Criminal Appeal No 722 of 1991
From the Judgment and Order dated 21121990 of the Kerala High Court in Criminal Appeal No 425 of 1989
BRL lyanger R Mohan V Krishnamurthy and V Bala chandran for the Appellants
PS Poti TT Kunhikannan EMS Anam Ms Indira Sawlmey P Parmeswaran Ms Sushma Suri K Ram Kumar and YP Rao for the Respondents
The Judgment of the Court was delivered by YOGESHWAR DAYAL J
Special leave granted
This order will dispose of six matters namely Crl
Appeal Nos
553 89 2839128491 Civil Appeal Nos
3708 1389 189791 and Criminal Appeal arising out of SLP Crl No 264791
FACTS Crl
A No 55389 This appeal arises from the judgment of the learned Single Judge of the High Court of Kerala dated 6th June 1988 whereby the learned Single Judge declined to quash the prosecution of the petitioner therein under Section 482 of the Code of Criminal Procedure
The petitioner therein has been prosecuted for selling adulterated Ashoka special supari on the basis of a certificate issued by the Director of Central Food Laboratory showing that the article of Food purchased from the accused contained 2000 mgskg
saccharin and that the sample does not conform to the Prevention of Food Adulteration Rules 1955 hereinafter referred to as the Rules
The High Court took the view the report prima facie goes to show that accused has sold adulterated article of food and consequently declined to quash the prosecution under Section 482 of the Code
A No 28391 This appeal is directed against the order of the Kerala High Court dared 22nd January 1991 accepting the appeal against the order of 394 acquittal passed by the Chief Judicial Magistrate Palakkad in ST No 36 of 1988
The appeal was filed against the acquittal of accused Nos 2 and 3 therein and out of whom N Raja Mohammed the Joint Managing Director of MS NVK Mohammed Sultan Rawther P Ltd is the appellant before us
The High Court confirmed the acquittal of second accused but sentenced the appellant before us under Section 161ai of the Prevention of Food Adulteration Act to undergo simple imprisonment for six month and to pay a fine of Rs 1000 with a default sentence of simple imprisonment for two more months
28491
This appeal is filed against the order dated 21st Decem ber 1990 passed by the learned Single Judge of the Kerala High Court dismissing the revision petition whereby accused No I therein was sentenced to pay Rs 1000 as fine and the two other accused were sentenced to simple imprisonment for six months each and Rs 1000 as fine and in default of payment of fine to undergo simple imprisonment for a period of one month more
Their conviction were recorded under Section 7i and v read with Section 16 1 a ii of the Prevention of Food Adulteration Act for having sold Roja Sungandha Suparit with admixture of saccharin
The sample was taken on 22nd December 1986
Civil Appeal Nos
3708 1389 These appeals are filed by the Union of India against the judgment of the Division Bench of the High Court of Andhra Pradesh dated 16th June 1986 whereby the Division Bench following the judgment of a learned Single Judge in Crl
Petition No 1569 of 1984 allowed the writ peti tions
A batch of writ petitions were filed for a declara tion that the admixture of saccharin in Anjali Sugandhi Supari Roja Scented Betelnut Nizam Supari ARR Saugan tha Supari and Ajantha Sugandhi Supari is in accordance with Rule 44 of the Rules and restraining the respondents appel lant herein from interfering with the business of sale of Supari with such an admixture
Civil Appeal No 189791 This appeal is directed against the order of the Divi sion Bench of the Kerala High Court dated 22nd November 1990 whereby the learned Division Bench was inclined to take the view that the learned Single Judge should have declined jurisdiction for the reason that the relief claimed 395 is of a general character for a declaration that the admix ture of saccharin in Roja Scented Betelnut is not a blanket ban under Rule 47 read with Appendix B of the Prevention of Food Adulteration Rules 1955
Appeal at sing out of SLP Crl No 264791 This appeal is directed against the order of the High Court of Kerala dated 21st December 1990 setting aside the order of acquittal passed by the trial court and remanding the matter to the trial court for fresh disposal according to law
The trial court had inter alia taken the view that the sample of Supari in question was taken contrary to Rule 22 A of the Rules
The High Court took the view that the sample was properly taken
On a plea being raises that the article of Supari was not adulterated as saccharin could be added to Supari the High Court did not agree with the submission and held that saccharin could not be added to Supari and consequently the High Court remanded the matter to the trial court for fresh disposal according to law
