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Judgment
Mohd. Ahmed Ansari, J.—The Applicant is the Vice-President of the Warangal Sabha Oil Mill Owners Association. In his application to this Court under Article 226 of the Constitution, he asserts that the Association is a registered body under the Hyderabad Companies'' Act, and its members, who are about twenty, carry on business of, ''inter alia'', purchasing groundnuts; after the Hyderabad General Sales Tax Act, No. 14 of 1950, had been enforced he and other members of the Association applied u/s 10 of the Act for registration and got registered as dealers; he and other members had purchased various quantities of groundnuts from persons, who are producers of the commodity or agriculturists, & the Sales Tax Officer, Warangal, orally informed them that they, as dealers, had to pay the tax under the Act on the purchase value of the groundnuts; the Association sought clarification of the instruction, but the reply did not specify the reason for the tax being payable on groundnuts in respect of the purchase value; nor how and from whom the tax amount was to be collected; the Association passed a resolution on 23-7-1950, that the members should collect the tax from their sellers, including agriculturists & requested the Market Superintendent, Warangal, to co-operate in the collection; however, a reply was received on 6-8-1950, that the Association should not collect the tax from the ryots; then the association addressed a letter to the Deputy Commissioner, Sales Tax, and the Commissioner, Sales Tax, replied that a dealer had no right to collect the tax from the agriculturists; while the right of the members to collect the tax from their sellers was still unsettled, they were being pressed to submit their returns showing purchase value of the groundnuts in their turnovers; a copy of the representation to the Sales Tax Officer, Warangal, was sent to the Commissioner, with a request to suspend the collections of the Tax in view of the members being prevented from collecting the tax from their sellers, but in his reply of 23-12-1950, the commissioner took up the position that the sellers being agriculturists were not liable to pay the tax, & the members were not entitled to collect it from such sellers.
As this letter neatly summarises the State''s case against acceding to the demand of the Petitioner, which has since been repeated in this Court, I shall quote here certain relevant passages from it.
...I have to inform you that...a dealer has no right to collect tax from an agriculturist on the sale of groundnuts, etc. on which purchase tax is leviable. Further the sale of agricultural produce grown by an agriculturist in his lands does not attract liability to tax under the existing provisions of the Act. The tax is levied on the groundnuts, etc., on the turnover of purchases, as per Rule 5(2). A dealer dealing in such items is at liberty either to collect the tax on the total turnover of his purchases or include it in the sale price when he affects the subsequent sale. In case subsequent sale is not affected and the groundnut purchased is utilised for the manufacture of oil, the tax can be included in the price of the oil produced and sold....
The application to this Court then continues that a written representation was made to the Finance Minister of Hyderabad Government that the order by the Commissioner should be reversed and the members of the Association be not pressed to submit their returns on the purchase value of groundnuts, as they were illegally prevented from collecting the tax from their agriculturist sellers but the Association received a reply dated 5-6-1951, that under the Hyderabad Sales Tax Act and Rules, the Tax on sale of groundnuts, etc., is to be collected on the total turnover of the purchases and logically the turnovers of the sellers of the commodity would be exempt from the tax.
The Applicant claims only deductions of tax on the amounts of purchase value of groundnuts from agriculturist out of his gross-turnover and has applied for a Writ of CERTIORARI or MANDAMUS on the four grounds. The first is that if sales by the agriculturists or producers of the commodity are not intended to be taxed, then the transactions are exempt and the purchase values of such transactions-cannot be included in the turnovers of the Applicant and made liable to pay the tax. The next is that if, the conclusion be that nothing in the Act or the Rules justify the first sales by agriculturists as exempt, and the transactions-must be included in the purchase turnover of the Applicant, then there is nothing in the Act to preclude him from collecting the tax from his sellers, and there is no obligation on him to-pay the tax before collecting.
The third is that the undoubted purpose and object of the registration under the Act as a dealer being to clothe him with the right to collect the tax and there being no obligation, to pay the tax before such collections, the position, taken by the Taxing Authorities that he as a dealer of groundnuts should collect the tax from the persons to whom he resells or add it to the price of the oil in the event of groundnuts being so converted is discriminatory, repugnant to the provisions of the Act and imposes unjustifiable burden upon him; so also the Government''s collection of the tax from him before: he is in a position to know from whom he is entitled to recover and preventing him from the exercise of the right.
The last ground has been added by an application for an amendment, which is dated 28-8-1951 & is that the Hyderabad General Sales Tax Act, in so far as it authorises levy of Sales tax on purchases of groundnuts, is ultra vires by reason of the prohibition under Article 286, Clause (3) of the Constitution, as the groundnuts have been declared to be essential goods under Sub-section (2) of Section 1 of the Essential Supplies (Temporary Powers) Act, which Act has been applied to Hyderabad, and the Hyderabad General Sales Tax Act has not been reserved for the consideration of the President, nor has it received his assent.
It is clear that the last two grounds raise constitutional issues, and should not be adjudicated upon, unless I come to the conclusion that the first sales of the agriculturists of their produce are not exempted, and the Petitioner can be legally restrained from collecting the tax from such sellers. Then only the constitutional grounds should be gone into, for it is a well established rule that Courts should not decide constitutional issues unless their decisions be necessary for the disposal of the case.
But, before dealing with the aforesaid grounds, a preliminary point has been urged that the Writs of CERTIORARI and MANDAMUS should not be granted, as there are other efficacious remedies open to the Applicant. I do not think this objection is justified. After a careful consideration, the officers concerned have clarified their attitude about the Applicant not being entitled to collect the tax from his sellers who are agriculturists, and is liable to pay the tax on his purchase turnovers. In these circumstances, he should not be compelled to file infructuous petitions before the Taxing Authorities, nor should he be directed to institute expensive litigations. There are authorities that in such circumstances, application under Article 226 should not be rejected. Therefore, the preliminary objection is disallowed.
The question covering the earlier grounds for allowing the application is how tar the purchases from the agriculturists of the produce of their lands are exempt from the Sales Tax, and if they be not exempted should a MANDAMUS be issued restraining interference with the Applicant''s statutory right, if any, of collecting the tax from the other parties to such sales? 1 shall first deal with the second part of the question. The relevant provisions of the Hyderabad General Sales Tax Act and the Rule framed thereunder are as follows:
Section 11 : (1) No person who is not registered as a dealer shall collect any amount by way of tax under this Act nor shall a registered dealer make any such collection before the 1st day of May 1950, except in accordance with such conditions and restrictions, if any, as may be prescribed.
