M/S. MOTIPUR ZAMINDARY CO. (P) LTD. versus THE STATE OF BIHAR

J.-The principal question raised in these appeals and petitions under Art. 32 of the Constitution is whether sugar cane falls within the term "green vegetables" and is therefore exempt from sales tax under the exemption given by the notification dated August 28, 1947, issued under s. 6 of the Bihar Sales Tax Act 1947, (Bihar 19 of 194 7), hereinafter called the 'Act'. After hearing the arguments in these appeals and petitions we announced our decision dismissing them with costs and we now proceed to give our reasons for the same.

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The three appeals by special leave are brought by the as:iessee and relate to assessment of sales tax for three years, 1950-51, 1951-52 and 1952-53 for which the amount of sales tax levied was Rs. 28,866, Rs. 23,383 and Rs. 23,298 respectively. Besides the three appeals the asaessee company has filed three petitions under Art. 32 challenging the constitutionality of the assessments. In this judgment the appellant and the petitioner is a 11rivate limited company and it will be termed "appellant" and the State of Bihar which is respondent will be termed the "respondent".

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The appellant took an objection to tht• assessment and filed appoals to the Deputy Commissioner of Commercial taxes and then a revision to the Hoard of Revcnu.i and then at its instance the following question was referred by the Board of Revenue to the High Court for opinion :-

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"Whether sugar cane is a green vegetable within the meaning of item 6 of notification No. 9884-Fl' dat.-Od 28-8-47 and as such exempt

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from taxation." The High Court answered the question against the appellant and held that "sugar cane" was not included in the term "green vegetables" and it is the correctness of that answer which has been canvassed before us. In the petitions under Art. 32 of the Constitution it was contended that the appell· ant being a producer of sugar cane was not a "dealer" within the meaning of the Act and therefore no tax was payable on sale of sugar cane by it.

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The exemption under the Act is provided under s. 6 of the Act which, at the relevant time, was as follows :-

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S. 6 "No tax shall be payable under this Act on the sale of any goods or class of goods specified in this behalf by the (State) Government by notification in the Official Gazette, au bject to such conditions as may be m1>ntioned in the notification:

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Provided no notification shall be issued under this section without giving in the Official Gazette such previous notice as the State Government may consider reasonable, of its

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intention to issue such notificati_on.'' Under s. 6 of the Act the notification relied upon was issued on August 28, 1947, This was notifica· tion No. 9884-FT which was in the follo~ing terms:-

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"In exercise of the powers conferred by section 6 of the Bihar Sales Tax Act., 1947 (Bihar Act XIX of 1947), and in supersession of all the previous notifications on the subject the Govemor of Bihar is pleased to direct that no tax shall be payable under the said Act on tho sale of goods specified in tbe second column of the schedule hereto annexed subject to the excJptions, if any, set out in the corresponding entry in the third column thereof.

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'l'JTE SCHEDULE Serial Descri1ition Exception subject to which the No. ·of goods. exemption has been allowed. l .......... , ....... 2 ........ ; ........ . 3;;; .• : .. : ....•••.• '4 •••.••• ~ .•.••••... 5 ... -~ ......... --;~. ~-.. 6 Green vegetables Except wlw1i sold m sealed other than pota- containers.

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toes. ................................................................... " The ,question raised is that sugar cane-· falls ,,vitl1in the . term "green vegetables" in ·entry: 6, of tho Schedulo - and is therefore exempt from assessment to Sales tax. · In support of this contention· counsel for the 11ppellant relied upon a judgment of the Bombay High Court, The State of Bom/;ayv. R. S. Pliarltara(1) where it was held that sugar cane is "fresh .vegetable". and is therefore exempt from sales tax under. a similar notification issued under the Bombay Bales Tax Act. Chagla C. J., thero observed at page ·196 as follo\vs_::-:7 ' ' _ .

