The petitioner in these two writ petitions is the Southern Railway Employees' Workshop Canteen, Golden Rock, Tiruchirapalli, the first respondent is the Deputy Commercial Tax Officer, Tiruchirapalli Town IV, and the second respondent is the Appellate Assistant Commissioner (C.T.), Tiruchirapalli. The petitioner's contentions are briefly the following. The Southern Railway Workshop at Golden Rock employs about 6, 000 workers apart from the clerical and office staff. As required under the provisions of section 46 of the Factories Act (Central Act 63 of 1948) and the rules framed thereunder, the railway is obliged to maintain a canteen for its employees where eatables are supplied to them on a non-profit basis, in other words, on the basis that there should be no motive to make a profit. Thus, there is no commercial aspect in the sales effected at the canteen by the petitioner to these workers, and therefore the petitioner could not be deemed to be engaged in business so far as this canteen is concerned, and it could not also be treated as a dealer for the purpose of the Madras General Sales Tax Act of 1959 (Act 1 of 1959), hereinafter called the Act. Nevertheless, the first respondent assessed the petitioner to sales tax on its sales effected in 1959-60 and collected from it unauthorisedly Rs. 2, 229-09 nP. towards sales tax assessment. The appeal to the second respondent against the order of assessment failed. The contention of the petitioner is that the levy is illegal and ultra vires the Constitution.

Writ Petition No. 1347 of 1962 is filed to quash the above assessment order by a writ of certiorari. Writ Petition No. 1348 of 1962 is filed for the issue of a writ of mandamus or other appropriate writ directing the return of the sales tax amount unlawfully collected. The claim thus put forward that the levy was illegal and opposed to the provisions of the Constitution was denied by the department in their counter-affidavit.The learned counsel for the petitioner relied upon section 46 of the Factories Act, which gives power to the State Government to make rules requiring that in any specified factory wherein more than two hundred and fifty workers are ordinarily employed, a canteen or canteens shall be provided and maintained by the occupier for the use of the workers. Rules 65 to 71 of the Madras Factories Rules, 1950, are the rules thus framed by the State Government. They contain detailed directions as to how the canteen should be run and they also provided for close supervision by the Chief Inspector of Factories over the running of the canteen, which is treated as an item of amenity to the workers, which the management is bound to provide. Rule 68 states that food, drinks and other items served in the canteen shall be served on a non-profit basis and prices charged shall be subject to the approval of the canteen Managing Committee, and in the event of the Committee not approving the price list, or if the Committee was equally divided on the issue, the price list should be sent to the Chief Inspector for approval. The charge per portion of food-stuff, beverages and any other item served in the canteen shall be conspicuously displayed in the canteen. Relying on these provisions, learned counsel Sri Thyagarajan, appearing for the petitioner, has urged that the canteen is run because of the requirement of the statutory provision, and therefore, the management have no option in the matter of carrying on such activity or not. It is therefore an involuntary activity which the management is compelled to engage in. Secondly, he referred to the insistence in rule 68, which is referred to above, that the canteen should be run on a non-profit basis, and he urged that this would rule out a profit motive, and would show that the activity was not of a commercial character. He stressed that under the Sales Tax Act, as per definition of "dealer" in section 2(g) (any person who carries on the business of buying and selling ......