Patna High Court
Mohd. Ataur Rahman vs State Of Bihar And Ors. on 19 December, 1988
Equivalent citations: 1989(37)BLJR389
JUDGMENT D.K. Sen, C.J.
1. The material facts and proceedings leading up to this civil writ petition are, inter alia, that Md. Ataur Rahman, the petitioner, a citizen of India, has been carrying on business in wood of different types, bamboo and charcoal. It is alleged that the petitioner also converts wood into charcoal in his depot and stores wood, bamboo and charcoal. In his depot situated in village Lutidih, P.S. Simaria, district Hazaribagh, in the east of Chatra Bagra Road. The petitioner deals in wood, bamboo and charcoal with the permission of the Forest Department and submits monthly returns in respect of the same regularly to the Range Officer concerned. Copies of his returns from June, 1985 to February, 1986, have been annexed to the writ petition. It is alleged that the same have been checked and certified by the Range Officer to be correct.
2. In the presence of Mahesh Chaudhary, the then Range Officer, Simaria, Hazaribagh, the respondent No. 3, the depot of the petitioner was raided on the 16th March, 1986, and the entire quantity of wood, bamboo and charcoal stored there were seized and made over to the respondent No. 3. A seizure list was prepared and F.I.R. was lodged at Simaria P.S., Hazaribagh, by the respondent No. 3 in respect of he wood and bamboo seized alleging that the petitioner had violated Sections 379, 411, 413 and 414 of the Indian Penal Code, as also Sections 33 to 42 of the Indian Forest Act.
3. A separate seizure list was prepared in respect of the charcoal seized from the depot of the petitioner and a report dated the 16th March, 1986, was submitted by the Sub-divisional Officer, Chatra, the respondent No. 4 to the Deputy Commissioner, Hazaribagh, for initiation of proceedings under the Essential Commodities Act, 1955, inter alia, for confiscation of the charcoal seized.
4. Thereafter a notice dated the 5th April, 1986, was issued by the Deputy Commissioner, Hazaribagh, to the petitioner calling upon him to show cause by the 17th April, 1986 why the said seized charcoal should not be confiscated under Section 6A of the said Act of 1955. It was alleged in the notice that the petitioner had been carrying on illegal trade in charcoal for a long time, that he had obtained his stock of charcoal in an illegal manner and that there were no records in respect of the charcoal stocked in the shape of stock register, sale register, each memo or display board at his depot.
5. Being aggrieved by the aforesaid, the petitioner moved this Court in Criminal writ' Jurisdiction Case No. 59 of 1986(R), which was disposed of by an order dated the 22nd April, 1986, by a Division Bench, by the said order the petitioner was directed to file in writing showing cause against the impugned notice dated the 5th April, 1986, with an observation that the same should be disposed of preferably within six weeks from the date of filing thereof in accordance with law and that during the pendency of the proceeding the charcoal seized should not be sold.
6. Thereafter the District Magistrate, Hazaribagh, the respondent No. 5, in exercise of powers conferred under Clause 2(a) of the Bihar Essential Articles (Display of Prices and Stocks) Order, 1977, (hereinafter referred to as 'the Display Order of 1977') issued a notification dated the 18th March 1986 declaring charcoal to be an essential commodity and included the same in Part II of the Schedule of the said Order. The notification was, however, published in Gazette dated the 16th March, 1986.
7. Subsequently, on the 7th June, 1986, another notification was published in an extraordinary issue of the Hazaribagh District Gazette cancelling the earlier notification dated the 18th March, 1986, published on the 16th March, 1986. In the same issue of the Gazette the same notification dated the 18th March, 1986, declaring charcoal to be an essential commodity and including the same under item No. 36 in Part II of the Schedule of the said Display Order of 1977 was again published.
8 Pursuant to the order of this Court dated the 22nd April, 1986, proceedings were had before the Deputy Commissioner, Hazaribagh, where the petitioner appeared through lawyer and oral submissions were made. Written arguments were also filed on the 19th June, 1986. The proceeding, however has remained pending and un disposed of
9. The petitioner being aggrieved by the aforesaid filed the present writ petition on the 9th September, 1986, for issue of the appropriate writs for quashing the show cause notice of the Deputy Commissioner dated the 5th April, 1986, directing the respondents to return the charcoal seized from the depot of the petitioner and further directing the Divisional Forest Officer, Chatra, South Division, to issue appropriate transit permit in respect of such charcoal after release.
10. It is contended in the petition, inter alia that charcoal is a commodity controlled under the Indian Forest Act and not under the Essential Commodities Act, 1955, or under the Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter to be referred to as 'the Unification Order of 1984').
11. The stock of charcoal was in the possession of the petitioner and had been stored in a lawful manner with the knowledge of the forest authorities. The Deputy Commissioner, it is alleged, knew that charcoal was not an essential commodity within the meaning of the said Act of 1955 and the said seizure of charcoal of the petitioner was illegal. In order to validate his wrongful acts the said Gazette notification dated the 18th March, 1986, was published and charcoal was sought to be added as one of the items in the Schedule to the said Display Order of 1977. Publication of the said notification dated the 18th March, 1986, in the extraordinary issue of the Haziribagh District Gazette dated the 16th March 1986, indicated that power was exercised illegally and mala fide only to justify the wrongful and illegal seizure of the charcoal on the 16th March, 1986.
12. The subsequent cancellation of the publication of the said notification on the 16th March, 1986, and the republication thereof in the subsequent issue of the extraordinary Gazette dated the 7th June, 1986, conclusively established that the said seizure of charcoal on the 16th March, 1986, was without any authority of law and that the proceedings initiated under Section 6A of the said Act of 1955 against the petitioner were without any basis.
13. It is contended further that inclusion of the item 'charcoal' in the said Display Order of 1977 was without jurisdiction in the absence of any prescription of the Central Government Neither the State of Bihar nor the District Magistrate, Hazaribagh, had any authority to include charcoal in the said Display Order. In any event the District Magistrate, Hazaribagh, had no authority to declare any article to be an essential commodity. The petitioner was not required to take out a licence under the Essential Commodities Act for storing or selling charcoal at any or any material tune.
14. Radheshyam Narayan. the Deputy Collector Incharge, Legal Section. Hazaribagh Collectorate, has affirmed a counter affidavit on the Ist December, 1936, which has been filed in answer to the writ petition. It is alleged in this counter affidavit, inter alia, that the confiscation proceedings were initiated by the Deputy Commissioner, Hazaribagh, against the petitioner under Section 6A of the Essential Commodities Act, 1955, being Case No. 47 of 1986, and a notice was issued on the 5tn April, 1986, calling upon the petitioner to show cause as to why the charcoal seized from him should not be confiscated. The petitioner challenged the said proceeding and the said show cause notice in his earlier writ petition, being Cr.W.J.C. No. 59 of 1986(R) which was disposed of by this Court by its order passed on the 22nd April, 1986, noted hereinbefore. The petitioner has sought to challenge the said proceeding, including the said notice again in the present writ petition.
15. It is contended that coal is undisputedly an essential commodity within the meaning of the Essential Commodities Act, 1955, as also the Display Order of 1977 and the expression 'coal' includes 'charcoal'. As such the Deputy Commissioner was competent and had jurisdiction to issue the said show cause notice and initiate proceedings against the petitioner under Section 6A of the Essential Commodities Act, 1955, for violation of the provisions of the said Display Order of 1977, promulgated under Section 3 of the said Act of 1955, as coal was included in Schedule 1 thereto.
16. It is alleged that the notification No. 369 dated the 18th March 1986, was handed over to a private press in Hazaribagh on the 20th March, 1986, for being published in extraordinary issue of the District Gazette by the Deputy Collector. In charge of the Hazaribagh Collectorate. The said private press wrongly published the said notification in a Gazette dated the 16th March, 1986, which was in fact printed after the 20th March, 1986. When such mistake was detected, the earlier publication was cancelled and the said notification dated 18th March, 1986, was republished in the extraordinary issue of the District Gazette dated the 7th June, 1986, The respondent concerned did not act malafide nor had antedated the publication of the said notification.
17. It is contended that charcoal being included in coal, an essential commodity under the said Act of 1955, and the said Display order of 1977, there was no necessity in law to again include charcoal in Schedule 1 of the Display Order but the same was done by the respondent No. 5 by way of abundant caution and also to bring the fact to the notice of the public. The respondent No. 5 acted bona fide and with the object of implementing the said Act as also the Display Order of 1977.
18. It is contended that both coal and charcoal are understood to be the same commodity in common parlance and in interpreting the Essential Commodities Act and the Orders promulgated there under, scientific or technical meaning of terms and expressions should not be adopted but the popular or commercial meaning thereof, as understood by traders and consumers should be accepted.
19. It is contended further that under Clause 3 of the Unification Order of 1984 a dealer is prohibited from carrying on business of purchase, sale or storage for sale of the articles mentioned in Schedule 1 thereto, except under and in accordance with the terms and conditions of a licence issued in respect thereof by the licensing authority. Coal is included in part 'E' of Schedule I to the said Unification Order of 1984, and the petitioner in carrying on business in charcoal without a licence contravened the provisions of the said Unification Order as also the provisions of the said Display Order of 1977. The notice under Section 6A of the Essential Commodities Act issued to the petitioner was, therefore, valid, legal and bona fide. In any event, the petitioner could not carry on any business in violation of the said Unification Order of 1984 or the said Display Order of 1977 on the strength of a licence of the Forest Department.
20. It is contended that charcoal is a commodity essential for the community and public at large and the petitioner had in stock a quantity of charcoal in excess of what had been shown in his returns.
21. It is alleged that after seizure of charcoal the Senior Marketing Officer handed over the same to Mahesh Choudhary, Range Officer of the Forest Department, who was conducting an enquiry separately in respect of other forest products.
22. It is alleged that the Deputy Commissioner, Hazaribagh, could not dispose of the representation of the petitioners in terms of the orders of this Court due to unavoidable reasons, his preoccupation with other important and urgent administrative matters and because of complications raised on the petitioner.
23. It is alleged, in any event, if the delay in the disposal of the representation of the petitioner by the Deputy Commissioner amounts to a rejection of the same, the petitioner has an alternative remedy of an appeal against the same.
24. The writ petition was admitted on the 10th September, 1986 and was directed to be heard along with C.W.J.C. No. 1300 of 1986(R). By the same order it was further directed that the charcoal seized should be released to the petitioner on furnishing security subject to the satisfaction of the Deputy Commissioner, Hazaribagh.
25. The writ petition came up for hearing before a Division Bench of this Court on the 30th June, 1987, which noted that one of the questions to be decided in the proceeding was whether charcoal was included within the definition of coal under the Essential Commodities Act, 1955, the said Unification Order of 1984 and the said Display Order of 1977. The Division Bench noted a decision of the Supreme Court in Commissioner of Sales Tax, Madhya Pradesh, Indore v. Jaswant Singh Charan Singh , where the Supreme Court interpreted the expression 'Coal' as appearing in the Madhya Pradesh Sales Tax Act to include 'charcoal'. It was also noted that subsequent to the decision of the Supreme Court the definition of 'coal' in the Central Sales Sax Act and other sales tax statutes were amended and charcoal was excluded from the definition of coal. In view of the aforesaid the Division Bench referred this case to a larger Bench.
26. At the hearing learned Advocate for the petitioner drew our attention to the relevant provisions of the statutes involved which are noted hereinafter.
Indian Forest Act, 1927 Section 2.
Interpretation clause.--In this Act, unless there is anything repugnant in the subject or context, (4) 'forest produce' includes--
(a) The following whether found in, or brought from, a forest or not, that is to say--
timber, charcoal....
Section 41.
'Power to make rides to regulate transit of forest produce,--(1)...the control of all timber and other forest-produce in transit by land or water, is vested in the State Government, and it may make rules to regulate the transit of all timber and other forest-produce (2) In particular and without prejudice to the generality of the foregoing powers such rules may--
(e) provide for the establishment and regulation of depots to such timber or other produce shall be taken by those in charge of it for examination or for the payment of such money, or in order that such marks may be affixed to it; and the conditions under which such timber or other produce shall be brought to, stored at and removed from such depost;
Essential Commodities Act, 1955.
Freamble.
An Act to provide, in the interest of general public, for the control of the production, supply and distribution of, and trade and commerce in certain commodities.
Section 2 Definition--In this Act, unless the context otherwise requires--
(a)(ii) coal, including coke and other derivatives;
(xi) any other class of commodity which the Central Government may, by notified order declare to be an essential commodity for the purpose of this Act, being a commodity with respect to which Parliament has power to make law by virtue of Entry 33 in List II of the Seventh Schedule of the Constitution;
Power to control production, supply, distribution, etc. of essential commodities--(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by Sub-section (1), an order made there under may provide--
(d) for regulating by licences permit or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity.
Delegation of Powers--The Central Government may, by notified order, direct that the power to make orders or issue notification under Section 3 shall, in relation to such matters, and subject to such conditions, if any, as may be specified in the direction, be exercisable also by--
(a) such officer or authority subordinate to the Central Government, or
(b) such State Government or such officer or authority subordinate to State Government; as may be specified in the direction.
Bihar Trade Articles (Licences Unification) Order, 1984 Clause 2.
Definition.--In this order unless the context otherwise requires
(b) 'Coal' means coal, coke and other derivatives and include soft coke, hard coke of various grades;
(e) 'dealer' means a person, a firm engaged in the business of purchase, sale or storage for sale of any trade article whether or not in conjunction with any other business and includes his representative or agent.
(ya) 'Coal Dump Holder' means a person or a firm appointed by or on behalf of the Government as such, who is engaged in the business of storing coal from Collieries on the basis of the allocation made by Government or by any authority empowered by the Central Government for sale to retail dealers.
(yb) 'Coal Agent' means a person or a firm appointed by the Government, as such who is engaged in business of storing and sale of coal through rail wagons/rakes on the basis of the allocations made by the Government ;
Clause 3.
Licensing of Dealers.--(1) No dealer shall after the commencement of this order, carry on business of purchase, sale or storage for sale of any of the trade articles mentioned in Schedule 1 except under and in accordance with, the terms and conditions of licence issued in this behalf by the Licensing Authority under the provisions of this Order:
Provided that no licence shall be required for a dealer who stores for sale at any one time the trade articles, in quantities not exceeding the limits as may be prescribed by the State Government with prior concurrence of the Central Government for any trade article from time to time.
(2) For the purpose of this clause, any person, firm, association of persons or a co-operative society who stores any trade article at any one time in quantities exceeding the limits prescribed in Sub-clause (1) shall, unless the contrary is proved by him, be deemed to be carrying on business as a dealer and to store the same for the purpose of sale.
