Bapna, J. - (1.) THIS is a petition under Art. 226 of the Constitution.
(2.) THE petitioner is Mahalaxmi Mills Company Limited, Beawar. THE business of the company is said to be the manufacture of cotton textiles including cloth and varn and sales thereof as also sale of cotton waste. THEse articles before sale or pressed into bales so as to place them in a marketable state. This process of packing into bales is stated to be a part of the petitioner's business of manufacture and sale of textiles. It is alleged that the Beawar Municipal Committee constituted under the Ajmer Merwara Municipalities Regulations (No. VI of 1925) purported to impose a tax on all individuals, factories or institutions carrying on the trade or calling of pressing bales of cotton, wool, yarn cloth grass or other fabrics or goods by employing power of electricity, steam or water other than by manual labour at certain specified rates by notification published in the Gazette of India Part II A dated 30 November, 1946. It was alleged that this notification was not in accordance with the provisions of the Ajmer Merwari Municipalities Regulations and that the law authorising the imposition of the tax did not authorise the levying of the tax on the petitioner, an incorporated company. On behalf of the Municipal Committee a reply has been filed that the tax was properly levied in accordance with the provisions of the Regulations and that the provisions of law authorising the levying of tax permitted the tax to be levied on incorporated companies and that the petitioner in addition to packing goods manufactured by the company, carried on the business of pressing bales of other persons. On behalf of the State a further objection has been raised that there was a remedy by way of appeal open to the petitioner under sec. 93 of the Regulations which the petitioner has not availed of before coming to this Court and, therefore, his petition should be thrown out. The power for the imposition of taxes by Municipalities under the Ajmer Merwara Municipalities Regulations is given by sec. 76 and the particular tax comes under clause (b) of that section. The relevant portion reads as under: - "subject to any general or special orders of the Governor General-in-Council and to any rules made in this behalf, a committee may, for the purposes of, and in the manner directed by this Regulation impose in the whole or any part of the municipality any of the following taxes namely: (b) a tax on persons practising any profession or art or carrying on any trade or calling in the municipality. Sec. 77 lays down the procedure for the imposition of the taxes. The committee is to frame proposals specifying the nature of the tax, the persons or class of persons on whom the tax is to be levied, the amount or rate of the tax and any other matter which may be prescribed by rule in this behalf. These proposals are to be published in a prescribed manner and objections are invited. These objections have to be gone into at a special meeting and the committee may alter the proposals or reject the objections. The proposals after modification, if any, are to be forwarded to the Chief Commissioner for publication in the official gazette. The contention of learned counsel for the petitioner is that the proposals as originally framed were not confirmed at the special meeting. Copies of the minutes of the special meeting held on 26th August, l946 were produced purporting to say that the objections received against the imposition of the trade tax were not acceptable after careful consideration and the committee confirmed its previous resolution No. 111 (b) imposing the said tax It was further resolved that the same be forwarded to the authorities for further necessary action. The argument is that the previous resolution No. III (b) related to entertainment tax and not to trade tax and, therefore, the confirmation was not made with reference to the trade tax. This argument has no substance for the words III (b) appear to have been a mistake for the words 111 (d ). The minutes of the previous meeting have also been produced. The trade tax was the subject matter of resolution No. III (d) in the previous meeting of 27th June, 1946 and the whole argument is based on this clerical mistake which seems to have cropped up in the minutes of the meeting of the Municipality dated 26th August, 194b. The minutes of the meeting specifically referred to the imposition of the trade tax and, therefore, this minor discrepancy is not a material defect. Further the imposition of tax was notified in the Gazette of India of 30th November, 1946. The notification itself is dated 21st November, 1946 and purports to notify the resolution of the Municipal Committee of Beawar dated 27th June, 1946 imposing tax on the business of pressing certain goods into bales. The copy of the notification is document A-4 of the petition. Under sub-sec. 10 of sec. 77 had been duly observed. There is no force in the contention raised by learned counsel for the petitioner. It was next contended that the tax authorised to be levied by sec. 76 (b) could be so done on persons practising any profession or art or carrying on any trade or calling. It was urged that the word 'person' occurring in this section should be a sentient being and not corporations or incorporated companies like the petitioner. It was also urged in this connection that the resolution imposing the tax is slightly differently worded than required by law. The relevant portion of the resolution is as follows : - "it is hereby resolved, that a Trade Tax under sec. 76 (b) of the Ajmer Merwara Municipalities Regulation be imposed on all individuals and factories or institutions carrying on the trade or calling of pressing bales by employing power (of electricity, team or water other than by manual labour) which may be of cotton, wool, yarn, cloth, grass or other fabrics or goods at the following rates : - (a) Cotton or wool or waste thereof /2/- per pressed bale. (b) Yarn, cotton or wool or waste thereof -/3/- per pressed bale. (c) Cloth and cotton piece goods or waste thereof -/4/- per pressed bale. (d) Grass, hay, straw or other fabric goods. -/5/-per pressed bale. It was urged that the tax was imposed on individuals, factories or institutions. So far as factories or institutions were concerned, it was said that these