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Lipton (India) Ltd. and anr. Vs. the Secretary to Govt, Employment and Social Welfare ( Labour- I ), Andhra Pradesh, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 358 and 359 of 1975
Judge
Reported inAIR1978AP146; (1978)ILLJ247AP
ActsA.P. Shops and Establishments Act, 15 of 1966 - Sections 2(21); A.P. Shops and Establishments (Amendment) Act, 1969 - Sections 2(10) and 2(21)
AppellantLipton (India) Ltd. and anr.
RespondentThe Secretary to Govt, Employment and Social Welfare (Labour- I), Andhra Pradesh, Hyderabad and or
Appellant AdvocateK. Srinivasa Murthy, ;K. Nagaraja Rao and ;S.R. James, Advs.
Respondent AdvocateGovt. Pleader for Panchyat Raj
Excerpt:
constitution - validity of notification - section 2 (21) of a.p. shops and establishments act, 1966 and sections 2 (10) and 2 (21) of a.p. shops and establishments (amendment) act, 1969 - government issued notification under section 2 (21) declaring certain godowns to be shops for purposes of act - validity of notification challenged - godowns must first be declared as establishment under section 2 (10) and it was only thereafter government can by notification under section 2 (21) declare such establishment to be shops - required procedure not followed - notification issued ultra vires provisions of section 2 (21) and 2 (10). - - it is the case of the 1st petitioner-company that it sells its products directly to the dealers who are retailers and to the restaurants hotel-keepers and.....b.j. divan, c.j. 1. both these writ petitions have been placed before this special bench of five judges on an order of reference made by a division bench consisting of alladi kuppuswami and punnayya, jj., as the learned judges felt that, in view of art. 228a(3) of the constitution of india, as inserted by the constitution (42nd amendment) act, 1976, the minimum number of judges, who have to sit for the purpose of determining any question as to the constitutional validity of any state law must be five.2. the petitioners in both these writ petitions challenge the constitutional validity of s. 2, sub-s. (21) of the andhra paradesh shops and establishments act, as amended by the andhra pradesh act 2 of 1969. the alternative contention on behalf of the petitioners in these writ petitions is.....
Judgment:

B.J. Divan, C.J.

1. Both these writ petitions have been placed before this Special Bench of five Judges on an order of reference made by a Division Bench consisting of Alladi Kuppuswami and Punnayya, JJ., as the learned Judges felt that, in view of Art. 228A(3) of the Constitution of India, as inserted by the Constitution (42nd Amendment) Act, 1976, the minimum number of Judges, who have to sit for the purpose of determining any question as to the constitutional validity of any State Law must be five.

2. The petitioners in both these writ petitions challenge the constitutional validity of S. 2, sub-s. (21) of the Andhra Paradesh Shops and Establishments Act, as amended by the Andhra Pradesh Act 2 of 1969. The alternative contention on behalf of the petitioners in these writ petitions is that, even if it were to be held that S. 2, sub-s. (21) of the Andhra Pradesh Shops and Establishments Act is valid, the notification issued by the Government of Andhra Pradesh on Aug. 31, 1972 is invalid. By virtue of the definition in Cl. (26-A) of Art. 366 of the Constitution, 'State Law' means any notification, order, scheme, rule, regulation or bye-law or any other instrument having the force of law made under any Act, Ordinance or provisions referred to in sub-cl. (a), sub-cl. (b), sub-cl. (c) or sub-cl. (d) and sub-cl. (a) of Cl. (26-A) defines 'State Law' to mean a State Act or an Act of the Legislature of a Union territory. Under these circumstances, even the notification issued by the State Government, which has the force of law and which has been made under the powers conferred upon the State Government by S. 2 (21) of the Andhra Pradesh Shops and Establishments Act, would also be a State law under Art. 228A(3) of the Constitution; the minimum number of Judges, who shall sit for the purpose of determining any question as to the constitutional validity of any State law has to be five. The proviso to cl. (3) of Art. 228A(3)does not apply to this High Court, since there are more than five Judges in this Court.

