# Kahdas JJhanJibhai v. "The State of Bombay

- **Citation:** [1955] 1 S.C.R. 887
- **Court:** Supreme Court of India
- **Decided:** 1953-02-09
- **Case number:** Criminal Appeal No. 80 of 1953
- **Bench:** MuKHERJEA, VIVIAN BosE, Jagannadhadas
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kahdas-jjhanjibhai-v-the-state-of-bombay-1214
- **Pages:** 6

## Headnote

887
Bombay Shops and Establishments
Act, 1948 (Bombay Act
LXXIX of 1948), s. 2(27)-Premius (situated in Ahmedabad) where
no buying or selling is done-Owner employing three workers-Doing
business in a very small way-By going to certain local millsCollecting orders
for spare
parts-Manufacturing the parts in hi;
workshop-Concern of this nature-Whether a shop within the
meaning of s. 2(27).
The
appellant, the
owner
of a small
establishment in
Ahmedabad, employs three workers, does business in a very small
way by going to certain local mills, collecting orders from them for
spare parts, manufacturing the parts so ordered in his workshop,
delivering them to the mills when ready and collecting the money
therefor. No buying or selling is done on the premises.
Held, that a concern qf this nature is not a shop within the
meaning of s. 2(27) of the Bombay Shops and Establishments Act,
1948.
CRIMINAL
APPELLATE
JuRISDICTION:
Criminal
Appeal No. 80 of 1953.
Appeal by Special Leave granted by the
Supreme
Court by its order dated the 9th
February, 1953, from.
the judgment and Order dated the
23rd
September,
1952, of the
High Court of f udicature at Bombay in
Criminal Appeal No. 828 of 1952 arising out
of the
Judgment and
Order dated the 27th March, 1952, of
the Court of Stipendiary
Magistrate, Ahmedabad,
m
Summary Case No. 3029 of 1954.
Rajni Patel and M. S. K. Sastri for the appellant.
M. C. Setalvad,
Attorney-General of India,
and
(Porus A. Mehta and P. G. Gokhale, with him)
for the
respondent.
1954. October 29. The Judgment of the Court was
delivered by
BosE J.-This case is unimportant
in
itself,
for a
small fine of Rs. 50 (Rs.· 25 on each of two courts) has
been imposed for a couple of breaches under section 52
(f) of the Bombay Shops and Establishments Act, 1948,
read with rule 18(5) and (6) of the
Rules framed under
1954
October 29,.
1954
Kahdas
JJhanJibhai
v.
"The State of
Bombay.
Bost J.
888
SUPREME COURT REPORTS
f1955l
the
Act.
But the
question involved
1s of general
importance in the State of Bombay and affects a large
number of similar establishments, so m order to obtain
a clarification of the law, this has been seiected as
a
test case.
The appellant is the owner of a small establishment
called the
Honesty
Engineering
Works
situate
in
Ahmedabad m the
State of
Bombay.
He
employs
three workers. He does business m a very small way
by going to certain local mills, collecting orders from
them
for spare
parts,
manufacturing
the parts so
ordered m his workshop, delivering them to the mills
when ready and
collecting the money therefor.
No
buying or selling is done on the premises.
The question is whether a concern of this nature
is a "shop"
within the meaning of section 2(27) of the
Act. The
learned
trying
Magistrate held that it was not and so
acquitted. The High Court, on an appeal against the
acquittal, held it was and convicted.
It is admitted that the appellant
maintains no
"leave registers" and gives his workers no "leave books"
and it is admitted that the
Government
Inspector of
Establishments discovered this
on
12th January, 1951,
when
he inspected
the
appellant's
works.
If his
· establishment
1s a "shop"
within
the mearung of
section 2(27) he is guilty under the Act ; if it is not, he
is not guilty.
"Shop" is defined as. follows in section 2 (27) :
" 'Shop' means any premises where goods are sold,
either by retail or wholesale
or
where services
are
rendered to
customers, and includes
an office, a store
room, godown, warehouse or work place, whether in
the same premises or otherwise, mainly used in connection with such trade or business but does not include
a factory,
a
commercial
establishment,
residential
hotel, restaurant,
eating house,
theatre or
other place
of public amusement or entertainment."