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Every person who has collected or collects any amount by way of tax under this Act, on or after the 1st day of May, 1950, shall pay over to the Government within such time and in such manner as may be prescribed, all amounts so collected by him if they are in excess of the tax, if any, paid by him for the period during which the collections were made; and, in default of such payment, the amounts may be recovered as if they were arrears of land revenue.
Rule 10 : (1) A registered dealer or a casual trader may collect amounts by way of tax or taxes under the Act subject to the following conditions:
(i) he shall not collect any amount or amounts by way of tax or taxes under the Act at a rate or rates exceeding the rate or rates specified in Section 3 or 4 or 6 or notified under Sub-section (1) of Section 7;
(ii) he shall pay in full the amount or amounts collected by him by way of tax or taxes to the Government on or before the 30th of April of the year succeeding that in which such collection is made.
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(2) The assessing authority may at any time call for and examine the accounts of either a registered dealer or a casual trader for the purpose of satisfying himself that the dealer or a casual trader as the case may be has paid in full the amount or amounts collected by him by way of tax or taxes, as required by condition (ii) of Sub-rule (1).
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(3) If the Assessing Authority is satisfied that any amount or amounts collected by the dealer or a casual trader by way of tax or taxes has not been paid by him to the Government in any year as required by condition.
(ii) of Sub-rule (1), the Assessing Authority shall issue a notice to the dealer or a casual trader in Form B-2 specifying there in the total sum, so withheld by him and the dealer or a casual trader as the case may be shall pay such sum at the time and in the manner specified therein.
It is clear that under the aforesaid provisions a registered dealer, with sale or purchase turnover exceeding the statutory limits, can collect the tax subject to the collection being in accordance with the rules prescribing the conditions and restrictions. Therefore the direction to the Applicant not to collect any tax leviable on his purchase turnover of the ground-nuts from his sellers, who are agriculturists, is against his statutory right. The State''s case is that he can recoup by collecting the tax from his purchasers or add the tax to his price of oil. It is urged on behalf of the State that in the case of a safe turnover a dealer collects from his purchaser and therefore in the purchase turnover the collection should be from the next purchaser. It appears to me that this attitude is erroneous; in that it makes the right of collection dependent on further transactions of sale by the dealer, which is not borne out by the Section or by the Rule. The power to tax sales of goods is given under Item 54 of List II of the Seventh Schedule of the Constitution, and reads as follows: "Taxes on the sale or purchase of goods other than newspapers". The essential character of the tax has been given by His Lordship the Chief Justice of India in the majority judgment of the-- The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, , where he observed on page 260:
Therefore, sales-tax, the incidence of which is really directed against the consumer, is, in substance, a tax on the goods imposed, No. doubt, on the occasion of the sale as a taxable event.
The tax is, therefore, on the sale of the goods and the right of the collection of the tax on a sale should be between the parties to the sale, and not from a party to a further sale of the same commodity. This Item of List II of the Constitution is very similar to Item 48 of List II, Government of India Act of 1935, and the Federal Court as well as the Privy Council had the occasion to determine the nature of the tax as opposed to excise duty. They held in--Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, In the matter of, AIR 1939 1 (Federal Court) --Madras Province v. Bodda Paidanna and Sons AIR 1942 FC 33 (C) and-- AIR 1945 98 (Privy Council) , that the distinction between the two, broadly speaking, is that the excise duty is leviable on a manufacture and production of articles, whereas Sales Tax is levied on the transaction of sale. Then the preamble of the Hyderabad General Sales Tax Act says that it is expedient to provide for the levy of a general tax on the sale of goods in the Hyderabad State. Also Section 3 of the Act charges the tax at the rate of two pies in the rupee on so much of the turnover of the registered dealer or casual trader as is attributable to transactions in goods for the period mentioned in the section. The same is the position u/s 4 of the Act.
It is, therefore, clear that both constitutionally and under the Hyderabad General Sales Tax Act, the tax is on transactions of sale. The turnover may be the sale or purchase turnover of a dealer; but it is a tax on the sale of goods. Therefore, when Section 11 allows recouping evidently it contemplates recouping from the parties to the sale on which the tax is levied and not from a party to a further sale transaction. This is further borne out by the Forms A-3 and A-6 of the Rules framed under the Act, which have columns for the amounts of tax collected. The right of a registered dealer to recoup himself by collecting the tax from the other party to the sale, which is taxed, being without any qualification, any exception in case of the dealer with the purchase turnover under the Rules is unauthorised. If the statute allows such collections by him as a registered dealer, the taxing authorities are not justified in preventing the Applicant from exercising his right.
It was argued on behalf of the State that the tax falls on. the consumer, and so far as the Applicant is the consumer of the groundnuts by using the commodity for purposes of extracting oil he must bear the burden of the tax. It is true that the tax falls on consumers. But there in the permission under the Act to a registered dealer whose turnover is taxed, to collect the tax, and the fact that such a person is a consumer also cannot bar this statutory power of collecting the tax as a registered dealer, especially when the power is not made subject to any such limitation. Therefore, the contention of the State that the Petitioner cannot recover the tax from the persons, who are agriculturists and have sold the commodity of groundnuts to him, is not authorised by the provisions of the Act and must fail.
But the rejection of this part of the argument on behalf of the State does not authorise collection by a dealer of the tax on the sales which are exempt under the Act, for the collection, of the tax means on the transactions that are liable to the taxation. I have next to determined how far sales by agriculturists of the produce of their lands are exempt. To determine this question, I shall first refer to certain provisions of the Act:
Section 2(e) "Dealer" means '' any person, local authority, company, firm, Hindu undivided family or any association or associations of persons engaged in the business of buying, selling or supplying goods in the Hyderabad State whether for a commission, remuneration or otherwise and includes a State Government which carries on such business and any society, club or association which buys or sells or supplies goods to its members;
(f) "Exempted goods" means goods specified in Schedule I;
(k) "Sale" with all its grammatical variations and cognate expressions means every transfer of property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration and includes also a transfer of property in goods involved in the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge;
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(m) "Turnover" means the aggregate amount for which goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration;
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Section 3. For the year opening on the 1st day of April, 1950, every dealer whose total turnover for the period from the 1st day of May 1950, to the 31st day of March, 1951, is not less than Rs. 6,875/- and every casual trader whatever be his total turnover for the said period, shall, save as otherwise provided in this Act, pay-
(1) a tax at the rate of two pies in the rupee on so much of his turnover for the said period as is attributable to transactions (excluding transactions performed in execution of a contract entered into before the commencement of this Act) in goods other than exempted goods;
(2) an additional tax at the rate of six pies in the rupee on so much of his turnover for the said period as is attributable to transactions (excluding such transactions as aforesaid) in goods specified in Schedule II.