Clause 15.
Restrictions relating to prices and stocks etc.--The retail price of any trade article displayed in compliance of the provisions of the Bihar Essential Articles (Display of Prices and Stocks) Order, 1977, shall not exceed the retail price, fixed or recommended by the Central Government or State Government or manufacturer or distributor from time to time for that trade article.
Clause 18.
Restriction on possession of trade articles.--No person shall, either by himself or by any person on his behalf, store or have in his possession at any time any trade article mentioned in Schedule I and Schedule II in quantity exceeding the limits fixed--
(i) under an order issued by the Central Government, or
(ii) by the State Government with prior concurrence of the Central Government by issusing a notification in official Gazette from time to time.
Schedule 1 Part 'E' (Other Articles)
3. Coal Bihar Essential Articles (Display of Prices and Stocks) Order, 1977.
Clause 2.
Definition--(a) 'Article' means any essential commodity mentioned in Schedules I and II appended to this Older and includes any other article to be declared so from time to time by the State Government or the Commissioner or the District Magistrate empowered by the State Government in this behalf.
(c) 'Dealer' means a person who deals in the sale or storage for sale either wholesale or retail of any of the articles mentioned in Schedules I and II and includes his agent or representative or Arhatia.
Clause 3.
Every dealer shall before commencement of his business on any day display at a conspicuous place near the entrance of his business premises the following:
(a) a list of prices and stocks of all those articles mentioned in Schedule I in which he deals.
Clause 6.
Any Commissioner, District Magistrate, Sub-divisional Magistrate or any Executive Magistrate....Marketing Officer, Assistant Marketing Officer...or any other officer not below the rank of Executive Magistrate authorised by the State Government in this behalf may with a view to secure compliance with this Order or satisfying himself that this Order has been complied with....
(b) inspect or cause to be inspected any book or document or any stock of articles belonging to or under the control of any person and take such book or document or stock in his possession.
(c) enter and search any premises or place and seize any article in respect of which such officer suspects that any provision of this Order has been or is about to be contravened.
Schedule 1 appended to the Bihar Essential Articles (Display of Prices and Stocks) Order, 1977.
17. Coal including soft coke.
Colliery Control Order, 1945 Clause 2.
In this Order, unless there is anything repugnant in the subject or context--
(1) 'Coal' includes anthracite, bituminous coal, lignite peat and any other form of carbonaceous matter sold or marketed as coal and also coke.
S.O. 363(E) dated the 26th May, 1982 In pursuance of Clauses 3 and 4 of the Colliery Control Order, 1945, as contained in force by Section 16 of the Essential Commodities Act, 1955 (10 of 1955) and in supersession of the notification of the Government of India in the Ministry of Energy (Department of Coal No. S.O. 96(E) dated the 13th February, 1981, the Central Government with effect on and from the 27th May, 1982, hereby prescribe in Table 1 below the classes and grades into which coal and coke shall be classified and fixes in Tables II, III, IV, V and VI below the pithead sale prices at which coal or coke may be sold by colliery owners.
I also note the provisions of the Bihar Coal Control Order, 1956.
Clause 2.
Definition.--In this Order, unless there is anything repugnant in the subject or context--
(b) 'Controller' means the Officer appointed by the State Government to be the Coal Controller, Bihar, and includes any officer appointed in this behalf by the State Government to perform all or any of the functions of the Controller under this Order.
Clause 3.
Prohibition of dealing in coal except under licence.--No person shall, after the date of the publication of this Order in the Bihar Gazette, carry on any business or do any transaction which involves the purchase, sale or storage for sale of coal except under and in accordance with the terms and conditions of a licence granted in accordance with this Order by the licensing authority.
Clauce 6.
Cancellation of licence--The licensing authority may, on one or more of the following grounds, cancel, revoke, suspend or refuse the renewal of any licence granted by him under this Order, namely
(c) If the licensee fails to lift allotment of coal made by the Controller.
Clause 9.
Regulation of distribution--The licensing authority may, by order, regulate the distribution, sale, use and consumption of coal within his jurisdiction, subject to any general or special order issued from time to time by the State Government.
Clause 10.
Price control and fixation of price.--No dealer shall sell or offer for sale or otherwise dispose of coal for a consideration which exceeds the amount represented by the addition allowed to the pit-head prices fixed from time to time by the Central Government such prices being increased by any charge incurred on account of transport, usual profit margin and such other incidental expenses as may from time to time be approved by the licensing authority. These charges shall be fixed by the licensing authority within his jurisdiction.
Clause 11.
Prohibition of transport of coal except under permit--No person shall carry or remove or cause to be carried, removed or offer for carriage or removal by rail, river, road or otherwise any quantity of coal or coke from any place within a district to any other place outside the district except under and in accordance with the terms and conditions of a permit granted by the Controller, Bihar or by the Central Government or by officer authorised in this behalf by the Central Government.
Clause 12.
Prohibition of import of coal into Bihar except under permit.--No person shall import or cause to be imported or offer for import by rail, road, river of otherwise any quantity of coal or coke into any district of this State from any other place outside the State, except under and in accordance with terms and conditions of a permit granted by the controller, Bihar, or by the Central Government or any officer authorised in this behalf by the Central Government.
Clause 13.
Withholding from sale.--No dealer shall, unless previously authorised by the licensing authority, withhold from sale or refuse to sell either generally or to specified person or classes of persons, coal ordinarily kept for sale.
It is to be noted that under the Bihar Trade Articles (Licences Unification) Order, 1984, the said Bihar Coal Control Order, 1956, has been repealed in its entirety, except the provisions noted hereinabove.
27. At the hearing the learned Advocate for the writ petitioner reiterated the contentions in the writ petition and submitted further that the expression 'coal', as occurring in the Essential Commodities Act, 1955, should be given its ordinary meaning, that is, the meaning as understood in common parlance. In its ordinary meaning 'coal' should be understood to mean the mineral product from the surface of the ground by operation or won from underground by mining operation of open cast mining'. In its ordinary meaning 'coal' did not and could not mean 'charcoal', which was a product covered under the Indian Forest Act and not a mining product. Charcoal was produced by partial burning of wood by human agency.
28. Learned Advocate submitted further that though the Essential Commodities Act, had been enacted in 1955, uptill now no Control Order has been promulgated there under for controlling the production, distribution, sale or supply of charcoal in any part of India. The only relevant Control Order promulgated by the Central Government was the Colliery Control Order, 1945, the object of which was to control mineral coal, and the prices of coal or coke of different grades on the basis of pithead prices in the collieries. No control was imposed by the said Control Order on charcoal.
29. It was also contended that the definition of coal under the Bihar Coal Control Order, 1956, 'coal' and the other provisions therein clearly indicated that coal under the said Control Order would mean 'mineral coal' and not 'charcoal'.
30. Similarly, in the said Unification Order of 1984, the definitions of 'coal', 'Coal Dump Holder' and 'Coal Agent' indicated that coal, sought to be brought under the purview of the said Order, was mineral coal obtained from collieries on the basis of Government allocation and not charcoal,
31. Learned Advocate for the writ petitioner contended further that the authorities were fully aware that charcoal was not an essential commodity within the meaning of the Essential Commodities Act, 1955, and the relevant Control Orders promulgated there under and, therefore, the authorities sought to validate their un authorised acts by including 'charcoal' as an item under the said Display Order of 1977, by its notification dated the 18th March, 1985. It was contended that the State of Bihar had no power to expand the ambit of the Essential Commodities Act by declaring on its own a new item to be an essential commodity which only the Central Government could do under Section 2(a)(i) of the Essential Commodities Act, 1955 and that only if the new item was covered under Entry 33 of List IT of the Seventh Schedule to the Constitution.
32. Learned Advocate also contended that the Essential Commodities Act, 1955, and the Control Orders promulgated there under were penal statutes the violation of which could result in seizure and confiscation of the commodity as also criminal prosecution of the person contravening the provisions thereof Therefore, if there was any ambiguity in the meaning of any expression in the said statute and the said Control Orders, the same should be construed liberally and in favour of the person accused.
33. In support of his contentions learned Advocate for the writ petitioner relied on and cited the following decisions.
(a) Seksaria Cotton Mills Ltd. and Ors. v. The State of Bombay .
In this case the Supreme Court in construing Essential Supplies (Temporary Powers) Act, 1946, observed as follows:
...Here is an order which is to affect the business of hundreds of persons, many of whom are small petty merchants and traders, the sort of men who would not have lawyers constantly at their elbow, and even if they did; the more learned their advisers were in the law the more puzzled they would be as to what advice to give, or it is not till one is learned in the law that subtleties of thought and bewilderment arise at the meaning of plain English words which any ordinary man of average intelligence, not versed in the law, would have no difficulty in understanding. In a penal statute of this kind, it is our duty, to interpret words of ambiguous meaning in a broad and liberal sense so that they will not become traps for honest, unlearned (in a law) and unwary men. If there is honest and substantial compliance with an array of puzzling directions, that should he enough even if on some hypercritical view of the law other ingenious meanings can be devised....
(b) Alamgir and Anr. v. State of Bihar . This decision was cited for the following observations:
...It is no doubt true that if the words used in a criminal statute are reasonably capable of two constructions, the construction which is favourable to the accused should be preferred; but in construing the relevant words, it is obviously necessary to have due regard to the context in which they have been used....
(c) Kundori Labour Co-operative Society Ltd. and etc. v. State of Bihar and Ors. . In this case the question mooted before a Full Bench of this Court was whether the industrial affluent commonly known as 'slurry' flowing away from a colliery washery was 'coal' within the meaning of the Mines and Minerals (Regulation and Development) Act, 1957, and if not whether the same was otherwise a mineral coming within the mischief of the said Act.
It was held by the Full Bench that applying the test either of common or commercial parlance slurry, which was sludge, flowing from a coal washery was not coal. Slurry was a residue, reject or waste of an industrial process and consisted of mud, ash, oily substance, water and other carbonaceous ingredients. The true basic test for mineral was that it must come from a mine underground or from natural deposit on the surface.
The Full Bench noted the decision of the Supreme Court in the case of Commissioner of Sales Tax, M.P., Indore v. Jaswant Singh Charan Singh and held that it would not be safe in interpreting the provisions and expressions of one Act to apply the definitions occurring in other Acts including those dealing with cognate matters except those under the General Clauses Act.
34. The learned Advocate for the writ petitioner also drew our attention to the said decision of the Supreme Court in Commissioner of Sales Tax, I.P., Indore v. Jaswant Singh Charan Singh, (supra) where the question mooted before the Supreme Court was whether the 'charcoal' was covered under Entry 1 of Part 111 of Schedule II to the M P. General Sales Tax Act, 1958, and would be taxable at the prescribed rate under the said Act or whether the same would fall under the residuary Entry I of Part VI of Schedule II of the said Act. The Supreme Court noted the following entries in the Statute:
(a) Entry I Part III of Schedule II.
1. Coal, including coke in all its forms--2 percent.
(b) Entry I of Part VI of Schedule II.
1. All other goods not included in Schedule I or any other part of this Schedule--4 per cent.
(c) Entry 8 of Part HI of Schedule II.
8. Firewood--2 per cent.
35. The Supreme Court considered the meaning of the words 'coal' and 'charcoal' from Blackies Concise Dictionary, New Edition, the Shorter Oxford English Dictionary and Webster's New International Dictionary and came to the conclusion that according to dictionary meaning 'coal' would appear to include 'charcoal'. The Supreme Court noted that 'coal' as technically understood, was a mineral product while 'charcoal' was a product manufactured by human agency from materials, like wood and other things and observed that it was well settled that while interpreting the words and expressions in Sales Tax Act, resort should be had not to the scientific or technical meaning of the terms but to the popular meaning or the meaning attached to them by persons dealing in them, that is, in their commercial sense.
36. The Supreme Court also noted Section 14 of the Central Sales Tax Act, 1956, under which certain goods were declared of special importance in international trade and commerce. One of such items was 'coal', including 'coke' in all its forms. Under Section 15 of the Central Act it was provided that the Stare Legislature white promulgating the State Sales Tax laws would impose only 2 per cent tax on such goods. The State Legislature knew or must be presumed to have known that firewood was also used by the people as fuel but would not fall within the item 'coal' and as such specifically provided 2 per cent tax on it by a separate entry. The Supreme Court was of the view that having taxed both coal and firewood at the rate of 2 per cent it was not probable that the Legislature deliberately left out charcoal from the connotation of the word 'coal' and intended that it should be charged at 4 per cent under the residuary entry. The object of the Legislature was to tax coal and firewood, both fuels, and it did not provide for a separate entry in respect of charcoal as it must have been aware that in the ordinary and commercial sense coal would include 'charcoal'. The attention of the Supreme Court was drawn to Section 5 of the Colliery Control Order, 1945, and it was contended that in the State Control Order dealing with collieries the term 'coal' had been construed to be only a mineral product. The Supreme Court observed that it was also a well settled principle that in construing a word in a particular Act the meaning ascribed to that word in the other statute should be adopted with caution and that the strict sense in which that word is understood in one statute, namely, in its etymological or scientific sense may not be applicable in the context of another statute, passed for different purposes or in the context of different object. The Supreme Court concluded as follows:
The result emerging from these decisions is that while construing the word 'coal' in Entry I of Part III of Schedule IT, the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A Sales Tax statute in being one levying a tax on goods must in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as coal according to the meaning ascribed to it in common parlance. Viewed from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal' in the term 'coal'. It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense be spoken as coal.
37. Learned Advocate for the writ petitioner sought to distinguish the aforesaid decision of the Supreme Court on several grounds. He submitted that the interpretation of the expression 'coal' in the M.P. General Sales Tax Act, 1958, cannot be held to be binding for construing the meaning of the said expression in the Essential Commodities Act, 1935 and the orders promulgated there under. He submitted further that the Supreme Court had given an extended meaning to the expression 'coal' in the said Sales Tax Act taking into account that firewood, the basic raw material from which charcoal was produced, had also been sought to be taxed at the same rate as coal and it would be illogical to hold that though coal and firewood were both charged to tax at one rate, a product of firewood namely, charcoal, would be taxed at a different rate. He also submitted that subsequent to the said decision of the Supreme Court the definition of coal in the Central Sales Tax Act and other Sales Tax Statutes, were amended and charcoal was specifically excluded from the definition of coal. It was submitted that this indicated that it was not the intention of the Legislature to include 'charcoal' within the ambit of the expression 'coal'.
