<NAME>, J.

1. The facts which have given rise to the present appeal are briefly these: Defendants 1 and 3 are two brothers and defendant 2 is their mother. The father of defendants 1 and 3, who was the husband of defendant 2, left a will by which the whole of his properties vested in defendant 2. After his death defendant 2, the widow, managed for some time the properties, and thereafter defendant 1 managed the family affairs till May 1921, when he separated from his mother and the other brother. In the course of his management various loans were contracted. Some of the loans were taken by defendants 1 and 2 jointly and others were taken by defendant 1 alone. After the separation, two of the senior pleaders of <ORG> were appointed arbitrators by defendants 1 and 2 to decide who, among the two defendants, was liable for the debts contracted. The arbitrators gave their award holding inter alia that defendant 2, that is to say, the mother, was liable for a debt of about Rs. 900 due to the plaintiff in the present case. On these allegations the plaintiff instituted the present suit for recovery of the money due on the hand-note executed in his favour by defendant 1 on 13th November 1921 against all the defendants. The defence of defendant 2 inter alia was that the plaintiff had no cause of action as against her. The <ORG> of first instance decreed the suit against defendants 1 and 2 and dismissed the plaintiff's claim as against defendant 3. Against this decision defendant 2 preferred an appeal to the lower appellate <ORG>. This appeal was however dismissed by the learned Additional District Judge of Pabna. Against the decree of the learned Additional District Judge, defendant 2 has come up to this <ORG> on appeal.

2. On behalf of the appellant, defendant 2, it was contended in the first place that the plaintiff's claim against her, based as it was on the arbitration award was not maintainable, inasmuch as the plaintiff was not a party to the arbitration between defendants 1 and 2. This contention seems to me to be well founded. No doubt, it is true that the general rule as enunciated in Tweddle v. <NAME> (1861) 1 B&S 393 that a stranger cannot enforce a contract between two other people, is not applicable in this country and that in India such a contract in certain circumstances can be enforced by a stranger thereto. But the circumstances in which it can be thus enforced have been enumerated in a Full Bench decision of <ORG> in <CITATION> AIR 1930 Mad 382. In this <ORG> case <NAME>, J., after a full survey of all the case-law on the subject has held that the exception to the general rule that a contract cannot be enforced by a person who was not a party thereto, arises from the following circumstances: (1) where one of the parties to the contract afterwards agrees with the stranger to pay him direct; (2) where the contract creates a trust in favour of the stranger; (3) where the contract charges the money to be paid out of some immovable property; and (4) whore the money is due to the stranger under a marriage settlement, partition or other family arrangement. None of these circumstances existed in the present case. Defendant 2 never agreed with the plaintiff to pay him the money. No trus't was created in favour of the plaintiff and it was never arranged that the money due to the plaintiff was to be paid out of some immovable property and the money was not held to be due to the plaintiff under any marriage settlement, partition or other family arrangement.

3. On beha<NAME>f of the respondent some re<NAME>iance was p<NAME>aced upon three decisions of this Court: Protap Narain v. <NAME> (1901) 5 CWN 386, <CITATION> AIR 1914 Ca<NAME> 129 and <CITATION> (1918) 36 IC 792. As regards the <NAME> case (1901) 5 CWN 386, I am of opinion that it is c<NAME>ear<NAME>y distinguishab<NAME>e. In that case a person was he<NAME>d entit<NAME>ed to sue for recovery of the money on the basis of a compromise to which she was no party, but she was so he<NAME>d on the ground that the compromise of doubtfu<NAME> rights, the case of some of the parties in the suit that was compromised being that a partition was inva<NAME>id and inoperative whi<NAME>e the others maintained that it had been du<NAME>y effected. In the present case there was no <NAME>itigation which was terminated by the arbitration award; and it is not known whether there was any rea<NAME> contest between defendant 1 and defendant 2, over the particu<NAME>ar debt due to the p<NAME>aintiff which I may mention again was a <NAME>oan contracted on 13th November 1921, some months after the termination of defendant <NAME>'s management of the fami<NAME>y affairs. As regard's the other two decisions I mean the decisions reported in Debnarayan Dutt v. Chuni La<NAME> AIR 1914 Ca<NAME> 129 and <CITATION> (1918) 36 IC 792 a<NAME><NAME> that I need say is that the ru<NAME>e enunciated in these two decisions was not fo<NAME><NAME>owed by two other <NAME>ater decisions of this Court, viz., in <CITATION> AIR 1926 Ca<NAME> 1009, and <CITATION> .

4. I would therefore hold, following the Pull Bench decision of <ORG> reported in <CITATION> AIR 1930 Mad 382, that the plaintiff in the present case was not entitled to lay any claim against defendant 2 on the basis of the arbitration award, and that being so his claim against her ought to have been dismissed. The result therefore is that this appeal succeeds. The plaintiffs' claim against defendant 2 will stand dismissed. Defendant appellant 2 will get her costs in all the <ORG>.

<NAME>, <NAME>

5. I agree.


JUDGMENT <NAME>, J.

1. This is a suit by a mortgagor against his mortgagees to prevent them from exercising their power of sale. Although in the plaint several averments are made in respect of the sale intended to be held on May 8, 1941, the relief asked for is not in respect of that particular sale. The plaintiff contends that the power of sale contained in the mortgage deed is invalid and inoperative and it should be declared that the defendants are not entitled to exercise the same. These two. prayers are followed by a prayer for injunction. No other relief is sought in the suit.

2. The mortgage was executed by the plaintiff on April 18, 1940, and the due date was July 18, 1940. From the pleadings it is clear that the due date has expired and the mortgagor (plaintiff) has failed to pay the mortgage debt. There has been no offer to redeem the mortgage.

3. The first contention raised on behalf of the defendants is that the suit as framed is not maintainable. It was argued that a mortgagor must file a suit for redemption and offer to pay the mortgage debt after the due date has expired if he wants any relief against the mortgagees who are acting under the mortgage deed. The plaintiff relied on three cases, <CITATION> (1877) I.L.R. 2 Bom. 252, <CITATION> (1920) 23 Bom. L.R. 1241 and <CITATION> (1940) 43 Bom. L.R. 553. The Advocate General for the plaintiff strongly relied on the last case where it was observed that a mortgagor can ask for an injunction in the event of the mortgagee attempting to exercise his power of sale improperly or irregularly. In the first case the suit was filed for redemption and the Court held that even after such a suit was filed the mortgagee could exercise the power of sale contained in the mortgage deed and cannot be restrained from exercising his power of sale merely because of the redemption suit. <NAME>, in the course of his judgment, observed (p. 256):

The mortgagor is entitled to have the sale of the property suspended only if he can shew either that he has paid off the mortgage lien or that he has made a legal tender of the amount due which has been refused.

<CITATION> the due date had not arrived and the mortgagee had threatened to sell the property although the mortgage debt had not become due. That is clearly a different set of facts from what is found here. <CITATION> . in the course of his judgment expressly stated (p. 557):

No case was cited before me to show that if the right to redeem had not accrued to the mortgagor he could not bring in a suit for an injunction restraining a wrongful sale, but that his only remedy was either to pay or tender the moneys and allow the property to be sold, and then pursue his remedy in damages if any.

The facts there clearly show that the mortgage debt was alleged by the mortgagee to be due, while it was contended by the mortgagor that the event on which the due date was accelerated either had not happened or that the mortgagee had not exercised his option to call in his mortgage amount on the happening of such an event. It was therefore contended by the mortgagor that the mortgage debt had not become due.

4. The observations in each individual judgment have to be read in the light of facts found in the case, and under the circumstances it does not appear to me that any of the three cases relied upon by the plaintiff sustains the contention that after the mortgage debt has become due the mortgagor is entitled to file a suit to restrain the mortgagee from exercising the power of sale without offering to redeem and tendering the amount. I have already pointed out that in this case the plaintiff does not suggest that the mortgage debt has not fallen due. The plaint admits that it has fallen due.

