Judgment Case ID: 1250

Judgment:
Appeals Nos. 237 and 238 of 1960. Appeals by special leave from the judgment and order dated July 8	 1958	 of the Patna High Court	 in Misc. Cases Nos. 713 and 819 of 1958. A. V. Viswanatha Sastri	 section R. Banerjee and section C. Mazumdar	 for the appellants. section P. Varma	 for the respondents. April 19. The judgment of section K. Das	 J. L. Kapur	 M. Hidayatullah and T. L. Venkatarama AIyar	 JJ.	 was delivered by Venkatarama Aiyar	 J. J. C. Shah	 J.	 delivered a separate judgment. VENKATARAMA AIYAR	 J. Both these appeals arise out of the same facts and involve the determination of the same question	 and this judgment will govern both of them. The appellant in Civil Appeal No. 237 of 1960 is a company registered at Recklinghausen near Dusseldorf in West Germany	 and carries on business in the manufacture and erection of plants and machinery. On December 19	 1953	 it entered into a contract with a company called Sinclair Fertilisers and Chemicals (Private) Ltd.	 hereinafter referred to as the Owner	 for assembling and	 installing machinery	 plants and 84 accessories for a coke oven battery and by products plant at Sindri in the State of Bihar for an all inclusive price of Rs. 2	31	50	000. The agreement provides that the appellants were to supply all the materials and labour required for the execution of the works	 and that the performance was to be split up into two categories	 the German section and the Indian section	 that the German section was to consist of deliveries of materials from Germany Free on Board 'European ports	 cost of technical drawings and services of German specialists	 and that the Indian section was to consist of supply of Indian materials and charges for Indian labour and services to be performed in India. The German section was to be paid out of the lump sum stated above a sum of Rs. 1	31	50	000 in pounds sterling in London on account of the appellant	 and the Indian section was to be paid the balance of Rs. 1	00	00	000 in Indian currency in this country	 and payments were to be made in instalments related to the progress of the contract. Subsequent to the agreement	 the appellant entrusted the work of the Indian section to an Indian company called the Coke Oven Construction Company (Private) Ltd.	 and the Owner having accepted this arrangement the said company has become the assignee of the contract in so far as it relates to the execution of the Indian section thereof. It is this company that is the appellant in Civil Appeal No. 238 of 1960. The execution of the works was completed in 1955 as provided in the agreement	 and the amounts due thereunder were also paid to the two appellants. The present dispute between the parties is as to whether the appellants in the two appeals are liable to pay sales tax on the value of the materials used by them in the execution of the works under the contract. It will be convenient now to refer to the relevant provisions of the Bihar Sales Tax Act (Bihar Act No. XXX of 1947)	 hereinafter referred to as the Act. Section2(g)of the Act defines 'sale ' as including a transfer of property in goods involved in the execution. of contract. 'Contract ' is defined in section 2(b) as meaning any agreement for carrying out for cash or 85 valuable consideration	 the construction	 fitting out	 improvement or repair of any building	 road	 bridge or other immovable property; and 'goods ' are defined in section 2(d) as including "all materials	 articles and commodities	 whether or not to be used in the construction	 fitting out	 improvement or repair of immovable property." 'Sale price ' is defined in section 2(h)(ii) as meaning the amount payable to a dealer as valuable consideration for 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. 'Dealer ' is defined in section 2(c) as meaning any person who sells or supplies any goods including goods sold or supplied in the execution of a contract. Section 2(1) defines 'turnover ' as meaning the aggregate of the amounts of sale prices received and receivable by a dealer in respect of sale or supply of goods or carrying out of any contract	 effected or made during a given period. Section 4 is the charging section	 and it provides that every dealer whose gross turnover during the accounting period exceeded Rs. 10	000 shall be liable to pay tax on sales which take place in Bihar	 and section 5 provides that the "tax payable by a dealer under this Act shall be levied on his taxable turnover at such rate or rates and subject	 to such restrictions and conditions as may be laid down from year to year by an annual Bihar Finance	 Act. " The Bihar Finance Act defines 'taxable turnover ' as meaning that part of the dealer 's gross turnover on sales which have taken place in Bihar during any period subject to certain deductions. Section 9(1) of the Act provides that "No dealer shall	 while being liable under section 4 to pay tax under this Act	 carry on business as a dealer unless he has been registered under this Act and possesses a registration certificate". Section 13(5) of the Act under which the present proceedings have been initiated is as follows: " If upon information which has come into his possession	 the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully 86 failed to apply for registration	 the Commissioner shall	 after giving the dealer a reasonable opportunity of being heard	 assess	 to the best of his judgment	 the amount of tax	 if any due	 from the dealer in respect of such period and subsequent periods and the Commissioner may direct that the dealer shall pay	 by way of penalty	 in addition to the amount so assessed	 a sum not exceeding one and half times that amount. " The gist of the above provisions is that in a contract for execution of works	 the materials used therein are treated as sold by the contractor and their value is taken as the sale price liable to be taxed	 and there are provisions for determining that value. Acting on these provisions	 the Superintendent of Sales Tax	 Dhanbad	 the third respondent herein	 issued on March 20	 1956	 a notice to the appellant in Civil Appeal No. 237 of 1960	 under section 13 of the Act	 stating that on information which had come to his possession he was satisfied that the appellant was liable to pay tax for the periods 1952 53	 1953 54 and 1954 55	 that it had wilfully failed to register itself under section 9 of the Act	 and it was directed to show cause why penalty should not be imposed. In response to this notice	 the appellant appeared before the third res pondent and represented that it had only supplied materials in execution of works contract	 that there was no sale of any goods or materials by it	 and that the proceedings for taxing this supply of materials as if they had been sold were illegal. Disagreeing with this contention	 the third respondent directed the appellant to produce all its books	 accounts and documents for purposes of assessment	 and this is quite understandable	 as it was his duty to levy tax in accordance with the provisions of the Act. Thereupon	 the appellant filed petitions before the High Court of Patna under articles 226 and 227 of the Constitution for the issue of appropriate writs for quashing the proceedings before the third respondent and for prohibiting further proceedings under the Act as being wholly incompetent. 	 The grounds put forward in support of the petition were firstly that the State 87 legislature having authority to enact a law imposing a tax on the sale of goods was not competent to tax what under the law was not a sale	 and that as the supply of materials in the course of the execution of works	 was not in law a sale of those goods	 a tax on such supply was unauthorized; and secondly that	 even if there was a sale of materials	 that was in the course of import from Germany	 and a tax thereon was repugnant to article 286(1)(b) of the Constitution. After taking over the Indian section of the contract	 the appellant in Civil Appeal No. 238 of 1960 had registered itself on May 11	 1953	 as a dealer under section 9 of the Act and was submitting periodical returns as required by the certificate and the Act. But its contention at all times has been that it is not liable to pay sales tax on the transactions in question	 as there were only supplies of materials in execution of works contract and that they did not amount to sale of goods. This contention was overruled by the Superintendent of Sales Tax	 Dhanbad	 the third respondent herein	 and the appellant was assessed to sales tax successively for the years 1952 53 and 195354. While proceedings by way of appeal or revision by the appellant against these orders of assessment were pending	 the third respondent issued further notices for assessment of tax for the years 1954 55 and 1955 56	 and directed the appellant to produce all its books and accounts for the above period. Thereupon the appellant filed in the High Court of Patna	 