38. Learned Standing Counsel No. 1 appearing on behalf of the respondents submitted at the outset that he would not justify the impugned proceeding initiated against the writ petitioner on the strength of the notification dated the 18th March, 1986, which was initially printed by mistake in the extraordinary issue of the District Gazette, Hazaribagh, dated the 16th March, 1986, and was subsequently republished in the extraordinary issue of the same Gazette on the 7th June, 1986 He submitted that 'charcoal' was included in the item 'coal' as appearing the Essential Commodities Act and the various Control Orders in force in the State of Bihar, promulgated there under, and it was not necessary for the Government of Bihar to again include "charcoal" in Schedule I to the Display Order of 1977.
39. Learned Standing Counsel relied strongly on the said decision of the Supreme Court in M/s. Jaswant Singh Charon Singh (supra) and submitted that the controversy raised by the writ petitioner in the present proceeding stood concluded by the said decision. He submitted that the Supreme Court found that the meaning of the expression 'coal', as appearing in the dictionary, would include 'charcoal'. The Supreme Court had also observed that in using the expression 'coal' in the Sales Tax statute the Legislature would be understood to have accorded the expression the meaning ascribed to it in common as also commercial parlance and both a merchant dealing in coal and a consumer seeking to purchase the same would regard coal not in its geological sense but in the sense as was ordinarily understood and would include 'charcoal'.
40. Learned Standing Counsel No. 1 submitted further that the MP. General Sales Tax, 1958, and the Central Sales Tax were intended to levy tax on a commercial transaction of sale and, therefore, affected by the operation of traders. The Essential Commodities Act, 1955, was a statute the object of which was to control the production, supply and distribution and trade and commerce in certain commodities and the same also affected and was intended to affect trade and commercial transactions. There was no reason why an expression in the Essential Commodities Act, 1955, should be construed differently.
41. Learned Standing Counsel No. 1 in support of his contentions relied on and cited the following further decisions.
(a) Indian Carbon Limited v. Superintendent of Taxes, Gauhati and Ors. . In this case the appellant was carrying on business of sale and purchase of petroleum coke. Under the Assam Sales Tax Act, 1947, as amended by the Amending Act 14 of 1964, tax was levied on the sale of petroleum coke at the rate of 5 per cent on and from 1-9-1964. It was contended on behalf of the appellant that under Section 14 of the Central Sales Tax Act, 1956, coal, including coke, in all its forms constituted goods which were of special importance in international trade and commerce and under Section 15 of the said Central Act tax payable on sale or purchase of such goods inside and outside should not exceed 2 per cent. As such, the State Government was not entitled to levy tax at the rate of 5 per cent on sale of petroleum coke. This contention was negatived by the Assam High Court in an application under Article 226 of the Constitution. On an appeal it was held by the Supreme Court that in the Webster's New International Dictionary 'coke' was defined as the residue obtained from coal subjected to the destructive distillation. It also included similar substance left as a residue when petroleum, shale oil etc. were distilled to dryness. The Supreme Court held that in using the expression 'coke' in Section 14 of the Central Act, the Parliament had no intention to give the expression a meaning other than ordinary dictionary meaning which covered petroleum coke. The Supreme Court also noted that in Section 14 the expression used was 'coal' including 'coke in all its forms' and as such petroleum coke, which was a form of coke, could not be excluded from the said definition merely by reference to the word 'coal'.
(b) Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Ors. . In this case it was held by the Supreme Court that 'Supari' was an article of food within the meaning of the Prevention of Food Adulteration Act, 1954. The Supreme Court observed as follows:
...The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the common sense understanding of the word. The Act defines 'food' very widely as covering any article used as food and every component which enters into it, and even flavouring matter and condiments. It is commonplace knowledge that the word 'food' is a very general term and applies to all that is eaten by men for nourishment and taken in subsidiaries. Is supari eaten with relish by men for taste and nourishment ? It is, and so it is food....
(c) State of West Bengal and Ors. v. Washi Ahmed and Ors. . In this case the Supreme Court affirmed a decision of the Calcutta High Court and held that green ginger fell within the category of goods described as 'vegetable', green or dry, commonly known as 'sabji, tarkari or sak' in item (6) of Schedule 1 of the Bengal Finance (Sales Tax) Act, 1941. The Supreme Court observed as follows:
It will, therefore, be seen that the word 'Vegetable' in item (6) of Schedule I to the Act must be construed as understood in common parlance and it must be given its popular sense meaning 'that sense which people conversant with the subject matter with which the statute is dealing would attribute to it....'Now, obviously green ginger is a vegetable grown in a kitchen garden or in a farm and is used for the table. It may not be used as a principal item of the meal but it certainly forms part of the meal as a subsidiary item. It is an item which is ordinarily sold by a vegetable vendor and both the vegetable vendor who every day deals in vegetables and the housewife who daily goes to the market to purchase vegetables would unhesitatingly regard green ginger as vegetable...the Railway authorities also treated green ginger as vegetable for the purpose of railway tariff and charged for the carrage of green ginger at the reduced rate applicable to vegetables and even the Corporation of Calcutta included green ginger in the category of vegetables in the market bulletin published by it....There can, therefore, be little doubt that green ginger is generally regarded as included within the meaning of the word 'vegetable' as understood in common parlance....
(d) Sat Pal Gupta and Anr. v. State of Haryana and Ors. . In this case the Supreme Court held that 'rice bran' was foodstuff within the meaning of Section 2(a)(v) of the Essential Commodities Act, 1955, and the power conferred by Section 3 of the said Act would be exercised for the purpose of regulating sale and supply of rice bran. The Supreme Court noted the dictionary meaning of word 'food' and held that foodstuff meant food of any kind and the dictionary meaning of the word 'food' was not restricted to what is eaten by human beings for nourishment and sustenance. The Supreme Court observed as follows:
The word 'foodstuffs' which occurs in Clause (v) of Section 2(a) is not defined in the Act and therefore it must receive its ordinary and natural meaning, that is to say a meaning which takes account of and accords with the day-to-day affairs of life. Cattle and poultry are living components of the natural environment and there is no reason to exclude that which they eat or feed upon, from the meaning of the word 'foodstuffs'. If, what the human beings eat is food, so is what the other living beings eat. 'Cattle fodder is expressly brought within the compass of essential commodities by Sub-clause (i) of Section 2(a). It would be illogical if, in that context, rice bran is excluded from the purview of essential commodities on the ground that it is eaten by the poultry and not by Homo Sapiens....
(e) Filterco and Anr. v. Commissioner of Sales Tax M.P. and Anr. . In this case it was held by the Supreme Court that compressed woolen felts a non-woven material if the same was pliable and capable of being wrapped, folded and wound around would fall within the definition of 'cloth' under Entry 6 of Schedule 1 to the M.P. General Sales Tax Act, 1958. The Supreme Court observed as follows:
...The legal position is now well settled that words of every day use occurring in a taxing statute must be construed not in their scientific or technical sense but as understood in common parlance, that is, in their popular sense....
Going by the meaning given in Dictionaries as well as by its generally accepted popular connotation 'cloth' is woven knitted or felted material which is pliable and is capable of being wrapped, folded or wound around. It need not necessarily be material suitable only for industrial purpose; but nevertheless it must possess the basic feature of pliability....
42. The first point to be considered is whether we should construe the meaning of the expression 'coal' in the Essential Commodities Act, 1955 and the orders promulgated there under by importing the meaning of the same expression as construed in the context of another statute. In particular it is to be considered whether the meaning ascribed to the expression 'coal' by the Supreme Court in M/s. Jaswant Singh Charan Singh (supra) in the context of the M.P. General Sales Tax Act, 1958, and the Central Sales Tax Act, 1956, should be imported, adopted and applied in construing the meaning of the said expression 'coal' in the context of the statutes with which we are concerned. In the said case attention of the Supreme Court was drawn to Section 5 of the Colliery Control Order, 1945, and it was contended that in the said Control Order the expression 'coal' can be construed to be only a mineral product and not charcoal. The Supreme Court specifically laid down that the meaning ascribed to any expression in a statute can only be adopted with caution and if an expression was understood in a statute in strict sense, namely, in its etymological and scientific sense, the same may not be applicable in the context of another statute passed for different purposes and in the context of different objects.
43. The same view was expressed by the Supreme Court in the Tata Iron and Steel Co. Limited v. The Workmen where the Supreme Court observed that each statutory provision had to be construed on its own language though the general scheme of legislation on a given subject may, if necessary, be kept in view.
44. In D.N. Banerjee v. P.R. Mukherji it was observed by the Supreme Court that though the definition may be more or less the same in two different statutes, still the objects to be achieved not only as set out in the preamble but also as gatherable from the antecedent history of the legislation may be widely different. The same words may mean one thing in one context and another in a different context.
45. In view of the aforesaid it appears to me that the decision of the Supreme Court in M/s Jaswant Singh Charan Singh (supra; is not conclusive in construing the meaning of the expression 'coal' in the context of the Essential Commodities Act, 1955 and the Control Orders promulgated there under.
46. Next to be considered is whether the expression 'coal' should be given the meaning ascribed to it in the standard dictioneries. In Kanwar Singh v. The Delhi Administration , the Supreme Court had to consider and construe the meaning of the expression 'abandoned'. The Supreme Court noted that in the standard dictionaries like Oxford English Dictionary, Wharton's Law Lexicon and Jowett's Dictionary, of English Law several meanings of the word had been given to the expression in different statutes. The Supreme Court observed that the meaning to be attached to the expression would depend upon the context in which it is used. The Supreme Court observed as follows:
...It is the duty of the Court in construing a statute to give effect to the intention of the legislature. If, therefore, giving a literal meaning to a word used by the draftsman particularly in a penal statute would defeat the object of the legislature, which is to suppress a mischief the Court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will 'advance the remedy and suppress the mischief....
47. In Dy. Chief Controller of Imports and Exports, New Delhi v. K.T. Kosalram and Ors. the Supreme Court observed inter alia, as follows:
...In our opinion dictionary meanings, however, helpful in understanding the general sense of the words cannot control where the scheme of the statute or the instrument considered as a whole clearly conveys a somewhat different shade of meaning It is not always a safe way to construe a statute or a contract by dividing it by a process of etymological decision and after separating words from their context to give each word some particular definition given by lexicographers and then to reconstruct the instrument upon the basis of those definitions. What particular meaning should be attached to words and phrases in a given instrument is usually to be gathered from the context, the nature of the subject matter, the purpose or the intention of the author and the effect of giving to them one or the other permissible meaning on the object to be achieved....
48. In Commissioner of Income-tax, Andhra Pradesh v. Taj Mahal Hotel, Secunderabad , the Supreme Court was construing the meaning of the expression 'plant' as occurring in Section 10 of the Indian Income-Tax Act, 1922. In Sub-section (5) of Section 10 it was provided as follows:
...in Sub-section (2) 'plant' includes vehicles, books, scientific apparatus and surgical equipments purchased for the purpose of the business, profession or vocation.
In construing the said expression the Supreme Court observed as follows:
...Now it is well-settled that where the definition of a word had not been given, it must be construed in its popular sense if it is a word of every day use. Popular sense means 'that sense which people conversant with the subject-matter with which the statute is dealing, would attribute to it. In the present case, Section 10(5) enlarges the definition of the word 'plant' by including in it the words which have already been mentioned before. The very fact that even books have been included shows that the meaning intended to be given to 'plant' is wide. The word 'includes' is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute. When it is so used, those words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include....
49. In Commissioner of Sales Tax, U.P. v. S.N. Brothers, Kanpur , the question before the Supreme Court was whether 'food colours' and 'essence of syrup' should be included in a notification issued by the Government of U.P. under Section 3A of the U.P. Sales Tax Act, 1948, in items 'dyes and colours and compositions thereof and 'scents and perfumes'. On behalf of the Sales Tax authorities the meaning of the expression 'colour', dye and essence' was sought to be gathered from Random House Dictionary of the English Language. The Supreme Court observed as follows:
...In our opinion the Random House Dictionary -cannot serve as a safe guide in construing the words used in the list in the notification in question for the purpose of deciding whether or not to the words used in entries Nos. 10 and 37 cover food colours and syrup essences; indeed this dictionary is apt to be somewhat delusive guide in understanding the meanings of the words and expressions with which we are concerned in the context in which they are used. This dictionary gives all the different shades of meaning attributable to the words referred but that is hardly helpful in solving the problem raised in the present controversy. The words 'dyes and colours' used in entry No. 10 and the words 'scents and perfumes' used in entry No. 37 have to be construed in their awn context and in the sense as ordinarily understood and attributed to these words by people usually conversant with and dealing in such goods Similarly the words 'food colours' and 'syrup essences', which are descriptive of the class of goods the sales of which are to be taxed under the Act have to be construed in the sense in which they are popularly understood by those who deal in them and who purchase and use them....
50. In this case the Supreme Court noticed its earlier decision in M/s. Jaswant Singh Charan Singh, (supra) and noted that the entry in the M.P. General Sales Tax Act read 'coal' including coke in all its forms.
51. In view of the aforesaid it appears to me that the standard dictionary is not always a safe or infallible guide to find out the meaning of an expression used in a statute. A dictionary and in particular a standard dictionary usually takes note of all possible meanings of a particular word or expression. Etymological or scientific meaning, obsolete meaning, as also popular and generally accepted meanings are all noted. In New English Dictionary edited by James Murrey, 1893 Edition, as well as in Oxford English Dictionary, 1961 Reprint, one of the meanings ascribed to the word 'coal' is no doubt 'charcoal' but it is noted in both the dictionaries that the said meaning is obsolete. The words used in Section 2(a)(ii) of the Essential Commodities Act, 1955, are 'coal including coke and other derivatives'. Coke is undoubtedly a derivative of coal but of mineral coal and not of firewood or charcoal. Applying the principle of ejusdem generis the words 'other derivatives' in the said item, in my view, ought to be understood to mean 'derivatives of mineral coal'. It cannot be disputed that charcoal is not a derivative of mineral coal but a derivative of firewood. The words used in the M.P. General Sales Tax Act, 1958 are coal including coke in all its forms and the expression used in Section 14 of the Central Sales Tax Act, 1956, after amendment, is coal including coke in all its forms, but excluding charcoal.'
52. It appears to me that definitions of the expression 'coal' in the two Acts are different. The definition in the Sales Tax Act appears to be wider and includes coal in all its forms whereas the definition in the Essential Commodities Act is not so wide. The specified derivatives of coal in the Act of 1955 indicate that what was intended to be covered under the Act was mineral coal and not charcoal.
53. Even otherwise it appears to me that in a popular or commercial sense the words coal and charcoal cannot always be equated. Both the words are in common use and indicate different items.
