State of Bombay Vs. Jamnadas Gordhandas - Court Judgment

Gajendragadkar, J.

1. The short question which arises for decision on this reference is whether the godown in question which belongs to the accused is a shop within the meaning of S. 2(27) of the Bombay Shops and Establishments Act, 1948. This question arises in this way :

2. The accused owns a bidi shop at house No. 567, Nana Peth, Poona. Attached to this shop is a godown. In addition to this godown the accused owns another godown at No. 231/1, Nana Peth. The case against the accused was that on 9 August, 1953 the inspector of shops visited this latter godown at about 9 a.m. He discovered that a statement in form A had not been submitted by the accused in respect of this godown, although the godown was used for storage of bidi leaves for more than six months. This constitutes an offence under S. 7(1) of the Act. It was also found that the closure notice board was not displayed in the godown. This constitutes an offence under S. 18(1) of the Act. The inspector also noticed that a visit book was not maintained in this godown, and this amounts to a contravention of rule 18(4) of the rules framed by the local Government under the provisions of the Act, and thus becomes an offence punishable under the Act. The charge against the accused, therefore, was that he had committed the three aforesaid offence. His plea was that the godown in question is not a shop within the meaning of the Act and, therefore, he had committed no offence. The learned magistrate who tried the case rejected the plea made by the accused, accepted the prosecution case and convicted the accused of all the three offences charged. He directed him to pay Rs. 25 as fine or in default to suffer seven day's simple imprisonment. This order was challenged by the accused by a revisional application preferred by him in the Court of Session at Poona. The learned Sessions Judge was disposed to accept the contention raised by the accused that the godown in question is not a shop and so he has made the present reference to us. The learned Sessions Judge has recommended that since the godown does not amount to a shop, no offence can be said to have been proved against the accused and so the order of conviction and sentence passed against him should be set aside. That is how the short question which we have to decide in the present proceedings is, whether the godown in question is a shop within the meaning of S. 2(27) of the Act.

3. Section 2(27) defines the term 'shop' in these words :

''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 storeroom, godown, warehouse or workplace, whether in the same premises or otherwise, mainly used in connexion 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; '

4. It would be notice that this definition consists of three parts. The first part refers to premises which constitute a shop. The second part refers to an office, a storeroom, godown, warehouse or workplace and each one of them is said to be include in the word 'shop', whether it is in the same premises or otherwise, provided it is mainly used in connexion with such trade or business. The third part of the definition excludes the establishments which are mentioned therein. The learned Sessions Judge has taken the view that a shop as defined would include a godown which is its part and adjunct, but that the godown would not for that reason be regarded as a shop. The whole includes the part, but the part cannot, therefore, be deemed to be the whole. That, in effect, is the argument which the learned Sessions Judge has accepted. Prima facie the argument sounds attractive and plausible. But in my opinion it cannot be accepted in view of the words used in the section.