3. The facts in both these cases are more or less similar. In Writ Petition No. 358 of 1975, the 1st petitioner is Lipton (India) Limited, a company incorporated under the English Companies Act, having its Head-office for India at Calcutta. It has a branch office at Nagpur. The 2nd petitioner is the Branch Manager of the 1st petitioner-company at Madras. The 1st petitioner-company carries on the business of blending, packing and selling tea under its own brand and name all over India. It has branch offices in India at Delhi, Bombay, Madras, Calcutta, Nagpur and Ahmedabad. The blending and packing of tea is done in the factories situated at Calcutta and madras. Throughout the country, the 1st petitioner-company has its own depots where stocks of tea are stored. The depots situated in Andhra Pradesh numbering about 137 are partly under the administrative control of the Nagpur Branch Office and partly under the administrative control of the madras Branch Office. The depots in the Telangana region of Andhra Pradesh are under the administrative control of the Nagpur Branch Office and the depots in the Andhra region of the State of Andhra Pradesh are under the administrative control of the Madras Branch Office. Each of these 137 depots is in charge of a salesman employed by the 1st petitioner-company.

4. The nature of 1st petitioner company's storage depots and the nature and functions of the salesman are as follows:

The depot is used exclusively for the purpose of storing the Ist petitioner-company's teas which are blended and packed at its factories at Calcutta and madras. No sale is made within the depot premises nor are any customers served at the depots nor is any business transacted at any of these depots. As a matter of fact, a notice is displayed outside each depot which declares: 'Customers are not served and sales are not allowed inside these premises.' Each depot is in charge of one salesman whose duty is to collect the goods from the depot and carry them to the local and outstanding markets with the help of a mazdoor or a hand van depending on the circumstances and situation of the market. The salesman canvasses the 1st petitioner-company's tea and supplies it to wholesalers and retailers at their respective shops. Since the nature of work of a salesman is inherently intermittent, the 1st petitioner-company cannot fix any rigid hours of work for the salesman and from the very nature of thinks, it is not possible for the 1st petitioner-company to fix such hours of work. The salesman canvasses the 1st petitioner-company's teas at each dealer's premises and supplies the stocks then and there as against cash payment. The duties of the salesman include distribution of tea to hot tea shops and canteens which generally operate in early hours of the day. The duties also include visiting of markets in interior villages. For the purpose of collecting the stock of tea, the salesman opens the depot for about half an hour in the morning and after completing his rounds in the local or out-station markets, he again opens the depot at the end of the day for about another half an hour to put back the unsold stocks. For the rest of the period, the depot remains locked. The opening and closing of the depot depends on the exigencies of business and also upon the timings of trains and buses by which the salesman has to travel for his outstation market operations. The 1st petitioner-company fixes an itinerary for each salesman who has to visit the area or the market according to that itinerary. The depot is completely closed one day in a week land that day is also a rest day for the salesman. The salesman keeps an inventory of stocks received and stocks taken out from the depot and sends periodical reports to the branch office under which he works. The salesman is an employee of the 1st petitioner-company and is being paid basic salary, dearness allowance and commission at a particular rate on the quantity of stocks sold by him. He is also paid some allowance to reimburse the schedule expenses to be incurred by him in the course of his duties of canvassing and distributing the 1st petitioner-company's tea. He is also given the benefits of leave, provident fund, gratuity etc., under the terms and conditions of his employment and his services are transferable to any place in the branch territory. According to the 1st petitioner-company, the depot system of distribution and sale of packet teas has been developed by the 1st petitioner-company after many years of its experience in the tea trade in India. This system, according to the 1st petitioner-company, has helped the people to get regular supply of freshly-packed teas at uniform prices anywhere in the country including the remote villages.

5. It is the contention of the petitioners that, since no sale either wholesale or retail, nor any business transaction takes place within the depot premises nor are any services rendered to the customers at the depot premises, the depots are neither 'commercial establishment' nor 'shops' as defined in the Andhra Pradesh Shops and Establishments Act (hereinafter referred to as 'the Act').