petitions under articles 226 and 227 of the Constitution	 similar to those filed by the appellant in Civil Appeal No. 237 of 1960	 for issue of appropriate writs to quash the orders of the Sales Tax authorities on the ground that the provisions of the Act	 in so far as they sought to tax supply of materials in works contracts	 were ultra vires. By the time the above petitions came up for hearing	 the decision of this Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1)	 had been reported	 wherein it was held that the expression "sale of goods" in Entry 48 in List II of Sch. VII to (1) ; 88 the Government of India Act	 1935	 corresponding to Entry 54 in List 11 of Sch. VII to the Constitution of India had the same meaning that it has in the 	 that where there is a building contract	 under which specified work is to be executed for a lump sum	 there is no contract of sale	 as such	 of materials used in the works	 and that accordingly	 a tax on the supply of those materials treating it as a sale was ultra vires the powers of the State Legislature under Entry 48 in List 11 of Sch. VII to the Government of India Act	 1935. The learned Judges were of opinion that this decision was distinguishable because there was a term in the agreement before them that the property in the materials was to pass to the owner as soon as they were brought on the site. Dealing next with the contention of the present appellants that	 as there was no agreement for the payment of price for the materials	 as such	 they could not be held to have been sold	 the learned Judges noticed without comment the contention of the Government Pleader for the respondents	 based on section 9 of the 	 that even though no price had been fixed for the materials	 that could be determined from the account books and invoices and the course of dealings between the parties. The learned Judges then proceeded to observe: "I wish	 however	 to state that I do not express any concluded opinion on the question whether there is sale of materials liable to be taxed in the present case. The facts have not been fully investigated by the sales tax authorities and the petitioners have not furnished all the account books and documents and other relevant information for the purpose of deciding this question. It would be open to the sales tax authorities to investigate the facts and Upon proper construction of the contract come to. the finding whether and if so to what extent	 the petitioners are liable to pay sales tax. I have no doubt that in deciding this question the sales tax authorities will keep in view the principles laid down by the Supreme Court in State of Madras versus Gannon Dunkerley and Company (Madras) Limited (9 Sales Tax Cases 353)". 89 With these observations the learned Judges dismissed the petitions. It is against this judgment that the present appeals by special leave are directed. The first question that arises for our decision is 	whether on the construction of the agreement dated December 19	1953	 it could be held that there was a sale by the appellants of the materials used in the construction works	 apart from the execution of those works. In The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1)	 after stating that building contracts could assume several forms	 this Court observed as follows: "It is possible that the parties might enter into distinct and separate contracts	 one for the transfer of materials for money consideration and other for the payment of remuneration for services and for work done. In such a case there are really two agreements	 though there is a single instrument embodying them and the power of the State to separate the agreement of sale from the agreement to do work and render service and to impose a tax thereon	 cannot be questioned and will stand untouched by the present judgment. " The point for determination	 therefore	 is whether on its true construction	 the contract in question is a Combination of two distinct agreements	 one to sell materials and the other to supply labour and services	 or whether it	 is only one agreement entire and indivisible for execution of the works. We will now refer to the relevant portion of the agreement dated December 19	 1953. The preamble to the agreement states that the Owner had agreed with the contractor that the latter was to set up a complete coke oven battery ready for production as well as by products plants according to specifications given therein	 that the installation was to be made at a site selected by the Owner and that the contractor was to "erect and construct buildings	 plants and machineries and deliver and supply accessories and articles from Germany and also locally from India and render services fully (1) ; 12 90 described in the First Schedule. . for an all inclu sive price of Rs. 2	31	50	000." Then cl. I provides that the contractor shall execute and complete the works mentioned in the Schedule	 and el. 2 that the Owner shall pay to the contractor for executing the contract the sum of Rs. 2	31	50	000. Clause 4 requires the contractor to "provide all labour	 materials	 machinery	 plant	 tools	 tackles and other implements for performing the works in a workman like manner. " Under cl. 11	 the contractor guarantees "to accomplish full production within 22 months from the 15th September	 1952" and further undertakes to fulfill the guarantees prescribed in Schedule II to the agreement "to the satisfaction of the Owner within a period of three months from the date of accomplishment of full production. " Clause 28 provides that in case the contractor fails or is unable to complete the works within the period	 the Owner might take possession of the works and of the materials	 "which will become the property of the owner	 and complete the works and deduct from the agreed price the expenses incurred in such completion. It is clear from the above clauses that the subject matter of the agreement was the installation of the coke oven battery and it accessories, that the sum of Rs. 2,31,50,000 was the price agreed to be paid for the execution of those works, and that there was no agreement for the sale of materials, as such, by the appellants to the Owner. In other words, the agreement in question is a contract entire and indivisible for the construction of specified works for a lump sum and not a contract of sale of materials as such. Now the contention that found favour with the learned Judges in the High Court was that there was in the contract a clause that the property in the, materials was to pass to the owner when they are brought on the site, and that, in effect, amounted to a sale of those materials by the appellant to the Owner. The clause in question is as follows: 15 (ii). All materials and plant brought by the Contractor upon the site under the German and Indian Sections in connection with the construction 91 of the Coke Oven and by products Plant shall immediately they are brought upon the site become the Owner 's property and the same shall not on any account whatsoever be removed or taken away by the Contractor or by any other person without the Owner 's prior authority in writing. Such of them as during the progress of the works will be rejected by the Owner in accordance with the terms agreed upon between the Contractor and the Owner in this respect shall on such rejection	 cease to be the Owner 's property. . The Owner shall not be liable for any loss or damage which may happen to or in respect of such materials and plant by the same being lost	 stolen or injured or destroyed by fire	 tempest or otherwise for which the contractor will be liable. . The Owner agrees that after the Coke Oven and by products Plants have been constructed according to the agreed terms	 the Contractor will be entitled to remove from the site their tools	 tackles	 machines	 packing materials	 protection roof and other materials as are surplus to the requirements of the normal operation of the Coke Oven and by products Plant provided that no claim for increased cost is made in respect of anything so removed. " In Peare Lal Hagri Singh vs The State of Punjab (1)	 a building contract contained the following clause: "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 sup plied by him and upon such removal	 the same shall revest in and become the property of the Contractor." Discussing the question whether by reason of this clause there was a Contract of sale of the materials by the Contractor	 distinct from the works contract	 this Court held that its object was only to ensure that (1) ; 92 materials of the right sort were used in the construction and not to constitute a contract of purchase of the materials separatism. In the present case	 el. 15 is even clearer that no sale of materials	 as such	 was intended	 because it expressly provides that if they were destroyed by fire	 tempest or otherwise	 the loss would fall not on the owner	 which must be the result if the property is taken to