5. The contract between the parties is found in the indenture of mortgage. By that document the plaintiff had stipulated that he would pay the mortgage amount on July 18, 1940, to the mortgagees. The present demand on the part of the plaintiff is to enforce his right under that contract although he has committed a breach of one of the most important terms of the same. The argument of the defendants is that as the plaintiff has committed a breach of the contract he has no right to come to <ORG> and seek to enforce it against the defendants. It is argued that relief by way of injunction is granted on the same principles on which the <ORG> will order specific performance, and in this case if the plaintiff had asked for specific performance of this contract the <ORG> would have refused it because the plaintiff himself had committed a breach thereof. The <ORG> should similarly refuse the relief by way of injunction. In my opinion there is considerable force in this contention. The relief by way of injunction is always discretionary and the <ORG> will be slow to grant such a relief to a party who admits that he has committed a breach of the contract and at the same time wants to prevent the opposite party from enforcing his rights under the contract. Moreover the relief by way of injunction should in this case be very well and properly accompanied by a prayer for redemption. If the plaintiff chooses to refrain from carrying out his obligations and prays only for an injunction, it is difficult for the <ORG> to exercise a discretion in his favour. To permit the plaintiff to do so would mean that the plaintiff can persist in his breach and prevent the defendants from enforcing their rights under the contract. Moreover in this case the express terms of the contract contained in the mortgage deed show that if the power of sale was exercised improperly or irregularly or that the same was unnecessary, the remedy of the plaintiff in respect of any breach of the proviso was to be in damages only. That is the usual clause in a mortgage deed and is inserted for the benefit of the mortgagor as well as the mortgagees. Without such a clause if an objection is taken to the sale at the time of the auction, the purchaser may be scared away and may not offer a proper price. In order, therefore, that the purchaser may give a proper value this clause is found in mortgage deeds. By that clause it is clear that the parties had stipulated that in the event of an improper, irregular or unnecessary exercise of the power of sale the remedy of the aggrieved party was to be only in damages. Having regard to this clause the <ORG> will be most reluctant to give an injunction to the mortgagor. In my opinion, the suit as framed is not maintainable and the mortgagor should pray for redemption before asking the <ORG> to intervene and grant an injunction restraining the defendants from exercising their power of sale. This leaves the question whether the power of sale is wholly illegal.

6. On the merits an interesting argument was advanced on behalf of the plaintiff. It was contended that by Section 69 of the Transfer of Property Act the legislature had provided that in certain cases only a mortgage deed might contain a power of sale. Relying on the words of Section 69 it was argued that the power of sale should be without any additions, limitations or ancillary rights. The power of, sale in this case is in the following terms:--

...And it is hereby agreed and declared that notwithstanding anything contained in the Trustees and Mortgagees Powers Acticle 1886, it shall be lawful for the mortgagees or any person acting on their behalf at any time or times hereafter as well before as after the due date without any further consent on the part of the mortgagor to sell or to concur in the sale of the mortgaged premises hereby mortgaged and granted or expressed so to be or any part or parts thereof without the intervention of the <ORG> and either together or in parcels or lots and either by public auction or private contract and either with or without any special conditions or stipulations relative to title or evidence of commencement of title or otherwise which may be deemed proper by the mortgagees with power to postpone such sale from time to time and to buy in the said hereditaments and premises or any part thereof at any sale by public auction or to rescind or vary any contract for the sale thereof and to resell the same from time to time being not answerable or responsible for any loss or diminution occasioned thereby and for the purposes aforesaid or any of them to make agreements execute assurances give effectual receipts or discharges for the purchase money and do all other acts and things for completing the sale which the person or persons exercising the power of sale shall think proper AND the aforesaid power shall be deemed to be a power to sell or in selling without intervention of the <ORG> within the meaning of section 69 of the Transfer of Property Act, 1882.

It was contended that this was not authorised by Section 69 of the Transfer of Property Act and therefore the power was invalid. It was argued that this power was one and indivisible and as it was bad the mortgagees had no right to sell the property without the intervention of <ORG>. In this connection it was pointed out that the draftsman of the indenture of mortgage had committed the error of borrowing the form from English forms and precedents. It was argued that the law in England was different and therefore this form could not be properly adopted for mortgages in India having regard to the provisions of the Transfer of Property Act .

7. In my opinion this contention of the plaintiff is unsound. The first statute enacted in England incorporating the rights of the mortgagees was 23 & 24 Vic. Clause 145 (Lord Cranworth's Act) of 1860. Even before that in Davidson's Conveyancing Precedents of 1858 (Vol. II, p. 760) a form of mortgage with a power of sale worded exactly as in this case is shown to be the usual form. The Act of 1860 recognised that this power was commonly inserted in mortgages. This is made clear by the preamble to that Act. By the Act it was presumed to exist. Next came the Conveyancing Act of 1881 (44 & 45 Vic. Clause 41). Section 19 of that Act recognised this as an implied power of sale in the mortgagee. At present the Law of Property Act of 1925 (15 Geo. V, Clause 20), Section 101 , governs the rights of the parties in England. By Section 101(1)(i) it is provided that such a power of sale is implied in favour of a mortgagee. The expression "power of sale" thus appears to be a well-known expression in conveyancing. In <ORG> printed in 1858 the marginal note against a clause worded as here is "power of sale." In India the same expression is known and has been understood in the same way so far back as 1875 in <CITATION> (1875) I.L.R. 2 Bom. 1.

8. On behalf of the plaintiff it was argued that this is an incorrect way of approaching the case. The English law should not be looked at and a reference to the precedents there is not relevant. The <ORG> has to consider only Section 69 of the Transfer of Property Act. I concede that in interpreting Section 69 English statutes cannot govern the plain meaning of the words used in it. But I am unable to find anything in Section 69 which in any way is in conflict with or different from the English Act . The words "power of sale" are not defined anywhere in the Act. If it is a technical expression it would not be improper for the <ORG> to find out its meaning as judicially interpreted. <CITATION> was decided before the Transfer of Property Act of 1882 was enacted and can therefore be safely relied upon to construe the words "power of sale" in connection with a mortgage. The words used in Section 69 are ". . . a mortgagee . . . . shall, subject to the provisions of this section, have power to sell" &c. and the insertion of a clause giving such a power when the property is situate in one of the Presidency towns or the towns mentioned in Sub-section (c) is valid. It may be noted that in Sub-section (c) the words used are "Where a 'power of sale' without the intervention of the <ORG> is expressly conferred on the mortgagee . . ." The words "power of sale." used in Sub-section (c) refer to a clause to be expressly included in the mortgage. They must be understood therefore to mean what is ordinarily known and understood in conveyancing by that expression.

9. The argument of the plaintiff based on the construction of the words used in this case is also unsound. A power of sale must include all steps which are necessary to be taken in that connection. In order to make the power bad words must be pointed out in the section which render the whole power invalid according to law. It should be remembered that as between adults the law permits the greatest freedom of contract unless it is expressly taken away. Therefore if the plaintiff contends that this particular clause restricts in any way the power of the parties to enter into a contract, the burden is on him to show that the words of the section prevent an agreement between the parties as embodied in the document. I am unable to find any words in Section 69 which prevent the parties from entering into the contract found in this mortgage deed. It was argued that under Section 69 a mortgagee had no power to postpone the sale. I am unable to accept that contention. A power to sell must necessarily include a power to postpone the sale. It is a power to sell either now or at a later date. I do not think that expression is against the words used in Section 69 . It was contended that the power to buy in, or rescind or vary any contract for sale was bad and against the words of Section 69 . This argument is based on a misapprehension. The words used are not "buy out" but "buy in." No mortgagee has a right to buy the mortgage premises without an express authority from the <ORG>. If he attempted to buy directly or indirectly, on proof that the transaction was of that nature, the <ORG>s have always held that the mortgage subsisted and the transaction of sale was a nullity. I do not think the expression "buy in" has ever been intended to give the mortgagee that right. It should be realised that if at an auction sale there are several intending purchasers and the highest bid is very inadequate, a way has to be found by which the property is not sold to the highest bidder and cause a tremendous loss both to the mortgagor and the mortgagee. The expression "buy in" is therefore used so that in effect the party at whose instance the auction is held takes the property out of the auction. The only way in which the auction can be closed is by such an offer being given and the property not being knocked down to an outsider. The expressions used after the words "buy in" make this position very clear. The mortgagee is given a right to buy in or to rescind i.e. to set aside the contract of buying or vary any contract for sale and to resell the same. Therefore when an auction sale is found not to result in realising the proper value, the mortgagee may either postpone the sale, or if he finds that he is unable to do so because the auction sale had started, he has to resort to the second way to prevent the property being knocked down at an undervalue and to resell the same. I do not think, on a true interpretation, the clause relating to the power of sale gives the mortgagees a right to buy the property for themselves. Unless that construction is put on this clause there is nothing to violate the words "power to sell" used in Section 69 . In my opinion, therefore, this clause does not violate Section 69 in any manner and the power is valid.