6. The petitioners have pointed out that, as far back as Feb. 5, 1963, the Chief Inspector of Factories, Andhra Pradesh, Hyderabad, had informed the Manager of the Branch Office at Nagpur that, as no transaction used to take place in the storage depots of the 1st petitioner-company and no other person except salesman was employed in such depots, it could not be said that storage depots are places where trade or business is carried nor that services are rendered to customers there. The Chief Inspector of Factories therefore expressed the view that the storage depots of Lipton (India)Ltd., were not covered by the term 'shop' as defined in S. 2 (18) of the Andhra Pradesh (Telangana Area) Shops and Establishments Act and therefore, the said Act was not applicable to the depots in these circumstances. Again by a memo dated Feb. 27, 1965 bearing No. 1530/- Lab-II-II/64-8, the Government set out its conclusion, after referring to the different facts, as follows:

'Government after careful consideration have come to the conclusion that storage depots of Lipton (India) Ltd., are not covered by the term 'shop' as defined in S. 2 (18) of the Andhra Pradesh (Telangana Area) Shops and Establishments Act, 1951, as no transaction, trade or business is carried on in their depots nor services rendered to the customers there and therefore, the opinion of the Chief Inspector of Factories expressed in his letter of Feb. 5, 1963 is confirmed.

7. Again by another letter dated May 30, 1969, the Chief Inspector of Establishments, Andhra Pradesh, Hyderabad, stated:

'The District Inspector of Labour, Sangareddy and Warangal are informed that the storage depots of Lipton (India) Limited are not covered by the term 'shop' as defined under the Andhra Pradesh Shops and Establishments Act, as no transaction, trade, or business is carried on in these storage depots, nor services are rendered to the customers therein. These depots are intended only for storage of the tea and coffee.'

8. It may be mentioned that, in the counter-affidavit filed on behalf of the respondents, the statements regarding the manner in which the 1st petitioner-company works and the depots and salesmen operate have not been contradicted; the submissions and contentions are only legal. It has also been contended that the earlier letters referred to the legal position as it stood at the relevant time.

9. As regards Writ Petition No. 359 of 1975, the 1st petitioner-company is Brooke Bond India Limited and the 2nd petitioner is the Sales Manafger (South Zone) of the 1st petitioner-company having his office at Madras. It is the case of the petitioners in W. P. No. 359 of 1975 that the 1st petitioner-company carries on business of blending, packing and selling tea and coffee under various brands and trade marks all over India and abroad. It has branch offices known as 'Area Sales Offices' all over India including the State of Andhra Pradesh where it has three such offices, one each at Hyderabad, Visakhapatnam and Vijayawada. The tea and coffee is mostly purchased by the petitioners in auctions held at Calcutta, Gauhati and Cochin for tea and Bangalore for coffee and sent to the factories for blending and packing in packets and tins of various sizes. It is the case of the 1st petitioner-company that it sells its products directly to the dealers who are retailers and to the restaurants hotel-keepers and similar other institutions like canteens, hot tea shops etc. No middleman is employed for this purpose, but the petitioner-company employs its own employees known as 'salesmen' who serve these dealers directly at the dealers' own premises. This direct delivery system is on the same lines as the system followed by Lipton (India) Ltd. The writ petition makes it clear that the system and working of both these petitioners are the same. The Commissioner of Labour, by his communication No. L. Dis. S2/140/64 dated Feb. 1, 1964 expressed the opinion that the storage depots of Brooke Bond India (Private) Limited were not covered by the term 'shop' as defined in S. 2 (1B) of the Andhra Pradesh (Telengana Area) Shops and Establishments Act. 1951 or in S. 2 (16) of the Andhra Pradesh (Andhra Area) Shops and Establishments Act, 1947 and as such, the provisions of the said Acts were not applicable to them. Again in or about May, 1965, some representations were made by the employees of the 1st petitioner-company at Vijayawada and Hyderabad and ultimately Writ Petition No. 930 of 1968 was filed for quashing the decision of the Commissioner of Labour to the effect that the depots of the 1st petitioner-company did not come within the definition of either 'shop' or 'commercial establishment' and hence the Shops and Establishments Act did not apply to the depots or the persons employed thereat.