The case inter alia involves interpretation of Rule 44 g of the Rules before its deletion with effect from 15th April 1988 and the amendment of Rule 47 by Notification No GSR 454 E dated 1541988 with effect from 1541989 as covered by GSR 1157 E dated 9121988
Rules 44g and 47 as they originally stood and as they stood modified at the relevant time of taking of the sample figured during the arguments and they are extracted hereunder with comments  44Sale of certain admixtures prohibited Notwithstanding the provisions of Rule 43 no person shall either himself or by any servant or agent sell g any article of food which contains any artificial sweetener except Saccharin or in the preparation of which any such artificial sweetener has been used
 47
Addition of Saccharin to be mentioned on the label
Saccharin may be added to any food if the container of such food is labelled with an adhesive declaratory label
which shall be in the form given below  This   name of food   contains an admixture of Saccharin
These Rules held the field from November 24 1956 until August 24 1968 when they were further amended
The Preven tion of Food Adulteration Third Amendment Rules 1968 redrafted Rules 44 g and 47
and it 396 is these Rules which were extant at the time of the alleged offence
It is proper at this stage to reproduce these two Rules 44
Sale of certain admixtures prohibited Notwithstanding the provisions of Rule 43 no person shall either by himself or by any servant or agent sell g any article of food which contains any artificial sweetener except where such artifi cial sweetener is permitted in accordance with the standards laid down in Appendix B 
47Addition of artificial sweetener to be mentioned on the label Saccharin or any other artificial sweetener shall not be added to any article of food except where the addi tion of such artificial sweetener is permitted in accordance with the stand ards laid down in Appendix B  and where any artificial sweetener is added to any food the container of such food shall be labelled with an adhesive declaratory label which shall be in the form given below This   name of food   contains an admixture   name of the artificial sweetener
The Supreme Court in its decision Pyarali K Tejani vs Mahadeo Ramchandra Dange and Others  took the view that at the relevant time the article like saccha rin could not be added to the Supan in view of the amended Rules 44g and 47 of the Rules
It will be noticed that till date no standard has been prescribed in Appendix B  to the Rules so far as the Supari is concerned
Therefore under Rule 44g there was a total prohibition of use of saccha rin which is an artificial sweetener to any article of food including Supari and regarding saccharin it was specif ically provided in Rule 47 that it shall not be added to any article of food except where the addition of such artifi cial sweetener is permitted in accordance with the standards laid down in Appendix B 
Therefore under Rule 47 again so far as saccharin is concerned and for which no standards have been prescribed in Appendix B  there was total prohi bition of adding the same in any article of food
This was the view taken in the aforesaid case of Pyarali K Tejani
For the period relevant for the Tejani s case the Rules permitted saccharin to be added in case of carbonated water in item 5B A 10101 only but no such permission was noticed by the Supreme Court in the case of Supari
Thus the Supreme Court had settled the law as far as the Rules between August 24 1968 and 15th April 1988 are concerned
We may mention that wef 154
1988 Rule 44g was omitted and Rule 47 was substituted by new Rules
397 However it appears that with effect from 26th May 1971 for the first time a standard was prescribed for Saccharin Sodium as item No A0710 in Appendix B  to the Rules
After the provision of standard for Saccharin Sodium in Appendix B  to the Rules the Bombay High Court in the case of State of Maharashtra vs Ranjitbhai Babubhai Suratwalla distinguished the judgment of the Supreme Court in Tejani s case supra and took the view that because standards have been prescribed for saccharin Rule 47 permitted its user in article of food
This view was followed by Single Judge of the Andhra Preadesh High Court in the case reported as Thummalapudi Venkata Gopala Rao vs The State 1986Cr1 LJ 1699
Asimilar view was taken by another Single Bench of the Madras High Court in the case Ms Wahab and Co a Proprietory concern represented by its proprietor M A Wahab son of N Mohamed Sheriff vs Food Inspector Tiruchirappalli Municipal corparation Trichy 1990LWCrI437 with out noticing the earlier cotract view of the same High Court reported as State by Public Prosecutor vs K R Balakrishnan 1986 I FAC 384
