1971S20 (PLP)

Sayem, J. held that by item No. 40, it was component of concrete building that were intended to be exempted and not concrete component of building. He further held that by item No. 40 of notification No. 7, materials used in the making of building components were not intended to be exempted. Sheet-glass being one such material and there being no dispute that it has not been specifically exempted, the petitioner's claim for exemption must be rejected. He further added that if the petitioner's original case as was sought to be made out in the petition, namely, that item No. 40 of the notification in question exempted concrete components of building were pressed, then even if it were permissible to accept the -contention that glass sheet was a building component within the meaning of the word as used in the item, he would hold against the petitioner, since in the context of building, concrete can only mean a thing made of a mixture of which cement is the main ingredient. Abdulla, J. disagreed with the above views and held that in the exemption clause concrete building components mean concrete components of a building as opposed to loose materials. He, therefore, held that the glass-sheets manufactured by the appellant came within the purview of the exemption clause. This decision is being challenged in this appeal before us. Leave was granted in this case for consideration of the question whether glass-sheet is covered by the term `concrete building component' which has been exempted from the levy of sales tax under notification No. 7, dated the 27th June 1951 as A amended by notification No. 5, dated the 18th December 1953 issued by the Central Government in exercise of the powers under section 7(l) of the Sales Tax Act, 1951. Before coming to the merits of the case it will be convenient to dispose of here the preliminary objections raised on behalf of the respondent that the writ petition was liable to be dismissed as the cause of action against the respondent was premature and the appellant should have pursued the legal remedies provided in the Sales Tax Act for appeal and revision to the higher authorities. Mr. Abdul Matin Khan Chowdhury, learned counsel for the respondent, contended that the writ petition filed by the appellant was not maintainable because it was premature. According to the learned counsel no assessment has been made for the sales tax and unless it is made, the appellant has no cause of action to challenge it in the High Court. The contention of the learned counsel has not impressed me. It is not disputed that the appellant had to file Returns of the sale of goods and under section 12(1) of the Sales Tax Act, the tax had to be paid within 30 days of the sale of goods. In the present case, the appellant filed 14 revised Returns on the 20th of March 1965 and claimed therein that glass-sheet was exempted from the payment of sales tax. On the 31st March 1965, the Sales Tax Officer called upon the appellant to submit its explanation by the 8th April 1965 failing which action was to be taken to realise the arrears of sales tax on the basis of Returns filed previously. The appellant submitted its explanation on the 1st April 1965. This explanation was rejected by the Central Board of Revenue on the 11th June 1965. The Central Government also agreed with the Central Board of Revenue. Sales Tax Officer rejected the claim of the appellant on the 22nd June 1965 and called upon it to pay all the arrears of sales tax within June, 1965. In my opinion, on the facts of the present case, the appellant was entitled to protect itself from the threat of the Department to realise the arrears of sales tax. It is not disputed that the sales tax for the period from March 1961 to 20th of March 1965, was about Rs. 4,00,000, out of it the appellant has failed to pay about Rs. 2,00,

000. It. cannot, therefore, be said that the writ petition was premature or the appellant had no cause of action against the respondent & to ventilate its grievance against him. The objection of the respondent that the appellant had alternative remedies by departmental means is also not of much substance. It has been held by this Court that in a case where the dispute arises between the parties in respect of a fiscal right based upon a statutory instrument the same can be easily determined in writ jurisdiction. In the case of Burma Oil Company (Pakistan Trading) v. The Trustees of the Port of Chittagong (P L D 1962 S C 113), it was held as under : "We consider that since the question which arose was one of fiscal right based upon a statutory instrument, it was as easily and conveniently determined in a writ petition as by means of a suit. By the exempting notification, a duty was cast upon the taxing authority viz., the Port Trustees to relieve the subject against certain imposition and thereby a corresponding right to such relief was created in favour of the subject. Mandamus is in every way an appropriate remedy for the assertion of such a right by enforcement of the corresponding duty." To the same effect there is a decision of this Court in the case of Pakistan and another v. Qazi Ziauddin (P L D 1962 S C 440). This point was also