,
As we have said, it is admitted that no goods are sold
on the premises and it is also admitted that no services
are rendered to customers there, for the manufacture
of spare parts for sale elsewhere cannot be regarded as
"services

## Text

-
S.C.R.
SUPREME COURT REPORTS
KALIDAS DHANJIBHAI
"·
THE STATE OF BOMBAY.
[MuKHERJEA, VIVIAN BosE and JAGANNADHADAS JJ.]
887
Bombay Shops and Establishments
Act, 1948 (Bombay Act
LXXIX of 1948), s. 2(27)-Premius (situated in Ahmedabad) where
no buying or selling is done-Owner employing three workers-Doing
business in a very small way-By going to certain local millsCollecting orders
for spare
parts-Manufacturing the parts in hi;
workshop-Concern of this nature-Whether a shop within the
meaning of s. 2(27).
The
appellant, the
owner
of a small
establishment in
Ahmedabad, employs three workers, does business in a very small
way by going to certain local mills, collecting orders from them for
spare parts, manufacturing the parts so ordered in his workshop,
delivering them to the mills when ready and collecting the money
therefor. No buying or selling is done on the premises.
Held, that a concern qf this nature is not a shop within the
meaning of s. 2(27) of the Bombay Shops and Establishments Act,
1948.
CRIMINAL
APPELLATE
JuRISDICTION:
Criminal
Appeal No. 80 of 1953.
Appeal by Special Leave granted by the
Supreme
Court by its order dated the 9th
February, 1953, from.
the judgment and Order dated the
23rd
September,
1952, of the
High Court of f udicature at Bombay in
Criminal Appeal No. 828 of 1952 arising out
of the
Judgment and
Order dated the 27th March, 1952, of
the Court of Stipendiary
Magistrate, Ahmedabad,
m
Summary Case No. 3029 of 1954.
Rajni Patel and M. S. K. Sastri for the appellant.
M. C. Setalvad,
Attorney-General of India,
and
(Porus A. Mehta and P. G. Gokhale, with him)
for the
respondent.
1954. October 29. The Judgment of the Court was
delivered by
BosE J.-This case is unimportant
in
itself,
for a
small fine of Rs. 50 (Rs.· 25 on each of two courts) has
been imposed for a couple of breaches under section 52
(f) of the Bombay Shops and Establishments Act, 1948,
read with rule 18(5) and (6) of the
Rules framed under
1954
October 29,.
1954
Kahdas
JJhanJibhai
v.
"The State of
Bombay.
Bost J.
888
SUPREME COURT REPORTS
f1955l
the
Act.
But the
question involved
1s of general
importance in the State of Bombay and affects a large
number of similar establishments, so m order to obtain
a clarification of the law, this has been seiected as
a
test case.
The appellant is the owner of a small establishment
called the
Honesty
Engineering
Works
situate
in
Ahmedabad m the
State of
Bombay.
He
employs
three workers. He does business m a very small way
by going to certain local mills, collecting orders from
them
for spare
parts,
manufacturing
the parts so
ordered m his workshop, delivering them to the mills
when ready and
collecting the money therefor.
No
buying or selling is done on the premises.
The question is whether a concern of this nature
is a "shop"
within the meaning of section 2(27) of the
Act. The
learned
trying
Magistrate held that it was not and so
acquitted. The High Court, on an appeal against the
acquittal, held it was and convicted.
It is admitted that the appellant
maintains no
"leave registers" and gives his workers no "leave books"
and it is admitted that the
Government
Inspector of
Establishments discovered this
on
12th January, 1951,
when
he inspected
the
appellant's
works.
If his
· establishment
1s a "shop"
within
the mearung of
section 2(27) he is guilty under the Act ; if it is not, he
is not guilty.
"Shop" is defined as. follows in section 2 (27) :
" 'Shop' means any premises where goods are sold,
either by retail or wholesale
or
where services
are
rendered to
customers, and includes
an office, a store
room, godown, warehouse or work place, whether in
the same premises or otherwise, mainly used in connection with such trade or business but does not include
a factory,
a
commercial
establishment,
residential
hotel, restaurant,
eating house,
theatre or
other place
of public amusement or entertainment."
