Summarize the following court judgment. n No. 128 of 1957. Petition under Article 32 of the Constitution of India for enforcement of Fundamental Rights. Gopal Singh	 for the petitioner. N. section Bindra and T. M. Sen	 for the respondents. April 7. The Judgment of the Court was delivered by VENKATARAMA AIYAR J. This is a petition under article 32 of the Constitution	 and the question that is raised therein for our decision is as to the validity of certain provisions of the East Punjab General Sales Tax Act	 1948 (East Pb. XLVI of 1948)	 hereinafter referred to as the Act	 imposing a tax oil the supply of materials in construction works treating it as a sale. It will be convenient at this stage to refer to the relevant provisions of the Act. Section 2(c) defines contract " as meaning	 " Any agreement for carrying out for cash or deferred payment or other valuable consideration(i) the construction	 fitting out	 improvement	 or repair of any building	 road	 bridge or other immovable property; or (ii) the installation or repair of any machinery affixed to a building or other immovable property. . . ." "Dealer " is defined in section 2((d) as any person engaged in the business of selling or supplying goods. Section 2(h) defines " sale " as meaning " any transfer 440 of property in goods for cash or deferred payment or other valuable consideration	 including a transfer of property in goods involved in the execution of a contract. . . " Turnover " is defined in section 2(j) as including " the carrying out of any contract	 less such portion as may be prescribed of such amount	 representing the usual proportion of the cost of labour to the cost of materials used in carrying out such contract ". Section 4(1) enacts that	 ". . every dealer whose gross turnover during the year immediately preceding the commencement of this Act exceeded the taxable quantum shall be liable to pay tax under this Act on all sales effected after the coming into force of this Act. " Section 5 provides that the tax shall be levied every year on the taxable turnover of a dealer at such rates as the Provincial Government may by notification direct. Rule 28 prescribes the mode of computing the taxable consideration with reference to contracts as provided in sub cl. (ii) of el. (i) of section 2. The petitioners are a firm of building contractors. In December	 1956	 they entered into a contract with the Military Engineering Services Department of the Government for the construction of certain buildings known as " Married accommodation " at Ambala Cantonment and received a sum of Rs. 32	000 on January 31	 1957	 as advance. On February 14	 1957	 the assessing authority	 Jullundur District issued a notice intimating the petitioners that as they had failed to apply for registration under section 7 of the Act assessment would be made under section 18	 sub section (2)	 for the periods commencing from April 1	 1955	 onwards	 and calling upon them to produce their account books and attend the hearing on February 16	 1957. Thereupon	 the petitioners filed the present petition under article 32 of the Constitution challenging the legality of the assessment proceedings	 the main ground of attack being that the legislature of the Province of Punjab had under Entry 48 in List II of Sch. VII to the Government of India Act	 1935	 no power to impose tax on the supply of materials in construction works as there was no sale in fact or in law of those 441 materials	 and that the provisions of the Act which sought to do it were ultra vires. This question is now concluded by the decision of this Court in The State of Madras V. Gannon Dunkerley & Co. (Madras) Ltd. (1) wherein it has been held that the expression " sale of goods" in Entry 48 has the same import which it bears in the Indian 	 that in a building contract there is no sale of materials as such	 and that accordingly the Provincial Legislature had no power to impose a tax thereon under Entry 48. In this view	 we have now to consider the contention advanced by Mr. Bindra for the respondents that the building contract entered into by the petitioners with the Government was not an agreement simpliciter for the construction of works	 but that on its true construction	 it comprised a distinct agreement for the sale of materials. If that can be established	 it is not disputed that the respondents would have 'a right to tax the transaction even apart from the impugned provisions. The question is whether the contract of the petitioners with the Government for construction was one and indivisible	 or whether it was a combination of an agreement for sale of materials and an agreement for work and labour. The evidence placed before us leaves us in no doubt as to the true character of the contract. The tenders which where called for and received were for executing works for a lump sum	 and in his acceptance of the tender of the petitioners dated December 15	 1956	 the Deputy Chief Engineer stated : " The above tender was accepted by me on behalf of the President of India for a lump sum of Rs. 9	74	961. " How this amount is made up is given in Annexure E to the reply statement. It will be seen therefrom that the petitioners were to construct nine blocks	 and the amounts are worked out treating each of the blocks as one unit	 and the figures are totalled up. It is impossible on this evidence to hold that there was any agreement for sale of the materials as such by the petitioners to the Government. (1) ; 56 442 For the respondents reliance was placed on the rules appearing in the printed General Conditions of Contracts issued by the Government. Rule 33 which was particularly relied on provides: " All stores and materials brought to the Site shall become and remain the property of Government and shall not be removed off the Site without the prior written approval of the G. E. But whenever the works are finally completed	 the contractor shall at his own expense forthwith remove from the Site all surplus stores and materials originally supplied by him and upon such removal	 the same shall retest in and become the property of the Contractor. " It is argued that the true effect of this provision vesting the materials in the Government is that those materials must be taken to have been sold to it. That this is not the true meaning of the rule will be clear when regard is had to other provisions in the rules. Thus	 the materials which are used in the construction must be approved by the authorities as of the right quality	 and they could be condemned even after the construction is completed if they are not according to contract or of inferior quality	 in which case the contractor has to remove them and rebuild with proper materials. Terms such as these and those in r. 33 quoted above are usually inserted in building contracts with the object of ensuring that materials of the right sort are used in the construction and not with the intention of purchasing them. If r. 33 is to be construed as operating by way of sale of materials to the Government when they are brought on the site	 it must follow that the surplus materials remaining after the completion of the work must be held to have been resold by the Government to the contractor	 and that is not contended for. In Tripp vs Armitage (1)	 a builder who had been engaged to construct a hotel became insolvent	 and dispute arose between the assignees in bankruptcy and the proprietors of the hotel as to the title to certain wooden sash frames which had been delivered by the insolvent on the premises of the hotel and had been (1) ; ; 	 16O3. 