have been absolutely transferred to it	 but on the contractor. The argument based on section 9 of the is	 in our opinion	 equally unsound. What that section enacts is that where there is a contract of sale of movable but the price is not mentioned	 it has to be fixed either in the manner provided in the agreement or by having regard to the course of dealings between the parties	 and where that is not possible	 the buyer has to pay the seller a reasonable price. But the section presupposes that there is a Contract of sale of goods	 and	 as held in The State of Madras V. Gannon Dunkerley & Co. (Madras) Ltd. (1)	 such a contract requires that there must have been an agreement between the parties for the sale of the very goods in which eventually property passes. If	 as held by us	 cl. 15 does not embody an agreement for the sale of materials as such	 there is no contract of sale with respect to them and section 9 of the can have no application. The contention	 therefore	 that el. 15 of the agreement could be read as amounting to a contract of sale of materials	 and that the price therefor could be fixed as provided in section 9 of the by recourse to the account books of the appellants or the invoices or the course of dealings between them and the owner	 must be rejected as untenable. It follows that the agreement dated December 19	 1953	 being a contract for the construction of works	 one and indivisible	 the respondents have no right to impose a tax on the mate rials supplied in execution of that contract on the footing that such supply is a sale. It is next contended for the respondents that	 whatever the merits of the contentions based on the construction of the contract	 the proper forum to agitate (1) ; 93 them would be the authorities constituted under the Act to hear and decide disputes relating to assessment of tax	 that it was open to the appellants to satisfy those authorities that there have been no sales such as are liable to be taxed	 that indeed they were bound to pursue the remedies under the Act before they could invoke the jurisdiction of the court under article 226 and that the learned Judges of the High Court were	 therefore	 right in declining to entertain the present petitions. It is true that if a statute sets up a Tribunal and confides to it jurisdiction over certain matters and if a proceeding is properly taken before it in respect of such matters	 the High Court will not	 in the exercise of its extraordinary jurisdiction under article 226	 issue a prerogative writ so as to remove the proceedings out of the hands of the Tribunal or interfere with their course before it. But it is equally well settled that	 when proceedings are taken before a Tribunal under a provision of law	 which is ultra vires	 it is open to a party aggrieved thereby to move the court under article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent	 without his being obliged to wait until those proceedings run their full course. That has been held by this court in The State of Bombay vs The United Motors (India) Ltd. (1)	 Himmatlal Harilal Mehta vs The State of Madhya Pradesh (2). and The Bengal Immunity Company Limited vs The State of Bihar (3). The position that emerges is that	 if the proceedings before the Sales Tax Officer are founded on the provisions of the Act	 which authorizes the levy of the tax on the supply of materials in construction contracts	 then they must in view of the decision in The State of Madras vs Gannon Dunkerly & Co. (Madras) Lid. (4)	 be held to be incompetent and quashed. But if the proceedings relate to any extent to sales otherwise than under the contract	 then the enquiry with respect to them must proceed (1) ; 	 1077. (2) ; 	 1127. (3) 	 617 619	 764 766. (4) ; 94 before the authorities under the Act and the application under article 226 must fail. We must now examine the true scope of the proceedings before the Sales Tax Officer in the light of the above principles. We start with this that the Act contains provisions imposing a tax on the supply of materials under a construction contract. The appellants were indisputably engaged in construction works under the agreement dated December 19	 1953	 and it is not suggested that they were carrying on any independent business as dealers in the State of Bihar. Presumably	 therefore	 when the sales tax authorities took proceedings against them	 it was in respect of materials supplied by them under their contract dated December 19	 1953. When the appellants	 in response to the notice issued by the third respondent	 contested their liability to be taxed	 it was on the ground that the supplies of materials under the contract were not sales. When the appellants next moved the court tinder article 226 for quashing the proceedings	 they urged that the provisions of the Act	 in so far as they purported to impose a tax on the materials supplied in the performance of the contract	 as if they were sold	 were ultra vires. If the respondents sought to tax the appellants on the footing that sales of materials were effected outside the contract	 it was their duty to have put that case forward in answer to the petition. They did nothing of the kind. They did not file even a counter statement. At the time of the argument	 when faced with the decision of this Court in the case of The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1)	 their entire case was that the agreement between the parties should be construed as involving a sale of materials	 and that their value could be ascertained from the invoices	 account books and the course of dealings between the parties. No contention was urged that there were sales of materials which fell outside the agreement between the appellants and the Owner. The learned Judges of the High Court in dismissing the petitions made it clear that the investigation before the sales (1) ; 95 tax authorities must be as regards their liability to pay sales tax "upon proper construction of the contract. " In this Court also	 the respondents seek in their statement to maintain the liability of the appellants only on the basis of the contract	 reliance being placed on cl. 15 already referred to and on section 9 of the . There is no claim that the appellants are liable on the basis of sales falling outside the agreement. It was stated before us for the appellants	 and not contradicted by the respondents	 that the Sindri Fertilisers and Chemicals (Private) Ltd.	 is a company controlled by the Government. If that is so	 the respondents were at all times in possession of facts which would have shown whether the appellants entered into any transaction decors the agreement	 and it is significant that at no stage have they alleged any such facts. We are satisfied that the proceedings have at all stages gone on the footing that the liability of the appellants arose under the contract and not otherwise. In that view	 we must hold	 following the decision in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1) that the proceedings taken by the respondents for imposing sales tax on the supplies of materials by the appellants	 pursuant to the contract dated December 19	 1953	 are illegal and must be quashed. In the result	 the appeals are allowed and appropriate writs as prayed for by the appellants will be issued. The appellants are entitled to their costs throughout. SHAH	 J. In my view these appeals must fail. The appellants claim that they are not liable to be taxed in respect of the transaction dated December 19	 1953	 because it is not a sale within the meaning of the Bihar Sales Tax Act	 19 of 1947	 but is a contract to assemble and install machinery	 plants and accessories of a coke oven battery and other plants which under the principle of the decision of this Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1) is not subject to sales tax. The Act defines "sale" as meaning omitting parts not material any transfer of property in goods for (1) ; 96 cash or deferred payment or other valuable consideration	 including a transfer of property in goods involved in the execution of contract. "Contract" is defined as meaning any agreement for carrying out for cash or deferred payment or other valuable consideration	 the construction	 fitting out	 improvement or repair of any building	 road	 bridge or other immovable property. The expression "goods" means all kinds of movable property other than actionable claims	 stocks	 shares or securities and includes all materials	 articles and commodities whether or not to be used in the construction	 fitting out	 improvement or repair of immovable property. "Sale price" means the amount payable to a dealer as valuable consideration for (1) the sale or supply of any goods	 less any sum allowed as cash discount according to ordinary trade practice	 but including any sum charged for anything done by the dealer in respect of the goods at the time of	 or before	 delivery thereof	 other than the cost of freight