considered in the case of Abdul Ghani and another v. Government of Pakistan and others (P L D 1968 S C 131). It was held in that case that "anything done beyond or in excess of powers conferred by statute can be brought within the power of avoidance vested in the High Court. In such a case, the High Court can examine if the Officer concerned has acted in accordance with the powers conferred upon him by the statute". I would, therefore, repel the preliminary objections raised on behalf of the respondent. Coming now to the merits of the case, it will be noticed that the appellant has claimed exemption for the payment of the sales tax on the sheet-glass manufactured by it in their factory on two-fold grounds. In the first place, it has contended that the sheets and plate-glass are made of concrete and are, therefore, concrete building components. In support of this contention, it has relied on the opinion of Dr. F. A. Farooqi, M. Sc., Ph. D. (London), D. I. C., A. I. Cer., N. I. C. M., (U. S. A.), Senior Research Officer, Glass and Ceramics Division of the Pakistan Council of Scientific and Industrial Research. In his opinion sent to the Managing Director of the appellant-company, the Expert has given the following definition of `concrete' " `Concrete' means hard, solid and a compact substance made from sand and other natural minerals. It is a material or a solid mass formed by the aggregation, spontaneous union or coalescene of separate particles." This definition is not supported by any authority. The further contention of the appellant is that the exemption applies to all components of a concrete building. Mr. Mahmood Ali Qasuri, learned counsel for the appellant, has contended that concrete building components mean components of concrete building. In support of his contention, he has relied on the ordinary Dictionary meaning of the word `concrete' and has urged that anything which is bound together and is solid will be concrete. On the other hand, the learned counsel for the respondent has contended that concrete building components mean concrete components of the building and the word `concrete' means any material in which cement has been used as an ingredient for making it solid. The question under consideration is not free from difficulty. In my opinion, the word 'concrete' should be read with the word 'component' and not with the word 'building'. Just as in the phrase 'good school boy'. The word 'good' goes with boy and not with school. In the phrase "concrete building components", the word 'concrete' should go with components rather than with c building. So far as the interpretation of the word "concrete" is concerned, it has to be determined according to the meaning it naturally or popularly bears when used in connection with a building. According to Craies on Statue Law, for the construc tion of ordinary and technical terms and expressions, there are two rules according to which such terms and expressions are to be construed when used in an Act of Parliament. The first D rule is that general statutes will prima facie be presumed to use words fn their popular sense. The second rule is that if the statute is one passed with reference to a particular trade, business or transaction and words are used therein which everybody conversant with that trade, business or transaction knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning which may differ from the ordinary or popular meaning. In this connection, Craies on Statute Law has stated at p. 162 as under :- "There are two rules as to the way in which terms and expressions are to be construed when used in an Act of Parliament. The first rule is that general statutes will prima facie be presumed to use words in their popular sense. This rule was stated by Lord Tenterden in Attorney-General v. Winstanley (1831) 2 D & Cl. 302, `the words of an -.."Act of Parliament which are not applied to any particular science or art' are to be construed 'as they are understood in common language'. Critical refinements and subtle distinctions are to be avoided and the obvious and popular meaning of the language should, as a general rule, be followed." The learned Author at p. 164, has further stated as under :- "The second rule is that if the statute is one passed with reference to a particular trade, business or transaction, words are used therein which everybody conversant with that trade, business or transaction knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning which may differ from the ordinary or popular meaning. Lord Esher M. R., in R. v. Commissioners (1891) 1 Q B 703, under Boiler Explosions Act, 1882 in considering the meaning of the term `boiler', said I apprehend that in this Act it was not meant to draw these scientific distinctions but to deal with the thing in which is steam under pressure which is likely to explode'. As Fry, J. said : 'If it is a word which is of a technical or scientific character then it must be construed according to that which is its primary meaning namely, its technical or scientific meaning' Helt & C. v. Collyer (1881) 16 Ch. D 718, 720 and Farwell L. J. said in Mason v. Bolton's Library (1813) 1 K B 83, 90 : `It is a stringent rule of construction that in construing an Act of Parliament or a deed containing technical words, those words must be given their technical meaning'. The learned Lord Justice was referring to the use of the expression 'interpleader summons' in section 1 of the Bankruptcy Act, 1890." In my opinion, the word 'concrete' in item 40 of the notification under consideration is used with reference to the trade or business of building and, therefore, it should be understood according to its trade and business sense. The dictionary meaning of the word 'concrete' in Chamber's Twentieth Century Dictionary (1964 Edition), is as under "adjective.