KAN SINGH, J. -
(1.) THE revision application before me is by one Bhanwarlal, who is standing trial for an offence under sec. 3/7 of the Essential Commodities Act 1955, in the court of the Additional District Magistrate Jodhpur.
(2.) ON August 8, 1966, an application was made before the learned trial magistrate on behalf of the accused petitioner that the challan against the accused was not maintainable and the accused should accordingly be discharged. It was urged in the application that the accused was only having his shop where he sold sweetmeats and namkin, but the shop was not a catering establishment. It was also urged in the application that the imposition of restriction on supply of foodstuffs by the State Government was invalid. The learned Magistrate heard the matter and ordered that the definition of the term 'caterring establishment' was wide enough even to include a shop or any other place of refreshment open to the the public. In other words, according to the learned magistrate, if at a shop prepared food articles are sold, though such articles are not served on any table in the shop, the shop would come under the definition of the term "catering establishments'. As regards the validity of the Government order imposing restrictions on supply of foodstuffs, the learned magistrate observed that it was for the accused to raise the question before the High Court, as in his view such restrictions were valid. In the result, the application was dismissed. The accused then approached the learned Sessions Judge in revision for making a reference, but he was not successful. It is in these circumstances that he has approached this Court in revision.
A few facts may be stated for appreciating the point raised before me. On the 2nd May, 66, the District Supply Officer, Jodhpur, accompanied by some Motbirs and some Government officials visited the petitioner's shop situated at Hathiram Ka-Oda, Jodhpur at about 4 20 P. M. He found that the shop was open even at 4. 20 P. M. and the accused was selling sweetmeats and other namkin preparations. When Mr. Trivedi the District Supply Officer questioned the accused, he admitted that he was selling the prepared food articles as it was a day of mohar-ram. Mr. Trivedi then drew up a memo, and got it signed by the Motbirs and the Government officers accompanying him. On the 4th June, 66, Shri Trivedi acting as Collector (Supplies), Jodhpur lodged information with the Police, and after necessary investigations, the Police challaned the accused in the court of the Additional District Magistrate, Jodhpur for the offences under sec. 3/7 of the Essential Commodities Act, 1965. Sec. 3 of the Essential Commodities Act, 1955 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 there of and trade and commerce therein. " In exercise of these powers, the Government of India issued the Rajasthan Food ( Restrictions on Service of Meals by Catering Establishments ) Order, 1965, which was published in the Rajasthan Gazette-Part IV- ( GA ) dated 1st September, 1965. The Government of India had delegated its powers under sec. 3 of the Act to the State Government by a notification, and in exercise of such powers the Rajasthan Government amended the Rajasthan Food (Restrictions on Service of Meals by Catering Establishments) Order, 1965, and by it a new clause 4a was inserted therein. For appreciating the question involved in the case, I may read the definition of the term 'catering establishment' which is, as follows: 2. (a ). "catering establishment" - includes a hotel, restaurant, eating-house, cafe, tea shop coffee stall, free feeding centre, club, boarding house, canteen, Railway Refreshment room or restaurant car and any other place of refreshment open to the public. " I may also read the definitions of the terms 'substantial dish' and 'subsidiary dish', which are as follows: " (b ). "substantial dish" means a dish described as such in the Schedule to this Order. " (c ). "subsidiary dish" means a dish described as such in the Schedule to this Order. Clause 3 of the Order runs, as follows: "no proprietor, or other person in charge, of a catering establishment shalll supply for consumption or offer or attempt to supply for consumption and no person shall obtain or consume, at a catering establishment at or for the purposes of a meal more than two courses, whether served successively in European style or together in Indian style. The two courses shall consist of - (i) one substantial dish and one subsidiary dish; or (ii) two subsidiary dishes. " Clause 4-A newly inserted under the orders of the State Government is in the following terms: "4-A. Restriction on supply of foodstuffs on Mondays.- (1) No proprietor or other person incharge of a catering establishment in a municipality, except in canteen attached to a hospital or any nursing or after care of maternity home, or educational institution shall keep open such catering establishment for supply of any foodtuff prepared of or containing one or more cereals after 3 p. m. on every Monday. " A perusal of clause 4-A shows that it contains only additional restrictions about the running of catering establishments or keeping them open after 3 P. M. on Mondays. By itself, this clause 4-A will not throw light on the meaning and content of the term 'catering establishment'. The definition given in the Order is inclusive and therefore the term catering establishment might include things other than enumerated in the inclusive part of the definition. It is clause 3 which really indicates as to what was sought to be prohibited or restricted by the Order. It forbids the proprietor or any other person in charge of a catering establishment from supplying for consumption or offer or attempt to supply for consumption ' for the purposes of a meal more than two courses, whether served successively in European style or together in Indian style". The term 'catering' means, according to the Oxford English Dictionary (Vol. 2, page 181), 'to provide a supply of food for, or to buy or provide food'. In Webster's Dictionary, the term 'cater' means 'to provide a supply of usually prepared food'. In Random House Dictionary of the English Language, the term 'cater' has been defined to mean to provide food, service, etc. " It is remarkable that in the Central Order under consideration, it has been laid down that the term 'catering establishment' will have the meaning given to it, unless the context otherwise requires. Therefore, primarily the meaning of the term 'catering establishment' has to be gathered from Clause 3 of the Central Order itself as the term has been defined obviously with a view to showing what has been prohibited by the Control Order and in what way the restrictions embodied therein are to operate. Clause 3 to my mind is clearly directed at the service of meals and that service has been restricted to two courses only as specified in the clause. In order, therefore, to be a 'catering establishment' within the meaning of the Control Order in question, a person having a shop or establishment has not only to sell the prepared foodstuffs, but has to provide some kind of service or facility for the eating of the foodstuffs. If no such facility has been provided in any shop, then that particular shop at which only the foodstuffs are sold will not be a catering establishment within the meaning of clause 3 of the Control Order.
The facts, however, have not been enquired into in the present matter and therefore it is not possible to say whether the shop that the petitioner was running did or did not amount to a catering establishment within the meaning of the Control Order. The petitioner has rushed too soon in revision, and without the necessary facts being before the learned magistrate, it was premature for the petitioner to have called upon the magistrate to decide whether the challan against the petitioner was or was not maintainable. The learned trial magistrate could give a decision only in the light of the evidence that may be placed before him. Learned counsel for the petitioner has taken me through the Police papers. The only papers available are the memo, prepared by the learned D strict Supply Officer as also the challan put up by the Police. It is only after evidence is examined that it may be possible for the learned magistrate to come to a conclusion whether the shop that the petitioner was running was or was not a 'catering establishment' within the meaning of the Control Order. I have no doubt that after the necessary evidence is available to the learned magistrate, he will apply the law correctly to the proved facts of the case. In my view therefore, the revision application at this stage is premature and is consequently hereby dismissed. .;