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TMI Blog1978 (12) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Tamil Nadu, for the interveners. Soli J. Sorabjee, Additional Solicitor-General (M.N. Shroff, Advocate, with him), for the State of Maharashtra, for the interveners. S.K. Gambhir, Advocate, for the State of Madhya Pradesh, for the interveners. F.S. Nariman, Senior Advocate (Lalit Bhasin, M.N. Karkhanis, Mrs. S. Bhandare and Miss Malini Poduval, Advocates, with him), for the opposite party. M.C. Bhandare, Senior Advocate, for the Federation of Hotel and Restaurant Associations of India, for the interveners. A.K. Rao and A.T.M. Sampath, Advocates, for the Tamil Nadu Hotel Association, for the interveners. Soli J. Sorabjee, Additional Solicitor-General, and P.A. Francis, Senior Advocate (B.B. Ahuja, M.N. Shroff, R.S. Chawla, R.N. Sachthey, Advocates with them), for the petitioner. Mrs. Shyamla Pappu, Senior Advocate (A. Minocha, Advocate, with her), for the Zonth Club, for the interveners. Badridas Sharma, Advocate, for the State of Rajasthan, for the interveners. Anil Dewan, Senior Advocate (Ravinder Narain and Sri Narain, Advocates, with him), for Walcom Hotels and Indovilles Hotel Division, for the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having regard to the basis on which the appeals proceeded, we are unable to say that the result would necessarily have been different. The learned Additional Solicitor-General contended that the judgment of this Court is amenable to review because, he says, it proceeds on the erroneous assumption that a restaurant can, for the purposes of the point of law decided by us, be likened to an inn. We have been referred to Halsbury's Laws of England 21 Hals. 3rd Edn. 441 at 442., and the Hotel Proprietors Act, 1956, mentioned therein. Our attention has also been invited to a statement in Benjamin's "Sale of Goods" 1974 Edn., p. 37, para 39. that when a meal is served to a customer in a restaurant there is a sale of goods, the element of service being subsidiary. As regards judicial opinion in England, reliance has been placed on Rex v. Wood Green profiteering Committee, Boots Cash Chemists (Southern) Lim.-Ex parte (1920) 89 L.J.K.B. 55., Rex v. Birmingham Profiteering Committee; Provincial Cinematograph Theatres Lim.-Ex parte (1920) 89 L.J.K.B. 57., and Lockett v. A. & M. Charles Ltd. [1938] 4 All E.R. 170. It appears, however, that the first and third of these three cases cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warranty of fitness. In other words, it is said, the factor of implied warranty must follow on the transaction being a sale and not that the transaction is a sale because an implied warranty is a necessary guarantee for public health. We are reminded that the true basis of our judgment is that no title in the food passes to the consumer as is evidenced by the circumstance that the unconsumed portion of the food cannot be carried away by him. It is pointed out that there never was any dispute by the respondent that a customer in a restaurant who orders food for consumption by him on the premises is not entitled to take away the unconsumed portion of the food. The essential nature of the transaction, he reiterates, is that it is a service afforded for the satisfaction of a bodily need and the service is provided by supplying food for eating. In the end, he has emphasised the limited scope of the power of review and the strict conditions in which it can be invoked. Dr. Y.S. Chitale and Mr. Anil Dewan, appearing for some interveners, adopt the same line of argument. The question is whether on the facts of the present case a review is justified. It is well-settled that a party is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there is an error apparent on the face of the record. What were the considerations on which this Court held that the transaction was not a sale? The court said, and this was emphasised in no small degree, that the supply and service of food to a customer to be eaten in the restaurant was not a sale for the reason that he was merely entitled to eat the food served to him and not to remove and carry away the unconsumed portion of the food. Had that amounted to a sale, the unconsumed portion would have belonged to the customer to take away and dispose of as he pleased. Besides, the court noted, there were other amenities and services of considerable materiality which were also provided. That was the case set up by the appellant before the assessing, appellate and revisional authorities, and it was apparently also the case pleaded before the High Court. It was summarised thus in the petition under article 136(1) of the Constitution filed in this Court: "(1) The hotelier and catering industry is a service-oriented industry unlike and as distinguished from other sale-oriented industries. The purpose of a hotelier and caterer is not to sell food, but to serve it in proper atmosphere s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no such apprehension can be reasonably entertained. Indeed, we have no hesitation in saying that where food is supplied in an eating-house or restaurant, and it is established upon the facts that the substance of the transaction, evidenced by its dominant object, is a sale of food and the rendering of services is merely incidental, the transaction would undoubtedly be exigible to sales tax. In every case it will be for the taxing authority to ascertain the facts when making an assessment under the relevant sales tax law and to determine upon those facts whether a sale of the food supplied is intended. We are of the view that these review petitions must fail. They are, accordingly, dismissed. There is no order as to costs. KRISHNA IYER, J.-A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result. I agree with my learned brother Pathak, J., both on the restrictive review jurisdiction and the rejection of the prayer in this case- subject to the qualifications made below. Indeed, a reading of the last p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k us through English and American legal literature of vintage value and alien milieu. They enlightened us but did not apply fully, as explained by my learned brother. Had they been earlier cited, (sic) had been seriously considered. But India is India. It lives in its one lakh villages, thousands of towns, millions of pavement pedlars and wayside victuallers, corner coffee shops and tea-stalls, eating-houses and restaurants and some topnotch parlours. Habits vary, conventions differ and one rigid rule cannot apply in diverse situations. If you go to a coffee-house, order two dosas, eat one and carry the other home, you buy the dosas. You may keep the cake and eat it too, like a child which bites a part and tells daddy that he would eat the rest at home. Myriad situations, where the transaction is a sale of a meal, or item to eat or part of a package of service plus must not be governed by standard rule. In mere restaurants and non-residential hotels, many of these transactions are sales and taxable. Nor are additional services invariably components of what you pay for. You may go to an air-conditioned cloth-shop or sweetmeat store or handicrafts emporium where cups of tea may be g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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