10. It may be noted that the Andhra Pradesh Shops and Establishments Act, 1966 was amended by the Andhra Pradesh Act 2 of 1969 viz., the Andhra Pradesh Shops and Establishments (Amendment) Act, 1969. By S. 2 (iii) of the Amendment Act 2 of 1969, the words 'and such other establishments as the Government may by notification declare to be a shop for the purposes of this Act, but does not include a commercial establishment' were added at the end of cl. (21) of S. 2 of the principal Act. The result was that, after the amendment, S. 2, sub-sec. (21) reads as follows :

' 'shop' means any premises where any trade or business is carried on or where services are rendered to customers and includes a shop run by a Co-operative Society, an office, or store room, godown, warehouse or work place, whether in the same premises or otherwise, used in connection with such trade or business and such other establishments as the Government may by notification declare to be a shop for the purposes of this Act, but does not include a commercial establishment.'

11. Under S. 2 sub-sec. (5), 'commercial establishment' means an establishment which carries on any trade, business, profession or any work in connection with or incidental or ancillary to any such trade, business or profession, or which is a clerical department of a factory or an industrial undertaking or which is a commercial or trading or banking or insurance establishment and includes an establishment under the management and control of a co-operative society, and establishment of a factory, or an industrial undertaking, which falls outside the scope of the Factories Act, 1948, and such other establishment as the Government may, by notification, declare to be a commercial establishment for the purpose of this Act but does not include a shop.

12. It is thus clear that, by the very definitions of the terms 'commercial establishment' and 'shop', the two concepts are mutually exclusive. Anything which is commercial establishment is not included within the definition of 'shop' and anything which is shop is not included within the definition of 'commercial establishment.' Section 2, sub-sec. (10) defines 'establishment' to mean 'a shop, restaurant, eating-house, residential hotel, lodging house, theatre or any place of public amusement or entertainment and includes a commercial establishment and such other establishment as the Government may, by notification, declare to be an establishment for the purposes of this Act.' Acting under the powers conferred upon it by S. 2, sub-sec. (21) of the Act, the Andhra Pradesh Government issued a notification on Aug. 31, 1972, which was published in the Gazette of that day and it purports to set out G. O. Ms No. 1038, Home (Labour-II) dated Aug. 4, 1972. The notification is in these terms:

I. 'In exercise of the powers conferred by cl. (21) of S. 2 of the Andhra Pradesh Shops and Establishments Act, 1966 (Andhra Pradesh Act 15 of 1966), the Governor of Andhra Pradesh declares that godowns maintained for distribution of manufactured articles to retailers shall be shops for the purposes of the said Act.

II. 'In exercise of the powers conferred by sub-sec. (4) of Section 64 of the Andhra Pradesh Shops and Establishments Act, 1966 (Andhra Pradesh Act 15 of 1966), the Governor of Andhra Pradesh hereby exempts all godowns maintained for distribution of manufactured articles to retailers from the operation of S. 4 of the said Act.'

13. In these two writ petitions, the respective petitioners have challenged the validity of the Amendment Act 2 of 1969 and of the notification of Aug. 31, 1972, on the following grounds:

(1) unguided and uncontrolled power has been conferred upon the State Government under S. 2. Sub-sec. (21):

(2) this power is of a legislative nature and is beyond the scope of the Legislature and is violative of Art. 14 of the Constitution and;

(3) the notification of Aug. 31, 1972 is outside the scope of the Act and is ultra vires the provisions of the Act itself, as it includes in the definition those which are not shops as shops.

14. Since, in our opinion, the matter can be disposed of on the ground that the notification is ultra vires the provisions of the Act, it is not necessary for us to consider the challenge in respect of the Amending Act 2 of 1969. It is common ground between the parties that no notification has been issued by the State Government under S. 2 (10). The definition of 'establishment' in S. 2 (10), which we have set out above in extenso clearly indicates that, though and establishment may not be a shop, restaurant, eating house, residential hotel, lodging house, theatre or any place of public amusement or entertainment or a commercial establishment, it is open to the State Government to declare, by notification, any such establishment to be an establishment for the purposes of the Act. But no such power under S. 2 (10) has been exercised so far in respect of such depots.