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"In· its plain and. natural meaning . a "vegetable" clearly is wide. enough to cover "sugar cane";. but _what . is ,urged by the Ad- ·voeate -General is· that we must not give it that wide meaning but must give it the popular meaning · as understood . by, people who deal in. vegetables . or ·cat vegetables, and it is urged that· from that narrow and restricted point of. view _sugar eane is not vegetable. ·.This is a taxing statute and if two constructions are· possible we must lean in favour 'of 'that construction which gives relief to the subject. -That was exactly the ~95. approch of the Sales Tax Tribunal and in our opinion that approch was a very proper

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one." This observation is not in accord with the opinion given by this Court in Ramwytar Badhriprasad v. Assistant Sales Ta.v Officer, Akola ( ') in which under a1i almost identical entry it was held that "betel leaves" is not included in the term "vegeta hies". After quoting with approval a passage from the judgment of the Nagpur High Court, .Madhya Pradesh Pan .Merchants Association v. State of :Madhya Prade8h (') this court said :

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"the word "vegetable" in taxing statutes is to ho understood as in common parlance i. e. denoting class of vegetables which are grown in a kitchen garden or in a farm and

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are used for the table." If that is the meaning of the word "vegetables" sugar cane cannot fail within entry 6 which relates to green vegetables. In Webster's dictionary "sugar cane" has been defined as "a grass extensively grown in tropical and warm regions for its sugar" and in Oxford dictionary it is defined as "a tall peronnial grass cultivated in tropical and sub-tropical countries a:nd forming the chief source of unmanufactured sugar". Therefore it cannot be said that sugar cane falls within the definition of the words "green vegetable'.'.

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The second question which was raised before us and which arises in the petitions under Art. 32 is that the appellant company is not a "dealer" within the meaning of the word as defined in s. 2(c) of the Act which is as follows :-

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" "dea.ler" means any persqn who sells or supplies any goods (including goods sold . or supplied in the execution of a contract)

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whether for commission, remuneration or otherwise and includes any firm or a Hindu joint family, tho Government and any society club or associa.tion which sells or supplies

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goods to its mem hers". The words of this sub-section are very wide and cover the case of tho appellant and therefore this point is also with!Jut substance and must be rejected. But it was argued that the definition of the word "dealer" in the Act which was amended bv Bihar Annual Finance Art 1950 is a.pplicablc only for the financial year beginning April l, 1950, and not for subsequent years and for that aid was sought from the preamble to the Bihar Annual Finance Act 1950. That preamble is as follows: -

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"\Vhcreai; it is expedient to amend the Bihar 8alcs T;1x Act, 194 7, and the Bihar Agricultural Income Tax Act, 19·18, to levy a tax on pas8engers and goods carried by public service vehicles and public carr iera and to lay down rates on Sales Tax payable under Hihar Sales Tax Att 194i to fix limit of taxable agricultural iuc!Jmc to lay down rates of agricultural Income Tax Act and l:iupor Tax chargeable under Bihar Agricultural Incom~ 'l'ax Act, 19~8 for the financial year beginning on the !st <lay of April 19ii0 and to make farther proviHions in c:onurction

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with the finance of this State of Bihar''. The preamble cannot limit or changl' the meaning of the plain words of s. ~(c) of the Act whieh apply to the case of the appell>111t an•l th..reforc tho amended section is applicable to the present It is an erroneous approach to the question to say that because of the words "for the financial year beginning on the first of April l!Ji}()" in the p:utimlar context in the preamble, the <lefinition of the word "dealer" was a.mended only for one year Nothing has been shown indicating that section (2)( i) of Bihar Annul Finance Act intended to effect a temporary amendment in the previous definition of the word "dealer" in cl( c) of s. 2 of the Act. The contention is therefore repelled.

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It was also submitted that the assent of the President was not given to the Bihar Annual Finance Aot 1950. In our opinion that submission iJ equally without force because tax on sale of goo<ls is a matter entirely within entry 54 of the State List and the amendment made in the dtfinition of the word "dealer" in the Act did not require the assent of tho President.

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In our opinion the appeals and the petitions under Art. 32 are without merit and are therefore dismissed with costs. One hearing fee.

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Appecds and writ petitions dismissed. THE ACCOUNTANT GENERAL, BIHAR AND ANOTHER

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v.

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N.BAKSHI (B. P. C. J., J. L. M.

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J.C. and J. R. JJ.) benefits-Statutory right-Constitutional guarantee-Cancellation of passage benefit• under ruk making pou·er-Validitysion of pay and pension) Rule., 1924-Government of India Act, 1935 (25 36 Oh.42), 247 (1) -Indian Independence Aet, 1947 (10 II 6, 30), ss. 10 19(4)- All India Services Act, (61of1951}, ss. 3,4-Alt India Services (Ot•.r.eas pay, and sa/,ary) Ruka, 1957, r.3-0onstitution of India, Art. 314.

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of

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