or delivery or the cost of in stallation when such cost is separately charged; or (ii) the carrying out of any contract	 less such portions 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. These definitions in so far as they seek to treat goods supplied or used in the execution of a works or construction contract	 as sold and liable to sales tax under the Act	 must	 on the decision of this Court in Gannon Dunkerley 's case (1) be regarded as beyond the legislative competence of the State Legislature. In Gannon Dunkerley 's case (1)	 this Court held that in a building contract	 the contractor constructs the building according to the specifications contained in the agreement and in consideration therefor receives payment as provided therein	 and in such an agreement	 there is neither a contract to sell the materials used in the construction	 nor does property pass therein as moveables	 and accordingly in a building contract which is one	 entire and indivisible	 there is no sale of goods and it is not within the competence of the Provincial Legislature under Entry 48 in List 11 in (1) ; 97 Sch. VII of the Government of India Act	 1935	 to impose a tax on the supply of the materials used in such a contract treating it as a sale. Relying upon the decision of this court in Gannon Dunkerley 's case (1)	 the appellants contend that the amount received by them under the contract dated December 19	 1953	 is not liable to be assessed to sales tax. But the question whether the contract is a pure works contract or a composite contract has never been investi gated. Undoubtedly	 the formal document evidencing the contract suggests	 prima facie	 that it is a works contract	 but in assessing liability to tax	 the taxing authority is not restricted merely to the letter of the document: he has to enquire into the true nature of the transaction on all the relevant materials and to ascertain whether it partakes of the nature of the transaction which the statute renders taxable. He is	 in ascertaining the true nature of the contract	 also entitled to consider how the contract"was performed. The Act entrusts power to ascertain the facts on which the liability to tax depends to the taxing authorities and in that behalf	 the Act is exhaustive in scope and content. The appellants in approaching the High Court by petitions under articles 226 and 227 of the Constitution sought to eliminate the entire procedure and machinery set up by the Act for ascertaining facts on which the liability to tax depends. I strongly deprecate the practice of the taxpayer being permitted to invoke the jurisdiction of the High Court to issue high prerogative writs on certain assumed facts facts the truth of which has never been subjected to scrutiny in the only manner in which the law provides they should be scrutinised. The power to assess the facts on which the decision as to the true nature of the taxable transaction depends by the statute lies solely with the taxing authorities: it does not lie with any other body or tri bunal. Invoking the jurisdiction of the High Court to adjudicate upon the facts	 directly or indirectly	 on which the liability to tax depends	 in my view	 (1) ; 13 98 amounts to inviting the High Court to exercise jurisdiction which it does not possess. This is however not to say that the jurisdiction of the High Court to issue a writ of prohibition restraining the levy of tax under a statute can never be entertained. If	 for instance	 the statute is beyond the legislative competence of the legislature or defies a constitutional restriction or infringes a fundamental right or the taxing authority arrogates to himself powers which he does not possess or attempts to levy tax more than once in respect of the same transaction when it is not permitted by the statute	 or the taxing authority threatens to recover tax on an interpretation of a statutory provision imposing tax which is on the face of the statute erroneous	 jurisdiction to issue writ of prohibition from the High Court may properly be invoked. But the High Court cannot be asked to ascertain disputed facts bearing upon the taxability of a transaction	 because that jurisdiction is vested elsewhere. The contract in question is principally a works contract. The preamble states that the appellants had agreed with the Sindri Fertilizers and Chemicals Ltd. to set up a complete coke oven battery ready for production as well as by products plant on the site specified and to construct buildings	 plants and machineries and deliver and supply accessories and articles and to render services fully described in the first schedule	 subject to the guarantees to be fulfilled on the part of the appellants and terms and conditions mutually agreed and settled and mentioned in the second schedule for an all inclusive price in accordance with the preliminary site plan. It is manifest from the preamble that there is a contract for the construction of a coke oven battery and by products together with the plant	 and also to deliver and supply accessories and articles. Undoubtedly	 the price agreed to be paid is an "inclusive price" in respect of the entire contract	 but that does not affect the nature of the contract to deliver and supply accessories and articles. The appellants have undertaken	 subject to the terms and conditions mentioned in the contract	 to execute and complete the works mentioned in the first schedule. 99 The contract in so far as it relates to the installation of plant and construction of building was a works contract and notwithstanding the definition of "sale" and "contract" in the Act	 was not taxable but the contract contemplates delivery and supply by the appellant of accessories and articles. Even if this delivery and supply of accessories and articles is incidental to the works contract	 it cannot be assumed without investigation that it was not a part of a transaction of sale liable to tax. The appellants asked the High Court to assume that the contract in question was a pure works contract	 but the High Court declined to make that assumption. Ramaswami	 C. J.	 in dealing with that plea observed: "I wish	 however to state that I do not express any concluded opinion on the question whether there is sale of materials liable to be taxed in the present case. The facts have not been fully investigated by the sales tax authorities and the petitioners have not furnished all the account books and documents and other relevant information for the purpose of deciding this question. It would be open to the sales tax authorities to investigate the facts and upon proper construction of the contract come to the finding whether and if so to what extent	 the petitioners are liable to pay sales tax	 In my view, the learned Chief Justice was right in so approaching the question. The sales tax authorities have made no assessment; they merely issued a notice purporting to do so under section 13(5) of the Act and required the appellants to produce their books of account and records for ascertaining whether the transaction or any part thereof was in the nature of sale of goods. The sales tax authorities had jurisdiction to do so and by merely looking at the terms of the written contract and without any investigation as to the true nature of the transaction the High Court could not decide whether the contract performed was a pure works or construction contract or was a composite contract. It was urged that in the petition filed by the appellants before the High Court, an affidavit 100 in rejoinder challenging the correctness of the averment made in the petition that it was a pure works contract was not filed by the taxing authorities and therefore the High Court was bound to decide the dispute on the footing set up by the appellants. But the taxing authorities could not be expected without investigation to assert a state of facts which was not and could not be within their knowledge, and their statutory authority could not, because of their failure to so assert, be nullified. As I have already observed, the investigation of facts on the question of the liability to pay tax has to be made by the taxing authorities in whom that jurisdiction is vested. Before the facts on which the liability to tax depends are ascertained, the High Court could not be asked to assume that the transaction was in the nature of a pure works contract and to decide the question as to the liability of the appellants on that footing. There is no ground for assuming that the taxing authorities will not give effect to the decision of this court in Gannon Dunkerley 's case (1) after the true nature of the transaction is ascertained. In my view, the High Court was right in declining to issue the writ prayed for. By COURT: In accordance with the opinion of the majority, the appeals are allowed and it is directed that appropriate writs as prayed be issued. The appellants are also entitled to their costs throughout. Appeals allowed. 
