The Judgment of the Court was delivered by
N. Varadaraja Iyengar, J.
1. This appeal is by the petitioners in 0.P. 78 of 1956 of the Trivandrum Bench of this Court and is directed against the order of our learned brother T. K. Joseph, J., dismissing it.
2. The appellants are Messrs Subhodaya Corporation, Building Contractors at Trivandrum. Their business consisted of shell-creting public roads under Government and local bodies and on the basis of composite rates which covered both materials and labour which went into the making of the road. They were assessed to sales tax in respect of those 'works contracts' for the years 1951-52 and 1952-53 by the Sales Tax Officer, I Circle, Trivandrum, fixing their net turnover on figures supplied by the petitioners themselves at particular amount. Subsequently they filed appeal before the Deputy Commissioner of Agricultural Income-tax and Sales Tax claiming exemption for the entire turnover but without success. They then took the matter in revision before the Board of Revenue again without success. It was soon after, on 13th June, 1956, that they filed the original petition herein praying for writ of certiorari to quash the order passed by the Sales Tax Officer and further the orders of the higher departmental authorities in confirmation thereof and also for a writ of prohibition against the making of further assessments on the basis adopted.
3. Now the main plank in the arguments of the appellants successively before the Deputy Commissioner, the Board of Revenue and before the learned Single Judge was the decision of the Madras High Court in the Gannon Dunkerley case  5 S.T.C. 216 decided on 5th April, 1954, just after the Sales Tax Officer passed his order on 13th March, 1954. Satyanarayana Rao and Rajagopalan, JJ., had there held that the amendment of the Sales Tax Law introduced in 1947 by the Madras Legislature and relating to the taxing of 'works contracts' was ultra vires of the Madras Legislature. For its legislative power under the Government of India Act, 1935, extended only to taxing transactions of sale of goods in the legal sense, e.g., where there was an intention to pass the ownership in the materials for a price agreed upon between the parties, as contrasted with a building contract work involved in the case, where the property in the materials passed only when they were fixed to the building and there was accordingly no element of sale of materials at all. It happened later however that this decision along with others in other jurisdictions came up for consideration before a Bench of the Kerala High Court in a case involving the same contractors, but relating to their branch at Mattancheri, Gannon Dunkerley and Co. Madras (Private) Ltd. v. Sales Tax Officer, Mattancheri 1957 K.L.T. 380. And the learned Judges (Sankaran and M. S. Menon, JJ.) held that the principle of the Madras decision cannot apply to the Travancore-Cochin Sales Tax Act, 1125, because on 5th January, 1950, when it was passed and also on 17th January, 1950, when it received the assent of H. H. the Rajpramukh, the Travancore-Cochin Legislature had plenary powers of legislation and by that time the Constitution had not also come into force so as to bring in the fetter of Entry 54 in List II of the Seventh Schedule therein corresponding to Entry 48 of List II of the Seventh Schedule of the Government of India Act, 1935, which governed the Madras case. This case in Gannon Dunkerley and Co. Madras (Private) Ltd. v. Sales Tax Officer, Mattancheri 1957 K.L.T. 380, was decided on 11th March, 1957. So when the original petition came on for disposal before him on 25th July, 1957, Joseph, J., had no difficulty in rejecting the contention as to ultra vires based on the principle of the Madras case.
4. Learned counsel for the appellant in opening the appeal referred to the recent decision of the Supreme Court in State of Madras v. Gannon Dunkerley and Co. A.I.R. 1958 S.C. 560, affirming the Madras High Court decision in Gannon Dunkerley and Co. (Madras) Ltd. v. State of Madras  5 S.T.C. 216, referred to above. Bat there again the entire controversy was made to hinge on the meaning of the words 'sale of goods' in Entry 48 and this, according to the Supreme Court, was thai what it has in the law relating to the sale of goods. Of much more significance perhaps is the fact as we are told that Messrs Gannon Dunkerley did not press the appeal they had taken before the Supreme Court against the decision in Gannon Dunkerley and Co. Madras (Private) Ltd. v. State Tax Officer, Mattancheri 1957 K.L.T. 380, when it came up for disposal soon later and so allowed it to be dismissed because obviously no new point had developed in their favour as regards Travancore-Cochin jurisdiction and sales tax legislation.
5. There was an attempt before the learned Judge below to canvass the decision in Gannon Dunkerley and Co. Madras (Private) Ltd. v. Sales Tax Officer, Mattancheri 1957 K.L.T. 380, by reliance on Article 9 of the Covenant dated 1st July, 1949, between the Rulers of Travancore and Cochin for the purpose of integration of those two States and it was said that the article brought into force in the integrated area, Article 48 of List II of the Government of India Act, 1935. But this as observed by the learned Judge and so overruled was an obvious misunderstanding of the terms of the Covenant. For the article meant that the Rajpramukh should accept under the Instrument of Accession, on behalf of the integrated State, all the matters mentioned in List I or List III of the Seventh Schedule of the Government of India Act, 1935, and this again excluding the entries in List I relating to any tax or duty. Before us however learned counsel rested on the corning into force of the Travancore-Cochin Sales Tax Act, 1125, on 30th May, 1950, after the date of the Constitution to argue that Article 54 of List II of the Seventh Schedule to the Constitution applied and that brought in the principle of ultra vires. But this is nothing original for the argument was already addressed in Gannon Dunkerley and Co. Madras (Private) Ltd. v. Sales Tax Officer, Mattancheri 1, and then not by reference to the definition of 'law in force' in Article 372 of the Constitution which gave importance to the passing or making of the Act rather than its opera tiveness either at all or in particular areas. There is therefore no substance in this point either.
6. The result is that there is no merit in this appeal and it is dismissed with costs. Counsel's fee Rs. 200.