54. The object of the Essential Commodities Act, 1955, is to provide for control of production, supply and distribution of and trade and commerce in certain commodities. Mineral coal is undoubtedly an important commodity, the control of production, supply and distribution of which is necessary in the interest of general public. In fact, the entire industry for production of mineral coal and the sources of its supply have been nationalised. Even the means of production of derivatives of coal like coke have similarly been nationalised. The distribution of mineral coal is strictly controlled through Government allocations and the price of coal is similarly fixed under statutes. The same cannot be said for charcoal. Firewood as a fuel is not and has not been declared an essential commodity within the meaning of the Essential Commodities Act, 1955. In M/s. Jaswant Singh Charan Singh, (supra) the Supreme Court noted that firewood was subjected to sales tax at the same rate as coal and held that it would be anamolous to allow mineral coal and firewood to be taxed at the same rate but charcoal, a product of firewood, also a fuel in the nature of coal, should be taxed at different rate.
55. I also note that through the Essential Commodities Act, 1955, has been in force since 1955, the only central order touching coal which has been continued under the provisions of the said Act, is the Colliery Control Order, 1945, which obviously seeks to control storage, distribution and prices of mineral coal and not charcoal. No separate Control Order has been passed by the State of Bihar or by any other State under the said Act of 1955 in respect of charcoal nor the Essential Commodities Act, 1955 or any Control Order there under have been enforced uptill now in respect of charcoal.
56. The Controller appointed under the Bihar Coal Control Order, 1956, has never exercised any jurisdiction in respect of charcoal nor has he made an allotment of charcoal under the said Order, There is no notification under the said Bihar Coal Control Order, 1956, under which restriction has been imposed against storage of charcoal or distribution of charcoal has been regulated. Price of charcoal has not been fixed or controlled under the said Order nor is there any system of permit for transport of charcoal from one part of the State of Bihar to another. Similarly, under the Bihar Trade Articles (Licences Unification) Order, 1984, no rules have as yet been framed for licensing any person dealing in charcoal. No restriction has been imposed on prices and stocks of charcoal nor restriction on possession of charcoal under the said Order of 1984.
57. In the State of Bombay v. United Motors (India) Limited, it was observed that in construing statutes it would be legitimate to take into account the existing laws and the meaning in which they were acted upon and were enforced. Similar view was expressed by the Supreme Court in National and Grindlays Bank Ltd v. The Municipal Corporation of Greater Bombay . The Supreme Court considered and construed the Bombay Municipal Corporation Act, 1988 and observed as follows:
2. ...in a case where the meaning of an enactment is obscure, the Court may resort to contemnorary construction, that is the construction which the authorities have put upon it by their uses and conduct for a long period of time. The principle applicable is optima legum interpres est consuetudo....
58. The Essential Commodities Act, 1955, and the Control Orders promulgated there under are statutes the violation of which will lead to penal consequences. Apart from prosecution, which may result from contravention of the Statutes, under Section 6A of the Act of 1955, the Collector may direct confiscation of the essential commodities seized for violation of any order promulgated under the said Act. Packages, receptacles, where commodities are stored, as also any animals, vehicles, vessels or other conveyance used in carrying such essential commodity may also be seized and confiscated. Under Section 10A of the said Act of 1955 offences punishable there under are cognizable and non-bailable. Under Section 10C of the said Act of 1955, in a prosecution for any offence under the said Act the existence of a culpable mental state on the part of the accused is presumed. Offences under the said Act of 1955 are triable by special Courts in a summary manner under Section 12A of the said Act.
59. Decisions have been cited on behalf of the writ petitioner for the proposition that if there is any ambiguity in the meaning of an expression contained in a penal statute, the same should be construed liberally and in favour of the person accused. The said decisions have been noted here in before.
60. Farther, in W.H. King v. Republic of India , it was observed by the Supreme Court that in a penal statute creating offence and imposing penalty of fine and imprisonment the words of the section must be strictly construed in favour of the subject. Similarly in Dominion of India v. Shirinbai A. Irani reported in AIR 1954 SC 506 the Supreme Court observed that measures which affect liberty of a subject and his rights to property have got to be strictly construed.
61. State of Bihar v. Bhagirath Sharma and Anr. . In this case the respondents Bhagirath Sharma and Radhey Shyam Sharma were prosecuted for contravention of Clauses 3,4 and 5 of the Bihar Essential Commodities Act other than Foodgrains--Prices and Stocks (Display and Control Order, 1967, on the ground, inter alia, that the respondents had failed to display the price list and stock position of the motor tyres in their shop in violation of the said clauses, though a huge stock of motor tyres of different varieties had been stored therein. The motor tyres were seized in an inspection by the Marketing Officer concerned.
Item No. 1 in Schedule 1 of the said Order of 1967 reads as follows:
1. Component parts and accessories of automobiles.
Item No. 5 of the said Schedule reads as follows:
5. Cycle tyres and tubes (including cycle rickshaw tyres and tubes).
62. After the Sub-divisional Officer concerned took cognizance of the case against the respondents under Section 7 of the Essential Commodities Act, 1955, on the report of the Marketing Officer and transferred it for disposal to the Court of the Munsif Magistrate, the respondents moved this Court under Section 439 read with Section 561A of the Code of Criminal Procedure. A learned single Judge of this Court, following an earlier single Bench decision, held that item No. 1 of Schedule 1 could not be assumed to include motor tyres and motor tubes, though it was expressed in the judgment that but for the earlier decision he would have taken a different view. Subsequent to the judgment of this Court a notification was published in the Bihar Gazette by which a new item No. 11 was included in Schedule II of the said Order of 1967, which reads as follows:
11. Tyres and tubes of cars, buses, jeeps, vans, trucks, automobiles of any category whatsoever, tractors and tractor-trollies.
63. The learned Judge, however, issued a certificate that the case was a fit one for appeal to the Supreme Court and, accordingly, the appeal was entertained by the Supreme Court.
64. It was contended on behalf of the State of Bihar before the Supreme Court that tyres and tubes of auto-mobiles were their essential component parts and the judgment of this Court in holding otherwise was erroneous.
65. The Supreme Court noted the subsequent notification issued by the State of Bihar, including in the said Order of 1967 the specific items covering tyres and tubes of automobiles. The Supreme Court also noted the earlier notifications issued by the Ministry of Commerce, Government of India, as also of the Central Government where tyres and tubes of scooters and automobiles were expressly declared to be the essential commodities distinct from the component parts and accessories of automobiles.
The Supreme Court rejected the appeal observing, inter alia, as follows:
...In this background even assuming that from a broad point of view, Tyres and Tubes of Motor Cars may be considered to be covered by the general expression 'Component parts and accessories of automobiles' when construed in its widest import, on comparison of the scheduled items of the Order with the items in the other Notification mentioned and considered in the earlier decision of High Court (in Cr. Misc. Case No. 1479/68), can it not be reasonably and rationally assumed that it was not intended by the draftsman to extend the Order to tyres and tubes of motor cars ? In our view, the drafting precedents furnished by the other Notifications considered in the earlier decision of the High Court (in Cri. Misc. Case No. 1479/68) do indicate that the draftsman did not intend the scheduled items in the Order as in force in May, 1969 to cover 'Tyres and Tubes of the Motor Cars.
66. But independently of this aspect the question may also be considered from another point of view, viz., if the legal mandate contained in the order is expressed with such certainty and clarity as to give reasonably precise and adequate guidance to those who want to be law-abiding. In other words, does the Order lay down an ascertainable standard of guilt by unambiguously specifying the tyres and tubes of Motor Cars as a Scheduled item. We do not think it does unless the dealers are in a position to know with certainty that the items of tyres and tubes of Motor Cars are included in the scheduled items of which the price list and the stock position are to be displayed in a conspicuous part of their business premises, in our opinion, they cannot be held guilty in a Criminal Court of an offence under the Essential Commodities Act for violation of any such mandate. According to the fundamental principle of our criminal jurisprudence, which reflects fair play, the dealer must know with reasonable certainty and must have a fair warning as to what his obligation is and what act of commission or omission on his part would constitute a criminal offence before he can be called upon to answer a charge and be liable to be convicted in a Criminal Court for any violation of a legal mandate. This approach is in conformity with the general requirement that the act or default should be associated with a legally blameworthy condition of mind. On the view that we have taken, the High Court seems to us to have been fully justified in recording the respondents acquittal and we see no cogent ground for disagreeing with it....
67. For the reasons as aforesaid, I am inclined to accept the contention of the writ petitioner. On a consideration of the definition of the word 'coal' as occurring in the Essential Commodities Act, 1955, the ordinary dictionary meaning of the said expression, the meaning which the authorities have themselves attributed to the expression in enforcing the said Act of 1955 and the Control Order promulgated there under, and keeping in view the fact that the said Act of 1955 and the orders promulgated there under are penal in nature, I hold that the word 'coal' as defined in the said Act of 1955, and the Control Orders promulgated there under, does not include 'charcoal'. It is only mineral coal and not charcoal which, in my view, can be held to be an essential commodity within the meaning of the said Act of 1955.
68. The only other point which requires to be considered is whether by reason of the earlier order passed by this Court on the 22nd April, 1986, in Cr.W.J.C. No. 59 of 1986(R) the present writ petition is maintainable. It is apparent from the said order dated the 22nd April, 1986, that the points, which were agitated in the present writ petition, were not considered or decided by this Court. The petitioner was only directed to file before the Deputy Commissioner, Hazaribagh, his show cause in answer to the notice dated the 5th April, 1986. It was observed that the proceedings should be disposed of within six weeks, if possible, from the date of filing of the said show cause in accordance with law.
69. The petitioner had complied with the said order dated the 22nd April, 1986 and filed his written representation before the Deputy Commissioner, Hazaribagh, in answer to the said show cause notice dated the 5th April, 1986. The petitioner appeared through lawyers at the proceedings and final written arguments were also filed in the proceedings on the 19th June, 1986.
70. The Deputy Commissioner of Hazaribagh, however, failed to dispose of the proceedings till the 9th September, 1986 when the present writ petition was filed. In the meantime the authorities concerned published the said notification dated the 18th March 1986 in the Hazaribagh District Gazette in an extraordinary issue on the 7th June, 1986, where by 'charcoal' was declared to be an essential commodity. This was a new fact which was not before this Court when it disposed of the earlier criminal writ petition on the 22nd April, 1986.
71. It was faintly argued on behalf of the respondents that the petitioner had an alternative legal remedy under the Essential Commodities Act, 1955, without exhausting which the petitioner should not have moved This Court again.
72. In my view this writ petition cannot fail on either of the above grounds. In the earlier criminal writ petition this Court did not decide the questions raised on merits but relegated the petitioner to his alternative redmedy before the statutory authority. The statutory authority in spite of the order of this Court failed to dispose of the proceedings and adjudicate on the controversies. Subsequent statutory notifications were promulgated by the authorities after the order was pissed in the earlier criminal writ petition.
73. So far as the alternative remedy is concerned, law is well settled that the existence of an alternative remedy is not an absolute bar to the maintainability of a writ petition. A High Court is always left with discretion to entertain a writ petition even where there are alternative statutory remedies which have not been availed of, particularly in cases where the statutory orders are impugned on the ground that they had been passed without jurisdiction or in excess of jurisdiction. In the instant case, if the contention of the petitioner is accepted, then the respondents acted wholly without jurisdiction in proceeding against the petitioner for having dealt in charcoal in contravention of the Essential Commodities Act, 1955, if it is held that charcoal was not essential commodity within the meaning of the said Act. In this connection decisions of the supreme Court in A.V. Venkateswaran v. R.S. Wadhwani and Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur reported in AIR 1987 SC 286 may be noted.
74. For the reasons as aforesaid this writ petition is allowed. Let appropriate writs issue quashing the impugned show cause notice issued by the Deputy Commissioner, Hazaribagh, dated the 5th April, 1986 (Annexure 5 to the writ petition) and the proceeding initiated there under. It is on record that during the pendency of the present proceeding the petitioner had obtained release of charcoal on furnishing security, subject to the satisfaction of the Deputy Commissioner, Hazaribagh. Let such security furnished by the petitioner be released to the petitioner forthwith, upon communication of copy of this judgment to the respondents. There will be no order as to costs.
Satyeshwar Roy, J.
75. I have perused the judgment prepared by Hon'ble the Chief Justice and also the draft judgment prepared by my learned brother Abidi, J. I agree with Hon'ble the Chief Justice. The judgment is exhaustive and I do not propose to burden it with further reasoning and case laws. I regret that I am unable to agree with the reasonings and the findings recorded by my learned brother Abidi, J , that the writ petition ought not to have been entertained on the ground of alternative remedy and that coal includes charcoal under the Essential Commodities Act.
S.H.S. Abidi, J.
76. I had the privilege of reading the judgment of my Lord the Chief Justice in this Full Bench case. With great respect and regret I am not able to agree with the conclusion that charcoal is not coal and that this writ should have been allowed and so I am giving my own judgment. Though full facts have been given out in details, but for the purpose of this case I am referring to the facts in brief.
77. On the 16th March, 1986 Mahesh Choudhary, the then Range Forest Officer, Semaria, Hazaribagh, raided Coal Depot of the petitioner and collected wood, bamboo and charcoal were seized and given over to respondent No. 3 after preparation of seizure list. Thereafter first information report was lodged by the police, Hazaribagh, in respect of the wood for violation of the provisions of Sections 369, 411, 4 13 and 414 of the Indian Penal Code and Sections 33 to 42 of the Indian Forest Act. A separate seizure list was prepared in respect of charcoal and thereafter a report on the 16th March, 1986 was submitted by the Sub-divisional Officer, Chatra (respondent No. 4) to the Deputy Commissioner, Hazaribagh, for proceeding under the Essential Commodities Act, 1955. On the 5th April, 1986 a notice was issued by the Deputy Commissioner, Hazaribagh, asking the petitioner to show cause on the 17th April, 1986 as to why the said seized charcoal should not be confiscated under Section 6-A of the Essential Commodities Act (for short E.C. Act) on the ground that he was carrying on illegal trade in charcoal for a long time and had obtained stock of the charcoal in illegal manner and that there were no records like stock register, sale register, cash-memo or display board at the Depot in respect of the said charcoal. Against this the petitioner filed a criminal writ being Cr.W.J.C. 58/1986(R) in this Court A Division Bench of this Court on the 22nd April, 1986, directed the petitioner to show cause against the said notice and that should be disposed of presumably within six months from the date of filing in accordance with law and during the pendency of the proceeding the said charcoal was ordered not to be sold. The petitioner filed his objection and also appeared through his lawyer and also filed his written arguments on 19th June, 1986 before the Deputy Commissioner which was not disposed of. With the result that the petitioner filed this writ application in this Court on 9th September, 1986 for quashing the show cause notice and to direct the respondents to return the coal seized from the coal depot of the petitioner and further directing the Range Forest Officer, Chatra, South Division to issue appropriate transit permit in respect of said charcoal after release.