1907	ivil Appeal No. 875 of 1964. Appeal by special leave from the judgment and order dated April 10, 1964, of the Calcutta High Court in Civil Rule No. 4439 of 1962. N.C. Chatterjee and D. Goburdhan, for the appellants. P.K. Chatterjee and D.N. Mukherjee, for the respondent. The Judgment of the Court was delivered by Gajendragadkar, C.J. Appellant No. 1, Kaluram Onkarmal, was let into possession of the premises described as holding No. 182H, G.T. Road, Asansol as a monthly tenant under Harbhajan Singh Wasal who was the owner of the said premises. The rent agreed to be paid was Rs. 35 per month payable according to the English Calendar. It appears that in 1953, the Calcutta National Bank Ltd. (now in liquidation) sued the owner Wasal on the original side of the Calcutta High Court on a mortgage. In the said suit, a preliminary decree was passed and in due course, it was followed by a final decree. During the proceedings of the said suit, Mr. K.K. Ghose was appointed Receiver of the mortgaged properties, including the premises in the present suit. On February 18, 1960, the Receiver put the mortgaged properties to sale and the respondent, Baidyanath Gorain, purchased them. The said sale was confirmed by the Calcutta High Court on March 1, 1960. That is how the respondent became the owner of the suit premises along with other properties under mortgage. After he acquired title to the suit premises in this manner, the respondent informed appellant No. 1 about the same by his letter dated the 2nd April, 1960. On December IL 1961, the respondent sued appellant No. 1, and appellant No. 2, Kaluram Bajranglal in the First Court of the Muns if at Asansol for ejectment. He claimed vacant possession of the premises let out to appellant No. 1 on several grounds. He urged that he reasonably required the premises for rebuilding them after .demolishing the existing structure. According to him, the existing structure had become very old and was in a dilapidated condition. He also alleged that appellant No. 1 had unlawfully sublet the suit premises to appellant No. 2, and that he had failed to pay or deposit the rents for the last three years in accordance with law. The claim for ejectment thus made by the respondent was disputed by appellant No. 1 on several grounds. Appellant No. 1 denied that the respondent required the suit premises for rebuilding, and also disputed his allegation that he had sublet the said 36 premises unlawfully. In regard to the averment made by the respondent that appellant No. 1 had failed to pay or deposit the rents due for the last three years, appellant No. 1 made a detailed dental. He urged that the rents had been regularly paid to the owner in tune before August, 1960, and he pleaded that since the month of August, 1960 when he found that the owner was not prepared to accept the rents from him, he deposited them with the House Rent Controller, Asansol, from month to month. It was his case that notice had been served on the owner in respect of these deposits from month to month as provided by section 21(3) of the West Bengal Premises Tenancy Act, 1956, (Act XII of 1956) (herematter called 'the Act '). The written statement further averred that the deposit of the monthly rent continued to be made regularly under section 21 and that the rent for March, 1962 had been duly deposited on April 10, 1962. This written statement was filed on April 11, 1962. During the pendency of this suit, the respondent made an application under section 17(3) of the Act and claimed that the defence of appellant No. 1 against delivery of possession should be struck out, because he had failed to deposit or pay the amount in Court as required by section 17(1) of the Act. This application was strenuously opposed by appellant No. 1 on the ground that section 17(3) could not be invoked against him in view of the fact that he had been depositing the rent from month to month under section 21. and he urged that the deposit of rent thus made by him amounted to payment of rent by him to the respondent under section 22(3) and, therefore. no default had been committed by him at all. This dispute raised the question about the true scope and effect of the provisions of section 17(3) and section 22(3) of the Act. The learned trial Judge held that notwithstanding the fact that appellant No. 1 had been depositing the rent from month to month under section 22 with the Rent Controller, having regard to the provisions contained in section 17(1) his failure to deposit the relevant amount in Court incurred the liability to have his defence struck out under section 17(3). In coming to this conclusion, the learned Judge followed a decision of the Division Bench of the Calcutta High Court in Abdul Majid vs Dr. Samiruddin(1). Having held that section 17(3) applied, the learned Judge directed that the defence raised by appellant No. 1 against the claim of the respondent for delivery of possession of the suit premises must be struck out. This order was challenged by both the appellants by preferring a revision application before the Calcutta High Court. Before this revision application reached the stage of hearing, the question raised by it had already been concluded by a majority decision of the Special Bench of the Calcutta High Court in Siddheswar Paul vs Prakash Chandra Dutta(2). The learned single Judge who heard this (1) (2) A.I.R. 1964 Cal. 37 revision application was naturally bound by the said majority decision, and applying the said decision, he held that the order passed by the learned trial Judge striking out the defence of appellant No. 1 under section 17(3) of the Act was justified. It is this order which is challenged by Mr. N.C. Chatterjee on behalf of the appellants in the present appeal which has been brought to this Court by special leave. Mr. Chatterjee contends that the majority decision of the Special Bench in Siddheswar Paul 's case(1) is erroneous and has proceeded on a misconstruction of the tone, scope and effect of the two relevant section of the Act sections 17 & 22. That is how the short question which falls for our decision in the present appeal is: what is the true scope and effect of the provisions prescribed by sections 17 and 22 of the Act? It appears that the Special Bench in Siddheswar Paul 's case was .divided on this issue; the three learned Judges have taken the view that section 22(3) does not apply to cases falling under section 17(1), whereas two other learned Judges have come to the conclusion that if a tenant had made a deposit with the Rent Controller to which section 22(3) applies, section 17(3) cannot be invoked against him. The separate judgments delivered by all the learned Judges who constituted the Special Bench have dealh with the point at great length and each one has subjected the said two provisions to a close analysis and examination. In the present appeal, we propose to consider the matter in a broad way and will confine ourselves to some general considerations which flow from the construction of the two relevant provisions and which. in our opinion, support the view taken by the majority of the Judges in the Special Bench. Before addressing ourselves to the main point in dispute between the parties, it is necessary to refer broadly to the scheme of the Act and its main provisions. The Act was passed in 1956 and superseded the earlier Act XVII of 1950. The Act consists of seven Chapters. I deals with definitions; Ch. II contains provisions regarding rent; Ch. III coveys suits and proceedings for eviction; Ch. IV has reference to deposit of rent; Ch. V considers the question of appointment of the Controller and other Officers, their powers and functions; Ch. VI provides for appeals, revision and review; and Ch. VII deals with penalties and miscellaneous provisions. Section 2(b) defines a Controller"; section 2(c) defines "fair rent"; section 2(d) defines a "landlord"; and section 2(h) defines a "tenant". A tenant	 according to section 2(h)	 includes any person by whom or on whose account or behalf	 the rent of any premises is	 or but for a special contract would be payable and also any person continuing in possession after the termination of his tenancy	 but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction. Section (1) A.I.R. [1964] Cal. 38 4(1) provides that a tenant shall	 subject to the provisions of the Act	 pay to the landlord: (a) in cases where fair rent has been fixed for any premises	 such rent; (b) in other cases	 the rent agreed upon until fair rent is fixed. Section 4(2) lays down that rent shall be paid within the time fixed by contract or in the absence of such contract	 by the 15th day of the month next following the month for which it is payable; and under section 4(3)	 any sum in excess of the rent referred to in sub section (1) shall not be recoverable by the landlord. These provisions are in conformity With the pattern which is usually adopted by Rent Restriction Acts. The rest of the provisions of Chapter II deal with the fixation of standard rent; with the said provisions	 we are not concerned in the present appeal. Chapter III which deals with suits and proceedings for eviction contains section 17 which falls to be considered in the present appeal. Section 13 which