15. The main question therefore is whether the depots of the type before us can be said to be establishments because it is only in respect of an establishment that the Government can, by notification under S. 2 (21), declare such establishment to be an establishment for the purposes of the Act. It is obvious that a depot of the type which we have before us is neither a shop nor a restaurant nor an eating house nor a residential hotel, nor a lodging house nor any place of public amusement or entertainment nor a commercial establishment. In order to become a commercial establishment, the depot of the type before us must be an establishment which carries on any trade, business, profession or any work in connection with or incidental or ancillary to any such trade, business or profession or which is a clerical department of a factory or an industrial undertaking or which is a commercial or trading or banking or insurance establishment and includes an establishment under the management and control of a co-operative society, and establishment of a factory or an industrial undertaking, which falls outside the scope of the Factories Act, 1948. The depots have not been declared to be commercial establishments for the purposes of the Act by any notification issued by the State Government. It is obvious from the very definitions of 'commercial establishment' and 'shop' that a shop is not a commercial establishment for the purposes of the Act and a commercial establishment for the purposes of the Act is not a shop. It is important to bear in mind that the definitions of 'commercial establishment' and 'shop' have this feature in common viz., both 'shop' and 'commercial establishment' deal with those entities which carry on trade or business but so far as shops are concerned, there must be premises where trade or business is carried on or services are rendered to customers, whereas in respect of commercial establishment, no such requirement of any particular premises is necessary. In the absence of premises where trade or business is carried on or where services are rendered to customers, we cannot have a shop within the main operative part of the section.

16. The words 'such trade or business' occurring in the definition of 'shop' came up for consideration before the Supreme Court in Kalidas v. State of Bombay : 1955CriLJ193 . The Supreme Court was there concerned with the definition of the word 'shop' as occurring in the Bombay Shops and Establishments Act, 1948. The word 'shop' there was defined as follows:

' 'Shop' means any premises where goods are sold, either by retail or wholesale or where services are rendered to customers, and includes an office, a storeroom, godown, warehouse or work place, whether in the same premises or otherwise mainly used in connection with such trade or business but does not include a factory, a commercial establishment, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment.'

17. The facts of the case before the Supreme Court were that Kalidas, the appellant before the Supreme Court, was the owner of a small establishment called the Honesty Engineering Works situate in Ahmedabad in the State of Bombay. He employed three workers. He did business in a very small way by going to certain local mills, collecting orders from them for spare parts, manufacturing the parts so ordered in his workshop, delivering them to the mills when ready and collecting the money therefor. No buying or selling was done on the premises; and it was on those facts that the question arose before the Supreme Court whether a concern of that nature could be said to be a 'shop' within the meaning of S. 2 (27) of the Bombay Shops and Establishments Act. At page 64 of the report Bose, J., speaking for the Supreme Court, observed.

'............ the business of selling in general may be regarded as a big circle and the business of selling on defined premises as a small portion which is carved out of the larger whole. The second part of the definition is linked on to the carved out area and not to the circle as a whole. The word 'such' confines what follows to what has gone before and what has gone before is not the trade of selling in general but only that part of the trade of selling which is carried on defined premises.

Counsel argues that there is no justification for ignoring the limitation which the legislature has placed on the main portion of the definition and holding that 'such' relates to a much wider classification of 'selling' which the main portion of the definition not only does not envisage but has deliberately excluded. We think that as a matter of plain construction this is logical and right.'

18. The Supreme Court there held that the concern of the nature which was before the Supreme Court was not a shop within the meaning of the definition of the word 'shop' in the Bombay Shops and Establishments Act. Applying the reasoning of the Supreme Court to the facts of the case before us and the provisions of law before us, it is obvious that 'such trade or business' occurring in the inclusive portion of the definition of the word 'shop' in s. 2 (21) of the Act before us, must be trade or business of the kind which is carried on any premises and if there are no premises where trade or business is being carried on, there cannot be a shop within the inclusive part of S. 2 (21). As we have pointed out earlier, there is no notification under S. 2 (10) declaring godowns of the type which we have before us to be an establishment. Unless a godown of this kind is first declared to be an establishment by notification under S. 2 (10) a godown of this type cannot be said to be an establishment because it does not fall within the first part of the definition of 'establishment' which defines and 'establishment' to mean a shop, restaurant, eating house, residential hotel, lodging house, theatre or any place of public amusement or entertainment.