Section 4. For very subsequent year every dealer whose turnover for the year is not less than Rs. 7,500/-, and every casual trader whatever be his turnover for the year, shall, save as otherwise provided in this Act, pay--
(1) a tax at the rate of four pies in the rupee on so much of his turnover for the year as is attributable to transactions in goods other than exempted goods;
(2) an additional tax at the rate of six pies in the rupee on so much of his turnover for the year as is attributable to transactions in goods specified in Sch. II.
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''Section 7. (1) Government may by notification in the Jarida make an exemption, reduction in rate or other modification in respect of any tax payable u/s 3 or Section 4 in favour of-
(a) any specified class of goods at all points or at any specified point or points in a series of sales by successive dealers or casual traders, or
(b) the whole or any part of the turnover of any specified class of persons.
(2) Any exemption, reduction in rate or other modification made under Sub-section (1) may be made either unconditionally or subject to such restrictions and conditions as may be specified in the notification.
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Section 9. Government may, on application and on payment of such fee as may be prescribed in that behalf, licence under this Section any person who for an agreed commission or brokerage buys or sells on behalf of known principals specified in his accounts in respect of each transaction and may exempt from the tax or taxes payable u/s 3 or Section 4 such of his transactions as are carried out in accordance with the terms and conditions of his licence:
Provided always that, save where the transaction consists of a sale by a grower of produce grown by him or on his land, no such exemption shall be given unless the amounts for which the goods concerned in such transaction are sold are included in the turnover of the principals or of the dealers from whom purchases were made, or would have been so included but for an exemption granted under this Act:
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Rule 5(1) Save as provided in Sub-rule (2) the turnover of a dealer for the purpose of these rules shall be the amount for which the goods are sold by the dealer.
(2) ln the case of the under mentioned goods the turnover of a dealer for the purpose of these rules shall be the amount for which the goods are bought by the dealer.
(a) Groundnut.
(b) Bidi leaves.
(c) Tarwar bark.
(d) Til, Karad and Castor Seed.
From the above quotations, it is obvious that the tax is not levied on sales of exempted goods, nor on the transactions as are notified u/s 7 as exempt. The tax is levied only en sales between a person and a dealer as denned by the Act, and on the turnover exceeding the statutory limits of a dealer which may be a sale or purchase turnover. The definition of the "dealer" is important otherwise his turnover is not taxed. To levy the tax the person must be engaged in the business of buying, selling or supplying goods, and if the activities of such a person cannot be properly called business, then his turnover is not liable to be taxed. This is also clear from the charging Sections 3 and 4, which only tax the turnovers of dealers. Now an agriculturist when selling the products of the land can hardly be said to carry on the business of selling the commodities he produces. indeed, the income from the first sale of produces of the agricultural lands is called agricultural income as opposed to business income, and for the former there is a different item authorising taxation in List II of the Seventh Schedule to the Constitution.
It is true that there is a slight difference between the Hyderabad General Sales Tax Act and the Madras Act. In the latter, the turnover of the agriculturist is exempted; for in Sub-section (1) of Section 2 of the Madras Act the following words occur:
Provided that the proceeds of the sale by a person of agricultural or horticultural produce grown by himself or grown on any land in which he has interest whether as owner, usufructuary mortgagee, tenant or otherwise shall be excluded from his turnover.
Whereas no such exemption occurs under the Hyderabad Act. But in view of the definition of "dealer" whose turnover alone is taxable, I do not think any specific exception of the turnover of an agriculturist is necessary. Thus the first sale of groundnuts by an agriculturist exceeding the statutory limits of turnover would not be taxable even if Sub-rule (2) of Rule 5 was not framed, because such sales would not be by dealers. Then the State''s case that sales by agriculturists are exempt is borne out by the use of the words "save where the transaction consists of a sale by a grower of produce grown by him or on hiS land" in the proviso to Section 9 of the Hyderabad General Sales Tax Act. This, however, does not mean personal exemptions of the agriculturists, but of the transactions of first sale of their produces, which would logically include other parties to the transactions also.
Otherwise a registered dealer''s right of collecting the tax, which is unqualified in the Act would render the personal exemptions of no material advantage. Again the tax will be construed as personal, rather than that on transactions. The attitude of the authorities in these circumstances of taxing a registered dealer is hardly justified. He can get out of the liability by employing an agent, and at any rate recoup himself by collecting the tax from his sellers. The logical conclusion, therefore, is that the transactions of first sale of, agricultural produce are exempted, and neither party to it are liable to pay the tax. The tax demanded from the Applicant on the purchase value of groundnuts bought from the producers of the commodity, in these circumstances, is not justified.
As the State is claiming the tax from the Applicant under Sub-rule (2) of Rule 5, I have next to decide whether the sub-rule should be held ultra vires, or whether we should merely restrain the State from taxing that part of the turnover of the Applicant which consists of purchase value of groundnuts from agriculturists. It is obvious that groundnuts are not exempted commodity, and persons who are not agriculturists may sell them to the dealers. Sub-rule (2) of Rule 5 in these circumstances would be within the scope of the Act. In these circumstances, I am of opinion that the test of the severability of enforcement should be applied. In the case of- The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, (A), his Lordship the Chief Justice of India has observed that in taxing statute severability of enforcement should be the test when questions relating to the unconstitutionality of the Act is raised.