10. It was argued that if a portion of the power is bad the whole power is bad because it is one and indivisible. Having regard to the view which I have taken, I do not think it necessary to discuss this aspect of the case.

11. My findings on the issues are: No. 1 in the negative; No. 2: The power is valid; No. 3 in the affirmative and No. 4 in the negative. The suit is, therefore, dismissed with costs. The interim injunction granted on May 8, 1941, is dissolved. Costs to include costs reserved. The mortgage deed provides that if the mortgagees' rights have to be defended in any manner the mortgagees will be entitled to claim their costs when taxed as between attorney and client. Ordinarily I am reluctant to award costs taxed otherwise than between party and party, but in the present case the mortgagor himself has challenged the mortgagees' title and has attacked the right found in the contract. I, therefore, award the defendants costs against the plaintiff when taxed as between attorney and client.


JUDGMENT <NAME>, J.

1. These three writ cases involve common question of law and hence they have been heard together and are being disposed of by a common judgment.

2. The authority concerned, i.e., respondent No. 2, has held that the petitioners were liable to pay sales tax on wheat bran (chokar).

3. Whether wheat bran (chokar) is a cattle feed or not and whether the petitioners are liable to pay sales tax on the sale of wheat bran are the intricate and significant questions involved in these writ cases.

4. Admittedly the period in question is the period before 29th June, 1985 (the date on which Notification No. S.O. 611 dated 29th June, 1985, came into force).

5. The petitioners claim that no sales tax was payable on the sales of wheat bran as, according to the petitioners, it was exempted under item No. 35 of the Notification No. Bikrikar/San/1026/77-14547 dated 26th December, 1977 (annexure 1 to C.W.J.C. No. 2725 of 1984), as a cattle feed; whereas, in short, the submission advanced on behalf of the <ORG> is that the effect of exemption notification dated 26th December, 1977, is taken away because a retroactive notification (with effect from 26th December, 1977) was issued on 9th March, 1978 (Notification No. 3320), which made "bran" exigible to tax.

[It will be most pertinent to note that in annexure 1 to C.W.J.C. No. 2725 of 1984; in item No. 35, explanation (i) to (iii) has been wrongly typed as this explanation was inserted by Notification No. 3322 dated 9th March, 1978 retrospectively from 26th December, 1977.] In other words, the submission on behalf of the <ORG> is that the retroactive notification of 9th March, 1978 (No. 3320) inferentially and by implication taxes bran by superseding the exemption notification. The submission on behalf of the <ORG> also was that an evidence of intention to tax bran should be read or inferred by implication by allowing the notification of rate of tax or exigibility in order to override the exemption.

6. The petitioners claim (in C.W.J.C. No. 2725 of 1984), by a petition dated 29th March, 1984, that no sales tax was leviable on the sale of wheat bran which, according to the petitioners, was a cattle feed, was rejected by the Deputy Commissioner of Commercial Taxes, <NAME> Circle, <NAME> (respondent No. 2), by his order dated 4th May, 1984 (annexure 5 to C.W.J.C. No. 2725 of 1984) (wrongly mentioned as order dated 29th March, 1984, in paragraph 1 of the writ petition and also in the prayer portion). The petitioners also challenged annexure 5(1).

Similar orders as in annexures 5 and 5-A were passed by the Assistant Commissioner of Commercial Taxes, Singhbhum Circle, Jamshedpur (respondent No. 3) in C.W.J.C. No. 5637 of 1985 and by the Deputy Commissioner of Commercial Taxes, Bokaro Circle, Bokaro Steel City (respondent No. 2), in C.W.J.C. No. 1918 of 1984 as in annexure 4.

Thus, the impugned annexures are annexures 5 and 5-A in C.W.J.C. No. 5637 of 1985 and annexure 4 in C.W.J.C. No. 1918 of 1984. The orders passed in these two writ cases are of different dates, as would appear from the impugned annexures.

7. The answer to the significant questions rests upon the interpretations of the two notifications referred to above and also the notification dated 29th June, 1985 (S.O. 611). These notifications will be referred to hereafter.

8. The petitioner in C.W.J.C. No. 2725 of 1984 is a registered partnership firm and runs a flour mill which is engaged, inter alia, in producing various products, namely, bran out of wheat crushing, atta, maida and sujji.

Similarly, the petitioner in C.W.J.C. No. 5637 of 1985 is a private limited company and is engaged, inter alia, in the very same products.

Similarly, the petitioner in C.W.J.C. No. 1918 of 1984 is a limited company and is engaged, inter alia, in producing the very same products.

(We are not concerned in the present writ cases with regard to the products, namely, atta, maida and sujji, as the present writs have been confined only to the question of the product, namely, "wheat bran".)

9. Before I deal with the question involved in these writ cases, it is most pertinent to quote the three notifications, referred to in the aforesaid paragraphs.

In the notification dated 26th December, 1977, it would not be pertinent to quote any other item except item No. 35. (This notification has been marked annexure 1 to C.W.J.C. No. 2725 of 1984.) (A) Notification dated 26th December, 1977, has been made annexure 1 to the writ case, C.W.J.C. No. 2725 of 1984, which is quoted as below :

No. Bikrikar/San. 1026/77-14547 dated the 26th December, 1977.

In exercise of the powers conferred by Clause (a) of Sub-section (3) of Section 6 of the Bihar Sales Tax Fifth Ordinance, 1977 (Bihar Ordinance No. 257 of 1977), the Governor of Bihar, in supersession of all previous notifications in this regard, is pleased to exempt the sale of goods specified in the second column of the Schedule annexed hereto from the levy of 'sales tax' subject to the conditions and restrictions, if any, set out in the corresponding entry in the third column thereof.

SCHEDULE

Serial No. Description of goods Conditions and restri-

ctions subject to which exemption has been allowed

1 2 3

* * * 35. Cattle feed and poultry feed. * * * ------------------------------------------------------------- 2. This notification shall come into force with effect from 26th December, 1977. (B) Notification dated 9th March; 1978, on which the submission on behalf of the respondent (<ORG>) is based, as follows :

Before I quote these notifications, it is pertinent to mention that in the Bihar Gazette (Extraordinary) dated 13th March, 1978, there were two notifications dated 9th March, 1978 and they are as follows :

(i) "No. BikrikarlBB/12215/77-3320 dated the 9th March, 1978.

In exercise of the powers conferred by the proviso to Sub-section (1) of Section 11 of the Bihar Sales Tax Fifth Ordinance, 1977 (Bihar Ordinance No. 257 of 1977), the Governor of Bihar is pleased to make the following amendments in the Schedule appended to the Government of Bihar, Finance (Commercial Taxes) Department Notification No. Bikrikar/San/1026/77-14545 dated the 26th December, 1977, as amended from time to time, namely :-

Amendments.-1. In the said Schedule, for serial No. Hand its corresponding entries in columns 2 and 3, the following serial number and its corresponding entries shall, respectively, be substituted, namely :-

1 2 3

11. Atta, maida, sujji and bran. 3 per cent.

2. In the said Schedule, the words 'excluding atta, maida, sujji and paddy' appearing within bracket in column 2, against serial No. 12, shall be substituted by the words 'excluding atta, maida, sujji, bran and paddy'.

3. This notification shall be deemed to have come into force with effect from 26th December, 1977.

By order of the Governor of Bihar, <NAME> Commissioner of Commercial Taxes and ex officio Special Secretary to Government.

(This notification has been marked annexure B in the counter-affidavit filed on behalf of the respondents in C.W.J.C. No. 5637 of 1985.)

(ii) San Vi. Kar/BB/12215/77-3322, 9 March, 1978.

Bihar vikri kar pancham adyadesh 1977 (Bihar adyadesh sankya 257/1977) ki dara ki updara (3) ke kand (ka) dwara padat shaktiyon ka prayog karte huye Bihar Rajyapal samay-samay par yatha samshdith Bihar sarkar, vith (vanijya kar) vibagh ki adhisuchna sankya ki kar/sankya/1026/77-14547, dinank 26 December, 1977 se samlagan anusuchi me nimna samshodan karte hain:-

<NAME>

1. Ukta anusuchi ki kram sankya 35 ke stamba 2 me ankath pravishtiyon ke stan par nimna pravishtyan pratisyapith ki jayegi:-

1 2 3

"Pashuchara thatha kukutchara" Spashtikaran :-Pashuchara thatha kukutchara se abhipret hai- (1) Gayayon ke liye pelets yevam mash concentrates (2) Sugar maash yevam pelets. (3) Layers, growers cheeks, yevam bierlers ke liye kukut maash yevam pelets.

