. It is not necessary for us to go into the question of the legality of the order of the High Court in refusing to grant the relief. It is axiomatic that the exercise of the power under Article 226 being discretionary, the learned single Judge as well as the Division Bench have not exercised the same to direct the respondent to pay the alleged arrears of salary alleged to be due and payable to the petitioner. Under these circumstances, the only remedy open to the petitioner is to avail the action in the suit. Since the limitation has run out to file a civil suit by now, which was not so on the date of the filing of the writ petition, the civil Court is required to exclude, under Section 14 of the Limitation Act, 1963, the entire time taken by the High Court in disposing of the matter from the date of the institution of the writ petition.

3. Normally for application of Section 14, the Court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. However, since the High Court expressly declined to grant relief relegating the petitioner to a suit in civil Court, the petitioner cannot be left remedyless. Accordingly, the time taken in prosecuting the proceedings before the High Court and this Court, obviously pursued diligently and bona fide, needs to be excluded. The petitioner is permitted to issue notice to the Municipality within four weeks from today. After expiry thereof, he could tile suit within two months thereafter. The trial Court would consider and dispose of the matter in accordance with law on merits.

4. The special leave petition is disposed of accordingly.