He says at page 263:
...Apart from the considerations set forth above which tend to support the constitutional validity of the Act, it was broadly contended before us that taxing statutes imposing tax on subjects divisible in their nature which do not exclude in express terms subjects exempted by the Constitution, should not, for that reason, be declared wholly ultra vires and void, for, in such cases, it is always feasible to separate taxes levied on authorised subjects from those levied on exempted subjects, and to exclude the latter in the assessment of the tax. In such cases, it is claimed, the statute itself should be allowed to stand, the taxing authority being prevented by injunction from imposing the tax on subjects exempted by the Constitution...In the present case the tax is imposed, in ultimate analysis, on receipts from individual sales or purchases of goods effected during the accounting period and it is therefore possible to separate at the assessment the receipts derived from exempted sales or purchases and allow the State to enforce the statute with respect to the constitutionally taxable subjects, it being assumed that the State intends naturally to keep what it could lawfully tax, even where it purports to authorise the taxation of what is constitutionally exempt. The principle, as it is tersely put in the American case, is that severability in such cases includes reparability in enforcement.
I am of opinion that similar test should be applied when a Rule under an Act is chal "Consume", viz. eat, drink up; spend; waste, waste away, cannot be applicable in this case as the Petitioner''s purpose in purchasing the groundnuts is not to eat them up or waste or waste them away; nor do the Petitioner''s "consumption" of groundnut is for the purposes of destruction.
His Lordship Bose, J. has discussed the meaning of "Consumption" at Para. 49 p. 266 The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, (A)) as under:
What alter all, does "consumption" mean? In its economic sense, it is just the use which a purchaser chooses to make of the goods purchased for his own purposes. He does not have to destroy them nor does he have to diminish their value or utility. A man who purchases a valuable piece of sculpture or painting for preservation in a national museum does not destroy it nor does he use it himself except for the purposes of presenting it to the museum.
Thus in its economic sense, according to His Lordship (Bose, J.) "Consumption" means the use which the purchaser chooses to make of the goods purchased. While His Lordship Bhaga-wati J. has quoted Webster''s New International Dictionary (at P. 272--Para 78 of His judgment-- The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, (A); according to the said dictionary, "consumption" means the use of (economic) goods resulting in the diminution and destruction of their utilities; opposed, to production".
Thus according to the said dictionary consumption means the using of things and production means adapting them for use. On the basis of the above meaning, it may be argued, that the, Petitioner as an Oil Mill Owner does not consume the groundnuts purchased by him but that he produces oil out of them and it is a process of production and not that of consumption. In my opinion, whether the purpose for which the Petitioner purchased the groundnut be "consumption" or "production", it is immaterial, so far as the decision of the questions in this case are concerned. If the process of extracting oil is only a production, and the ultimate purpose is the sale of that oil, then the Petitioner can collect the sales tax at the time when he sells that oil. If he is a consumer, because he extracts oil, then he has to pay the tax as a dealer buying the groundnut and he, being himself the consumer, cannot collect the tax and cannot reimburse himself by collecting it from other person as the incidence of the sales tax must ultimately fall upon the consumer.
Now I come to the argument advanced by the State that sales by the growers or agriculturists are not intended to be taxed under the Act; and therefore tax cannot be collected from the agriculturists. In my opinion, the argument is not correct. Under the charging sections of the Act, (viz. Sections 3 and 4 of the Act) the "Turnover" of a denier is taxed. "Turnover" has been defined in Section 2(m): (His Lordship then quoted the section) the Petitioner in the present case, bought the groundnuts as a dealer, from the growers and some other people. There is nothing in this definition, to exclude the sales of groundnuts by the growers of the same to dealers who purchase them.
In the Madras General Sales Tax Act of 1939, the word "Turnover" has been defined in Section 2(i):
Section 2(i): ''Turnover''--means the aggregate amount for which goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration provided that the proceeds of the sale by a person of agricultural or horticultural produce grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, shall be excluded from his turnover.
Thus it will be clear that there is an addition. of the following in the above-said Madras Act:
Provided that the proceeds of the sale by a person of agricultural or horticultural produce grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise shall be excluded from his turnover.
It was argued that the deletion of the proviso in the definition of the "Turnover" in the Hyderabad Act was for some purpose and the purpose of the framers of the Hyderabad Act was that transactions of sales by agriculturists of their agricultural or horticultural produce were exempted and not to be taxed. I am afraid I cannot agree with that reasoning. Even ac-cording to the definition of "Turnover" under the Madras Act, what is provided is that the proceeds of the sale by a grower or producer of agricultural or horticultural produce, were to be excluded from Turnover, if the dealer--whose turnover has to be calculated--happens to be a grower of agricultural or horticultural produce.
Thus, even according to that definition, no exemption is granted on transactions of sales by growers of agricultural produce and that the argument that the first sales of agriculturists or growers are exempt is not at all warranted. The main idea seems to be that a person who grows agricultural products and has incidentally to sell the same, cannot be called a person engaged in "the business" of buying, selling or supplying goods, his "business" being mainly growing and producing agricultural commodities; and not buying or supplying goods. Such a person is not a dealer to that extent, as he does not deal "in the business of buying or selling or supplying agricultural produce". Thus even though some words have been deleted in the definition of the turnover in the Hyderabad Act, the meaning is the same. It is the "Turnover"---and in this case the "purchase turnover" of the dealers--that is taxed, Therefore the value of (groundnuts purchased from agriculturist growere cannot be excluded from his "purchase turnover" and his liability to pay the tax on this turnover remains''.
The agriculturist grower does not engage himself in the business of selling but we cannot say the same thing with respect to a dealer who engages himself in doing the business of buying from an agriculturist grower and when such "purchase turnover" is taxed, there is nothing in the Act to show that it is contrary to its provisions. The State has the option to collect the tax from the dealer either on his "sales turnover" or "purchase turnover". There is nothing unlawful in making the "purchase turnover" taxable. The same may have been done with a view to facilitate the collection longed as ultra vires. It would not therefore be necessary for me to hold the entire provisions of Sub-rule (2) of Rule 5 as ultra vires, for it is a valid rule under the Act, where a registered dealer is taxed on the purchase value of the groundnuts in his turnover when the sale is from persons who are not selling the produce of their lands. Therefore applying the test of the severability of enforcement in the present case, only the demand of tax from the Applicant on the purchase value of groundnuts in his turnover from agriculturists is legally unjustified and should be restrained.