78. The matter has been referred to for decision as to whether coal includes charcoal for which the learned Counsel for the petitioner has urged that it is not included in coal; whereas the learned State Counsel has urged otherwise.
79. The first question, which may be considered as to whether after the first writ petition has been disposed of by this Court by order dated 22nd April, 1986 the second writ application could be entertained on 9-9-1986 on account of the fact that the Court had directed by the said order to dispose of the objection presumably within six months. Confiscation proceeding can be dealt with under Section 6-A of the E.C. Act after seizure of the articles by the Collector of the district after issuing show cause notice under Section 6-B of the Act in writing. Section 6-C provides for appeal by an aggrieved person against an order of confiscation under Section 6-A of the Act within one month from the date of the communication to him of said order to the State Government concerned and the State Government shall give an opportunity to the appellant to be heard and pass such order as it may think fit, confirming, modifying or annulling the order appealed against. Section 6-A bars the jurisdiction of any other Court, Tribunal or any other authority. Thus the order by the State Government becomes final. In view of the provisions of Sections 6-A and 6-C of the Act a person whose property is sought to be confiscated has got adequate and effective statutory remedies.
80. In the case of Union of India v. T.R. Verma the Supreme Court observed at page 884 (para 6) as under:
It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ, but, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs": Vide also K.S. Rashid and Son v. The Income-tax Investigation Commission . And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefore.
In the case of State of Uttar Pradesh v. Mohammed Noor AIR 1958 SC 86 (94) the Supreme Court observed:
If an inferior Court or Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior Court's sense of fair play, the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or Tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned In the later decision of A.V. Venkateswar v. R.S. Wadhwani , the Supreme Court observed:
We must however, point out that the rule that the party who applied for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this Court but it is sufficient to refer to two cases.
Their Lordships quoted the passages (quoted above) from the decisions of the Union of India v. T.R. Verma and the case of State of Uttar Pradesh v. Mohammad Noor AIR 1958 SC 86 at 98 and thereafter observed at page 1509 (para 10) as under:
The passages in the judgment of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor-General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a. matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.
In the case of Basant Kumar Sarkar and Ors. v. Eagle Rolling Mills Ltd. and Ors. it was observed by the Supreme Court:
It is true that the powers conferred on the High Courts under Article 226 are very wide, but it is not suggested by Mr. Chatterjee that even these Dowers can take in within their sweep industrial disputes of the kind which this contention seek to raise. Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievance in respect of the said notices and circulars is to take recourse to Section 10 of the Industrial Disputes Act, or seek relief, if possible, under Sections 74 and 75 of the Act.
In the case of Rohtas Industries Ltd. and Anr. v. Rohtas Industries Staff Union and Ors. the Supreme Court observed at page 429, para 9:
This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the quivive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash.
In the case of K.K. Shrivastava etc v. Bhupendra Kumar Jain and Ors. the Supreme Court observed:
It is well-settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well-settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms.
In the case of Bar Council of Delhi and Anr. v. Surjeet Singh and Ors. , the Supreme Court after referring to the various decision's of the various High Courts and after quoting some portions in the judgment of K.K. Srivastaya v. Bhupendra Kumar Jain (supra), observed at page 1620 (Para 18) as follows:
We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged could be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and specially after the recent amendment of Article 226 of the Constitution. If the alternative remedy fully covers the challenge to the election, then that remedy and that remedy alone must be resorted to even if it involves the challenge of the election of all the successful candidates. But if the nature and the ground of challenge of the whole election are such that the alternative remedy is not adequate and efficacious remedy, then the remedy of the writ petition to challenge the whole election is still available.
In the case of Titaghur Paper Mills v. State of Orissa and Ors. the Supreme Court observed:
The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.
In the case of Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and Ors. the Supreme Court observed:
Article 226 is not meant to short circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to by-pass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.
In case of Ram and Shyam Co. v. State of Haryana and Ors. AIR 1985 SC 1145 the Supreme Court further dealing with maintainability of the writ application in spite of there being provision of alternative remedy made the following observations at page 1151 para 9:
Before we deal with the larger issue, let me put out of the way the contention that found favour with the High Court in rejecting the writ petition. The learned Single Judge as well as the Division Bench recalling the observations of this Court in Assistant Collector of Central Excise v. Jainson Hosiery Industries rejected the writ petition observing that the petitioner who invokes the extraordinary jurisdiction of the Court under Article 226 of the Constitution must have exhausted the normal statutory remedies available to him. We remain unimpressed. Ordinarily it is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the party invoking the jurisdiction has an effective adequate alternative remedy More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the Court. In fact in the very decision relied upon by the High Court in the State of Uttar Pradesh v. Mohammed Noor 1958 SCR 595 : AIR 1958 SC 86 it is observed that there is no rule, with regard to certiorari that is there with man lamus, that it will lie only where there is no other equally effective remedy. 'It should be made specifically clear that where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping asides the nice distinction between jurisdiction and merits. Look at the fact situation in this case. Power was exercised formally by the authority set up under the Rules to grant contract but effectively and for all practical purpose by the Chief Mininter? The cliche of appeal from Caesar to Caesar's wife can only be bettered by appeal from one's own order to oneself. Therefore this is a case in which the High Court was not at all justified in throwing out the petition on the untenable ground that the appellant had an effective alternative remedy. The High Court did not pose to itself the question, who would grant relief when the impugned order is passed at the instance of the Chief Minister of the State. To whom did the High Court want the appeal to be filed over the decision of the Chief Minister 1 There was no answer and that by itself without anything more would be sufficient to set aside the judgment of the High Court.
In the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) where the Vice-chancellor without any power having been conferred upon him under the provisions of the U.P. State's Universities Act, 1973 had reviewed his own order and so apparently the order was without jurisdiction, the Supreme Court observed at page 2189 (para 12):
It is true that there was an alternative remedy for challenging the impugned order by referring the question to the Chancellor under Section 68 of the U.P. Universities Act. It is well-established that an alternative remedy is not an absolute bar to the maintainability of the writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 on the ground of existence of an alternative remedy. In the instant case, the Vice-Chancellor had no power of review and the exercise of such a power by her was absolutely without jurisdiction. Indeed, the order passed by the Vice-Chancellor was a nullity, such an Order could surely be challenged before the High Court by a petition under Article 226 of the Constitution and in our view the High Court was not justified in dismissing the writ petition on the ground that an alternative remedy was available to the appellant under Section 68 of the U.P. Universities Act.
In the case of Gujrat University v. Shri N.U. Rajguru and Ors. wherein election of certain member of the Court of Gujrat University was challenged, the Supreme Court observed at page 69 in para 6 as under:
It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution by-passing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify by-passing the alternative remedies.
A Full Bench of this Court in the case of Dinesh Prasad and Ors. v. State of Bihar and Ors. has relied upon a decision of the Supreme Court in the case of Rohtas Industries Ltd. v. Rohtas Industries Staff Union and has dealt with the question of alternative remedy as follows:
Perhaps, as we reach out to the mid eighties a post script to the rule of alternative remedy is called for. As the Utopian euphoria at the dawn of the independence and the promulgation of the Constitution in the early fifties, faces the cold judicial realities of three decades and a half thereafter the true rationale of the concept of the alternative remedy comes into entirely sharper focus. As the final Court and the High Courts get choked within the land the meaningful distinction betwixt the 'ordinary' and the 'extraordinary' remedies highlights its significance. Unless the extraordinary remedy of the writ jurisdiction is to be hamstrung and indeed rendered nugatory by making it a substitute for the ordinary statutory remedy the distinction betwixt the two has to be firmly maintained. The writ jurisdiction is not the remedy of the first instance where others exist. It is the remedy of the last resort, if the Legislature in its wisdom, provides a statutory remedy; it is not for the High Courts to override and nullify that mandate.
It remains to recall the memorable and yet picturesque words of Krishna Iyer, J speaking for the Court in the specific context of the Industrial Disputes Act in Rohtas Industries Ltd. v. Rohtas Industries Staff Union . That was yet again a case from this very High Court and affirming its judgment it was observed:
But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt oat wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mindate The mentor of law is justice and a potent drug should be judiciously administered.
In consonance with the above, the answer to question II must be rendered in the affirmative, and it is held that the suiter must exhaust the remedies under the Act before seeking relief in the writ jurisdiction unless the monstrosity of the situation or other exceptional circumstances cry out for interference by the writ Court at the very threshold.
A Division Bench of this Court in the ease of Sawar Mal Choudhary and Ors. v. State Band of India and Ors. dealing with the contentions about maintainability of writ petition in view of adequate and effective statutory remedies provided by the legislature referred to the said decision of the Supreme Court in Ram and Shyam Co. v. State of Haryana (supra) and has observed at page 198 (para 36A):
The common legal issue having been settled, there now appears not the least reason why the statutory remedies of appeal and revision should be by-passed. We are inclined to the view that within this jurisdiction the matter has now been concluded by the recent Full Bench judgment Dinesh Mandal v. State of Bihar 1985 BBCJ 79 : AIR 1986 Pat 12 : 1984 PLJR 1002:
Therein after an exhaustive discussion and relying on Union of India v. T.R. Varma , A.V. Venkateshwaran v. Ram Chand Sobhraj Wadhwani , Premier Automobiles Ltd v. Kamalakar Santaram Wadke , Basant Kr. Sarkar v. Eagle Rolling Mills Ltd. and Basanta Kumar Sarkar v. Eagle Rolling Mills Ltd. ILR (1961) 40 Pat 193, it was held as under:
Therefore, the salutary rule is that the writ Court would entertain the matter only if the adequate and efficacious remedies have been first resorted to and exhausted. The failure to observe that rule can only be at the peril of crushing the extraordinary jurisdiction itself, and ultimately rendering it inefficacious, because it is, and was never intended, to replace or substitute the ordinary legal remedies expressly provided by the Legislature. Therefore, on principle itself resort to the extraordinary jurisdiction is permissible only after resorting to the alternative remedy where available.... Unless the extraordinary remedy of the writ jurisdiction is to be hamstrung and indeed rendered nugatory by making it a substitute for the ordinary statutory remedy, the distinction between the two has to be firmly maintained. The writ jurisdiction is not the remedy of the first instance where others exist. It is the remedy of the last resort. If the Legislature, in its wisdom, provides a statutory remedy, it is not for the High Courts to override and nullify that mandate.
81. Thus from all said by the highest Court of the land, it is clear that where an alternative remedy exist, which is convenient, beneficial, expeditious, efficatious and which the legislature has provided under its wisdom, then that statutory alternative remedy is not to be side-tracked and ignored. This ordinary and statutory remedy should not be easily and without valid and cogent reasons be by-passed by adopting a short circuit route through the extraordinary remedy of a writ petition. The first stage of the remedy is the ordinary remedy where the Act provides for a complete machinery of representation, objection, appeal or revision, then it is to be followed accordingly. It is only when the statutory remedies of the first and initial stage are ill-suite to meet the extremely grave and extraordinary situation, then the Court should give relief by the exercise of the extraordinary power. Where the vires of an Act itself is under challenge or where public justice is in danger and the alternative remedy cannot undo the wrong, or where public rights and private rights are so inextricably intermingled that statutory provisions are ineffective and inadequate, or where the prevention to injury and injustice to the public at large cannot be cured by the statutory mixtures, tablets and patent syrups or where an inferior Tribunal acts patently without jurisdiction or in excess of jurisdiction or where the rules and procedures prescribed by law have been openly and bluntly flouted by the authority or tribunal, or where the authority itself is the judge of its own cause, or where the impugned order is by the authority under whose thumb is the authority dealing with the alternative remedy or such and similar situations which cannot be enumerated and which are beyond description at one place, exist, then the exercise of this extraordinary, wholesome and beneficial power under Article 226 of the Constitution is the only remedy. In such situations, the Courts cannot shirk with the responsibility of protecting the citizens; Courts are not to wash off their hands, by simply saying that an alternative remedy should be followed first. There is no rule of law of exhausting the alternative remedy, though it is a rule of discretion and caution. But Courts cannot be a party to violation of a statutory provision without any cogent and valid reason by entertaining a writ before exhaustion of the alternative remedies under the law. Each and every case is to be considered and judged according to exigencies of the situation. Court's jurisdiction for the exercise of this power is unfettered and recourse to it cannot be stopped, but one must show the situation and circumstance for the exercise of this power. Merely saying that as this power exists, one must be allowed to resort to it, by-passing the due statutory provisions and adopting an easy course of the last-stage, is setting at naught these provisions and making them redundant. Statutory provisions are not made for the sake of decoration of the statute book. Such provisions are not to be followed more in breach on pretexts and nonexistent grounds.
82. In this particular case when the notice was issued and the petitioner had come to this Court and the Court refused to interfere with issuance of notice and made a specific direction to the petitioner to go to the authority concerned and file objection and also asked the authorities to dispose of the objection preferably in six months and the petitioner in compliance with the order of this Court actually filed the objection, then he had to wait at least for six months from 22-4-1986 to 22-10-1986. Further nothing has been shown that for an oblique motive or for any reason the disposal of the case was being delayed by the authority inspire of best efforts of the petitioner. The petitioner came to this Court within six months in hot haste without waiting for the result or order on his objection. If, at all, the petitioner was aggrieved by the delay which was being caused on account of non-disposal of his representation, he could have come to this Court for a suitable direction, as was observed by the Supreme Court in the case of Union of India and Ors. v. Oswal Woollen Mills Ltd. and Ors. :
If the writ petitioners were aggrieved by the failure of the authorities to dispose of their application expeditiously, it was open to them to seek a further direction from the Court fixing a limit of time within which the application were to be disposed of.
Further in the present case even if there was the notification dated 18-3-86 published in the Hazaribagh District Gazette (Extraordinary) dated 7-6-86 declaring charcoal as an essential commodity, it was not going to affect the petitioner as the offence alleged by the petitioner is dated 16-3-86 when the raid was conducted by the concerned authority. Moreover, it does not appear that the petitioner had raised this question of notification before the authority concerned in the written argument said to have been filed by him on 19-6-86. It is also to be seen that the prosecution of the petitioner or the proceeding against him were not terminating against him before the expiry of the said period of six months given by the High Court nor any adverse order was going to be passed before the said period. A person who had come to the High Court with all the allegations and favourable points and had obtained an order then he is required to obey, follow and respect that order unless for some compelling reasons he could wriggle out of the said order under some authority of law. Nothing has been shown by the petitioner in the second writ petition on the same facts that there were compelling reasons on account of which he could not wait at least for six months given to the authority concerned to dispose of the matter.