5. It is well known that legislature often adopts the phraseology 'means and includes' in defining terms where terms are given an artificial meaning, and this method of defining terms generally has the effect of enlarging the meaning of the words or phrases occurring in the body of the statute. Similar words are used in two other clauses of S. 2 itself. Sub-section (4) defines 'commercial establishment' and in doing so it refers to certain establishments which fall under the clause beginning with the word 'means' and includes some other establishments under the inclusive clause. There can be no doubt that the establishments included in the second part of the definition of the expression 'commercial establishment' themselves constitute commercial establishments by reason of the use of the word 'includes' with which the second part of the definition begins. The definition of the word 'establishment' which is contained in Sub-section (8) uses the same expression and I entertain no doubt that the effect of adopting this method is to enlarge the scope of the definition of the word 'establishment.' It seems to me that if we find the expression 'means and includes' used by S. 2 in two other clauses and it is clear that in these two clauses the object of using the word 'includes' is clearly to enlarge the meaning of the word defined, it would be reasonable to attach the same meaning to the words 'means and includes' in defining the expression 'shop' in S. 2(27). Thus construed, the definition would mean that the word 'shop' means the premises which are described in the first part of the definition. It would also mean an office, a storeroom, godown, warehouse or workplace, if it is shown that each one of these is mainly used in connexion with such trade or business as is carried on in the premises mentioned in the first part of the definition, whether or not the office, storeroom, godown, warehouse or workplace is situated in the same premises or otherwise. In other words, it seems to me that legislature intended to treat a godown is situated in the same premises as the shop falling in the first part of the definition or otherwise. The only requirement is that the said godown should be mainly used in connexion with the trade or business as the shop in the first part of the definition. Thus a godown, which may be an adjunct of the shop falling in the first part of the definition, would itself be regarded as a shop. This position, no doubt, is somewhat inconsistent with the popular notion about the denotation of the term 'shop', but for the purpose of carrying out the object of the Act, the legislature has deliberately introduced an artificial definition of the term 'shop' and has treated an office, a storeroom, godown, warehouse or workplace as itself constituting a shop. The expression 'whether in the same premises or otherwise' has been deliberately used by the legislature in order to emphasize the fact that a godown or a warehouse would be regarded as a shop by itself even though it may be in the same premises as the shop falling under the first part of the definition. This interpretation would be consistent with the rule of construction which provides that the word 'include' is very generally used interpretation clauses in order to enlarge the meaning of words or pharases occurring in the body of the statute; and when it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include. [Stroud's Judicial Dictionary, 3rd edn., p. 1416.] In the present case we are dealing with a definition which uses the words 'means and includes' and not only 'includes'.

6. Mr. Patel for the accused has, however, contended that the definition of the term 'shop' in S. 2(27) should be construed to mean that it is only the premises where goods are sold or services rendered that constitute a shop, and that a godown and other places mentioned in the inclusive part of the definition are included in the shop and that each one of them does not itself constitute a shop. In my opinion, if the words used in the definition are construed in their plain grammatical sense, they do not yield this construction. When the definition says that 'shop' includes a godown, it means that the shop as defined includes a godown; it does not mean that the premises which constitute a shop include a godown. And Mr. Patel's argument assumes that the effect of the definition is that the premises described in the first part amount to a shop and these premises include a godown. I am, therefore, disposed to hold that the term 'shop' as defined by S. 2(27) means the premises described in the first part as well as the godown and other places mentioned in the second part beginning with the word 'includes.' Thus certain premises become a shop according to the primary meaning of the word 'shop' as defined in the first part : certain other premises are included within this definition by the inclusive part of the definition and certain other premises are excluded from the definition of the word 'shop'. That appears to me to be the effect of the three clauses used by the legislature in defining the term 'shop'. It is necessary to add that Mr. Patel for the accused concedes that the beneficent provisions of this Act are intended to be applied even to a godown : but his argument is that the same result can be achieved even if it is held that the godown is not a shop by itself, but is included in the shop of which it is an adjunct. There can be no doubt that this Act is an instance of beneficent legislation, since most of its provisions are intended to regulate the conditions of work and employment in shops and other establishments to which it applies. Therefore, in interpreting the definition of the term 'shop' the Court would be justified in accepting an interpretation which carries out the object of the Act and rejecting one which may frustrate the said object. In my opinion, if the contention urged by Mr. Patel is accepted, the object of the Act would be frustrated in respect of a godown and other places mentioned in the second part of the definition.