Having come to the aforesaid conclusion, I need not decide the constitutional issue raised. I direct that a MANDAMUS should be issued to the opposite party directing them not to collect tax on such items of Applicant''s turnover which comprise of purchases of groundnuts from the agriculturists. The petition is, therefore, allowed as mentioned above.
Palnitkar, J.
I have had the advantage of perusing the two divergent judgments prepared by my learned colleagues Mohd. Ahmed Ansari and Srini-vasa Chari, JJ. After carefully considering the facts of the case, I agree with the conclusions arrived at by my learned brother Srinivasa Chari, J., that the petition should be dismissed.
I need only refer briefly to the facts of the case. Detailed facts are given in the two differing judgments and I need not repeat them at length.
The Petitioner is a member of the War-rangal Sabha Oil Mill-Owners Association, who, in course of his business, purchased various quantities of groundnuts from several persons, including producers or agriculturists, who had grown groundnuts. It is abundantly clear that the purpose of buying the groundnuts was to extract oil therefrom. The Petitioner alleged that he and the other members of the Oil Mill-Owners Association, being registered dealers under the Hyderabad General Sales Tax Act (which Act will henceforward be called the Act in this judgment), were and are being asked to pay the Sales-tax on their purchase turnover; that the said Association and its members, including the Petitioner wished to collect the said tax from the sellers or persons from whom they purchase and asked the Sales Tax Officer to render assistance for the collection of the tax; that the said Officer, instead of rendering assistance, informed the Petitioner and others, that they should not collect the tax from the agriculturists (from whom groundnut was purchased); that when approached, the Commissioner of Sales Tax also did not pay any heed to their request and took up the position that the sellers being agriculturists, were not liable to pay the tax and therefore the dealers were not entitled to collect the tax from them; it was alleged that the levy of the tax by the sales tax authorities was without jurisdiction and therefore a Writ of Certiorari to that effect be issued.
The main points upon which the Petitioner relied may be detailed as follows: (i) It was argued that if the sales by the agriculturists or producers of groundnuts were not to be taxed, then the transactions of sale should be exempt and the purchase value of such transactions cannot be included in the purchase turnover of the Applicant, (ii) If it be decided that there is nothing in the Act or the Rules (Rules under the Act, which will henceforward be termed as the Rules in this judgment) to exempt the first sales by agriculturists from the tax, and the sales transactions must be included in the purchase turnover of the Applicant, then the Applicant is entitled to collect the tax from his sellers. Also there will be no obligation on the Petitioner to pay tax before its collection (iii) It was also argued that the provisions of Rule 5(2) of the Act contravened the provisions of Article 14 of the Constitution.
It is now well settled that the sales tax is intended to be a tax on consumers, as opposed to and distinguished from an excise tax, which is a tax imposed upon the producers and that the sales tax is collected from and through the agency of the dealers, who have been given powers under the Act to reimburse themselves by collecting the tax from persons to whom they may sell the commodity taxed. In--AIR 1942 FC 33 (C), the Federal Court has made the point very clear and it has been held that the sales tax is levied on the transactions of sale and the occasion for the levy of the tax arises when there is a sale of goods. In-- AIR 1939 1 (Federal Court) (B), the nature of a tax on the sale of goods (sales tax) and a duty of excise has been fully discussed and therein it was observed: (Page 7(c))
It is common ground that the Court is entitled to look at the real substance of the Act imposing it, at what it does and not merely what it says, in order to ascertain the true nature of the tax. Since writers on political economy are agreed that the taxes on the sale of commodities are simply taxes on the commodities themselves, it is possible to record a tax on the retail sale of motor spirit and lubricants as a tax on those commodities.
Similar are the observations of the Supreme Court in-- The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, (A) at page 260 wherein His Lordship the Chief Justice of India has observed:
...Sales-tax, the incidence of which is really directed against the consumer, is, in substance, a tax on the goods imposed, no doubt, on the occasion of the sale as a taxable event.
Therefore, it is evident that the Sales Tax is a tax directed against the consumer.
Another important fact to be kept in mind is that the Petitioner and the other members of the Oil Mill Owners ''Association have purchased and are purchasing the groundnuts for the purpose of extracting oil out'' of them. They are, therefore, either consumers of the commodity they purchased or producers or manufacturers of oil. The terms "consumption" and "consumer" have become the subject of discussion in the Supreme Court case cited above viz.,--''State of Bombay v. The United Motors Ltd. (A), According to the Concise Oxford Dictionary, "Consume" means--make away with; use up; eat, drink up; spend; waste; waste away; and "Consumption" meaning using up; destruction; waste; amount consumed; and wasting disease. In my opinion, out of the many meanings given to "consume" and "Consumption" in the Dictionary as above, the meaning applicable, in view of the facts of the case, is that "Consume" in this particular context means "use up or utilise" and "Consumption" means "using up". Naturally the meaning of,
The next question to be considered is whether the Petitioner can collect the tax from his sellers to the limited extent, when his'' sales are from the agriculturist producers and the contention whether the Government cannot impose the tax before the same is collected by the dealer. It was argued that a dealer or casual trader, from whom the sales tax is collected, is merely an agent of the Government for collecting the tax and that he has got a right to reimburse himself and collect the tax from persons with whom he does his transactions.
The power of a dealer to collect an amount by way of tax is given u/s 11 of the Act which reads thus:
11(1) No person who is not registered as a dealer shall collect any amount by way of tax under this Act nor shall a registered dealer make, any such collection before the 1st day of May 1950, except in accordance with such conditions and restrictions, if any, as may be prescribed:
Provided that Government may exempt persons who are not registered dealers from the provisions of this sub-section until such date, not being later than the 1st day of June,1950, as Government may direct.
(2) Every person who has collected or collects any amount by way of tax under this Act, on or after the 1st day of May, 1950, shall pay over to the Government within such time and in such manner as may be prescribed, all amounts so collected by him ''if they are in excess of the tax, if any, paid by him for the period during which the collections were made''; and, in default of such payment, the amounts may be recovered as if they were arrears of land revenue.
This power is also discussed in Rule 10 of the Rules. There is nothing in Section 11, or Rule 10 to the effect that a dealer cannot be taxed, or has not to pay the tax to the State before the same is actually collected by him.