affords protection to tenants against eviction	 lays down that notwithstanding anything to the contrary in any other law	 no order or decree for the recovery of possession of my premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds specified by clauses (a) to (k). Amongst these clauses	 it is clause (i) which deals with a case where the tenant has made default in the payment of rent for two months within a period of twelve months or for two successive periods in cases where rent is not payable monthly. Section 14 imposes a restriction on subletting. Section 15 prohibits a tenant from receiving any sum or consideration for relinquishment of tenancy; and section 16 provides that the creation and termination of sub tenancies shall be notified in the manner prescribed by it. That takes us to section 17. Section 17(1) reads thus : "On a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 13	 the tenant shall	 subject to the provisions of sub s (2)	 within one month of me service of the writ of summons on him deposit in Court or pay to the landlord an amount calculated at the rate of rent at which it.was last paid	 for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of eight and one third per cent	 per annum from the date when any such amount was payable up to the date of deposit and shall thereafter continue to deposit or pay	 month by month	 by the 15th of each succeeding month a sum equivalent to the rent at that rate." Section 17(2) deals with cases where there is a dispute as to the amount of rent payable by the tenant. This provision is not relevant for our purpose. Section 17(3) provides that if a tenant fails to 39 deposit or pay any amount referred to in sub section (1) or sub section (2)	 the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit. It is under this sub section that the impugned order has been passed. Section 17(4) lays down: "If a tenant makes deposit or payment as required by sub section (1) or sub section (2)	 no decree or order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant shall be made by the Court but the Court may allow such costs as it may deem fit to the landlord: Provide that a tenant shall not be entitled to any relief under this sub section if he has made default in payment of rent for four months within a period of twelve months. Reading section 17(1)by itself	 it is clear that when a landlord institutes a suit to recover possession of the rent	 though it is not described as such by section 17(1).It is thus clear that whatever may be the cause on which the landlord 's claim for eviction is based	 section 17(1) provides that subject to the provisions of sub section (2)	 within one month of the service of the writ of summons on him	 the tenant is required to deposit in Court the amount in the manner prescribed by it. If he fails to comply with the requirements of section 17(1)	 section 17(3) steps in and ' enables the landlord to claim that the defence of the tenant against delivery of possession should be struck out. If section 17(1) and (3) are read by themselves	 there is no doubt that appellant No. 1 has failed to comply with section 17(1)	 and so	 section 17(3) can be legitimately invoked against him. He	 however	 contends that m applying section 17(3). the Court must take into account not only 40 section 17(1)but also section 22(3)	 and his argument is that if he has deposited the amount of rent under section 21 and the deposit is otherwise valid	 then the deposit itself amounts to payment of rent by him to the landlord and as such	 no order can be passed against him under section 17(3)	 because	 in law	 he has not committed a default in the payment of rent at all; and it is this contention which makes it necessary to consider the impact of the provisions of section 22 on the application of section 17(3) against appellant No. 1. Let us. therefore	 read section 22 and attempt to decide what is the effect of section 22(3) on cases falling under section 17(1). As we have already pointed out	 section 22 occurs in Chapter IV which deals with deposit of rent. This Chapter begins with section 21. Section 21 (1) provides that where the landlord does not accept any rent tendered by the tenant within the time referred to in section 4. or where there is a bona fide doubt as to the person or persons to whom the rent is payable. the tenant may deposit such rent with the Controller in the prescribed manner. Section 21(2) lays down that the deposi shall be accompanied by an application which should set forth "the particulars prescribed by clauses .(a) to (d). Section 21 (3) requires that the said application shall be accompanied by the prescribed number of copies thereof. Section 21(4) requires the Controller to send a copy of the application received by him from the tenant to the landlord. Under section 21(5). the Controller is authorised to allow the landlord to withdraw the rent deposited with him. Section 21(6) empowers the forfeiture of the deposit to Government	 subject to the conditions prescribed by clauses (a) & (b) of the said sub section. There are three other sub sections to section 21 which are not relevant for our purpose. That takes us to section 22 it reads thus: "(1) No rent deposited under section 21 shall be considered to have been validly deposited under that section for purposes of clause (i) of sub section (1) ors. 13	 unless deposited within fifteen days of the time fixed by the contract in writing for payment of the rent or	 in the absence of such contract in writing	 unless deposited within the last day of the month following that for which the rent was payable. (2) No such deposit shall be considered to have been validly made for the purpose of the said clause if the tenant wailfully or negligently makes any false statement in his application for depositing the rent	 unless the landlord has withdrawn the amount deposited before the date of institution of a suit or proceeding for recovery	 or possession of the premises from the tenant. (3) If the rent is deposited within the time mentioned in sub section (1). and does not cease to be a valid deposit for the reason mentioned in sub section (2)	 the deposit 41 shall constitute payment of rent to the landlord as if the amount deposited has been valid legal tender of rent if tendered to the landlord on the date fixed by the contract for payment or rent when there is such a contract	 or	 in the absence of any contract	 on the fifteenth day of the month next following that for which rent is payable." Mr. N. C. Chatterjee for the appellants contends that the effect of section 22(3) is that the deposit made by appellant No. 1 shall beheld to constitute payment by him to the landlord	 and so	 there can be no scope four invoking section 17(3) against him inasmuch/the basis of section 17(3)	 in substance	 is that the tenant whose defence is sought to be struck out has committed a default in the payment of rent. The object of section 17(1) is to secure the payment of rent by the tenant to the landlord and since that object has been satisfied by the deposit duly made by appellant No. 1 under section 21(1)	 it would be unreasonable to allow section 17(3) to be invoked against him. It is common ground that the deposit of rent has been made by appellant No. 1 in compliance with the provisions of section 21 and that it is not rendered invalid under section 22(2). In other words	 Mr. N.C. Chatterjee is entitled to urge his point on the assumption that appellant No. 1 has made a valid deposit under section 21 and is entitled to the benefit of section 22(3). Can a valid deposit made under section 21 be permitted to be pleaded by a tenant when an application is made against him under section 17	(3)?; that is the question which arises for our decision in the present appeal. The answer to this question necessarily depends upon the determination of the true scope and effect of the provisions contained respectively in section 17 and section 22. As a matter of common sense	 Mr. N.C. Chatterjee 's argument does sound to be prima facie attractive. If	 in fact	 appellant No. 1 has deposited the rent from month to month	 it does appear harsh and unreasonable that his defence should be struck out on the ground that he has deposited the rent not in the Court where the suit is pending	 but with the Controller. When appellant No. 1 began to deposit the rent with the Controller	 he was justified in doing so; but on the other hand	 it is urged against him by Mr. P. K. Chatterjee that as soon as the suit is filed under section 17 and the period prescribed by it has expired	 it was obligatory on appellant No. 1 to pay the amount in Court and stop depositing it with the Rent Controller; in other words	 his failure to pay the amount in Court incurs the penalty prescribed by section 17(3) notwithstanding the fact that he may have deposited the same amount with the Controller. The requirements of section 17(1) cannot be said to be satisfied by taking recourse to the provisions of section 22(3); that in substance is the argument for the respondent. The question thus raised for our decision no doubt lies within a very narrow compass and its answer depends upon a proper construction of sections 17 and 22; but	 as we have already indicated	 this