(4) Kukut kadya concentrates.

2. Yah adhisuchna 26 December, 1977 se prabavi samji jayegi.

Bihar Rajyapal ke aadesh se <NAME> kar aayukth-saha-paden vishesh sachiv.

San Vi. kar/BB-12215177-3323, 9 March, 1978.

Adhisuchna sankya 3322, dinank 9 March, 1978 ke angrezi me nimnalikith anuvad Bihar Rajyapal ke pradikar se iske dwara prakashit kiya jatha hai jo Bharat Savdan ke anuched 348 ke kand (3) ke adin angrezi bhasha me uska pradikrit pat samja jayega.

No. Bikrikar \BB\12215\77-3322 dated the 9th March, 1978.

In exercise of the powers conferred by Clause (a) of Sub-section (3) of Section 6 of the Bihar Sales Tax Fifth Ordinance, 1977 (Bihar Ordinance No. 257 of 1977), the Governor of Bihar is pleased to make the following amendments in the Schedules appended to the Government of Bihar, <ORG> Notification No. Bikrikar/San/1026/77-14647 dated the 26th December, 1977, as amended from time to time, namely :-

Amendments.-1. In the said Schedule, for the entry in column 2 against serial No. 35, the following entry shall be substituted, namely :-

'Cattle feed and poultry feed.

Explanation.-(1) Pellets and mash concentrates for cattle.

(2) Pig mash and pellet.

(3) Poultry mash and pellets for layers, growers, chicks and broilers.

(4) Poultry feed concentrate.'

2. This notification shall be deemed to have come into force with effect from 26th December, 1977.

(This notification has been marked annexure A in the counter-affidavit filed on behalf of the respondents in C.W.J.C. No. 5637 of 1985.) I have purposely quoted this notification which was published in both the j languages, i.e., in Hindi and in English, as the learned counsel for the respondents has in support of his submission, argued that if the notification is published in both the languages (Hindi and English) and in the English translation of the Hindi notification if an omission to translate a word has occurred then it would be the Hindi version of the notification which will prevail.

(iii) Then remains the notification dated 29th June, 1985 (S.O. 611) which needs to be quoted.

I would omit other items from this notification which are not necessary for the purpose of the present case.

No. S.O. 611 dated the 29th June, 1985.

In exercise of the powers conferred by Sub-section (3) of Section 7 of Part I of the Bihar Finance Act, 1981 (Bihar Act No. 5 of 1981), the Governor of Bihar is pleased to make the following amendments in the Schedule appended to the Government of Bihar, Finance (Commercial Taxes) Department Notification No. Bikrikar/San/1026/77-14547 dated the 26th December, 1977, as amended from time to time, namely :-

Amendments.-1. In the said Schedule, serial Nos. 43 and 63 and their corresponding entries in columns 2 and 3 shall be omitted.

2. In the said Schedule, for serial Nos. 9, 21 and 35 and their corresponding entries in columns 2 and 3, the following entries shall be substituted :-

1 2 3

* * * 35. (1) Pellets and mash concentrates for cattle. (2) Pig mash and pellets. (3) Poultry mash and pellets for layers, growers, chicks and broilers. (4) Poultry feed concentrates. 3. This notification shall come into force with effect from 1st July, 1985.

[I must mention here that neither of the parties made this notification of 29th June, 1985 (S.O. 611) an annexure either to the writ petition or to the counter-affidavit, but this notification was produced before the court at the time of argument.]

10. Thus, a look at the Notification No. 14547 dated 26th December, 1977, shows that, amongst others, "cattle feed" and "poultry feed" were exempted from levy of sales tax without any condition or restriction being imposed as per column 3 of the Schedule to the notification and the said notification came into force with effect from 26th December, 1977.

Thereafter on 9th of March, 1978, came two of the notifications-one being No. 3320 and the other being 3322. These notifications were also published in English version simultaneously. By Notification No. 3320 dated 9th March, 1978, rate of tax (3 per cent) was introduced on "bran" and by Notification No. 3322 dated 9th March, 1978, an explanation to the words "Pashuchara tatha kukutchara" was added and in the explanation it was said as below :

Spashtikaran :-Pashuchara tatha kukutchara se abhipret hai:-

(1) ...

(2) ... Details already referred to in (3) ... paragraph 9 of the judgment. (4) ...

Whereas, in the English (Notification No. 3322) translation of this Hindi notification the words "pashuchara tatha kukutchara se abhipret hai" were omitted to be translated.

11. The stand taken on behalf of the respondents was that the extent and scope of the words "cattle feed" was fully explained by Notification No. 3322 dated 9th March, 1978 and no item other than the four items mentioned therein classified for the exemption under entry No. 35 of Notification No. 14547 dated 26th December, 1977 (as amended by Notification No. 3322 dated 9th March, 1978). Further stand taken on behalf of the respondents was that "<ORG>" was included in the Notification No. 3320 for fixing the rate of tax (3 per cent) and hence it was submitted that as the rate of tax was fixed by the Notification No. 3320 issued on the same date (i. e., 9th March, 1978), <ORG> (chokar) was exigible to tax under the specific entry made in this regard in that notification. On behalf of respondents it was further submitted that if the intention of the legislature was to exempt it (<ORG>) from taxation, it would have been included to the category of cattle feed in the amended entry 35 of Notification No. 3322 of the same date, i. e., 9th March, 1978.

12. Though, from the period 26th December, 1977, the petitioner (in C.W.J.C. No. 2725 of 1984) effected sale of wheat bran obtained by it in the manufacturing process, the petitioner paid sales tax including additional taxes thereon under a mistaken impression that it was liable to tax; however, on realising the mistake the petitioner (of C.W.J.C. No. 2725 of 1984) filed a petition (annexure 2 of Writ Case No. 2725 of 1984) before respondent No. 2 (the Deputy Commissioner of Commercial Taxes, Barh Circle, Barh) claiming refund of the same which was refused by the impugned annexures [annexures 6 and 5(1) of C. W. J. C. No. 2725 of 1984].

13. As already stated above. Notification No. 14547 dated 26th December, 1977, does exempt "cattle feed and poultry feed" from the levy of sales tax.

The learned counsel for the petitioners submitted that wheat bran was essentially a cattle feed and as such came under item 35 of the list of exemptions-vide Notification No. 14547 dated 26th December, 1977 and hence was not exigible to any sales tax.

The learned counsel for the petitioners submitted that the explanation put by <ORG> by Notification No. 3322 dated 9th March, 1978, only explained the words "cattle feed and poultry feed" and it neither restricted nor extended the meaning of the words "cattle feed and poultry feed". In short, the submission was that the purpose of adding the explanation was only to explain the word "cattle feed and poultry feed" and hence no tax was leviable on the sale of the aforesaid goods.

14. Earlier to Notification No. 14547 dated 26th December, 1977, "cattle feed" was liable to be taxed under the sales tax but the notification dated 26th December, 1977, exempted it from the leviability of any sales tax. What is apparent is that by the subsequent Notification No. 3322 dated 9th March, 1978, only an explanation in serial No. 35 of the original notification (dated 26th December, 1977), was inserted and there was no amendment in column 3 of the original notification dated 26th December, 1977 which had exempted "cattle feed and poultry feed" from the purview of sales tax.

15. Thus, the significant question to be decided is whether chokar (wheat bran) was a cattle feed ?

I will take up this question first as this is the main question.

16. The learned counsel for the petitioners has submitted that chokar (wheat bran) was essentially a cattle feed not only in commercial parlance but also in technical, common and legislative parlance. Learned counsel for the petitioners has drawn my attention to the materials on the record including unambiguous admissions by the authorities of the <ORG> to the effect that chokar was essentially a cattle feed and has referred to various annexures appended to the supplementary affidavit filed on behalf of the petitioners (of C.W.J.C. No. 2725 of 1984). Learned counsel for the petitioners has drawn my attention to the averment made by the petitioners to the effect that chokar (bran) was essentially a cattle feed. As a fact this averment has not been traversed/repudiated by the respondents in their counter-affidavit and thus chokar (bran) being essentially a cattle feed stands admitted by the respondents.