Section 13 of the Act states the time and manner in which the tax is to be collected. It lays down:
Section 13: (1) The tax Assessed under this Act shall, be paid in such manner, in such instalments, if any, and within such time, not being less than fifteen clays from the date of service of the notice of assessment, as may be specified in such a notice.
(2) In default of such payment, a penalty not exceeding the tax remaining unpaid may be imposed and the total amount due, including the penalty, if any, may be recovered as if it were an arrear of land revenue.
It is, therefore, clear that the payment of tax by a dealer or Assessed is not made dependent upon his prior reimbursement of the tax to be paid. The right of reimbursement or collection is given to him to be exercised as and when occasion arises. That occasion is not a condition precedent to the collection of the tax u/s 11.
The underlying idea of collection of tax by a dealer is that he should collect the same from the person to whom he sells the commodity He can recover the tax Assessed only at the time of selling the commodity. That will naturally be at the time of a subsequent sale. The idea that the tax can be collected by a dealer from his seller or from whom he purchases is basically and fundamentally contrary to the scheme of the Act. If the tax is to be collected by the producer of the commodity, it will no longer be a sales tax, but it will be an excise duty. Even in the case of ordinary commodities (goods), the dealer, who purchases the commodities for sale does not collect the sales tax from the persons from whom he purchases the goods, say for instance, cloth or stationery. It is at the time when the dealer sells and not purchases that he can collect the sales tax and reimburse himself. What the dealer had to pay out of his purse for his customer, the customer has again to pay into the dealer''s purse: that is reimbursement--vide the Concise Oxford) Dictionary (1951) P. 1026. It cannot be said that the dealer has paid some tax to Government out of his own pocket on behalf of the agriculturist sellers and that they should repay the same to him: In fact, the State charges the dealer and reimbursement is only an incidental convenience given under the Act to him (dealer) if he sells the commodity to some other person.
The next argument is whether Rule 5(2) is discriminatory and hit by Article 14 of the Constitution. This point has very ably been discussed by my learned brother Srinivasachari, J. There is no discrimination. The Government have the power to make reasonable classification with regard to the methods of collecting the tax and there is nothing objectionable, if certain commodities--as mentioned in Rule 5(2)--are to be taxed on the purchase turnover. That may be for the purposes of facility of collection. Thus there is no invidious distinction between one class of dealers and other class of dealers. All dealers who deal in those commodities are treated alike and have to pay tax on the "purchase turnover". In the result, this petition is rejected.
Srinivasachari, J.
This is an application on behalf of one Konduri Buchi Raja Lingam, a member of the Warangal Subha Oil Mill Owners'' Association, a body registered under the Hyderabad Companies Act. This association is said to carry on business inter alia of purchasing and selling goods (groundnuts). The members of this Association are ''registered dealers'' having got themselves registered as required by Section 10, Hyderabad Sales Tax Act, 14 of 1950. The Petitioner alleged that in the course of his business ho purchased, like other members, large quantities of groundnut from various persons who are agriculturists and producers of this commodity; that the Sales Tax Officer of Warangal orally informed the members of the Association that they were liable to pay sales tax as ''dealers'' on the purchase turnover of groundnut purchased by them under the provisions of Rule 5, Sub-rule 2, Sales Tax Act. As they did not collect the tax from the agriculturists the members of the Association sought clarification from the Sales Tax Officer on the question as to from whom, and how they could recover the tax which they were made to pay to the Government. They further requested the Market Superintendent of Warangal to help them in the matter of collecting the tax from the agriculturists in order to reimburse themselves.
These matters were referred to the Sales Tax Officer and Sales Tax Officer, after consultation, sent a communication on 6-8-1950 to the members of the Association that they were not entitled to collect the tax from the ryots. The same communication was confirmed by the Commissioner, Sales Tax, by his letter dated 2-9-1950, wherein he stated that a ''dealer'' had no right to collect sales tax from the agriculturists. The members of the Association, being aggrieved by the Order of the Commissioner, approached the Finance Minister and prayed that the order of the Commissioner be set aside. This application was turned down. The Petitioners were, therefore, called upon to pay the sales tax due on their ''purchase turnover'' in respect of the purchase of groundnut from agriculturists.
The Petitioner seeks to get the order of the Sales Tax Commissioner, Warangal, quashed. The Petitioner further prays for a declaration that the purchasers from agriculturists should be held to be not liable to pay Sales Tax under the provisions of the Sales Tax Act. The Petitioner also asks for the issue of Writs of ''Certiorari'' and Prohibition against the Government from proceeding further in the levy and collection of the tax on the purchases made by him from the agriculturists. Alternatively, the Petitioner prays that if this Court is of the opinion that purchases from agriculturists are also liable to tax under the Act, a Writ of ''Mandamus'' or any similar direction be issued to the authorities calling upon them to withdraw their orders prohibiting the Petitioner and others from collecting the tax from the sellers (agriculturists). On this application being filed notice was issued to the Respondents and the Commissioner of Sales Tax and they filed a counter submitting that a Writ of ''Certiorari'' would not lie inasmuch as the Petitioner had an equally adequate and efficacious remedy and that under the rules framed under the Sales Tax Act on certain goods referred to in Rule 5, Sub-rule 2, the Government was entitled to levy tax on the purchase value and ''groundnut'' was one of the commodities which has been included in the above sub-rule.
It was urged that a dealer who purchased groundnut from the agriculturist and sold to others could collect the tax from his purchaser and thus reimburse himself to the extent of the tax paid by him to the Government on his purchase turnover. The Government also stated that the sales by an agriculturist did not come within the purview of the Act as he was not a ''dealer'' as defined in the Sales Tax Act.
This application came on for hearing before a Division Bench of this Court and having regard to the interpretation of the provisions of the Sales Tax Act and their validity and having regard to the fact that the determination of the questions involved in this petition affected the ''dealers'' as a class and would have a far-reaching effect the Division Bench thought it advisable that the questions should be considered by a larger Bench and by its referring order dated 25-10-1951, referred the whole case to a larger Bench. We heard the arguments of the advocate for the Petitioner, the Advocate General and the Advocate for the department, in extenso.