were buildings and could not be the subject of imposition of tax. In respect of individuals it is said that the word appearing in the section was 'person' and not individuals. Leaving that argument apart, it is also urged that the individuals should also be sentient human being. The Ajmer Merwara Municipalities Regulation is a central regulation to which the provisions of the General Clauses Act are applicable. The word person' is defined in the General Clauses Act as including any company or association or body of individuals whether incorporated or not. Sec. 76 (b) therefore, clearly authorises Municipal Board to impose lax upon companies. Learned counsel urged that the practising of any profession or art can only be done by individual human being. It may or may not be so but the carrying on of any trade or calling can certainly be done not only by individual sentient human beings but also by companies, associations or body of individuals whether incorporated or not. So far therefore, the imposition of tax on person carrying on any trade or culling is concerned, the language authorises the imposition of tax on companies carrying on any trade or calling. It was urged that the tax is imposed on individuals and not on persons, which may include corporations. The language in the resolution imposing the tax is not happily worded but when it purports to impose a tax on individuals, it obviously purports to impose a tax on a body of individuals also which are companies. They are brought into existence by association of certain individuals according to the provisions of law. Learned counsel for the Municipal Committee contended that the petitioner would also come within the categoiy of factories and institutions. The argument being that if there is any person who runs a factory or if there is any institution which runs a factory, it is the owner of the factory or of the institution who is sought to be taxed. As stated earlier the language used in the notification is not very happy and the company would more properly be a body of individuals and would come in the first category.
(3.) IT was next contended by learned counsel for the petitioner that the pressing of bales was not any trade or calling. IT was an operation in the course of manufacture of goods and even if the company pressed goods for others into bales, it was not a trade of calling followed by the company. The argument was that the calling of pressing into bales could be said to be followed by the workman who handles the baling press and that the pressing of material into bales was not any trade. The allegation of respondent Municipal Committee that the company not only pressed its own goods but also pressed the goods of others into bales on certain charges is not denied. In fact the details of the demand made upon the company and mentioned by the petitioner, relates to the pressing into bales of wool besides cloth, yarn and cotton waste. The petitioner on his own showing does not do any trade in wool and, therefore, this part of his business of pressing wool into bales on certain charges can rightly be said to be a trade of calling. Learned counsel relied on certain meaning given in some dictionaries to the effect that trade means the business of buying and selling commodities. That may be so but 'trade' has wider meaning also of engaging into any kind of activity which may result in profit. In Halsbury's Laws of England, volume 32, Art 487, it is said that 'trade' in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning it is any business carried on with a view to profit, whether manual or mercantile, as distinguished from the liberal arts or learned professions and from agriculture. The word 'trade', is one of very general application, and must always be considered with the context in which it is used. In this case profession or art has been separately mentioned and the carrying on of the trade is followed by the alternative of the calling. The word 'trade' here is used in its wider sense and not in the narrow sense which learned counsel for the petitioner would like us to interpret. As to the following of the calling by the workman, he is only an employee of the company. rl here may be cases where some special skill may be required in doing a particular job and in that case the particular workman may be said to follow a particular calling as for example a welder. But if the welder is employed by a welding company, the company will also be carrying on the calling known as welding business. The contention of learned counsel that the company is not carrying on any trade or calling in the matter of pressing bales, has no force. There is one point which requires clarification at this stage. While we have no hesitation in coming to the conclusion that the company is carrying on the trade or calling in the matter of pressing bales when it charges certain fees or remuneration from other persons, it cannot be said to be carrying on that trade or calling when it presses its own goods in order to make them marketable. That will be one of the processes in the manufacture of goods so as to make them in a marketable condition. The tax has been imposed on the carrying on of the trade or calling of pressing bales and not on the pressing of bales. If this process of pressing bales is done with a view to profit then it can amount to a trade but not otherwise. It was next contended that the Municipal Committee has made an application to the Magistrate for the recovery of the tax under sec. 234 of the Regulations, but this could only be done after a demand has been made for the tax in the manner prescribed by the rules and since no rules have been framed which may prescribe the manner in which demand may be made, the request to the Magistrate was incompetent. It is conceded for the Municipality that no rules have been prescribed as to the manner in which the demand should be made. But it was urged that the demand was as a mater of fact made prior to moving the Magistrate for the recovery of the lax. Reference was made to document No. 14 produced by the petitioner himself. This is is no doubt a demand made by the Municipality tor paying certain taxes due from the petitioner. In our opinion the fact that the rules have not been prescribed, would not stultify the other provisions imposing the tax or the recovery thereof. ;