83. It is also to be seen that this writ petition has been filed exactly on the same points and materials on which the earlier writ petition had been disposed of and this Court had passed an order. The reagitation of the matter again and again is not permissible. The Supreme Court in the case of G.R. Dudani and Ors. v. S.D. Sharma and Ors. has observed as follows:
Although by reason of the Explanation which was inserted in Section 141 of the Code of Civil Procedure, 1908 by the Code of Civil Procedure (Amendment) Act, 1976, Section 11 of the Code does not in term apply to any proceeding under Article 226 of the Constitution, the principle of res-judicata does apply to all writ petitions under Article 226.
84. Thus following the pronouncements of the Court and also considering the situation of the present case, this writ application should not have been entertained in the particular circumstances of this case.
85. The next question that arises is as to whether charcoal is coal or not. Coal has been defined in various dictionaries. In the case of Commissioner of Madhya Pradesh Sales Tax, Indore v. Jaswant Singh Charan Singh the Supreme Court has quoted the definitions as given in various dictionaries at page 1455, para 2.
The meaning given to the word 'coal' in Blackies Concise Dictionary, New Edition, p. 184 relied on by the Board reads as follows:
Coal; Kol: A piece of wood or other combustible substance burning or charted ; charcoal; a cinder new, usually a solid black substance found in the earth, largely employed as fuel, and formed from vast masses of vegetable matter deposited through the luscious growth of plants in former epochs of the earth's history.
The Shorter Oxford English Dictionary at pp. 380 and 381 gives the meaning of coal as follows:
1. A piece or carbon glowing without a flame.
2. A piece or burnt wood, etc., that is still capable.
3. Charcoal. 4. A mineral, solid, hard, opaque, black or blackish, found in seams in the earth, and largely used as fuel; it consists of carbonized vegetable matter.
In the New Oxford Illustrated Dictionary as referred in the Full Bench decision of this Court AIR 1986 Patna 242 at page 246 (para 13) 'coal has been defined as "black or blackish sedimentary rock consisting mainly of carbonised plant tissue, found in seams or beds and as fuel."
The Shorter Oxford English Dictionary page 293 gives the meaning of charcoal as follows:
The suggestion that Char-Charrn or Sp. as if burn coal i.e,... wood turned into coal, lacks support, 1. The Black porous residue, consisting (when pure) wholly of carbon, obtained from partly burnt wood, bones etc. Hence, specified as wood, vegetable, animal etc. The Webster's New International Dictionary gives the following meaning of charcoal at p. 452:
(Char to burn, reduce to coal; Coal);
1. A dark coloured or black porous form of carbon prepared from vegetable or animal substance, as that made by charging wood in a kiln, retort, etc, from which air excluded.
Charcoal in other dictionaries has been defined as burnt wood or residue of burnt wood.
The Supreme Court again in the case of India Carbon Ltd. v. Superintendent of Taxes, Gauhati and Ors. has quoted the definition of Coke as given in "Chemical Engineers" Handbook, 3rd Edn. at page 1566:
Coke is a hard, dense, infusible carbonization residue that ranges from a dull gray-black to a silver gray, the latter is characteristic of good quality, high temperature coke. A coke of this type makes a ringing sound when dropped or struck with a hard object It exhibits a porous cellular structure, which primarily depends upon the kind of coal used and the rate of heating during the carbonization process.
86. Coal and charcoal have also been mentioned and defined in various Statutes from time to time. Coal has been mentioned in Halsbury's Laws of England in 4th Edition XXXI Page 71: para 109:
Note:
In the Coal Act, 1938, Part 1 (Sections 1--45), "coal" means bituminous coal, cannel coal and anthracite (Sections 3(4)(a), 44(1), but, in a case in which minerals or substances other than bituminous coal, cannel coal or anthracite were comprised in a lease subsisting at the valuation date (i.e. 1st January 1939, the date of coming into force of the Act : Section 3(2) which conferred a right to work and carry away both that coal or anthracite and those other minerals or substances, "coal" includes those other minerals or substances Note p. 492: Para 675:
1. Seethe Coal Act, 1938, Section 42(1) Accordingly Part 1 (Sections 1-15) applied to land belonging to the Sovereign or forming part of the possessions of the Duchy of Cornwall or belonging to a Government department or held in trust for the Sovereign for the purposes of a government department : Section 42(1) Gold, gold ore, silver and silver ore were excluded from the associated minerals demised with coal which were included in the expression "coal" as defined in Section 3(4): Section 42(1) proviso.
In the Colliery Control Order, 1945, Section 2(1) mentions coal as follows:
'coal' includes anthracite bituminous coal, lignite, peat and any other form of carbonaceous matter sold or marketed as coal and also coke.
(1-A) "Coking coal" is such coal as has been declared as coking coal by the (erstwhile Coal Board under the Coal Mines Conservation, Safety and Development) Act, 1952 (12 of 1952) or such coal as has been declared as coking coal by the Central Government under this Order or the Coal Mines (Conservation and Development) Act, 1974 (28 of 1974) and regulations made there under).
(1-B) "Semi coking coal" and "weakly coking "coal" are such coal as were declared as blendable coal" by the erstwhile Coal Board under the Coal Mines (Conservation, Safety and Development Act, 1952 (12 of 1952) or as may be declared as 'Semi coking" or "weakly coking coal" by the Central Government under this Order.
In the Bihar Coal Control Order, 1956 under Section 2(a), 'Coal' means coal received in the State of Bihar otherwise than against the Central Government quota and includes coke.
In the Mines and Minerals (Regulation and Development) Act, 1957 in Schedule 1 at serial 7 coal has been mentioned as follows:
(1) Coal including coke in all its form 2 per cent. The Bihar Essential Articles Display of Prices Stock) Order, 1977 in Schedule I serial No. 18 "Coal" including soft coke has been mentioned.
In Bihar Trade Articles (Licences Unification) Order, 1984, Section 2(a) defines coal as "coal means coke and other derivatives and includes soft coke, hard coke of various grades".
In the Forest Act, 1927. charcoal is mentioned as follows:
Section (2): Interpretation clause--In this Act unless there is anything repugnant in the subject matter or context, (4) the following, whether found in or brought from, a forest or not, that is to say Timber, Charcoal In Kundori Co-operative Society v. State of Bihar the decision in Elwas v. Brigg Gas Co. (1886) Ch D 562 was referred to and the observations in the said judgment are as follows:
Unquestionably coal is deemed in law as a part of the natural soil, without regard to what geologists may show to have been its origin. In law the natural processes by which trees of a forest have become coal are not investigated. The result only is considered.
The Courts have been giving interpretation of a word used in a statute wherever, occasion arose. They have considered not only their scientific, technical, etymological, commonly and generally understood senses and connotations. Such interpretations have been given, which have been for the welfare of the Society and individuals; for advancement of all and for the benefit of the concerned ones. Chaos and confusion, if any, have been removed by the Courts by giving clear interpretations.
87. In the case of Commissioner of Sales Tax, Madhya Pradesh, Indore v. Jaswant Singh (supra) which has also been referred with approval in Commissioner of Sales Tax U.P. v. S.N. Brothers the Supreme Court after referring and quoting the meaning of the word coal in various dictionaries (as quoted earlier, observed at page 1455 (paras 3,4,6 and 7):
(3) According to these Dictionaries 'coal' would appear to include 'charcoal'. The contention of the respondent was that charcoal is one of the species of coal, and, therefore, would be covered by Entry 1 of part III, and. therefore, the answer given by the High Court is correct.
(4) Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things, But it is now well-settled that while interpreting items in statutes like Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense.... If a statute uses the ordinary words in every day use, such words should be construed according to their popular sense. At p. 128 of the Report Cameron, J. observed. 'The object of the Excise Tax Act is to raise revenue, and for this purpose to class substances according to the general usage and known denominations of trade. In my view, therefore, it is not the botanist's conception as to what constitutes a 'fruit' or 'vegetable' which must govern the interpretation to be placed on the words but rather what would ordinarily in matters of commerce in Canada be included therein. Botanically oranges and lemons are berries, but otherwise no one would consider them as such " This rule was stated as early as 1931 by Lord Tenderdan in Attorney General v. Winstanly (1931) 2 Dow & CL 302. Similarly, in Crenfell v. Inland Revenue Commrs. (1876) 1 Ex. D 242 at p. 248. Pollock, J. observed, "that if a statute contains a language which is capable of being construed in a popular sense such statute is not to be construed according to the strict or technical meaning of the language contained in it but is to be construed in its popular sense, meaning of course, by the words 'popular sense' that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it. But if a word in its popular sense and read in an ordinary way is capable of two constructions, it is wise to adopt such a construction as is based on the assumption that Parliament merely intended to give so much power as was necessary for carrying out the objects of the Act and not to give any unnecessary powers. In other words, the construction of the words is to be adopted to the fitness of the matter of the statute. On the other hand, as Fry, J. said in Holt and Co. v. Collyer (1881) 16 Ch D 718 at p. 720 "If it is a word which is of a technical or scientific character then it must be construed according to that which is its primary meaning namely, its technical or scientific meaning.
(6) The result emerging from these decisions is that while construing the word 'coal' in Entry 1 of Part III of Schedule II. the test that would be applied is what would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to that word. A, sales tax statute in being one levying a tax on goods must in the absence of a technical term or a term of science or art, be presumed to have used an ordinary term as coal according to the meaning ascribed to it in common parlance. Viewed from that angle both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinary understood and would include 'charcoal' in the term 'coal'. It is only when the question of the kind or variety of coal would arise that a distinction would be made between coal and charcoal; otherwise, both of them would in ordinary parlance as also in their commercial sense be spoken as coal.
(7) The effort of the legislature clearly was to tax coal and fire-wood as articles used as fuel and did not make a separate entry in regard to charcoal as it must be aware that coal is understood in ordinary and commercial sense would include charcoal. Had that not been so, instead of leaving it to be dealt with under the residuary item, it could have enacted a separate entry just as it did in the case of firewood which it knew would not in its ordinary meaning fall under the term coal.
88. In the case of Indian Carbon Limited v. The Superintendent of Taxes Gauhati and Ors. (supra) a question arose as to whether coal includes petroleum coke or not. The Supreme Court referring to Section 14 of the Central Act said "Section 14 declares, inter alia, that coal including coke in all its forms constitutes goods which are of special importance in Inter-State trade or commerce". As regards the language of Section 14 of the said Act the Supreme Court observed at page 156 as follows:
The language is clearly wide and coal has been stated to include coke in all its forms. It is not denied that petroleum coke is one of the forms of coke. Therefore, on a plain reading of the aforesaid clause it is incomprehensible how petroleum coke can be excluded from its ambit. It may be that the clause mentions coal only and then declares that word shall include coke in all its forms. That shows that the object of the words which follow coal is to extend its meaning.
89. The rule of interpretation has been that the words that have been used are to be understood not only in their scientific or technical meaning, but also in ordinary meaning and according to common parlance. A meaning is to be given as popularly understood by the masses in their common use in trade and other spheres of daily life. Various articles in trade as well as in daily use have come for interpretation by the Courts from time to time. In the case of Ramavatar Budhai Prasad v. Assistant Sales Tax Officer, Akola and Anr. the Supreme Court observed as follows:
Therefore; apart from the fact that the legislature by using two distinct and different items i.e., item 6 vegetables" and item No. 36 "betel leaves" has indicated its intention, decided cases also show that the word "vegetables" in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table.
90. In the case of Motipur Zamindari Co. (Private) Ltd. and Anr. v. Superintendent of Taxes, Muzaffarpur and Anr. a case under Sales Tax Act, a question arose as to whether sugarcane included all the vegetables or not, the Supreme Court quoted with approval the following passage from the judgment of the Nagpur High Court, Madhya Pradesh Pan Merchants Association v. State of Madhya Pradesh and therein reference of the earlier Supreme Court's decision in Ramavtar Budhai Prasad v. Assistant Sales Tax Officer, Akola has been made as follows:
The word 'vegetables' in taxing statutes is to be understood as in common parlance i.e., denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table." If that is the meaning of the word "vegetables" sugar cane cannot fall within entry 6 which relates to green vegetables. In Webster's Dictionary "sugarcane" 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 "a tall perennial grass cultivated in tropical and a sub-tropical countries and forming the chief source of un manufactured sugar". Therefore it cannot be said that sugarcane falls within the definition of the words "green vegetables".
91. In the case of Commissioner of Income-tax, Andhra Pradesh v. Taj Mahel Hotel, Secundrabad . While interpreting the word 'plant' in Section 10 of the Income-tax Act, the Supreme Court held at page 170 para 6 as follows:
Now it is well-settled that where the definition of a word has not been given, it must be construed in its popular sense if it is a word of every day use. Popular sense means '"that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it". In the present case, Section 10(5) enlarges the definition of the word "plant" by including in it the words which have already been mentioned before. The very fact that even books have been included show that the meaning intended to be given to ' plant" is wide. The word "include" is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the "statute". When it is so used, these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include....
In the case of Commissioner of Sales-tax, U.P. v. S.N. Brothers, Kanpur , where interpretation of food colours and essence of syrup was dealt with under the Sales Tax Act. The Supreme Court has said at page 80 (para 5):
In oar opinion the Random House Dictionary cannot serve as a safe guide in construing the words used in the List in the Notification in question for the purpose of deciding whether or not the words used in entries Nos. 10 and 37 cover food colours and syrup essences; indeed this Dictionary is apt to be a somewhat delusive guide in understanding the meanings of the words and expressions with which we are concerned in the context in which they are used. This Dictionary gives all the different shades of meanings attributable to the words referred but that is hardly helpful in solving the problem raised in the present controversy. The words "dyes and colours" used in entry No. 10 and the words "scents and perfumes" used in entry No. 37 have to be construed in their own context and in the sense, as ordinarily understood and attributed to these words by people usually conversant with and dealing in such goods. Similarly the words "food colours" and "syrup essences" which are descriptive of the class of goods the sales of which are to be taxed under the Act have to be construed in the sense in which they are popularly understood by those who deal in them and who purchase and use them.