narrow 42 question has given rise to a sharp conflict of opinion in the Calcutta High Court. It appears plain that appellant No. 1 finds himself in the present difficult position presumably because	 acting upon the view expressed in some of the judgments of the Calcutta High Court	 he was advised to deposit the rent with the Controller even after he was sued by the respondent and section 17(1) began to operate against him. In dealing with this vexed problem	 it is relevant to remem her that the two competing provisions occur in two different Chapters and apparently cover different fields. Chapter IV deals with the question of deposit of rent in general	 whereas section 17 in Ch III makes a provision for the payment of the amount mentioned by it in Court after a suit or proceeding has been instituted by the landlord against the tenant. It is common ground that the Rent Controller is not Court within the meaning of section 17(1). Prima facie. a general provision for the deposit of rent prescribed by section 21 would not apply to special cases dealt with by section 17. The provisions of section 21 and 22 which are general in character	 would cover cases which are not expressly dealt with by the special provision prescribed by section 17. In other words	 though a tenant may deposit rent with the Controller under the provisions of sections 21 and 22	 as soon as a suit is brought against him by the landlord	 section 17 which is a special provision	 comes into operation and it is the provision of this special section that must prevail in cases covered by it: that is the first general consideration which cannot be ignored. Section 17 deals with suits or proceedings in which the landlord claims eviction on any of the grounds referred to in section 13; and as we have already noticed	 section 13 which affords protection to the tenant 's eviction	 permits the landlord to claim eviction only if he can place his claim on one or the other of the clauses (a) to (k); that is to say	 it is 'only if one or other of the conditions prescribed by the said clauses is proved that the landlord can claim to evict his tenant. Default in the payment of rent is one of these clauses	 but there are several other clauses referring to different causes of action on which eviction can be claimed by the landlord	 and it is to all these cases that section 17(1) applies. It is thus clear that normally	 when a suit is brought for eviction	 the tenant would have to comply with the requirements of section 17(1). It is only where owing to the refusal of the landlord to accept the rent tendered by the tenant	 or where there is a bona fide doubt as to who is entitled to receive the rent. that the provisions of section 21 empower the tenant to deposit the rent with the Controller. In a11 other cases	 if the tenant was paying rent to the landlord and is faced with a suit for eviction	 section 17(1) will unambiguously apply and the amount of rent will have to be paid in Court as required by it. It is also dear that if a tenant has been depositing the rent validly and properly under section 21	 a suit against him under section 13(1)(i) cannot be filed. Section 13(1)(i) authorises the landlord to claim eviction of his 43 tenant on the ground that he has made a default in the payment of rent as described by it. But such a default cannot be attributed to a tenant who has been depositing the rent with the Controller properly and validly under section 21. Such a valid payment amounts to payment of rent by the tenant to the landlord under section 22(3)	 and so a tenant who has been making these deposits cannot be sued under section 13(1)(i). It is true that the complication of the present kind arises where a tenant who has been making a valid deposit under section 21 is sued for ejectment on grounds other than section 13(1)(i)	 and section 17(1) comes into operation against him. In such a case	 if the special provisions prescribed by section 17(1) apply to the exclusion of sections 21 & 22 the fact that a deposit has been made by the tenant can be no answer to the application made by the landlord under section 17(3) In this connection	 it is necessary to bear in mind the fact that section 17(1) is really intended to give a benefit to the tenant who has committed a default in the payment of rent. The first part of section 17(1) allows such a tenant to pay the defaulted amount of rent together with the prescribed interest in Court within the time prescribed	 and such a tenant would not be evicted if he continues to deposit the amount in Court	 during the pendency of the suit as required by the latter part of section 17(1). In our opinion	 the scheme of section 17(1) is a complete scheme by itself and the Legislature has intended that in suits or proceedings to which section 17(1) applies	 the payment of rent by the tenant to landlord must be made in the manner prescribed by section 17(1). Even in cases Where the tenant might have been depositing the rent with the Controller under section 21	 he has to comply with section 17(1) before the period prescribed by section 17(1) has elapsed. It is significant that the requirement to deposit the amount in Court comes into force within one month of the service of the writ of summons on the tenant. In other words	appellant No. 1 was justified in depositing the rent even after the present suit was filed until one month from the service of the writ of summons of the suit had elapsed. The Legislature has taken the precaution of giving the tenant one month 's period after the service of the writ of summons on him before requiring him to deposit the amount in Court. The object obviously appears to be that when a suit or proceeding has commenced between the landlord and the tenant for ejectment	 and the tenant has received notice of it	the payment of rent should be made in Court to avoid any dispute in that behalf. It is also relevant to remember that in the matter of payment of rent in Court	 section 17(1) has provided that the amount to be paid in future shall be paid by the 15th of each succeeding month	 and that means that the date for the payment of the amount has been statutorily fixed which is distinct from the requirement of section 4. Section 4(2) provides for the payment of rent within the time fixed 44 by contract	 but section 17(1) requires the payment to be made by the 15th of each succeeding month whatever may be the contract. If	 according to the contract	 rent was payable quarterly	 or six monthly	 or even annually	 section 17(1) supersedes that part of the contract and requires the rent to be paid	 month by month	 by the 15th of each succeeding month. The position under sections 21 & 22 is	 however	 substantially different on this point. Section 21 (I) in terms requires the deposit to be made within the time referred to in section 4	 and that means where there is a contract made by the parties in relation to the time for the payment of rent	 it is on the contracted date that the rent has to be deposited under section 21. The scheme of the three clauses of section 22 clearly is integrally connected with section 21. These clauses deal with deposits made under section 21. In fact it would be 	difficult to read section 22(3) independently of section 22(1) and (2); all the three clauses of section 22 must be read together	 and so	 the time for making the deposit for the purpose of section 22(3) would be the time prescribed by contract and not the statutory time provided by section 17(1). It is clear that the deposit of rent made before the Controller under section 21 is based on the contractual obligation of the tenant to pay the rent	and he makes the deposit because the landlord is not receiving the rent or there is a dispute as to who the real landlord is. On the other hand	 the deposit of rent made in Court under section 17(1) is the result of a statutory obligation imposed by the said sub section; no doubt	 the amount required to be deposited may be the amount for which the parties may have entered into a contract	 but the manner and the mode in which the deposit is required to be made in Court are the result of the statutory provision	 and in that sense they constitute a statutory obligation. That is another feature which distinguishes the deposits covered by sections 21 and 22 from the deposits prescribed by section 17(1). Mr. N.C. Chatterjee argued that if the majority view of the Calcutta High Court is upheld	 it may lead to some anomalies. As an illustration	 he asked us to consider the case of a suit failing under section 17(1) which ultimately fails and is dismissed. In such a suit	 the rent would have to be deposited in Court by the tenant as required by section 17(1); but if the suit fails	 what happens to the rent? Would the tenant be treated as being a defaulter	 or would the tenant who is required to make a deposit in Court as required by section 17(1) be compelled as a precaution	 to make another deposit with the Controller in cases where the .landlord had refused to accept rent before he flied the suit? We are not impressed by this argument. In our opinion	 if the tenant had deposited the rent in Court as required by section 17(1)	 he could not be treated as a defaulter under any provision of the Act. Payment in Court made by the tenant under the statutory obligation imposed on him would	 in law	 be treated as payment of rent made by him to the landlord. 