In order to strengthen the submission further, the learned counsel for the petitioners has drawn my attention to a letter dated 14th October, 1985 (annexure 7 to the supplementary affidavit filed on behalf of the petitioners in C.W.J.C. No. 2725 of 1984). This letter is from the Joint Secretary to <ORG>, Patna, addressed to <ORG>, Patna and is in reply to the letter dated 10th October, 1985, sent by the President by the aforesaid association. This letter (annexure 7) from <ORG> clarifies as to what a wheat bran is. It is pertinent to quote this letter :

To The President, Bihar Roller Flour Millers Association, Kaveri Apartment, Bandar Bagicha, Patna.

Sub: Certification of wheat bran as cattle feed.

Sir, I am directed to refer to your letter No. 6/85-43 dated 10th October, 1985, on the subject and to say that wheat bran is essentially a cattle feed.

Yours faithfully, Sd/-

Joint Secretary to Government.

My attention was also drawn to another letter of <ORG> dated 15th October, 1985 (annexure 8 to the supplementary affidavit filed by the petitioners). The petitioner itself had, by its letter dated 14th October, 1985, asked for a clarification on the subject and <ORG> through its Joint Director, Cattle feed, Animal Husbandry Department, clarified that to the following effect by his letter dated 15th October, 1985.

It is again pertinent to quote reply by <ORG> itself by way of clarification sought for.

Upayukth vishayak aapke patrank dinank 14-10-85 ke prasang men soochit karna hai ki chokar pasu aahar hai.

17. My attention was further drawn to another letter (annexure 9 of the supplementary affidavit filed by the petitioners) from the Director, <ORG>, dated 17th February, 1986, addressed to the Executive Director of <ORG> The learned counsel for the petitioners, while drawing my attention to this letter submitted that the <ORG>, New Delhi, was an incorporate body of <ORG> and was highly technical body from whom a clarification about wheat bran and their use in India was called for and the reply from them (annexure 9) was as follows :

U.S. Wheat Associates, Representing Wheat Grower Organizations of the United States.

New Delhi February 17, 1986.

The Executive Director, <ORG>, P.O. Shree Madhav Mills, Patna-800 008.

Dear Sir, With reference to your letter No. 195 of February 05, 1986; we wish to inform you that wheat bran is the coarse outer covering of the wheat kernel as separated from clean and scoured wheat in the usual process of commercial milling. Bran constitutes about 14 1/2 per cent of the wheat kernel included in whole wheat flour but more often removed and used in animal or poultry feed. Of the nutrients in whole wheat, the bran, in addition to indigestible cellulose material contains about: 86 per cent of the niacin, 73 per cent of the pyridoxcins, 50 per cent of the pantothenic acid, 42 per cent of the riboflavin, 33 per cent of thiamine, 10 per cent of the protein. The above nutrients are also available in animal and poultry feed and to a lesser extent in whole wheat products. In human diet, indigestible cellulose material of the bran, also known as "dietry fibre" tends to add bulk to intestinal contents, mainly through its absorption of water and other liquids present in the digestive tract.

In most countries wheat bran which is separated in commercial milling process is used as animal and poultry feed and not for human consumption. In our knowledge wheat bran in India is also used for animal feed and not for human consumption.

In case we can be of any further assistance, please feel free to write to us. Thanking you for your interest in us.

Very truly yours, for <ORG> Sd/-L. <NAME> (L. <NAME>) Director.

18. Again my attention was drawn to a certificate dated 1st March, 1986 (annexure 10 to the supplementary affidavit filed by the petitioners), granted by the Director-in-charge, <ORG>, New Delhi. This certificate dated 1st March, 1986, certified as follows:

1-3-86 To whomsoever it may concern:

This is to certify that brown bread is manufactured from whole wheat flour only. Bread cannot be made out of wheat bran only. Wheat bran is only used as a cattle feed.

Sd/- <NAME>.

(Dr. <NAME>) The learned counsel for the petitioners also referred to a letter dated 3rd February, 1986, written by <NAME>, Private Secretary to the Minister of Revenue and Land Reforms and Relief Rehabilitation Department, <ORG>. This letter is dated 3rd February, 1986 and has been marked as annexure 11 to the supplementary affidavit filed by the petitioners.

It is again pertinent to quote this letter :

Dinank 3-2-86 <ORG>, <ORG>, Patna City, Patna.

Mantri rajasva evam bhumi sudhar ke pas kayi gaye aur bachde hai jinke kane ke liye chokar ki avasyakta hai.

Kripaya pratimah panch bora chokar mulya lekar dene ki vyavastha ki jai.

Sd/-Sarayu Sinha; 3-2-86.

(Sarayu Sinha) In support of the submissions that in common commercial parlance also wheat bran was understood and was known as "cattle feed", my attention was drawn to an affidavit (annexure 12 to the supplementary affidavit filed by the Accountant of one <NAME>, Patna City). This affidavit is dated 21st January, 1986 and it is again pertinent to quote the relevant extract of this affidavit:

<NAME>, Kila Road, Patna City men lekapal ke pad par sthapit hun aur goshala ke karya kalapon se poorna avagath hun.

Shri Krishna Goshala men gayon ko gehu ka chokar kilaya jatha hai. Mai goshit kartha hun ki gehu ka chokad pasuwon ke liye ek mukya aahaar hai aur yeh padarth mavesiyon ko kilane ke kam me aatha hai.

The learned counsel for the petitioners also drew my attention to an affidavit sworn by the proprietor of the firm <ORG>, at North Market Road, Ranchi, which deals mainly in cattle feed. This affidavit has been marked as annexure 13 and is dated 22nd February, 1986. It is again pertinent to quote this affidavit (annexure 13 to the supplementary affidavit filed by the petitioners):

In <ORG>, Ranchi.

Affidavit I, <NAME>, son of Sri <NAME>, resident of North Market Road, P.O., P.S. and District Ranchi, do hereby solemnly declare as under:

1. That I am the proprietor of the firm <ORG>, located at North Market Road, Ranchi.

2. That my firm is mainly dealing in cattle feed only.

3. That I on behalf of my firm use to purchase wheat bran (chokar) from various flour mills and sell the same to the customers who purchase it for the purpose of feeding their cattle.

4. That in the market also chokar is understood as cattle feed.

5. That to my knowledge the use of chokar (wheat bran) is to feed the cattle like cows and buffaloes, etc.

6. That the statements made above has been read by me and I have understood the same and they are true to my knowledge.

Sworn & signed this affidavit this the 22nd day of February, 1986, at Ranchi.

Deponent.

Sd/- <NAME>.

Sd/- Illeg.

Identified by me 22-2-86.

The learned counsel for the petitioners also referred to two other affidavits, i.e., annexures 14 and 15 of the supplementary affidavit filed by the petitioners, which are to the same effect as that of annexure 13. It would be pertinent to quote those two affidavits also:

(a) Affidavit I, <NAME>, aged about 36 years, resident of Bodam Bazar, P.O., P.S. and District Hazaribagh, do hereby solemnly affirm and declare as follows:

1. That I am the partner of the firm <ORG>, Hazaribagh.

2. That my firm is mainly dealing in cattle feed and food grain items.

5. That to my knowledge the use of chokar (wheat bran) is to feed the cattle like cows and buffaloes, etc. Sd/- Bishwanath Agrawal.

Verification I, <NAME> do hereby declare that the statements made above are true to the best of my knowledge, information and belief, signed and verified on this the 22nd day of February, 1986, at Hazaribagh.

(b) Before Notary Public, <NAME>.

Affidavit I, <NAME>, s/o <NAME>, resident of Giridih P.S. Giridih Dist. Giridih, do hereby solemnly affirm and declare as follows :

1. That I am the proprietor of the firm M/s. Shree Mahabir Khadya Bhandar, Giridih.

2. That my firm is mainly dealing in cattle feed.

5. That to my knowledge the use of chokar (wheat bran) is to feed the cattle like cows and buffaloes, etc. Sd/- <NAME>.

Verification I, <NAME>, do hereby declare that the statements made above have been read by me and I have understood the same and they are true to my knowledge, information and belief, verified at Giridih dated 18th day of February, 1986.

19. It would be relevant to mention here that the respondents, in their counter-affidavit, have not traversed or contradicted these materials on the record and thus the fact that bran (chokar) is commercially used as "cattle feed" and is commonly sold for that purpose, has not been denied by the respondents in their counter-affidavit.