It would be desirable to dispose of the preliminary objection raised on behalf of the Govt. Advocate first. The Govt. Advocate urged on the general principle that where there was an adequate and efficacious remedy, the High Court would not ordinarily interfere under Article 226 of the Constitution. The general principle which is now well established is good so far as it goes. It would appear that in this case the Petitioner and other members applied to the Government, being aggrieved by the order of the Commissioner of Sales Tax, and their application was turned down. They have exhausted all the remedies open to them. No doubt the Petitioner and the other members could have filed a regular suit and asked for a declaration that this tax was ''ultra vires''.
It is clear that Article 226 of the Constitution could not be construed so as to replace the ordinary remedies by way of suits, etc. Nevertheless, it has to be observed that the Sales Tax Act has been introduced for the first time in Hyderabad in 1950 and the doubt has arisen with regard to the liability to taxation of a particular transaction. This is a taxing statute and. different from other enactments. Being a taxing Statute it is but proper that any doubt with regard to the liability to tax is made clear by a decision of the highest Court in the State so that it may serve as a guidance to the taking authorities. Remedy by way of a suit would not serve the purpose, for it would entail enormous delay. The Supreme Court held in-- Rashid Ahmed Vs. The Municipal Board, Kairana, (E), that although there was a right of appeals it was in the circumstances not an adequate legal remedy. Under such circumstances remedy by way of ''Certiorari'' alone would ensure a pronouncement by the highest Court in the State. This preliminary objection, therefore, cannot be sustained.
The first and foremost contention urged on behalf of the Petitioner and others who have registered themselves as dealers is that their position is only that of intermediaries who are entrusted with the task of collecting the tax for the Government and pay it over and in their turn get themselves reimbursed from others; where, therefore, a dealer is denied or is prohibited from collecting from the other party the tax that he pays to the Government, fundamentally it would violate the principle underlying the levy of sales tax so far as the ''dealers'' are concerned; therefore, the prohibition by the Government to collect the tax from the agriculturists from whom the dealer purchased groundnut must be regarded as invalid in law.
The taxing sections in the Hyderabad Sales Tax Act are Sections 3 and 4, which read as under: (Then after quoting the sections His Lordship proceeded:) A tax is levied on all articles excepting the exempted articles on the purchase or sale turnover, and turnover has been defined in Section 2(m), Hyderabad Sales Tax Act as under: (His Lordship then quoted the section and proceeded;) While ordinarily tax is leviable on the sale turnover of the dealer on certain commodities the rules framed under the Act provide for the collection of the tax on the purchase turnover, vide Rule 5, Sub-rule 2. This, it is stated, has been made so, having regard to various considerations, such as, facility of collection, etc. It is clear that it is only a registered dealer who could collect the sales tax and pay it to the Government and he is given the right to reimburse himself from his purchaser.
The argument that is advanced before us in this regard is that where in a sale transaction by a dealer he collects the tax from his purchaser, in a purchase transaction likewise he should be allowed to collect the tax, that he has to pay the Government from the person from whom he purchases. If he is not allowed to do so, then he is not liable to pay. It was further urged that if the transactions of sale by agriculturists are regarded as being outside the scope of the Sales Tax Act, then the purchases made by a dealer from the agriculturists should logically and reasonably be not liable to tax. If the purpose of the Act is to exempt transaction by an agriculturist from the operation of the Sales Tax Act, then by a mere rule the Government could not impose a tax in respect of such transactions as on the purchase turnover, notwithstanding that initially at the point of sale it is not liable to taxation.
The second argument that was advanced by the learned advocate was that this method of not taxing the sale by the agriculturist while taxing it at the purchase point amounts to a discrimination which is not allowed by law. In the case of any other purchase transaction, the dealer is in a position to collect it from the seller, but in the case of a purchase transaction from the agriculturist he is not allowed to collect the same. This is clearly a palpable discrimination and violative of Article 14 of the Constitution.
Taxes are of two kinds, ''direct'' and ''in-direct''. A direct tax is one which is collected from the person who, it is intended, should pay while in an indirect tax, tax is demanded from one person in the expectation and with the intention that he shall indemnify himself at the expense of another. Eri Beach Co. Ltd. v. Attorney_ General of Ontario AIR 1930 PC 10 (F). This tax is an indirect tax and in the case of an indirect tax there is always the possibility of the person paying the same being indemnified. Sales Tax, Customs duty are such where the purchaser or merchant may be reimbursed. The main ground of attack in this case is that the dealer is not in a position to realise it from the former. It cannot be denied that this is a consumer tax. Being an indirect tax it must go forwards and not backwards. The dealer could always get it back from his purchaser. Although ordinarily by its nomenclature it may appear that the sales tax is a tax on a transaction of sale, the tax could be levied on purchase transactions as well.
Item No. 54 of List 2 of the Constitution would show that the. State is authorised to legislate as regards the levy of tax on sales as well as purchases. Could Rule 5, Sub-rule 2, Sales Tax Act be regarded as being beyond the scope and purpose of the Act? Where the Act empowers the levying of tax on a sale or a purchase, a rule providing that in respect of certain commodities the tax would be collected on the purchase transaction cannot be regarded as a rule beyond the scope and purpose of the Act. A rule made Under an Act, no doubt, cannot add to the liability. It can only carry out the policy of the Act. Rule 5, Sub-rule 2 has been made in pursuance of the Rule Making Power u/s 2 of the Act. Even construed strictly, could the transaction by an agriculturist be regarded as a transaction by a dealer to attract the provisions of Section 3 and Section 4 of the Sales Tax Act? Obviously, it cannot be regarded as a sale by a dealer, for an agriculturist cannot be regarded as a dealer within the definition of Section 2 of the Act as he does not sell or purchase goods for commission or remuneration in the course of trade or business. His business is not of buying and selling goods.
Nevertheless, it has to be recognised that although this transaction may not be a sale transaction of a dealer, it does not cease to be a, purchase transaction of a dealer because the ''dealer'' purchases the goods from an agriculturist. I cannot understand how it ceases to be a purchase transaction of a dealer. If it is a purchase transaction of a dealer, it would be covered by the definition of ''turnover'' in Section 2(m) of the Act. A tax on a dealer''s turnover is in effect a tax on his purchases or sales as the case may be. A transaction of sale comprises of sale by one and purchase by another. It is, therefore, a sale at one point and purchase at the other. Dalton says:
"A tax on sales or on turnover is only a tax on the commodities sold or turned over...it makes no essential difference whether the tax is legally imposed on buyers or sellers."--Dalton''s Principles of Public Finance, page 40.