19. We may point out that a Full Bench of the Punjab High Court in Ram Chander v. State, (FB) held that the depot in that case could not be said to be a shop within the meaning of the definition in S. 2 (xxv) of the Punjab Shops and Commercial Establishments Act. The facts of the case before the Full Bench were that the petitioner, Ram Chander, was a salesman of Lipton Tea Company Limited. This company had salesmen stationed at various places in Punjab. The place where Ram Chandar, at the relevant time, was stationed was Kalka. The company took on rent godowns where tea was stocked either in tins or in packets. The salesmen at various depots were not allowed to sell tea at the godowns or even to book orders at the godowns. What happened at the godowns was that tea was taken out for delivery to the customers in the market where the godown was situate or to markets which were attached to the godown. These markets might be in the rural area or in towns. The Act had not been extended to rural areas. The salesman maintained his books in the godown. The tea received, the tea sold and the sale proceeds received by such salesmen were entered in these books, Statements to that effect were also prepared at the godown and were sent to the head office of the company. Beyond this, nothing further happened at the godowns and the question was whether the godowns of this kind were shops within the meaning of S. 2 (xxv) of the Punjab Shops and Commercial Establishments Act. 1958. In that Act also by the very definition of the word 'shop' and a 'commercial establishment' meant any premises wherein any business, trade or profession is carried on for profit. The shop meant any premises where any trade or business is carried on or where services are rendered to customers and includes offices, store-rooms, godowns or warehouse, whether in the same premises or otherwise, used in connection with such trade or business. Mahajan, J., delivering the judgment of the Full Bench, observed at para. 12 of the report :

'It seems tome that the premises in dispute cannot be said to be a shop. I have come to this conclusion on the basis that before the present enactment was brought on the statute book, the commercial world as well as the man in the street knew what the phrases 'shop' and 'commercial establishment' signified; and the legislature which was enacting a measure to protect the employees from overwork was not endeavouring to put a new connotation on these phrases but was merely concerned that the definition be left wide and elastic so that there is no evasion of the legislative measure. I therefore, take a shop to mean a premises where trade or business is carried on in the shape of buying and selling of goods at the spot. It is rather axiomatic that in all trades it is the buying or selling which is going on in one form or the other in present or future or even on speculative basis. But in a shop the buying and selling is at the premises or in other words at the shop for cash consideration or may be barter; or on credit. The significant factor is the availability of the goods there and then and so also of services.'

In para 11, it has been pointed out :

'............. it is necessary to closely analyse the definition of 'shop' and 'commercial establishment'. One element is common to both, namely, that there have to be premises wherein, in the case of a commercial establishment any business, trade or profession is carried on for profit and in the case of a shop where any trade or business is carried on or where services are rendered to customers. The carrying on of trade or business or profession necessarily has to have a close and intimate connection with the premises. It cannot be disputed and indeed it was not, that a trade, profession or business can be carried on without there being premises, but the definition requires the existence of premises and in the case of a shop it includes offices, store-rooms, godowns or warehouses whether in the same premises or otherwise used in connection with such trade or business. In other words, these offices, etc., must have a necessary connection with the premises which is a shop.'

20. The Full Bench in that case referred to the decision of the Supreme Court in Kalidas v. State of Bombay, : 1955CriLJ193 (supra).

21. Though in the definition of 'commercial establishment' before us there is no reference to premises where trade or business is being carried on, it is obvious that a commercial establishment must have a trade or business whether carried on any defined premises or not. An establishment which carries on any trade or business on any defined premises or otherwise is a commercial establishment and what distinguishes a shop from the commercial establishment is that there must be premises for any establishment to become a shop and that at these premises trade or business must be carried on. In the absence of premises, there cannot be a shop so far as the main part of the definition is concerned. The offices, store-rooms etc., included in the inclusive definition must be officers, godowns etc., used in connection with such trade or business, the word 'such' necessarily implying by mere grammatical construction, trade or business carried on in some premises. Since these godowns before us are not used in connection with such trade or business, the godowns under the inclusive part of the definition cannot amount to 'shops'. It is possible to argue that the 'shop' in the sense of premises where any trade or business is being carried on may be outside the State of Andhra Pradesh and the godowns, offices etc., may be in the State of Andhra Pradesh. But it is nowhere stated in the counter-affidavit that these godowns etc., are being used in connection with any trade or business carried on by the petitioners at any premises. It is therefore clear that the branch offices at Nagpur and Madras cannot be said to be shops in the absence of any materials placed before us in the counter-affidavit. As a matter of fact, it is not the Government's case that the branch offices at Nagpur and Madras are shops within the meaning of the first part of the definition of S. 2 (21) and hence the godowns of the petitioners used in connection with such trade or business are also shops within the meaning of the inclusive part of the definition. It is therefore clear that these godowns cannot be shops within the meaning of S. 2 (21) apart from any notification issued under S. 2 (21).