20. In the case of <CITATION> , reported in  43 STC 386, a Bench of <ORG> at Ahmedabad, interpreting the words "cattle feed and poultry feed", held as follows:

...on a true and correct interpretation of the words 'cattle feed' and 'poultry feed', those terms must include not only that food which is supplied to domestic animals or birds as an essential ration for the maintenance of life but also that feed which is supplied over and above the maintenance requirements for growth or fattening and for production purposes, such as for reproduction, for production of milk, eggs, meat, wool or feathers and, in the case of animals, also for efficient output of work. In modern times, 'cattle feed' and 'poultry feed' include a large variety of concentrates, in addition to roughages, that have a high value because they are rich in easily digested nutrients and feed supplement. Amongst the feeds which are considered essential for the proper nutrition of animals and birds; which are to be kept in a state of efficient production, are included vitamins and, more particularly, vitamins A and D, which have been found to have a profound effect upon live-stock farming by increasing the efficiency of animal production and preventing serious nutritional diseases. Vitamin A, which is required for growth, reproduction, production and even for maintenance and vitamin D, which is needed to enable the animal to assimilate and use other important elements of its feed, are most apt to be lacking in natural live-stock feeds and that they are included as additives in mixed feeds so as to make good the deficiency.

Whichever way one looks at the matter, therefore, whether one looks at it from the angle of the etymological meaning of the word in the context in which it is used here along with fodder and concentrates, or whether one looks at it from the angle of a person conversant with the industry or trade of live-stock farming or poultry raising, the words 'cattle feed' and 'poultry feed' cannot any longer be considered as meaning only that conventional food which is necessary for the bare maintenance of cattle or birds, as the case may be Such feed must consist of both the elements, namely, ration for maintenance and ration for production purpose.

As to what a wheat bran is has been explained in a letter dated 17th February, 1986 (annexure 9 of the supplementary affidavit filed by the petitioners) from the Director, <ORG>, representing <ORG> at New Delhi, which may be referred to in paragraph 17 of the judgment.

21. Again in the case of <CITATION> reported in  42 STC 470, a Bench of <ORG> (even though it was a case of rice bran) held that as rice bran is used primarily for feeding cattle and, as in common parlance, it would be classified as a cattle fodder, it would not go outside the purview of "cattle fodder" in Notification No. ST-3471/X dated 16th July, 1956, issued under the U.P. Sales Tax Act, 1948, only on account of the special use of extracting oil to which it is put by some consumers. It further held that commodities had to be classified in accordance with their normal use and the words in a notification have to be interpreted as understood in common parlance.

22. Learned counsel for the respondents has not cited any decision to show that bran (chokar) was not a cattle feed. In fact, at the cost of repetition, the respondents, in their counter-affidavit, have not repudiated the claim of the petitioners that wheat bran (chokar) was essentially a cattle feed and that in the common commercial parlance also the wheat bran was understood and was known as cattle feed.

23. Thus, in view of the fact that the claim of the petitioners that wheat bran (chokar) was essentially a cattle feed and was not used for any purpose other than feeding the cattle having not been repudiated by the respondents in their counter-affidavit-I hold that wheat bran (chokar) is a cattle feed and is as such not only in common parlance but also in technical and commercial parlance. The respondents have not placed any material in rebuttal of the materials filed by the petitioners (i.e., annexures 7 to 15 of the supplementary affidavit) in C.W.J.C. No. 2725 of 1984. These unimpeachable documents placed on the record by the petitioners are sufficient to hold that wheat bran is used primarily for feeding the cattle and, in common parlance, it would be classified as a cattle fodder and hence it is not possible to take a view that it would go outside the purview of cattle fodder only on account of some special use to which it may be put to by some consumers.

I further agree to the views taken in the cases of <CITATION>  43 STC 386 ( <CITATION>  42 STC 470 (All.) and for the reasons as given in those decisions also I hold that wheat bran (chokar) is a cattle feed.

24. Then remains the only other question to be consideredi i.e., whether the petitioners are liable to pay sales tax on the sale of wheat bran ?

As already stated above, in the earlier part of the judgment, the stand of the respondents was that the effect of the exemption Notification No. 14547 dated 26th December, 1977, is taken away because a retroactive notification (with effect from 26th December, 1977) was issued on 9th March, 1978 (Notification No. 3320), which made "bran" exigible to tax. Notification No. 3320 dated 9th March, 1978 (already quoted earlier) was issued under the Bihar Sales Tax Fifth Ordinance, 1977 and 3 per cent tax was levied on bran (along with atta, maida and sujji) and this notification was made retrospective with effect from 26th December, 1977. In that view of the matter, the submission advanced by the learned counsel for the respondents was that because of the retroactive notification dated 9th March, 1978 (No. 3320) the effect of exemption Notification No. 14547 dated 26th December, 1977, was taken away and hence the "bran" was exigible to tax. The learned counsel for the respondents also submitted that an evidence of intention to tax bran should be read/inferred by implication by allowing a notification of rate of tax in order to override the exemption. In my opinion, there is no force in this submission. The exemption Notification No. 14547 dated 26th December, 1977, with regard to "cattle feed" and "poultry feed" could be withdrawn but that was not done until 29th June, 1985, by Notification No. S.O. 611 (quoted in para 9 above). This Notification No. S.O.611 of 29th June; 1985, came into force with effect from 1st July, 1985 and as this was not brought on the record by either of the parties, a copy of the notification was produced in the court at the time of argument and by this notification in item No. 35 of the exemption Notification No. 14547 of 26th December, 1977, the words "cattle feed" and "poultry feed" were withdrawn and only four specific items were mentioned. In fact, earlier item No. 35 of exemption Notification No. 14547 dated 26th December, 1977, was for the first time substituted by item No. 35 of this notification (S.O. 611) dated 29th fune, 1985. Thus, in my opinion, the exemption was taken away only with effect from 1st July, 1985, by Notification No. S.O. 611 of 29th June, 1985. The position would still be clear that "cattle feed" and "poultry feed" were exempted from levy of additional tax by Notification No. S.O. 1613 dated 28th October, 1981 and by this notification items 1 to 35 were exempted from levy of additional tax and item No. 52 was "cattle feed and poultry feed" (reference of this notification be made at page 254 and for item No. 52 at page 257 of the Bihar Sales Tax Law by S. <NAME> (1984 Edition).

25. It is well-settled that the taxing notification prescribing a rate of tax by itself will not have the overriding effect on the exemption notification. The pith and the substance of the submission of the learned counsel for the respondents was that as a rate of tax on bran was put by Notification No. 3320 of 9th March, 1978, it made bran exigible to tax. There is no substance in this submission of the learned counsel for the respondents. In column 3 of the exemption Notification No. 14547 of 26th December, 1977, no condition or exception was specified and cattle feed and poultry feed were exempted from payment of sales tax without any condition or exception. In the case of <CITATION> reported in  49 STC 295 (All.) a similar question was under consideration. The question was whether "kulfi" and "lassi" were "milk products" and exempted by notification under Section 4 , U.P. Act and whether subsequent fixing of rate of tax on "kulfi" and "lassi" by notification under Section 3-A of that Act had the overriding effect on the exemption notification. The learned Judge of <ORG> (Lucknow Bench) in the case of <CITATION>  49 STC 295 held as follows :

The operating fields of the two Sections, namely, Sections 3-A and 4 , are distinct and separate. Section 3-A by itself cannot override the power under Section 4 . On the other hand, if certain goods have been classified for purposes of Section 3-A and the point of tax has also been declared by <ORG>, if such goods had been exempted from sale, the department cannot contend that the exemption should not be construed in favour of the assessee.

Similarly, in the case of <CITATION> reported in  49 STC 297 (All.), similar question was under consideration. This was a Bench decision of <ORG> and it was a case under the U. P. Sales Tax Act. Under similar situation, as in the present case, it was held that "even though ice-cream and lassi have been made taxable under Section 3-A , on account of the notifications issued under Section 4 , the turnover of these items could not be included in the net taxable turnover. Thus, the view taken by the revising authority that the sale of ice-cream was not taxable in view of the exemption granted under the notification issued under Section 4 in respect of milk products appears to be correct". It was further held that "transactions or sales which enjoy exemptions have to be included in the gross turnover, but they are exempted when the net turnover is calculated.

Similar view, under similar situation, was taken in the case of <CITATION>  52 STC 110 (All.).

Yet a Bench decision of <ORG> (at Jodhpur) in the case of <CITATION> reported in  61 STC 88 under similar situation, took the same view and held on the facts (similar to the present case) that "Notification No. F. 5(24) FD/CT/72-14 dated 19th May, 1972, issued under Section 5 of the Act (Rajasthan Sales Tax Act) prescribing the rate of tax on gowar will not have overriding effect on entry 9 of the Schedule appended to the Act which deals with exemption". It further held that "the notification will not nullify entry 9 of the Schedule so far as the exclusion of gowar from cattle feed is concerned".