443 approved by the clerk and returned to the insolvent for the purpose of being affixed. The contention on behalf of the proprietors was that the goods having been approved by their surveyor	 they must be held to have been appropriated to the contract and the property therein passed to them. In negativing this contention	 Parke B. observed: " It is said that the approbation of the surveyor is sufficient to constitute an acceptance by the defendants; but that approbation is not given eo animo at all; it is only to ascertain that they are such materials as are suitable for the purpose; and notwithstanding that approval	 it is only when they have been put up	 and fixed to the house	 in performance of the larger contract	 that they are to be paid for." In Reid vs Macbeth & Gray(1)	 the facts were similar. The dispute related to certain plates which had been prepared by contractors to be fitted in a ship. These plates had been passed by the surveyor and were marked with the number of the vessel and with marks showing the position which each plate was to occupy in the vessel. The ship owners laid claim to these plates on the ground that by reason of the approval by their surveyor and by the markings the property therein must be held to have passed to them	 and that accordingly the assignees in bankruptcy of the contractors could not claim them. That contention war	 negatived by the House of Lords	 who hold that the facts relied on did not establish a contract of sale of the materials apart from the contract to construct the ship	 and that the title to the materials did not as such pass to the shipowners. The position is the same in the present case. Rule 33 has not the effect of converting what is a lump sum contract for construction of buildings into a contract for the sale of materials used therein. It must therefore be held following the decision in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (2) that there has been no sale of the materials used by the petitioners in their constructions	 and that no tax could be levied thereon. (1) (2) ; 444 Counsel for the petitioners raised two other contentions	 but they are unsubstantial and may be shortly disposed of. One was that in the definition of " turnover " in section 2 (j)	 el. (ii) which is what is applicable to the present case	 there is no reference to sale of goods	 and that	 accordingly	 even if Entry 48 in List II is to be interpreted in a wide sense	 the provision as actually enacted does not	 in fact	 tax the supply of materials in works contracts	 treating it as a sale. But the charging section is section 4 (1)	 which makes it clear that the tax is on the gross turnover in respect of sales effected after the coming into force of the Act	 and the obvious intention is to include the supply of materials in works contracts within the category of taxable turnover. It was next contended that the definition of " dealer in section 2 (d) required that the person should be engaged in the business of selling or supplying goods	 that the petitioners who were building contractors were not engaged in the business of selling or supplying goods but of constructing buildings	 and that therefore they were not dealers within that definition	 and that as under section 4 the tax could be imposed only on a dealer	 the petitioners were not liable to be taxed. But if the supply of materials in construction works can be regarded as a sale	 then clearly building contractors are engaged in the sale of materials	 and they would be within the definition of " dealers " under the Act. There is no substance in this contention either. The petitioners	 however are entitled to succeed on the ground that the impugned provisions are not within the authority conferred by Entry 48	 and a writ of prohibition should accordingly issue restraining the respondents from taking proceedings for assessment of tax in respect of materials supplied by the petitioners in construction contracts. We direct the parties to bear their own costs	 Petition allowed.

The petitioners who were building contractors in the State of Punjab were assessed to tax by the sales tax authorities on the supply of materials in construction works treating it as a sale	 acting under the provisions of the East Punjab General Sales Tax Act	 1948. The petitioners challenged the legality of the assessment proceedings on the grounds	 inter alia	 that the legislature of the Province of Punjab had	 under Entry 48 in List II of Sch. I 'll to the Government of India Act	 1935	 no power to impose tax on the supply of materials in construction works as there was no sale in fact or in law of those materials	 and that the provisions of the Act which sought to do it were ultra vires. The assessing authorities contended that on a true construction of the building contract entered into by petitioners with the Government it comprised a distinct agreement for the sale of materials and particularly relied on r. 33 of printed General Conditions of Contracts issued by the Government : Held	 that there was no sale as such of the materials used in the constructions by the petitioners and that no tax could be levied thereon. 439 Rule 33 which provides that the materials brought to the site shall become the property of the Government but that when the works are finally completed the surplus materials shall revert and become the property of the contractor	 has for its object that materials of the right sort are used in the construction and has not the effect of converting what is a lump sum contract for construction of buildings into a contract for the sale of materials used therein. State of Madras vs Gannnon Dunkerley & Co. (Madras) Lid. 	 ; 	 followed. Tripp vs Armitage	 ; and Reid vs Macbeth