92. In the case of State of West Bengal and Ors. v. Washi Ahmad etc. where the question of interpretation of "vegetables" involved was whether green ginger was included in the category of vegetables, it was observed at page 1640 as follows:
It is an item which is ordinarily sold by a vegetable vendor and both the vegetable vendor who ever) day deals in vegetables and the house wife who daily goes to the market to purchase vegetables would unhesitatingly regard green ginger as vegetable...." We are accordingly of the view that green ginger is included within the meaning of the words vegetables commonly known as sabji, tarkari or sak" in Item (6) of Schedule 1 and its sales must be held to be exempt from tax under Section 6 of the Act.
In the case of Porrits and Spencer (Asia) Ltd. v. State of Haryana the Supreme Court observed, at page 302 onward:
It was said by Holmes, J., in his inimitable style; "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used." Where a word has a scientific or techincal meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention as clearly expressed by the Legislature does not suppose our merchants to a naturalists, or geologists, or botanists.
Now the word 'textiles' is not defined in the Act, but it is well-settled as a result of several decisions of this Court, of which we may mention only a few, namely, Ramavatar Budhaiprasad v. Asstt. Sales Tax Officer, Akola and Motipur Zamindari Co. Ltd. v. State of Bihar AIR 1962 SC 1638 that in a taxing statute words of every day use must be construed not in their scientific or technical sense but as understood in common parlance.... It was pointed out by this Court in Washi Ahmed's case (supra) that the same principle of construction in a taxing statute has also been adopted in English, Canadian and American Courts Pollock, B. pointed out in Grenfell v. I.R.C. (1976) 1 Ex. d. 242 at p. 248 that if a statute contains language which is capable of being construed in a popular sense, a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words "popular sense" that which people conversant with the subject-matter with which the statute is dealing would attribute to it." So also the Supreme Court of Canada said in Planters Nut and Chocolate Co. Ltd. v. The King (1962) 1 DLR 385 while interpreting the words "fruit and vegetables" in the Excise Act. "They are ordinary words in everyday use and are, therefore, to be construed according to their popular sense." The same rule was expressed in slightly different language by Story, J., in Two Hundred Chests of Tea (1824) 9 Wheaton 430 at 438 (U.S.) where the learned Judge said that "the particular words used by the Legislature in the denomination of articles are to be understood according to the common commercial understanding of the terms used, and not in their scientific or technical sense, for the Legislature does not suppose our merchants to be naturalists, or geologists, or botanists. (para 4).
It is true that our minds are conditioned by old and antiquated notions of what are textiles and, therefore, it may sound a little-strange to regard 'dryer felts' as 'textiles'. But it must be remembered that the concept of 'textiles' is not a static concept. It has, having regard to newly developing materials, methods, techniques and processes, a continually expanding content and new kinds of fabric may be invented which may legitimately, without doing any violence to the language, be regarded as 'textiles,''
93. While interpreting a word or statute, one in not to forget the past conditions when it was brought on the statute book and also the present condition, when there are changes, advancements and improvements in different forms. When a statute is framed, the legislature considers not only the present situation, but also future position. The interpretation should be as far as possible in keeping with the social, economic, political, technical and scientific changes and developments. For this purpose even the background of the legislation and the speeches by the mover of the bill in the legislature, can be kept in view. In the case of State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd. AIR 1985 SC 560 considering the meaning of the words 'sales of goods' under the Sales Tax Act, referred to a number of decisions and then their Lordships observed at page 574 para 36:
The principle of these decisions is that when, after the enactment of a legislation, new facts and situations arise which could not have been in its contemplation, the statutory provisions could properly be applied to them if the words thereof are in a broad sense capable of containing them. In that situation, "it is not" as observed by Lord Wright in 1936 AC 578(H), 'that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning. "The question then would be not what the farmers understood by those words, but whether those words are broad enough to include the new facts.
In a later decision in the case of Senior Electric Inspector and Ors. v. Laxminarayan Chopra and Anr. interpretation of the words 'telegraph line' was involved. Their Lordships of the Supreme Court referred to Craies doctrine of contemporance expositio as given out by different authorities and also decisions of the British Court as well as in State of Madras v. Gannon Dunkerley and Co. (supra) and observed as follows:
The legal position may be summarised thus: the maxim contemporance expositio as laid down by Coke was applied to construing ancient statutes, but not to interpreting Acts which are comparatively modern. There is a good reason for this change in the mode of interpretation. The fundamental rule of construction is the same whether the Court is asked to construe a provision of an ancient statute or that of a modern one, namely, what is the expressed intention of the Legislature. It is perhaps difficult to attribute to a legislative body functioning in a static society that its intention was couched in terms considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making Laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activities. Indeed, unless a contrary intention appears, and interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them. We cannot, therefore, agree with the learned Judges of the High Court that the maxim contemporance expositio could be invoked in constructing the word "telegraph line" in the Act.
94. In a later decision in the case of K.P. Verghese v. Income Tax Officer, Ernakulam and Anr. the Supreme Court observed at page 1930 in para 8:
Now it is true that the speeches made by the members of the Legislature on the floor of the House when a Bill for enacting a statutory provision is being debated and inadmissible for the purpose of interpreting the statutory provision but the speech made by the Mover of the Bill explaining the reason for the introduction of the Bill can certainly be referred to for the purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted. This is in accord with the recent trend in juristic thought not only in Western countries but also in India that interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible. In fact there are at least three decisions of this Court, one in Loka Shikshana Trust v. Commr. of Income-tax the other in Indian Chamber of Commerce v. Commr. of Income-tax and the third in Addl. Commr. of Income-tax v. Surat Art Silk Cloth Manufacturers Association where the speech made by the Finance Minister while introducing the exclusionary clause in Section 2 Clause (15) of the Act was relied upon by the Court for the purpose of ascertaining what was the reason for introducing that clause. The speech made by the Finance Minister while moving the amendment introducing Sub-section (2) clearly states what were the circumstances in which Sub-section (2) came to be passed, what was the mischief for which Section 52 as it then stood did not provide and which was sought to be remedied by the enactment of Sub-section (2) and why the enactment of Sub-section (2) was found necessary.
95. It is also a rule of interpretation that if the meaning of the word or statute is obscure and not clear then the Court resorts to the construction given by other statutes and provisions. In the case of State of Bombay v. United Motors Ltd. the Supreme Court observed at page 264 para 40 as follows:
It is legitimate to take into account the existing laws and meanings in which they were acted upon and were enforced.
In the case of National and Grindilays Bank Ltd. v. The Municipal Corporation of Greater Bombay a case under the Municipal Corporation Act, 1988, Supreme Court held at page 546:
In a case where the meaning of an enactment is obscure, the Court may resort to contemporary construction, that is the construction which the authorities have put upon it by their usage and conduct for a long period of time The principle applicable is "optima legum interpres est consuctudo.
96. The Courts have throughout been observing that the object of an interpretation is to discover the intention of the Parliament, the purpose behind the legislation, the mischief that is sought to be checked and suppressed and also the good that the legislature wanted to give to the people. Definitely a legislature aims at for the betterment and welfare of the State and for a healthy individual and healthy society keeping in view the interest of all the persons in the society. Besides the Civil and Criminal Laws, there are also Welfare Laws and Progressive Laws, Welfare and progress of the society is the object behind all the legislations. Laws cannot be equated with mathematics, it is though near to science or technical engineering; law requires well planned study and reasons based on solid principles of natural justice, fairness, reasonableness and justness. Though they cannot be said to be perfect for all time to come, but at least in present circumstances and for some time to come, whatever the Parliament thought fit for the betterment of the society has enacted. The laws prevent mischief caused or likely to be caused to the society and citizens. The progress, betterment, advancement and relief which the State wants to give to its citizens and public at large, should not be given a jolt or halt but should be given an easygoing meaning and interpretation, without any hyper technicality. Defective, superfluous, redundant and meaningless interpretations will mean denial of welfare and progress to the society and increase in the mischief to the society. To be more clear on this aspect of the interpretation it is pertinent to quote the observation made by the different authorities from time to time. Chapter 2 at page 28 of the Maxwell in the Interpretation of Statute (13th Edn.) reads as below:
The object of all interpretation is to discover the intention of Parliament.
Craies on Statute Law--(VII-Edition) at page 531 mentions:
The distinction between a strict and liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules. "All modern Acts are framed with regard to equitable as well as legal principles.... They are construed now with reference to the true meaning and real intention of the legislature.... "Further at page 552 it mentions "The more correct version of the doctrine appears to be that statutes of this class are to he fairly construed and faithfully applied according to the intent of the legislature, without unwarrantable severity on the one hand or unjustifiable lenity on the other, in cases of doubt the Courts incline to mercy.
97. In the case of Kanwar Singh and Ors. v. The Delhi Administration AIR 1966 SC 871, where the interpretation of the word "abandoned" was involved, the Supreme Court observed at page 874 at para 10 as follows:
It is the duty of the Court in construing a statute to give effect to the intention of the legislature. If, therefore, giving a literal meaning to a word used by the draftsman, particularly in a penal statute, would defeat the object of the legislature, which is to suppress a mischief the Court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will advance the remedy and suppress the mischief.
In the case of Deputy Chief Controller of Imports and Exports, New Delhi v. K.T. Kosalram and Ors. the Supreme Court held at page 1289 AIR para 8:
In our opinion dictionary meanings, however, helpful in understanding the general sense of the words cannot control where the scheme of the statute or the instrument considered as whole clearly conveys a somewhat different shade of meaning. It is not always a safe way to construe a statute or a contract by dividing it by a process of etymological dissection and after separating words from their context to give each word some particular definition given by lexicographers and then to reconstruct the instrument upon the basis of these definitions, what particular meaning should be attached to words and phrases in a given instrument is usually to be gathered from the context, the nature of the subject matter, the purpose or the intention of the another and the effect of giving to them one or the other permissible meaning on the object to be achieved.' In V/O Tractor Export, Moscow v. Tarapore and Co. Madras and Anr. it was observed:
A Statute should not be construed as a theorem of Eucled but the statute must be construed with some imagination of the purpose which lies behind the statute. The doctrine of literal Interpretation is not always the best method for ascertaining the intention of parliament. The better rule of interpretation is that a statute should be so construed as to prevent the mischief and advance the remedy according to the true intent of the makers of the statute. The principle was for example applied by Lord Halsbury in Eastman Photographic Co. v. Comptroller General of Patents 1898 AC 471, where the question was whether the word sblio used as a trade mark, was an invented or a descriptive word. In examining this question Lord Halsbury said; "Among the things which have passed into canons of contraction recorded in Hyden's case we are to see what was the law before the Act was passed, and what was the mischief or defect for which the law had not provided, what remedy Parliament appointed and reason of the remedy.
98. In the case of Food Inspector Palghat Municipality v. Seetharam Rice & Oil Mills, Pareli and Ors. 1975 Cr. LJ 479 at page 483 the Full Bench of Kerala High Court said:
It is now recognised that the paramount duty of the Judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning and to promote its object (Maxwell on Interpretation of Statutes 10th Edn p. 262). The Supreme Court has quoted this rule of construction with approval in M.V. Joshi v. M.U. Shaimpi (1961) 2 Ker LR 289 : (1961) 2 Cr. L.J 296. As far as possible, the Court should adopt that interpretation which promotes and furthers the object and policy of the legislation and suppresses the mischief which the statute is intended to prevent. It is well recognised that the fundamental principle of interpretation of any enactment is that all the provisions therein have to be harmoniously construed so as to achieve the object for which the law is enacted. A Full Bench of this Court in Kungu Govindan v. Parakkat Kuzhileksmi Amma following a decision of the Supreme Court in Regional P. P. Commissioner v. Shibu Metal Works has held that if two constructions are possible of particular words occurring in a statute, the Court should prefer the construction, which would help the furtherance of the object of the Act. In interpreting and construing a section in an enactment, especially one intended to safeguard and maintain public health the purpose of law should not be defeated and that interpretation which would result in defeating the purpose has to be avoided The statement of objects and reasons stated in the Bill might be looked into for the historical background of the amending legislation in ascertaining the reasons to enact the same and to find out what exactly was the mischief the legislature was trying to aim at when introducing the amendment.
In the case of Prem Chand Jain v. R.K. Chabra the Supreme Court observed at page 984 (AIR) in para 7:
We agree with the observation of Lord Somervell to the effect:
The mischief against which the statute is directed and perhaps though to an undefined extent, the surrounding circumstances can be considered.
In ascertaining the true legislative intention. A.G. v. H.R.H. August 1957 1 All ER 49 (HL) Lord Porter also spoke to the same effect while speaking for the Board in the following words:
A right construction of the Act can only be attained if its whole scope and object together with an analysis of its working and the circumstances in which it is enacted are taken into consideration In the case of R.S. Nayak v. A.R. Antulay 1984 Cr. L.J. 613 at page 623, para 18J the Supreme Court observed:
If the words of the statute are clear and unambiguous, it is the plain test duty of the Court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the statute would be self-defeating. The Court is entitled to ascertain the intention of the Legislature to remove the ambiguity by construing the provision of the Statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which the Legislature enacted the Statute. This rule of construction is so universally accepted that it need not be supported by precedents. Adopting this rule of construction, whenever a question of construction arises upon ambiguity or where two views are possible of a provision, it would be the duty of the Court to adopt that construction which would advance the object underlying the Act namely, to make effective provision for the prevention of bribery and corruption and at any rate not dealt it.
99. In the case of Reserve Bank of India v. Peerless Co. the Supreme Court observed:
That interpretation is best which makes the textual interpretation match the contextual A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and, then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, the context of its enactment, with the glasses of the statute maker provided by such context, its scheme, the sections, clauses, phrases, and words may take colour without the glasses provided by the context.
In the case of Utkal Contractors and Jointly Pvt. Ltd. v. State of Orissa the Supreme Court observed:
In considering the rival submissions of the learned Counsel and in defining and construing the area and the content of the Act and its provisions, it is necessary to make certain general observations regarding the interpretation of statutes. A statute is best understood if we know the reason for it. The reasons for a statute is the satest guide to its interpretation. The words of statute take their colour from the reason for it. How do we discover the reason for a statute? There are external and internal aids. There external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of committees which preceded the Bill and the reports of Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the Interpreter may proceed ahead. No provision in the statute and no word in the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important. It is again important to remember that Parliament does not waste its breath unnecessarily. Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily. Again, while the words of an enactment are important, the context is no less important. For instance, the fact that general words are used in a statute is not in itself a conclusive reason why every case falling literally within them should be governed by that statute, and the context of any Act may well indicate that wide or general words should be given a restrictive meaning "See Halsbury, 4th Ed. Vol. 44 Para 874".