The Rajasthan High Court also took the same view in the case reported as Kailash vs The State of Rajasthan 1985 I FAC 282
The Gauhati High Court in the case reported as State of Assam vs Rant Karani and Others 1987 3 All India Prevention of food Adulteration Journal 153 following some of the aforesaid decisions also look the view that addition of artificial sweetener like saccharin in Supari or Pan Ka Masala if it conforms to the standard laid down in clause A0710 of the Appendix B  of the Rules did not violate Rule 44g read with Rule 47 of the Rules
The Madhya Pradesh High Court in the case reported as Ujjain Municipal Corporation Ujjain vs Chetan Das 1985 I FAC 46 followed the view of the Bomaby High Court in the case reported as Ranjitbhai Babubhai Suratwalla supra
On the other banal the High court of Kerala Allahabad and another earlier Single Bench of the Madras High Court took the view that prescription of standard of saccharin in Appendix B  to the Rules could not alter the interpretation of Rule 44g nor help could be taken from interpretaion of Rule 47
The Kerala High Court in the case reported as Food Inspector vs Usman noticed the view of the Bombay High Court in Ranjitbhai Babubhai Suratwalla s case supra and dissented from it and held Rule 47 of the Prevention of Food Adultera tion Rules provides that saccharin or any other artificial sweetener shall not be added to any article of food except where the addi tion of 398 such artificial sweetener is permitted in accordance with the standards laid down in Appendix B  and where any artificial sweeten er is added to any food the container of such food shall be labelled with an adhesive de claratory label to that effect
That means unless and to the extent in accordance with the standards prescribed in Appendix B  saccharin or any other artificial sweetener are prohibited material in food articles
For pan supari no standard is fixed in Appendix B 
That means addition of artificial sweet ener is not permitted by the standards laid down in Appendix B  and the prohibitions under Rule 47 operates as an absolute prohibi tion against addition of saccharin or other artificial sweetener so far as pan supari is concerned
Whether addition of artificial sweetener is injurious to health or life is not a matter for consideration when its addi tion is prohibited
Following the decision of the Supreme Court in Tejani s case the Court set aside the acquittal of accused No 1 and sentenced him
A Division Bench of the Allahabad High Court in Krishna Chandra in Jail vs State of Uttar Pradesh 1990 I FAC 35 differed with the earlier decision of the Single Bench in Ibrahim Hussain vs State of Uttar Pradesh and also differed with the view of the Bombay High Court in Ranjitb hai Babubhai Suratwallas case and declined to distinguish the Tejani s case as held by this court and took the view that the prescription of the standard of saccharin is not at all relevant to the inquiry and saccharin could not be added to any article of food unless permitted by standard pre scribed in Appendix B  to the Rules and purported to the decision of this Court in Tejani s case
Before us also Mr BRL lyengar who appeared for the accused made submission that on the construction of Rule 44g it permits sale of article of food which contains artificial sweetener with the standard as laid down in Appendix B  to Rules
We are unable to accept the submis sion
We are also unable to accept the decisions of the High Courts supporting that view
Rule 44 g indicates that sale of any article of food which contains artificial sweetener is banned
The ban is lifted only if such artificial sweetener is permitted to be added to the article of food for which standards have been laid down in Appendix B  to the Rules
Admittedly no stand ard has been laid down for Pan Masala or Supari
It is this article of food which was being sold
No standard was pre scribed for this article of food
Therefore the exception permitted by clause g has no application 399 and no relevance
The article which was being sold should contain a standard and the standard should permit artificial sweetener to be added
Again Rule 47 in other form specifi cally bars saccharin or any other article of artificial sweetener to be added in any article of food except where the addition of such artificial sweetener is permitted in accordance with the standards laid down in Appendix B 
Therefore both Rules 44g and 47 constitute a total blanket ban on the addition of any artificial sweetener including saccharin to any article of food unless standards for that article of food is prescribed which authorises the use of such an artificial sweetener