45 Mr. N.C. Chatterjee also relies on the fact that section 24 in terms provides that the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant shall operate as a waiver of such default	 when there is no proceeding pending in Court for the recovery 	of possession of the premises. The argument is that where the Legislature intended to confine the operation of a specified provision to cases where there is no proceeding pending in Court	 it has expressly so stated. In our opinion.this argument is not well founded. Section 24 merely indicates that the Legislature thought that it was necessary to make that provision in order to avoid any doubt as to whether acceptance of rent would amount to waiver or not in cases where no proceeding was pending in Court. On the other hand	 from the wording of section 24 it may be permissible to suggest that the Legislature did not think of providing for the consequence of acceptance of rent after the commencement of a proceeding for the recovery of possession. because it knew that the said matter would be covered by section 17(1). Besides	 section 22(2) gives some indication that the provisions of section 22 are not intended to be applied when suits or proceedings have commenced between the landlord and the tenant. It would be noticed that section 22(2) says that No. deposit shall be considered to have been validly made for the purposes of section 22(1) if the tenant wailfully or negligently makes any false statement in his application for depositing the amount unless the landlord has withdrawn the amount deposited before the date of institution of a suit or proceeding for recovery of possession 	of the premises from the tenant. This last clause may suggest that the provisions of all the clauses of section 22 may not be applicable after the suit or proceeding has commenced. As we have already pointed out	 the question raised for our decision in the present appeal really centers round the determination of the areas covered by section 17 on the one hand	 and sections 21 and 22 on the other; and though it may be conceded that the words used in the respective sections are not quite clear	 on the whole the scheme evidenced by them indicates that the Legislature wanted section 17(1) to control the relationship between the landlord and the tenant as prescribed by it once a suit or proceeding for ejectment was instituted and a period of one month from the service of the writ of summons on the defendant had expired. We have carefully considered the reasons given by the two. learned Judges who delivered the minority judgments in the Siddheswar Paul 's(1) case	 but we have come to the conclusion that the majority view on the whole correctly represents the true scope and effect of section 17	 as distinguished from sections 21 and 22. In the result	 the appeal fails and must be dismissed. There would be no order as to costs. (1)A.I.R. L/B(D)2SCI 5 46 Before parting with this appeal	 however	 we would like to add that appellant No. 1 has to submit to the penalty prescribed by section 17(3) apparently because. acting upon the opinion expressed by some of the learned Judges of the Calcutta High Court	 he was advised to continue to deposit the rent with the Controller even after the present suit was filed against him. We do not know whether there are many other cases of the same type. In case there are several other cases of this type	 that would really mean unjust hardship against tenants who	 in substance	 have not committed default in the matter of payment of rent	 and yet would be exposed to the risk of ejectment by virtue of the application of section 17(3). In our opinion	 such tenants undoubtedly deserve to be protected against ejectment. We trust the Legislature will consider this matter and devise some means of giving appropriate relief to this class of tenants. Appeal dismissed.

Summary:
On December 19	 1953	 the appellant	 a company registered in West Germany	 entered into a contract with a company in India to set up a complete coke oven battery ready for production as well as by products plants at Sindri in the State of Bihar	 agreeing to erect and construct buildings	 plants and machinery and deliver and supply accessories and articles from Germany and also locally from India	 and render services fully described in the First Schedule	 for an all inclusive price of Rs. 2	31	50	000. The contract provided that in case the contractor failed to complete the works within the period specified therein the Indian company might take possession of the works and the materials which would become its property and complete the works and deduct from the agreed price the expenses incurred in such completion. Under cl. 15(ii) of the contract all materials brought by the contractor upon the site shall immediately become the company 's property	 but such of them as during the progress of the works. were rejected by the company ceased to be Company 's property	 and after the coke oven and byproducts plants had been constructed the contractor was entitled to remove the surplus materials. The clause further provided that the company shall not be liable for any loss if the materials were destroyed by fire or otherwise. Under the Bihar Sales Tax Act	 1947	 in a contract for	 execution of works	 the materials used 11 82 therein are treated as sold by the contractors and their value is taken as the sale price liable to be taxed. The execution of the works was completed in 1955 as provided in the agreement and on March 20	 1956	 the sales tax authorities issued a notice to the appellant to the effect that it was liable to pay tax for the three years 1952 to 1955	 under the provisions of the Act. The appellant represented that it had only supplied materials in execution of works contract	 that there was no sale of any goods or materials by it and that the proceedings for taxing this supply of materials as if they had been sold were illegal. The sales tax authorities having proceeded to take further steps to levy the tax in spite of its representations	 the appellant filed a petition before the High Court of Patna under articles 226 and 227 of the Constitution of India for quashing the proceedings. The High Court took the view that under cl. 15(ii) of the contract in question the property in the materials was to pass to the Indian company as soon as they were brought on the site	 and that	 in effect	 amounted to a sale of those materials by the appellant to the company. The Court	 however	 dismissed the petition on the ground that the facts had not yet been fully investigated and that it would be open to the sales tax authorities to investigate the facts and upon the proper construction of the contract come to the finding whether and if so to what extent	 the appellant was liable to pay sales tax. Held (Shah	 J.	 dissenting): (1) that on its proper construction the agreement dated December 19	 1953	 was a contract entire and indivisible for the construction of specified works for a lump sum and not a contract of sale of materials as such and that the sales tax authorities had no right to impose a tax on the materials supplied in execution of that contract on the footing that such supply was a sale. The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd.	 ; and Peare Lal Hari Singh vs The State of Punjab	 ; 	 followed. (2) that where proceedings are taken before a tribunal under a provision of law	 which is ultra vires	 it is open to a party aggrieved thereby to move the court under article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent	 without his being obliged to wait until those proceedings run their full course. The State of Bombay vs The United Motors (India) Ltd.	 ; 	 Himmatlal Harilal Mehta vs State of Madhya Pradesh	 ; and The Bengal Immunity Company Ltd. vs State of Bihar	 	 relied on. In the present case	 the sales tax authorities sought to maintain the liability of the appellant to pay tax in respect of materials supplied by it only under the contract dated December 19	 953	 and on the basis of the legality of the provisions 83 of the Bihar Sales Tax Act	 1947. Consequently	 the proceedings taken by them must be held to be illegal and must be quashed. Per Shah	 J. Under the agreement dated December 19	 1953	 there was a contract for the construction of a coke oven battery and by products plant	 and also to deliver and supply accessories and articles. Even if this delivery and supply was incidental to the works contract	 it could not be assumed without investigation that it was not a part of a transaction of sale liable to tax. The investigation of facts on the question of liability to pay tax has to be made by the taxing authorities in whom that jurisdiction is vested. Before these facts are ascertained	 by merely looking at the terms of the written contract and without any investigation as to the true nature of the transaction	 the High Court could not decide whether the contract performed was a pure works or construction contract or was a composite contract. The High Court was	 therefore	 right in declining to issue the writ prayed for.