Yet in the case of <NAME> v. State of Bihar reported in 1981 BRLJ 156, a similar view, under similar situation, was taken. This was a Bench decision of <ORG> and it dealt with a case under the Bihar Sales Tax Act itself and it held that "where under Section 4 a particular commodity is exempted from liability of the payment of sales tax, any notification relating to the rate of tax payable on any commodity must be subjected to the governing provision of Section 4 . It further held that Section 6 postulates before the rate is made applicable, i. e., liable to sales tax". It was further held that "if, however, under Section 4 , there is also an exemption, the question of applying any rate of tax obviously does not arise and where in the notification issued under this section any commodity is included which runs counter to express exemption under Section 4 , Section 4 shall prevail over the incidental inclusion of such a commodity under Section 6 which must be taken to be without the necessary sanction".

A similar view, in almost a similar situation was taken by <ORG> in the case of <CITATION> reported in  46 STC 375.

26. In the case of <CITATION> reported in  8 STC 561, <ORG> observed as follows at page 574 :

There is a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether. The legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their nonliability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed.

27. Thus, on a review of the aforesaid decisions, I hold that the taxing notification fixing a particular rale of tax on a particular item has no overriding effect on the exemption notification which expressly exempted the particular item from levy of tax. I further hold that Notification No. 3320 issued on 9th March, 1978, making bran exigible to tax retrospectively with effect from 26th December, 1977, on which much reliance has been placed on behalf of the respondents, does not nullify entry No. 35 of the exemption notification (No. 14547) dated 26th December, 1977, so far as exclusion of cattle feed and poultry feed from sales tax is concerned-for the simple reason that fields of operation of the two notifications, referred to above, under the different sections of the Act are altogether different.

Reference to the case of <CITATION>  52 STC 110 (All.) has already been referred to above and in that Bench decision of <ORG> it was also held that "if once an exemption is granted under Section 4 of the Act in respect of any class of goods or class of persons, then unless such exemption is withdrawn it shall remain in force."

I fully agree with the aforesaid view taken by <ORG> and I hold that if once the exemption is granted in respect of any class of goods then unless such exemption is withdrawn, it shall remain in force.

Having held as such I hold that there is no force in the submission advanced by the learned counsel for the respondents that because of the retroactive notification dated 9th March, 1978 (No. 3320) the effect of exemption Notification No. 14547 dated 26th December, 1977, was taken away and thus this submission of the respondents also fails.

For the aforesaid reasons I further hold that an evidence of intention to tax bran cannot be read in the retroactive notification (No. 3320) dated 9th March, 1978, or inferred by implication in order to override the exemption Notification No. 14547 dated 26th December, 1977. It is well-settled that there can be no tax by implication and thus the submission advanced on behalf of the respondents that the retroactive notification (No. 3320) dated 9th March, 1978, inferentially and by implication taxed bran by superseding the exemption notification also fails, I further hold that as exemption from tax on "cattle feed and poultry feed" (item No. 35 of the exemption Notification No. 14547 of 26th December, 1977) was withdrawn only on 29th June, 1985, by Notification No. S. O. 611 (which came into force with effect from the 1st July, 1985), the exemption notification with regard to "cattle feed and poultry feed" (No. 14547 dated 26th December, 1977) remained in force till 30th June, 1985.

28. Then remains other important limb of the submission advanced by the learned counsel for the respondents to be considered, i. e., the stand taken by the learned counsel for the respondents was that the Notification No. 3322 issued oh 9th March, 1978, restricted the meaning of cattle feed and poultry feed by adding an explanation to the effect that:

Spashtikaran:-Pashuchara tatha kukutchara se abhipret hai-

(1) ...

(2) ...

(3) ...

(4) ...

Hence it was exhaustive and therefore it excluded any other item except the four mentioned in the explanation. It will be pertinent to mention here that this notification (No. 3322) dated 9th March, 1978, was also published in English language which was to be taken as one under Clause (3) of Article 348 of the Constitution of India and in the notification in English language the aforesaid words, i. e., Pashuchara tatha kukutchara se abhipret hai, were omitted to be translated.

29. Thus, though it would bear repetition, on 9th March, 1978, simultaneously two notifications were published and both were made retrospective from 26th December, 1977-one was No. 3320 by which rate of tax on bran was fixed (reference of which has already been made in earlier paragraph) and the other being No. 3322 published in both languages, i. e., Hindi and English.

The learned counsel for the respondents submitted that the explanation to Notification No. 3322 dated 9th March, 1978, published in Hindi, was exhaustive and it explains as to what cattle feed and poultry feed were and hence it excluded bran, as bran was not included in the four items of the explanation ; in short, the submission was that the explanation limited the categories enumerated therein and as bran was not mentioned therein, it cannot be taken to be still under exemption. On the other hand, Notification No. 3320 (already referred to above) made bran exigible to tax.

30. On the other hand, the submission advanced by the learned counsel for the petitioners was that the explanation does not restrict the meaning of the expression sought to be explained. The exemption notification of 26th December, 1977, used the expression "cattle feed" and "poultry feed" and the explanation inserted by Notification No. 3322 dated 9th March, 1978 (published both in English and Hindi languages) very much retained the expression "cattle feed" and "poultry feed".

Thus the submission was that; firstly, the explanation, in law, does not restrict the meaning of the expression sought to be explained nor could it restrict the expression while explaining nor did it even purport to do so. The learned counsel for the petitioners further submitted that there may be some cases in which an explanation can widen the meaning of the expression but, in no case, it can restrict in the eye of law.

31. In order to appreciate the aforesaid submissions advanced on behalf of the parties, it would be most pertinent to mention just here that the Notification No. S. O. 611 published on 29th June, 1985, the expressions "cattle feed" and "poultry feed" (of item No. 35 in the exemption Notification No. 14547 dated 26th December, 1977) were dropped and only those four items, as mentioned in the explanation to the expression "pashuchara tatha kukutchara" in the Notification No. 3322 dated ,9th March, 1978, were retained. Even the word "explanation" and the words thereafter, i.e., "pashuchara tatha kukutchara se abhipret hai" were dropped.

Can it then be said, as submitted by the learned counsel for the respondents ? At the outset the answer to the submission advanced on behalf of the respondents is in the negative.

32. It is well-settled that the proper function of an explanation is to make plain or elucidate what is enacted and not to add to or substract from it. An explanation does not either restrict or extend the enacting part; it does not enlarge or narrow down the scope of the provision that it is supposed to explain. (Reference be made to the Full Bench case of <ORG> in the case of In re H.V. <NAME> reported in AIR 1966 AP 35.) It is true that in some cases an explanation can widen the scope of the expression sought to be explained but in such cases effect must be given to the legislative intent and the courts have to find out the true intention of the legislature. It is also well-settled that even if the explanation is not very happily worded but if the intention of the legislature is clear and unambiguous, in that case effect must be given to the legislative intent. (Reference be made to the case of <NAME> v. Sales Tax Officer, Section III, Kanpur, reported in AIR 1973 SC 1034.) In view of the aforesaid well-settled principles in interpreting an explanation-as the generic words "cattle feed and poultry feed" (used in the exemption Notification No. 14547 of 26th December, 1977) were factually retained till before the Notification No. S.O. 611 dated 29th June, 1985, I hold that the true intention was to retain the cattle feed and poultry feed excluded from sales tax and the true intention by the Notification No. 3322 of 9th March, 1978 was not to restrict the cattle feed and poultry feed only to the four items mentioned in the explanation. As already stated above, it is well-settled that an explanation does not restrict the enacting part nor narrows down the scope of the provision that it is supposed to explain. The intention of restricting the cattle feed and poultry feed only to the four items mentioned in the explanation to Notification No. 3322 of 9th March, 1978 cannot be read by any stretch of imagination ; firstly, because the generic terms "cattle feed" and "poultry feed" were retained; and secondly, even in latter Notification of 28th October, 1981 (S.O. 1613) "cattle feed" and "poultry feed" were exempted from levy of additional tax in item No. 62 of the notification. (Reference of this notification has already been made in paragraph 24 above.) Thus, the submission advanced by the learned counsel for the respondents, in my opinion, is clearly untenable, as it proceeds on a misconception of the scope of an explanation and hence it is without any substance and fails. (Reference of the case of <CITATION> reported in  8 STC 561 (SC) has already been made in paragraph 26 above.) The same case is also reported in AIR 1957 SC 657 and by <ORG> it has further been held in that case as follows:

It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the <ORG> satisfies the court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the sales tax authorities.