,
As we have said, it is admitted that no goods are sold
on the premises and it is also admitted that no services
are rendered to customers there, for the manufacture
of spare parts for sale elsewhere cannot be regarded as
"services rendered."
••
...
••
- ..
S.C.R.
SlJPREME COURT REPORTS
889
The learned
Attorney-General
contends that the
definition should be read as follows :
"'Shop' .... includes ...... a work place ...... mainly
used in connection with such trade or business."
He says that the word "such" in the
phrase "such
trade or business" relates back to the . opening words of
the definition which read-·
"any premises where goods are sold."
He argues that the emphasis is on the words "goods
are sold" an<l not on the word "premises" because a
trade or business relates to the buying
and selling of
goods and is not confined to the premises where that
occurs. He admits that the main portion of the definition which relates to "premises where goods are sold'•
cannot exclude the
"premises" element and that unless
there are premises on which goods are sold, the main
portion of the definition cannot apply, e.g., in the case
of a street hawker or of a man
who totes his goods
from house to house
and sells them at the door.
But
he contends that the main
definition is extended
by
including in it matter which would not be there without
the words of extension and in that portion the em-·
phasis ceases to be on the "premises" and shifts to the
nature of the business; provided there is a business of
selling, any work place wherever situate "mainly used
in connection with it" will fall within the definition.
The other side relies on the ejusdem generis rule. The
argument runs that the trade or business contemplated
by the main
portion of the
definition
is
not any
business of selling wherever and however
conducted
but l)nly those trades where the selling is conducted on
defined premises.
The learned counsel contends that
the very idea of a shop in that connotation betokens a.
room or a place or a building where goods are sold. The
rest of the definition merely links on the
main
definition ancillary places, such as
store rooms,
godowns,
work places, etc., which are mainly used in connection
with the "business",
and "business"
means
the kind
of business defined in the earlier part of the definition,
that is to say, not business in general, nor
even
the
business of selling in general, but that portion of the
business of selling which is confined to selling on some
defined premises. To illustrate this graphically,
the·
1954
Kalidas
Dhanjibhai
v.
The State of
Bombay.
Bose],
'954
Kalidas
.Dhanjibhai
v.
·]·he State of
Bombay,
Bose .1.
890
SUPREME COURT REPORTS
[1955]
business of selling in general may be regarded as a big
circle and the business of selling on defined premises
as a small portion which is carved
out
of the larger
whole. The second part of the definition is linked on
to the carved out area and not to the circle as a whole.
The word "such" confines
what
follows to what has
gone before and what has gone before is not t]ie trade
of selling in general but only that part of the trade of
selling which is carried on on defined premises. Counsel
argues that there is no justification for ignoring the
limitation which the Legislature has placed on the main
portion of
the
definition and holding
that "such"
relates to a much wider classification of "selling" which
the main portion of the definition not only does not
envisage but
has deliberately excluded.
We
think
that as a matter of plain construction this is logical
and right.
The learned
Attorney-General went on to contend
that even if this is a possible view, his view is also
tenable and therefore
when we
have two
possible
interpretations we
must choose the
one which best
accords with the policy of the Act. Taking us thr01,1gh
the Act he pointed out that this is a piece
of social
legislation
designed partly to prevent sweated labour
and the undesirable employment of women and young
<:hildren and partly to safeguard the health and provide
for the safety of workmen
and employees.
He contended that this
object would be partly frustrated if
small establishments of this kind are placed outside the
purview of the Act, for their number is very large and
the persons employed in them
are entitled to, :rnd
require, just as much protection as those more happily
.Placed in larger concerns.
We have considered this carefully and are of the
·opinion that the fear is
groundiess because there is
·express
provision in the
Act for such contingencies.
Under section 5 the
State
Government
can by mere
notification in the Official Gazette extend the
Act to
any establishment
or class of
establishments
or any
person or class of persons to which or whom the Act or
.any of its provisions does not for the time being apply.
fo our opinion, the Legislature did not intend to rope
••
...
.
-
-·
.,.
' ...._ '
•
:S.C.R.