The argument that since the standards of saccharin have been provided for in the Appen dix B  to the Rules and therefore it could be added in view of the language of Rule 44g is fallacious
What one has to see is the article of food in which the artificial sweetener is sought to be added
If the standards for that article of food is provided in Appendix B  to the Rules and such standards permit the addition of saccharin or any other artificial sweetener then and then only saccharin or any other artificial sweetener could be added and not otherwise not
It appears that the Bombay High Court and the other High Courts which have taken the opposite view seem to have fallen into errors while interpreting Rule 44g1
They have assumed as if once the standards of saccharin or the artifi cial sweetener have been prescribed it could be freely added to any article of food
It is necessary to point out that the prescription of standard of saccharin or any artificial sweetener in Appendix B  is really irrelevant
What was emphasised in Tejani s case is the standard of food and the standard should permit saccharin or any artificial sweetener to be added
It is not the question of standard being pre scribed for saccharin which is relevant what is relevant is the standard being prescribed in Appendix B  of the article of food which is being sold and which standard permits user of saccharin
This is the real intention of the legislature while enacting Rule 44g of the Rules
For Supari and Pan Masala it is undisputed that there is no standard pre scribed
In this view of the matter we agree with the decisions of the Kerala High court in Food Inspector vs Usman  Allahabad High Court in Krishna Chandra in Jail vs State of Uttar Pardesh 1990 I FAC 35 and Madras High Court in State by Public Prosecutor vs KR Balakrishnan The decisions in State of Maharashtra vs Ranjitbhai Suratwalla the Bombay High Court Thummalapudi Venkata Gopala Rao vs The State
1986 Crl
LJ 1699 of the Andhra Pradesh High Court Ms Wahab and Co a Proprietory concern represented by its proprietor MA Wahab son of N Mohammed Sheriff vs Food Inspec 400 tor Tiruchirapalli Municipal Corporation Trichy 1990 LW Crl 437 of the Madras High Court Kailash vs The State of Rajasthan 1985 I FAC 282 of the Rajasthan High Court The State of Assam vs Ram Karani and Others 1987 3 All India Prevention of Food Adulteration Journal 153 of the Gauhati High Court and Ujjain Municipal Corpora tion Ujjain vs Chetan Das 1985 I FAC 46 of the Madhya Pradesh High Court cannot be said to have been correctly decided and are hereby overruled
The result is that civil Appeal Nos
3708 13 of 1989 are accepted and the impugned judgment of the Andhra Pradesh High Court dated 16th June 1986 is set aside Crl
Appeal Nos
55389 2839128491 Civil Appeal No 189791 and the appeal arising out of SLP Crl No 2647 91 are dis missed
TNA Appeals dis posed of


Summary:
By an agreement dated 371973 the respondent sold two plots to the appellant for a consideration of Rs 15000
By another agreement entered into between the parties on the same day the appellant agreed to reconvey the said proper ties to the respondent against payment of Rs 15000 within two years
Within the stipulated period the respondent Plaintiff instituted a suit for specific performance alleging that despite offer of performance and tendering the price the Appellant Defendant refused reconveyance of the properties
The Trial Court dismissed the suit by holding that the Respondent was not ready and willing to perform the con tract and 568 that the time was essence of the reconveyance agreement
The first Appellate Court dismissed the respondent s appeal
The respondent preferred second appeal before the High Court
Relying upon the two notices issued by the Respondent to the appellant before filing of the suit which contained the averments that he was willing and ready to perform the contract the High Court reversed the findings of the two courts below and allowed the appeal and held that Respond ent Plaintiff was willing to perform the contract and that the Appellant was the party in breach
Accordingly it passed a decree of specific performance of an agreement for sale of land
During the pendency of the Second Appeal suit proper ties were acquired by the State for public purposes and the High Court rejected the plea that after the land has been acquired by the State corpus of the Land had ceased to exist and no decree for specific performance can be granted
In defendant s appeal to this Court it was contended on his behalf 1 that the High Court erred in reappreciating the evidence in second appeal and in disturbing the concur rent findings of fact that Respondent was not willing and ready to perform the contract 2 that in view of the acquisition of the suit properties the contract itself became incapable of specific performance and to such a case the power to give compensation as an alternative to specific performance did not extend