22. So far as this notification is concerned, it is obvious that it refers to godowns of the type which we have before us even though no business is being carried on in these godowns, but merely manufactured goods are stored. It is clear by the amendment introduced in S. 2 (21) by the Amendment Act 2 of 1969 that it is only an establishment which can be declared to be a shop under S. 2 (21) by the government. If these godowns are not establishments, they cannot be so declared by the notification under S. 2 (21). These godowns are not establishments in the sense of a shop, restaurant, eating house, residential hotel, lodging house, theatre or any place of public amusement or entertainment. Since by its very definition, a commercial establishment is excluded from the definition of the word 'shop' in S. 2 (21), any commercial establishment which may be an establishment within the meaning of S. 2 (10) cannot be said to be a shop and the Government has not the power to declare the commercial establishment to be and establishment for the purposes of the Act. Therefore, the godown of the type before us must first be declared to be an establishment for the purposes of S. 2 (10) and it is only thereafter that the Government can, by notification under S. 2 (21) declare such establishment to be shops for the purposes of S. 2 (21). Under these circumstances, it is obvious that the notification on Aug. 31, 1972 purporting to have been issued under S. 2 (21) is ultra vires the provisions of S. 2 (21) read with S. 2 (10) of the Act.

23. It may be pointed out that though the main challenge in these writ petitions has been to the notification of Aug. 31, 1972 and to the provisions of the enactment, we have permitted the learned counsel at the Bar to argue the question whether the godowns of the type before us fall within the definition of the word 'shop' as it stood before the amendment by Act 2 of 1969. It is obvious from the discussion set out herein above that these godowns do not fall within the unamended definition in the sense of falling within the first part or second part of the definition of S. 2 (21) as it stood prior to the amendment by Act 2 of 1969.

24. Mr. Ramaswamy the learned Government Pleader drew out attention to the decision of the Division Bench of the Punjab High Court in Makhan Lal v. State, (ILR (1960) 1 Punj 639). But this decision of the Punjab High Court has been overruled by the Full Bench of the same High Court in Ram Chandar v. State, (FB) (supra) and therefore it is not necessary for us to refer to the earlier decision of the Punjab High Court. Mr. Ramaswamy has also referred us to the decision of the Supreme Court in Carew & Co. Ltd. v. Union of India, : [1976]1SCR379 as regards the principles of interpretation. In para. 23 at page 2270 of the report, Krishna Iyer, J., observed:

'If the language used in a statute can be construed widely so as to salvage the remedial intendment, the Court must adopt it, Of course, if the language of the statute does not admit of the construction sought, wishful thinking is no substitute and then, not the Court but the legislature is to blame for enacting a damp squib statute. In my view, minor definitional disability, divorced from the realities of industrial economics, if stressed as the sole touchstone, is sure to prove disastrous when we handle special types of legislation like the one in this case.'

25. Mr. Ramaswamy emphasised, relying upon the observations of Krishna Iyer, J., that, when two interpretations are feasible, that which advances the remedy and suppresses the evil, as the legislature envisaged, must find favour with the Court. There is no dispute with these principles of interpretation, but on the language of S. 2 921) no two interpretations are feasible. The only interpretation is in the light of the decision of the Supreme Court in Lalidas v. State of Bombay, : 1955CriLJ193 referred to supra.

26. Mr. Ramaswamy also referred us to the decision of the Supreme Court in The Commr. of Income-tax . A. P. v. Taj Mahal Hotel, : [1971]82ITR44(SC) . There the Supreme Court pointed out that 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 and that 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. Again, there can be no quarrel with the scope of the wider definition brought in by the word 'includes; but even then the 'godowns' must fall within the inclusive part of the definition in S. 2 (21). As we have pointed out, the language of S. 2 (21) as is stood prior to the Amendment Act 2 of 1969 is not capable of such interpretation.