SUPREME COURT REPORTS
891
in small establishments of this kind in the first place
·but
reserved power to the
State
Government to do
that when desirable
by the
very simple
process
of
notification in the
Official
Gazette. In reaching this
-conclusion we are influenced by the policy of the Central
Legislature on an allied • topic. We do not intend to
break the general rule that points to the undesirability
-of interpreting the provisions of one
Act by those of
.another
passed by a different
Legislature, but as we
have already decided the question of construction and
-interpretation and are now considering
only the general
policy of the State Legislature, we deem it right to view
the matter in its larger aspect for the special reasons
we shall now enumerate.
Now the Central Act, the Factories Act of 1948, was
passed on the 23rd of
September, 1948.
The Bombay
Act, though entitled
Act LXXIX of 1948, was not
passed till the following year, namely, on 11th January,
1949. The Bombay Legislature had the Central Act in
mind when it passed its own legislation because section
2(27) says that a "shop" shall not include a "factory"
and section 2(9) defines a "factory" as
any premises
which is a factory within the meaning of section 2 of
the Central
Act or which is deemed to be a factory
under section 85 of that Act.
Under the Central
Act
(section 2 (m)) no establishment can be a factory unless
it employs more
than ten workmen or
unless it is
artificially
converted
into
a "factory"
within
the
meaning of this
definition by a notification
in the
·Official Gazette. Had it not been for the fact that the
.appellant employs less than ten workmen, his concern
would have been classed as a factory under the Central
Act and would
then have been excluded from the
.definition of "shop" in the Bombay Act, for the appellant carries on a manufacturing process in his workshop
with
the aid of power : that is not
disputed. The
Centr::d
Legislature
undoubtedly had the intention of
-excluding small concerns
like this
from the purview
-of the Central Act except where Government decided
·otherwise, and as there is this reference to the Central
Act on this very point in section 2(27) we think, in
·view of the way that section 2(27) is worded, that that
was also the
intention
of the
Bombay
Legislature.
1954
Kalida
Dhanjibh•i
v,
TheStat1 of
Bombay.
BoSI] •
1954
l(alidas
Dhanjibhai
v.
The State of
&mbay.
Bose J.
892
SUPREME COURT REPORTS
[1955}
Therefore, even on
the
assumption
of
the learned
Attorney-General that two
mterpretations
of section
2(27) are
possible, we prefer the one which, in our
opinion, better accords with the logical construction of
the words used.
The learned High Court
Judges were influenced by
matters which we consider inconclusive.
The appellant
applied for registration under the
Bombay
Act and in
the statement made under
section
7 he
called his
establishment a "workshop" and
described the nature
of his business
as
a "factory". The learned
Judges
considered that this
imported an admission that his
establishment was a "shop" because of the use of
the
word '"shop" in "workshop". This might
have raised
an inference of fact against the appellant had nothing
else been known but when the facts are fully set out as
above and admitted, the appellant's· opinion about the
legal effect of those facts is of no
consequence
in
construing the section.
No estoppel arises. The appellant explained that the matter seemed doubtful, so, to
be on the safe side and avoid incurring penalties for
non-registration should it tlarn out that his concern was
hit by the Act, he applied for registration. It is to be
observed that though he applied on 12th April, 1949,
he was not registered till 4th
May, 1950, and
the
certificate was not given to him till 8th January, 1951.
The present prosecution was launched on 4th April,
1951.
Government itself seems to have been in doubt.
However, that is neither
here nor there.
What we
think was wrong was placing of the burden of proof on
the appellant, in a criminal case, because of a s<rcalled
admission. The learned High Court Judges also advert
to the fact that though the
appellant's
concern was
registered as a "shop" he made no protest and , did not
have recourse to section 7(3) of the Act.
We do not think section 7(3) has any application. The
appeal is allowed. The conviction
and
sentence are
set aside and the
judgment
of the
learned trying
Magistrate acquitting the appellant is restored.
T~1c
fines, if paid, will be refunded.
,,
I
, •\
'J'
•
•
Appeal allowed.
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GIPN-·S 5-ll8 S. C. India/59-2-5-63-1, COO
/