Modifying the decree of the High Court this Court HELD1
Where the findings by the Court of facts are vitiated by non consideration of relevant evidence or by an essentially erroneous approach to the matter the High Court is not precluded from recording proper findings
572 H 11 The notices issued by the respondent to the appel lant containing the averments that he was ready and willing to perform the contract which were not actually served on the appellant because of his refusal to accept them must be presumed to have been served as contemplated by Section 27 of the General Clauses Act
Therefore the High Court was right in relying upon the averments in the notices which could be treated as part to the plaint
Accordingly the finding of the High Court that Respondent was willing and ready to 569 perform the contract and that it was the Appellant who was in breach is accordingly confirmed
572 F G 578 H 579 A 2
Section 21 of the enables the Plaintiff in a suit for specific performance also to claim compensation for its breach either in addition to or in substitution of such performance
However when the plaintiff by his option has made specific performance impos sible Section 21 does not entitle him to seek damages
That position is common under the English and Indian Law namely under Section of Lord Cairn s Act 1858 and Section 21 of the 
But under the Indian Law the explanation to sub section 5 of Section 21 makes a specif ic departure and the jurisdiction to award damages remains unaffected by the fact that without any fault of the plain tiff the contract becomes incapable of specific perform ance
574 D 577 H C Piarey Lal vs Hori Lal 1977 2 SCR 915 distin guished and held inapplicable
Mohamad Abdul Jabbar  Ors
vs Lalmia  Ors AIR 34 1947 Nagpur 254 disapproved
Ardeshir H Mama vs Flora Sessoon AIR 1928 Privy Council 208 explained
However so far as the proviso to sub section 5 of Section 21 is concerned two positions must to kept clearly distinguished
If the amendment relates to the relief of compensation in lieu of or in addition to specific perform ance where the plaintiff has not abandoned his relief of specific performance the Court will allow the amendment at any stage of the proceeding
That is a claim for compensa tion failing under section 21 of the and the amendment is one under the proviso to sub section 5
But different and less liberal standards apply if what is sought by the amendment is the conversion of a suit for specific performance into one for damages for breach of contract in which case Section 73 of the Contract is invoked
This amendment is under the discipline of Rule 17 Order 6 CPC The fact that sub section 4 in turn invokes Section 73 of the Indian Contract Act for the prin ciples of quanlification and assessment of compensation does not obliterate this distinction
575 B C 570 31 In the instant case assuming that the Respondent had not specifically sought for compensation in lieu of specific performance the amendment is permitted in order that complete justice is done
578 B 32 The measure of the compensation is by the standards of Section 73 of the Indian Contract Act
Here the English Rule in Bain vs Fothergill that the purchaser on breach of the contract cannot recover for the loss of his bargain is not applicable
578 C Bain vs Fothergill 1874 LR 7 House of Lords 158 held inapplicable
Pollock  MuHa on Contract 10th edn p663 Nagardas vs Ahmedkhan  referred to 33 In the instant case the quantum of the compensation is ascertainable with reference to the determination of the market value in the land acquisition proceedings
The com pensation awarded may safely be taken to be the measure of damages subject of course to the deduction therefrom of money value of the services time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the award
578 G 4
Accordingly there will be a decree awarding to the Respondent compensation in lieu and substitution of one for specific performance which but for the acquisition Respond ent would have been entitled to the quantum and the measure of the compensation being the entire amount of compensation determined for the acquisition of the suit properties to gether with all the solatium accrued interest and all other payments under the law authorising the acquisition less a sum of rupees one lakh fifty thousand only which shall go to the Appellant towards his services time and amounts spent in pursuing the claims for compensation as well as the consideration stipulated for reconveyance
579 E F