Tax is levied ''on the transaction'' as observed in the Federal Court case of--''AIR 1942 FC 33 (C)''. The occasion for the levy of the sales tax is the sale of goods. I have elaborated on the point that the tax could be levied on the purchase turnover of the dealer as well.
It is needless to point out that the Government may decide as to at what point it would levy the tax, whether at the sale point or at the purchase point, having regard to the nature of the commodity taxable, keeping in mind the facility of collection and other considerations. The Act only prohibits the levying of tax on the buyer as well as on the seller in respect of the same transaction. Vide proviso to Section 5 of the Act which provides that (i) the buyer and the seller shall not both be taxed in respect of the same transaction of the sale; (ii) where a dealer or casual trader is taxed as the buyer of any goods he shall not be taxed in respect of a subsequent sale by him of the same goods. One person alone could be taxed and as to who should be taxed is a matter left to be determined by the Government. With regard to certain commodities Government has preferred to levy the tax at the purchase point, as provided for in Sub-rule 2 of Rule 5. This does not offend any provision of the Sales Tax Act, for the tax is being levied from a dealer alone.
The policy of the law appears to be to exempt a sale by a grower of produce from the payment of the tax. The agriculturist merely grows the crop and sells it. He cannot be regarded as one engaged in buying and selling in the course of trade or business, for, business contemplates continuous and a systematic business. The two ingredients necessary are (a) the systematic exercise of the occupation and (b) the object should be the sale of the commodity for income or profit. These ingredients are wanting in an agriculturist.
I have, therefore, been able to show that the provisions in Sub-rule 2 of Rule 5 for the levy of sales tax on the purchase turnover are not outside the scope of the Act and are valid.
The next argument which requires consideration is that it offends Article 14 of the Constitution, inasmuch as there has been a singling out of the transaction by the agriculturist; it must be said that there is palpable discrimination. It must now be regarded as well established by the decisions of the Supreme Court that (a) the equal protection clause under Article 14 of the Constitution does not necessarily mean that every law must have universal application.
If a law deals equally with the members of a well defined class it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.
State of Bombay v. Balsara AIR 1951 SC 318 (G) and (b) classification by a Legislature is permissible provided the classification is based on a reasonable and understandable basis and the classification rests upon some distinction bearing a just relationship to the object to be attained.
It would be apt to refer here to what was observed in the case of--Middleton v. Taxas Power and Light Co. (1913) 249 U.S. 152 (H):
The Legislature understands and correctly appreciates the need of its people and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
Each State determines the right and the property to be taxed, according as it considers it necessary in the interests of the State or the people. According to well accepted canons of taxation, taxation should be economical, as far as possible a saving should be effected in the cost of collection. The expenses of collection ought not to outweigh the total amount realised from taxation. Taxation should be productive. It has also to be borne in mind that the method adopted by the Government should ensure stable and certain realisation of the taxes. The Government should be in a position to conveniently collect its taxes.
For the purpose of a convenient collection of the tax, the Government could select the objects to be taxed and also decide about the proper mode of taxation. Section 7 of the Act gives power to the Government to reduce, modify or exempt a tax in respect of a specified class of goods and also the whole or any part of the turnover of any specified class of persons. The production of groundnut is exempted. Agriculturist is exempt because he does not engage in the business of buying, selling or supplying goods. Classification is permitted for the purpose of fixing the amount or incidence of the tax provided all persons who are subjected to such legislation within the classification are treated with equality and the classification is based on a gromid of difference having a substantial relation to the object of the Legislature,--Lucy Wardstebbins v. Ray L. Riley (1924) 268 U.S. 844 (sic).
It cannot be said that there has been a deliberate discrimination or singling out, for all those persons who deal in groundnut and beedi are treated alike and all groundnut transactions are dealt with alike, and they are taxed on the purchase transaction alone. It cannot be put better than in the words of Justice Bradley in the case of--''The Bell''s Gap Railroad Co. v. The Commonwealth of Pennsylvania (1890) 134 U.S. 232 (I).
The provisions in the 14th amendment that no State shall deny to any person the equal protection of the laws does not prevent a State from adjusting the system of taxation in all proper and reasonable ways nor compel the State to adopt an iron rule of equal taxation.
The dealer in such cases is expected to reimburse himself from his purchaser and therefore no question of discrimination can be said to arise.
The incidence of a tax is its final resting place. Thus if a tax is levied on a food manufacturer who passes it along to the consumer in the form of a higher price, it is said that the incidence is on the consumer. It was contended that classification, if any, must be by the Legislature & not by the Executive. This argument is well answered by the judgment of the ''Supreme Court in the President''s Reference under Article 143(J). The Legislature does not surrender its powers. The Executive is merely called upon to carry out its policy. As stated by Crawford in his book ''Statutory. Constitution'' at page 26:
more and more with a social'' system steadily becoming increasingly complex the Legislature has been obliged in order to legislate effectively and efficiently to delegate some of its functions, not purely legislative in character, to other agencies, particularly to administrative officials and boards...The power thus delegated is the power to promulgate, rules and regulations.
The test laid down by the Supreme Court is that the delegation should not amount to abdication and self-effacement. In re Article 143 of the Constitution of India and Delhi Laws Act 1912 etc. AIR 1951 SC 332 (J).
There is no inequity either because in a purchase turnover only the purchaser is taxed and in a sale transaction only the seller is taxed. It may also be stated here that in what cases purchase transaction could be taxed is a matter left to the Executive to decide whether it is necessary to do so having regard to the produce and other considerations. I am not unaware of the fact that fiscal statutes should be construed in favour of the subject, but revenue Law and taxing Statutes are to be construed liberally, because they are not penal Statutes,--Interpretation of Taxing Statutes, p. 509 by Crawford. The safe rule of construction of a Revenue Law or a Taxing Statute has been stated by Cooley as follows:
Revenue laws are not to be construed from the standpoint of the tax payer alone nor of the Government alone...There is no legal presumption that the citizen will, it possible, evade his duties or on the other hand that the Government will exact unjustly or beyond its needs.--Cooley Taxation, page 272.
I, therefore, hold that no case has been made out for the issue of a Writ in this case. The petition is dismissed with costs Advocate''s fee Rs. 200/-.