-formed into one mass : the opposite of abstract, and denoting a particular thing : made of concrete : noun-- a mass formed by parts growing or sticking together ; a mixture of sand gravel, etc., and cement, used in building." In Oxford English Dictionary, the meaning ' of the word "concrete", specifically is given as under :- "A composition of stone, chippings, sand, gravel pebbles, etc., formed into a mass with cement ; used for building under water, for foundations, pavements, walls, etc." Encyclopaedia Britannica, 1964, Vol. 6, the following is the comment in respect of the word 'concrete' "Concrete is a building material consisting of a mixture in which a paste of portland cement and water binds inept aggregates into a rocklike mass as the paste hardens through chemical reaction of the cement with water. Concrete occupies dominant position in modern construction. It is used in highways, bridges and dams ; in the construction of virtually all large buildings, sidewalk, farm structures and homes ; and in airport runways, dry docks, irrigation structures, piping harbours, soils and a multitude of other major and minor construction projects. Ever since man first started to build, he has sought a material that would bind sand and stones into a solid, formed mass. The Assyrians and Babylonians used clay for this purpose, and the ancient Egyptians advanced to the discovery of lime and gypsum as a cementing agent. The Greeks made further improvements, and the Romans developed a cement by mixing slaked lime with volcanic buildings, some of which survive in an excellent state of preservation. Lime in some form remained the principal cementing material used until portland cement was discovered shortly after 1800. Portland cement became the dominating cementing material used in concrete construction about 1800, and the word `concrete' without a qualifying terns has since been used mainly as an abbreviation of `portland cement concrete'. Limited use is also made of other cements having properties similar to portland cement, such as natural cement and blast-furnance slag cement." Thus it is quite clear that in understanding the meaning of word `concrete' cement is one of the essential ingredients of concrete when used in connection to a building. It was contended by Mr. Mahmood Ali Qasuri, learned counsel for the appellant that item 40 must be read as a whole, According to him, `including' has been used to illustrate the meaning of words "concrete building components" and interpreta tion cf the word "concrete" should be given on that basis. The contention of the learned counsel has not impressed me. In my opinion the word "including" has been used by way of enlarge ment of the meaning of the phrase. The word "including" or shall be deemed to include is very generally used in interpretation clauses in order to enlarge the meaning of words and phrases occurring in the body of the statute. Mr. Mahmood Ali Qasuri, learned counsel for the appellant, referred to Hand Book of Glass Manufacture, Volume Il, by Tooley. He referred the following passage at p. 225 :- "B. Sheet glass.-As now understood, the term 'sheet g1ass,' refers to clear, flat, transparent glass with fire finish which is produced by the sheet drawing process and which is commonly known in the trade as window glass. It is not mechanically ground and polished and, therefore, possesses a characteristic waviness and lacks the evenness and freedom from distortion of polished plate glass. It is used for the glazing of windows in most domestic buildings and for the manufacture of laminated safety sheet glass and for certain heat-strengthened glass products." The learned counsel, therefore, contended that the glass-sheet is used for domestic building and, therefore, it is a component of concrete building. I have already examined this aspect of the question and in my opinion, the word `concrete' should be read with the word 'component' and not with the word `building' of which cement is an essential ingredient. It, therefore, means cement concrete component of the building. After considering the argument advanced by the learned .counsel for the parties, I am satisfied that glass-sheet has not been exempted under item 40 of the notification No. 7 dated the 27th June 1951, from payment of sales tax. In these circumstances the High Court was perfectly justified in dismissing the writ petition. In the result, the appeal is dismissed with costs. HAMOODUR RAHMAN, C. J.-I agree. MUHAMMAD YAQUB ALI, J.-I agree. SAJJAD AHMAD, J.-I agree. s. Q. Appeal dismissed.