Appeal No 429 of 1959
Appeal by special leave from the judgment and order dated December 6 1957 of the former Bombay Sales Tax Tribunal in Appeal No6 of 1956
C K Daphtary Solicitor General of India H R Khanna and R H Dhebar for the appellant
N A Palkhivala section P Mehta J B Dadachanji Rameshwar Nath and P L Vohra for the respondents
November 15
The Judgment of the Court was delivered by HIDAYATULLAH J
The State of Bombay has appealed to this Court with special leave against an order of the Sales Tax Tribunal Bombay dated December 6 1957 by which the Tribunal allowing the appeal before it set aside an order of the Collector of Sales Tax passed under section 27 of the Bombay Sales Tax Act 1953
The respondents Ratilal Vadilal  Bros are commission agents doing business as clearing and transport contractors
On June 25 1954 they applied to the Collector of Sales Tax Bombay under sections 27a b and c of the Act describing the nature of their business citing one instance thereof for determination of the question whether they could be called dealers  within the Act
The Collector by his order held that they were dealers and were required to register themselves under the Act
On appeal the Tribunal held otherwise and hence this appeal by the State of Bombay
369 It appears that no action was taken to ask for a reference to the High Court of Bombay under section 341 read with sections 301 and 2 of the Act
We have frequently noticed that all the remedies which are open to an appellant are not first exhausted before moving this Court
Ordinarily this Court will not allow the High Court to be bypassed in this manner and the proper course for an appellant is to exhaust all his remedies before invoking the jurisdiction of this Court under article 136
In the present case however the matter is simple and the learned counsel for the respondent requested us to determine the question stating that his client who was a small trader and who made the application for the clarification of the law would be dragged through Courts once again if we were to decide this appeal on this short point
In view of this though we decide this appeal we must not be held to lay down a cursus curiae for this Court
The matter relates to a time after the Colliery Control Order 1945 came into force
Under that Order no person could acquire or purchase coal from a colliery except under authority of the Central Government for which purpose he had to obtain a priority certificate from the State Coal Controller
Under the scheme of the Order del credere agents were allowed to act and to charge a commission of one rupee per ton of coal
One Nanalal Karsandas a brick manufacturer was allotted a priority certificate in respect of 22 tons of coal on June 17 1954
He dealt with Ms SC Rungta Colliery Burhar through the respondents
The consignment was in the name of Karsandas but the bill was sent by the Colliery to the respondents and the respondents in their turn made out a bill in which they charged in addition to the amount of the bill of the Colliery a sum of Rs 22 as their commission
The liability to pay the Colliery rested upon the respondents but they claimed to be acting as mere middlemen  between the Colliery and Karsandas
The respondents stated that their business was along these lines with other constituents also and asked the Collector to determine whether they could be described as dealers within the Act and required registration
370 Dealer  in the Bombay Sales Tax Act 1953 is defined as follows dealer  means any person who carries on the business of selling goods in the State of Bombay whether for commission remuneration or otherwise  Explanation omitted
It would appear that to be a dealer the person must carry on the business of selling goods in the State of Bombay
The short question in this case therefore was whether the respondents were carrying on such a business in respect of coal
The scheme of the Control Order shows that no sale of coal could take place except to a person holding a certificate
A sale otherwise was in contravention of the Control Order
The certificate which has been produced in the case though made out in the name of the respondents shows the consumer as the consignee
It is thus plain that there was no sale by the Colliery to the respondents but directly to Karsan das though through the agency of the respondents
The respondents also when they made out the bill to Karsandas mentioned that he was the consignee and that they were only charging their  middlemen  commission
In these circumstances it is difficult to hold that the Colliery sold coal to the respondents and that they in turn sold it to Karsandas
There were no two sales involved there was only one sale and that was by the Colliery to the consumer
The respondents never became owners by purchase from the Colliery because the Colliery would not have sold coal to them nor could they have bought it unless they had obtained a certificate
The position of the respondents was merely that of agents arranging the sale to a disclosed purchaser though guaranteeing payment to the Colliery on behalf of their principal
In view of what we have said no business of selling coal was disclosed in the instance cited before the Collector and the order of the Tribunal was correct on the facts placed before it
In the result the appeal fails and will be dismissed with costs
Appeal dismissed


Summary:
The appellant who was a shopkeeper was convicted for the second time by the Additional District Magistrate for contravening the provisions of section 71 of the Punjab Trade Employees Act 1940 under which he was required to keep his shop closed on the day which he had himself chosen as a  close day 
He raised the plea that the Act did not apply to his shop as he did not employ any stranger but that himself alone worked in it and that the application of section 71 to his shop would be violative of his fundamental rights under articles 14 191f and g of the Constitution and also that the restriction imposed was not reasonable within article 196 as it was not in the interest of the general 344 public
The High Court dismissed his application for revision of the Magistrate s order
On appeal on a certificate of the High Court Held that the main object of the Act was the welfare of the employees and to protect their as well as the employers  health by preventing them from over work
Such a restriction being in the interest of the general public was reasonable within the meaning of article 196 of the Constitution
The provisions of section 71 were constitutionally valid and were justified as for securing administrative convenience and avoiding evasion of those provisions designed for the protection of the workmen
Manohar Lal vs The State   referred to