100. In the case of Moideenkutty Haji v. Kunhikoya and Ors. the Kerala High Court observed:
There is force in the contention that the different provisions of Section 202 could have been better framed so as to avoid the apparent ambiguity in the Section. But even then, a purposeful interpretation, keeping in mind the object and purpose behind the new provision, is warranted. It is settled law that when there is ambiguity in the provisions of the statute, the Courts must lean to an interpretation which is consistent with the object which the legislature has intended. If the wording of the section is capable of an interpretation to fit in with the object and purpose of the legislation, without doing violence to the language, the duty of the Courts is to give effect to the intention of the legislature. A different interpretation will only tend to defeat the purpose of the provision. If such a purposeful interpretation is made the provisions may appear different than when it is looked at without the object and purpose in mind.
In the latest decision of the Supreme Court in the case of J.K. Cotton Spinning and Weaving Mills. Ltd. and Anr. v. Union of India and Ors. the Supreme Court referred to the decision of K.P. Verghese, (supra) and observed at page 204, para 45 as follows:
Indeed, it has been observed in that case that the rule of construction by reference to contemporance expositio is a well established rule for interpreting a statute by reference to the exposition has received from contemporary authority, through it must give way where the language of the statute is plain and unambiguous. In our opinion, the language of Rule 9(1) admits of only one interpretation and that is that the specification that has to be made by the collector is of any premises appurtenant to the place of manufacture of production of the excisable goods. The specification is not required to be made and, in our view, cannot be made of the place of manufacture or production of the excisable goods. Apart from that, as observed by Subba Rao, J., upon a review of all the decisions on the Joint, in an earlier decision of this Court in the Senior Electric Inspector v. Laxmi Narayan Chopra , the maxim contemporance expositio laid down by coke was applied in construing ancient statutes but not to interpreting Acts which are comparatively modern. Further, it has been observed that in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made and unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them. Most respectfully we agree with the said observation of Subba Rao, J.
101. Thus with these pronouncements of the apex Court and other Courts we find that the meaning of the word "coal" has been given in various Acts which are not ancient but beginning from the year 1945 and after a lapse of about 40 years if the question of interpretation of coal is to be given within the modern trend of developments and progress of the society, the mischief sought to be remedied, the purpose behind enactment and other surrounding development circumstances are to be kept in mind and so an interpretation is to be given which keeps the society goes on the (sic) that meaning should serve the purpose of the society. An enactment about control of coal is for preventing mischief of hoarding, black marketing and non-availability of the article in question to the public at large. Definitely, the coal is a thing of daily use and so word 'coal' has been mentioned which may be, anything like coal and definitely burnt wood is a coal which is used by the public at large. That was the meaning given in the earlier statute also and even the same is being understood today.
102. The Essential Commodities Act is a provision in the interest of general public, for the control of production, supply and distribution of trade and commerce and certain commodities essential to the living of human beings. In the case of Diwan Sugar and General Mills (Private) Ltd. v. Union of India , the Supreme Court has said that the effect of the Essential Commodities Act is to secure supply of essential commodities to the consumers with a view to maintain the same at prices to the people. It will be seen that the promotion of the welfare of the people and protecting social order ensuring economic justice and availability of articles of daily use to the general public is the purpose behind this Act. Under the provisions of Essential Commodities Act, various orders have been issued from time to time in respect of the essential articles regulating their sale, supply and availability.
103. In the Essential Commodities Act, itself "coal including soft coke" has been mentioned as an essential commodity. No definition of coal has been given. Coal is a thing of daily use. In common parlance coal (Koila) is called as Pather Ka Koila (coal extracted from mines), Babool Ka Koila or Lakri Ka Koila, (Burnt wood or burnt babool). This is a meaning understood by the public at large, including house wives and the men in commerce. It is for this reason that the definition of coal has not been given in the Act itself or the Bihar Essential Articles (Display of Prices and Stock) Order, 1977 or the Bihar Trade Articles (Licenses Unification) Order, 1984. Whatever form of coal it may be, it is a fuel. Availability of fuel, whether taken out from earth or produced by burning wood, is the purpose behind the putting of coal in the category Of essential commodities, as it is used for the daily use as fuel.
104. As regards charcoal, Supreme Court has observed in the case of Commissioner of Sales Tax, Indore (supra) at page 1457 para 7 as follows:
...The State Legislature, however, knew or must be presumed to know that fire wood is also used by the people as fuel, but would not fall within that Entry, and therefore, provided 2 per cent tax on it by a separate entry, namely, Entry 8 in Part III. Having taxed coal and firewood at 2 per cent, it does not appear to be possible that the Legislature deliberately left out charcoal from the connotation of the word "coal" and left it to be charged at 4 per cent under the residuary Entry I in Part VI. The object of the Legislature clearly was to tax coal and firewood as articles used as fuel and did not make a separate entry in regard to charcoal as it must be aware that coal as understood in ordinary and commercial sense would include charcoal. Had that not been so, instead of leaving it to be dealt with under the residuary item, it would have enacted a separate entry just as it did in the case of firewood which it knew would not in its ordinary meaning fall under the term "coal".
105. In this present case it appears that a gazette notification dated 18-3-1986 was published in gazette dated 16-3-1986. A copy of the same has been annexed as annexure 7 to this application. It is under the signature of the Deputy Commissioner, Hazaribagh (respondent No. 5) in exercise of the power conferred under Clause 2(a) of the Bihar Essential Articles (Display of Prices and Stock) Order, 1977 notifying charcoal is coal. Another notification dated 7-6-1986 (copy of which is annexure 8 to the writ petition) was issued under the said Display Order and was published in gazette dated 16-3-1986 (sic). By this notification the earlier notification dated 18-3-1986 was cancelled and the said notification dated 18-3-1986 was again published mentioning "charcoal" at serial No. 36 in Part II of the Schedule to the order.
106. It was argued by the learned Counsel for the petitioner that if charcoal was included in coal then what was the necessity of these two notifications. It was also urged that the publication of the notifications, dated 11-3-1986 in the gazette dated 16-3-1986 shows mala fide on the part of the authorities and so it is an attempt to cover up the illegalities committed by the authorities. As to this it has been said in the counter-affidavit that the gazette notification dated 18-3-1986 had been given to a private publisher to publish in the gazette dated 20-3-1986 but he wrongly published in gazette dated 16-3-1986 and so on account of this mistake the subsequent notification dated 7-6-1986 had to be issued cancelling the earlier one and publishing it again. Learned Counsel for the State said that charcoal is already included in coal. This notification should not have been published. To me this argument of the learned Counsel for the State appears to be correct. It is only confusion on the part of the authorities who had issued notification subsequently and that is only after the occurrence in dispute which was dated 16-3-1986 when the first information report had been lodged and that will not give any benefit to the State by this notification.
107. The contention of the learned Counsel for the petitioner confining the meaning of the word 'coal' only to that mineral, that is extracted from the earth alone, will mean to curtail the meaning of coal and to exclude coal made of wood burnt. As mentioned above coal is Pathar Ka Koila, Babul Ka Koila and Lakari Ka Koila are the words of use understood by the public at large for the word coal and all such forms of coal are used as fuel, The legislature while giving out the definition of coal in the provisions has enlarged the meaning of coal by including soft coking coal and semi coking coal (in Colliery Control Order, 1945) and in Coal Control Order has also said including coke. In Mines and Minerals (Regulation and Development) Act, 1957 coal has been classified in different groups and in Essential Commodities Act coal includes the soft coke also and in Bihar Trade Articles (Licenses Unification) Order, l984 coal without any specification which means that the coal in any form. Thus the legislature never wanted to limit the meaning of the word coal only to mineral extracted from earth. Had the legislature intended to curtail and limit coal only to that mineral recovered from the mines, then the legislature would have mentioned so. Rather the word 'include' has been added. In the case of Commissioner of Income Tax, Andhra Pradesh v. Taj Mahal Hotel, Secundrabad , the Supreme Court has observed:
The word include is often used in interpretation clause in order to enlarge the meaning of the words or phrases occurring in the body of the statute. When it is so used, these words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include.
108. To give a limited meaning to the word coal as mineral alone will be limiting its meaning. In the Full Bench decision of this Court in the case of Sheobalak Singh v. Kamaruddin Mandal AIR 1922 Patna 435 it was said:
To read into the section words limiting its operation in the sense contended for would be to usurp the functions of the Legislature which it is not within the competence of the High Court or any other Court to do Thus here the word coal is clear, unambiguous and it is also inclusive and not exclusive; so far excluding the burnt wood, which is used as coal by the public at large and giving a restrictive meaning to that which is a mineral taken out from the earth and also used as fuel; is not warranted by law. The policy of the Essential Commodities Act is for availability of fuel in the shape of coal and to suppress the mischief of non-availability of fuel. The restricting of the fuel only to material extracted from mines will be defeating the purpose of the law and giving a meaning which the legislature never wanted. It will be relevant to 'refer to the following observations of the Supreme Court in the case of S.K. Gupta v. K.P. Jain and Anr. AIR 1979 SC 734 at page 743-para 25 while dealing with the definition of the ward 'altered' and 'alteration' in Section 2(1) of the Companies Act:
The noticeable feature of this definition is that it is inclusive definition and where in a definition clause the word 'include' is used, it is so done in order to enlarge the meaning of the words of phrases occurring in the body of the statute, when it is so used, these words or phrases must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include Seel Dilworth v. Commr. of Stamps (1899) AC 99 at p. 105. Where in a definition Section of a statute a word is defined to mean a certain thing, wherever that word is used in that statute, it shall mean what is stated in the definition unless the context otherwise requires. But where the definition is an inclusive definition, the word not only bears its ordinary, popular and natural sense whenever that would be applicable bat it also bean its extended statutory meaning. At any rate, such expansive definition should be so construed as not cutting down the enacting provisions of an Act unless the phrase is absolutely clear in having opposite effect See Jobbins v. Maddlesex County Council (1949) 1 KB 142, where the definition of an expression in a definition clause is preceded by the words unless the context other vise requires, normally the definition given in the section should be applied and given effect to but this normal rule may, however, be departed from if there be something in the context to show that the definition should not be applied See Khanna, J. in Indira Nehru Gandhi v. Raj Narain . It would thus appear that ordinarily one has to adhere to the definition and if it is an expensive definition the same should be adhered to. The frame of any definition more often than not is capable of being made flexible but the precision and certainty in law requires that it should not be made loose and kept tight as far as possible See Kalya Singh v. Genda Lal .
Thus the word coal, with an expensive and widely inclusive character should not be cut down only to that coal taken out from the earth as a mineral; coal is also that coal, which is burnt wood, or residue of burnt wood and is a forest produce. That is why word 'coal' alone has been mentioned which means any kind of coal.
109. A question arises that the word coal has been used in the Sales Tax Act which is a taxing statute and so its meaning may be for purposes of taxation alone. As to this question, it is to be seen as to how far the meaning given in the taxing statute is different in other spheres. In the case of Commissioner of Sales Tax, Madhya Pradesh, Indore, (supra) coal has been given meaning including charcoal where the question of taxation was no doubt involved In that statute coal and firewood were taxed at 2 percent. The Supreme Court, keeping in vie v. its object in that case, said, The object of the legislature clearly was to tax coal or firewood as articles used as fuel and did not make a separate entry in regard to charcoal as it must be aware that coal as understood in ordinary and commercial sense would include charcoal Had that not been so, instead of leaving it to be dealt with the residuary item, it would have enacted a separate entry just as it did in the case of firewood which it knew would not in its ordinary meaning fall under the term coal. Thus coal and firewood were treated as different items. Later on taxing law was amended by the Central Act and charcoal has been excluded from coal. Section 14 of the Sales Tax Act provides for separate taxation. Thus for the purpose of taxation it has been separated but the meaning of a word in a taxing statute may at one time become not to be same at time different from that in the common parlance. In the case of Filterco and Anr. v. Commissioner of Sales Tax, M.P. and Anr. it was observed by the Supreme Court:
The legal position is now well-settled that words of everyday use occurring in a taxing statute must be construed not in their scientific or technical sense but as understood in common parlance, that is, in their "popular sense".
110. In common parlance coal of every form is understood as coal but for taxing purposes, if there is some distinction that will not have any effect upon the general meaning understood in common parlance or in popular sense. The Supreme Court in the case of Filterco, (supra) has quoted the observations of Story, J., in the 200 chests of Tea (1824) 9 Wheaton (U.S.) 430 at 438:
...the particular words used by the legislature in the denomination of article are to be understood according to the common commercial understanding of the terras used, and not in their scientific or technical sense, for the legislature does not suppose our merchants to be naturalists, or geologists, or botanists.
111. This principle has been followed in a number of the decisions of the Supreme Court in M/s. Motipur Zamindari Co. Ltd. (supra), State of West Bengal v. Washi Ahmad (supra) and Porritts and Spencer (Asia) (supra). It will not be out of place to mention that this Court also in Full Bench decision in Kundori Labour Co-operative Society v. State of Bihar and others, (supra) where the question involved was as to whether slurry is coal or not held at page 246 (para 11):
It thus seems plain that the true nature of slurry is that it is residue, reject or waste of an industrial process consisting of mud, ash, (sic)oily substances, water and carbonaceous ingredients. Therefore, intrisically to lable this industrial effluent as coal itself would, indeed be far fetched if not absurd.
112. Thus coal includes not only coal extracted from the earth but also the residuary from burnt wood or any such material and is used as fuel. Thus the charcoal which is a produce of burnt wood is also coal.
113. There can be one more aspect of the matter. The Supreme Court in the case of Commissioner of Sales Tax M.P. v. Jaswant Singh Chan Singh, (supra) has given a meaning of coal as including charcoal but by this Full Bench, the meaning of the word coal and charcoal a meaning different from that given by the Supreme Court, is sought to be given In the case of G.K. Dudani v. Sharma (supra), wherein the Supreme Court has observed at page 1463 (para 19):
The interpretation placed by the Division Bench upon the words "promotees regularly appointed" in direction (d) in Chauhans' case was wholly erroneous. Under the guise of interpreting the judgment in that case, the Division Bench of the High Court virtually sat in appeal over the judgment of this Court and modified it. The High Court ought to have taken the words in that judgment in the sense in which they were used and ought to have applied them to the facts before it instead of trying to put words in the mouth of this Court.
114. Though the situation in this case is not exactly the same, but by giving a different interpretation, it virtually amounts to putting the words in the mouth of the Supreme Court that charcoal is included in coal only in that particular case and not in other situations, although different situations does not exist.
115. In the result, coal includes charcoal. There is no merit in the writ application and it is accordingly dismissed.