It is also well-settled that if in construing taxing statutes if two interpretations are possible, effect must be given to one that favours the citizen and not to one that imposes a burden on him. (Reference be made to the case of <CITATION> AIR 1958 SC 341.)

33. Then remains the only other part of the submission advanced by the learned counsel for the respondents to be considered.

As already stated above, in the early part of the judgment, the learned counsel for the respondents submitted that if the notification is published in both the languages (Hindi and English) and in the English translation of the Hindi notification if an omission to translate a word has occurred resulting in inconsistency then it would be the Hindi version of the notification which will prevail.

On the other hand the learned counsel for the petitioners has submitted that under Article 348(1)(b)(iii) of the Constitution of India, the notification which is in English language must prevail.

It is pertinent to quote Article 348(1)(b)(iii) of the Constitution of India :

348. (1) Notwithstanding anything in the foregoing provisions of this Part, until <ORG> by law otherwise provides-

(b) the authoritative texts-

(iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by <ORG> or <ORG>, shall be in the English language.

34. It is well-settled that if the inconsistency/contradiction between the notification issued in English and the notification issued in Hindi does not affect the substance of the matter, it is the notification published in English language which must prevail in view of the provisions of the Constitution of India (just referred to above) over the notification published in Hindi. (Reference be made to a Bench decision of <ORG> in the case of <NAME> v. Government of Uttar Pradesh reported in AIR 1954 All. 257).

For the reasons already detailed in the earlier paragraphs of my judgment, I hold that, in fact, there is no contradiction/inconsistency between the notification issued in Hindi and the notification issued in English (both the notifications being of 9th March, 1978). Hence I hold that in view of the provisions of the Constitution, referred to above, the notification appearing in English must prevail over the notification appearing in Hindi.

Even if there was divergence between the two versions, i. e., Hindi version of the notification and the English version of the notification by virtue of Article 348 of the Constitution of India (referred to above), it is the English version that will prevail. (Reference be made to a Full Bench case of <ORG> in the case of <CITATION> reported in AIR 1974 All. 106.) (Reference be also made to a Bench decision of <ORG>, in the case of <CITATION> reported in AIR 1976 Pat 392.)

35. It is also true that a State which has prescribed Hindi as the language for the official use in the State, both the Hindi version as also the English translation of the notification (Bill, Act, etc.), published in the official Gazette are valid and authorised and both of them can be looked into and put to official use. There is no competition between the two. It is only in case of conflict or divergence between the two versions that the English version may reign supreme and supersede the Hindi one. (Reference be made to a Full Bench case of <CITATION> reported in AIR 1962 All. 240.)

36. I have already held above that in the present case there is no conflict/ inconsistency/divergence between the two notifications (one published in Hindi and the other in English) of 9th March, 1978. There being no ambiguity in the English version of the notification dated 9th March, 1978, resort cannot be had to a Hindi version of the notification and under Article 348(1)(b)(iii) of the Constitution of India the version in English language must prevail.

It is also pertinent to quote Clause (3) of Article 348 of the Constitution of India, which is as follows :

(3) Notwithstanding anything in Sub-clause (b) of Clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the <ORG> or in Ordinances promulgated by the Governor (***) of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor (***) of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article.

37. On the other hand, learned counsel for the respondents, in view of the Bihar Official Language Act, 1950, read with Article 348(3) of the Constitution, submitted that the original notification being in Hindi the proper course was to look at the publication in Hindi principally for the purpose of properly interpreting the provision of the enactment and not the English version of the notification which merely gives the status of an authoritative text.

The learned counsel for the respondents, in support of the submission, has relied upon the case of <CITATION> reported in 1979 (3) SLR 369. In that case a Hindi version of the notification was published on 18th June, 1975; whereas, the English version was published on 2nd July, 1975 and by inadvertence clause regarding suspension was omitted in the English version of the notification. On the facts of that case a great conflict/inconsistency/contradiction existed between the two versions of the notification and on the facts and in the circumstances of that case it was held that "it is just and proper that Hindi version should prevail".

In the present case, I have already held above that there is no conflict/ inconsistency between the two versions of the notification of 9th March, 1978. The case of <CITATION> 1979 (3) SLR 369, relied upon by the learned counsel for the respondents, is quite distinguishable.

Learned counsel for the respondents, in support of his submission, also placed reliance upon the case of <CITATION> reported in AIR 1974 SC 2125. This case also is quite distinguishable. This was a case under the Maintenance of Internal Security Act (1971) and the order of detention was under challenge. The order of detention was in Hindi (the official language of the <ORG>) but there was also an English version of the order of detention.

At the time of arrest, the Hindi as well as English versions of the order of detention were served on detenu together with the grounds of detention which were also in Hindi and English versions. The English version of the grounds of detention recited that the District Magistrate was satisfied that if the detenu was allowed to remain at large he would indulge in activities prejudicial to the maintenance of public order or security of the <ORG>. The words "or security of the <ORG>" were absent in the Hindi version. However, there was no material difference between Hindi and English versions of the order of detention. The satisfaction which was recited in the order of detention and on which the order of detention was manifestly and avowedly based, was that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. There was no reference to the security of the <ORG> in the recital of the satisfaction contained in the order of detention either in Hindi version or in English version. In such circumstances, it was held that the addition of the words "security of the <ORG>" in the recital of the satisfaction of the District Magistrate in the English version was the result of inadvertence and the order of detention could not be invalidated on the basis of such an obvious error, ignoring the order of detention in both its Hindi and English versions, Hindi version of grounds of detention and the totality of the context so far as English version was concerned. On the facts of that case it was further held that Hindi being the official language of the <ORG>, it was Hindi version of the grounds of detention which was to be regarded as authentic and the validity of detention, on the facts of that case, was to be judged with reference to the Hindi version of the grounds of detention. Article 348(1)(b)(iii) and Clause (3) of Article 348 of the Constitution were not under consideration in the case of <NAME> AIR 1974 SC 2125 and thus reliance placed by the learned counsel for the respondents on this case, in support of his submission, was under a misconception. Secondly, on facts, too, the case is distinguishable.

Learned counsel for the respondents also relied upon the case of <CITATION> ) reported in 1984 (1) SLR 315.

The facts of this case also are clearly distinguishable. There was apparent inconsistency between the amending statute (admittedly in Hindi) and the English version of that amendment [i.e., Section 57A(3)(a) of the Bihar State Universities Act, 1976, as amended in 1980] and hence the ratio decided in this case was on the particular facts and circumstances of that case. This case, too, does not support the submission advanced by the learned counsel for the respondents.

38. Thus, in view of the weighty pronouncement as referred to above, I hold that in view of the provisions as contained in Article 348(1)(b)(iii) of the Constitution of India, the notification dated 9th March, 1978, appearing in English must prevail over the notification of the same date appearing in Hindi.

39. I further hold that though it is true that Hindi has been adopted as the official language of the State of Bihar under the Bihar Official Language Act, 1950, there was no conflict/inconsistency/contradiction in the Hindi and English versions of the notification dated 9th March, 1978 and hence it was the English version of the notification dated 9th March, 1978, which must prevail over the Hindi notification of the same date. I further hold that even if there was some inconsistency/conflict (which there is none), in the two notifications, they did not affect the substance of the matter in the present case and, in that view of the matter also, it was the notification in English which must prevail under Article 348(1)(b)(iii) of the Constitution of India.

Before concluding this point, to me it appears that it is of importance that in the matter of issuing and publishing notifications which are now issued in Hindi and it may be noted that it is only that Hindi version of the <ORG> that is available to the general public, great care should be taken and the people concerned with making these notifications should have taken greater care in having them published in Hindi.

Thus, all the submissions advanced by the learned counsel for the respondents fail as being without any substance.

40. In the result, all the three writ cases are allowed and the impugned annexures-annexure 5 and 5(1) of C.W.J.C. No. 2725 of 1984, annexures 5 and 5-A of C.W.J.C. No. 5637 of 1985 and annexure 4 of C.W.J.C. No. 1918 of 1984 are quashed only in so fat as they relate to wheat bran (chokar).

41. However, in the facts and circumstances of the case, there will be no order as to costs.

S.S. Sandhawalia, C.J.

42. I agree.