27. Mr. Ramaswamy referred us to the preamble of the Act viz., that this is an Act to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments, restaurants, theatres and other establishments and for matters connected wherewith. He urged that according to the decision in Dr. D. M. Surti v State of Gujarat, : 1969CriLJ285 the principle of noscitur a sociis should be adopted i.e. when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense. The words take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general. 'Associated words take their meaning from one another under the doctrine of noscitur a sociis the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broader than the maxim 'Ejusdern Generis'. (Words and Phrases, Vol XIV, p. 107). We fail to see how the doctrine of noscitur a sociis can be invoked in the present case. There is nothing in common between a shop and a godown. There must be physical premises where trade or business with such trade or business is carried on and the godown must be used in that connection. That feature, as has been pointed out, is lacking in the instant case.

28. Mr. Ramaswamy also relied upon a decision of the Division Bench of the Madras High Court in In re Chandrasekaran : (1960)IILLJ569Mad , where the Division Bench pointed out (at p. 76) :

'The words 'trade or business' in S. 2 (16) have to be interpreted in a fairly wide sense, and would include any business, as distinct from an avocation or profession carried on for profit and any subsidiary part of such business which is integrally related to the main business itself. Therefore a premises devoted to the repair of transport vehicles would be a place where a portion of the main business of employing transport vehicles for passenger traffic is being conducted and would thus be a 'shop' within the scope of the definition.'

29. The word 'shop' under S. 2 (16) of the Madras Shops and Establishments Act is defined to mean any premises where any trade or business is carried on or where services are rendered to customers and includes offices, storerooms, godowns or warehouses whether in the same premises or otherwise, used in connection with such business but does not include a restaurant, eating house or commercial establishment. The admitted facts before the madras High Court were that the petitioner was the proprietor of a transport company which plied passenger buses between certain places. He also ran or maintained a servicing unit in separate premises, devoted entirely to repair of his transport vehicles. He did not render any service to the public within these premises and the members of the public were not at liberty to come to this shop for the repair of other motor vehicles. It was held on the facts of that particular case that the premises where the repair of transport vehicle was carried on would also be a shop. We fail to see how this decision of the Madras High Court can help on the facts of the case before us. We are in entire agreement with the principle laid down by the Madras High Court in that case. All that mattes in the instant case is that the notification of August 31, 1972 is ultra vires the provisions of the Act in the sense explained above and these godowns do not fall within the definition of the word 'shop' as it stood prior to the Amendment Act 2 of 1969. In the absence of any valid notification under S. 2 (21). these godowns cannot be considered to be shops.

30. The decision of the Gujarat High Court in Khatija Abdulla v. Natinal Tobacco Co. of India Ltd., (1972) (13) Guj LR 205) : (1972 Lab IC 1544 (Guj) does not help the learned Government Pleader, because the dispute in that particular case was whether a particular establishment, which was before the Gujarat High court was a commercial establishment within the meaning of the definition of 'commercial establishment' under S. 2. (8) of the Bombay Shops and Establishments Act.

31. These are the different arguments which were urged by the Counsel at the Bar and since, in our opinion, the notification of Aug., 31, 1972 is invalid as being ultra vires the provisions of the Act and the godowns of the kind before us do not fall within the definition of the word 'shop' as it stood prior to the Amendment Act 2 of 1969, these godowns cannot be said to be shops.

32. We therefore, allow these writ petitions and quash and set aside the notification of Aug. 31, 1972 issued in pursuance of the G. O. Ms. No. 1038 referred to above, as invalid and ultra vires the powers of the Government under the Statute. Since it is not necessary for us to go into the wider question of the validity of the amendment of s. 2 (21) by the Amendment Act 2 of 1969, we have not gone into this aspect of the case. Each of these writ petitions is therefore allowed. The notification of Aug. 31, 1972 is struck down as above. There will be no order as to costs. Advocate's fee Rs. 150/- in each case.

33. Petitions allowed.


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