7. The scheme of the Act shows that interests of workmen are intended to be safeguard in several manners. Under Chap. III the opening hours and closing hours of shops are regulated and daily and weekly hours or work are controlled. An obligation is imposed upon the employer to provide for interval for rest for the workmen and holidays in a week are required to be fixed. Chapter VI prohibits the employment of children and regulates the employment of young persons and women to work between 6 a.m. and 7 p.m. Daily hours of work for young persons are also differently regulated. Chapter VII deals with the provisions for leave and pay during leave, and Chap, XI provides for the maintenance of registers and records and display of notices in order to enable the inspectors to see whether the material provisions of the Act are complied with by the proprietors or not. Those provisions can be enforced by occasional inspections and so the Act provides for the appointment of inspectors by local authorities under S. 48. Section 49 provides for the powers and duties of inspectors. Schedule I to the Act shows that the Act has been made applicable to as many as 38 local areas in the State of Bombay. Inspectors appointed by local authorities have jurisdiction to inspect the shops and other establishments to which the Act applies within the municipal limits of the local areas; and for the purpose of enabling inspection to be effectively carried out, the basic requirement is that of registration. Section 7 of the Act requires the employer to get his establishment registered. Under this section the employer has to submit a statement in a prescribed form showing the name of the employer and manager if any, the postal address of the establishment, the name, if any, of the establishment, the category of the establishment, and such other particulars as may be prescribed. Sub-section (2) of S. 7 provides that after the statement is received, the inspector shall examine its correctness, shall register the establishment in the register of establishments in such manner as may be prescribed and shall issue, in a prescribed form, a registration certificate to the employer. The registration certificate has to be prominently displayed at the establishment. Rule 5 of the rules framed by the Government under the rule-making power conferred by S. 67 provides that within the period mentioned in Sub-section (4) of S. 7, the employer shall send to the inspector of the local area concerned a statement in form A as prescribed by the rules. This form has added some particulars as contemplated by Clause (e) of S. 7(1). Now it would be clear that if a godown is held to be a shop as defined under the Act, the employer would have to register the godown and give all the details about the godown in the prescribed form and get the godown registered. If, on the other hand, a godown is not regarded, as a shop, there would be no obligation on the employer to get it registered or to supply any information about it. Mr. Patel contended that the rule-making authority may, while making rules, prescribed a form requiring the employer to give particulars about godown and other places mentioned in the inclusive part of the definition of the word 'shop.' According to Mr. Patel, as the rules and the prescribed form stand at present, there was no obligation on the accused to give information about the godown and so he has committed no offence. If the godown does not amount to a shop, then Mr. Patel's contention would have to be accepted and the local Government can enforce the provisions of this Act in respect of such godown only by changing the prescribed form and making suitable rules in that behalf. If the argument of Mr. Patel is accepted, the form A would have to be amended on the ground that it is inconsistent with the provisions of S. 7 and this again assumes that Clause (e) in S. 7(1), which deals with other particulars as may be prescribed, includes particulars as to godown, storeroom, warehouse, workplace or office, Mr. Patel does not suggest that s. 7(1)(b) would authorize more than one postal address to be given in the application made under that section. He, however, argues that S. 7 authorizes the local Government to make rules requiring other particulars and among these particulars information about the godown may be called for. I am not disposed to accept this argument. It appears to me that the particulars which are contemplated by S. 7(1)(e) are in the nature of additional information which is required in Cls. (7), (8) and (9) of form A. I am unable to accept the view that those particulars can include or refer to a godown. If the legislature had intended that a godown should be treated as a part of the premises which are regarded as a shop within the meaning of the Act, then S. 7 would have contained a separate clause specifically requiring the employer to give information about the godown, workplaces, etc., and the postal addresses of the same. In my opinion form A prescribed by the rules is perfectly consistent with S. 7 and it cannot be amended as suggested by Mr. Patel unless S. 7 itself is amended. If that be so, it must follow that the construction suggested by Mr. Patel is inconsistent with the provisions of S. 7; that itself would afford a reason why the said construction must be rejected. Besides, as I have already indicated, in my opinion the said construction is not supported by a fair and reasonable construction of the words used in S. 2(27).

8. In dealing with this point it is necessary to make it clear that the godown which constitutes a shop within the meaning of S. 2(27) must be a separate entity by itself, distinct from the shop with which it is connected. If premises which constitute a shop within the first part of the definition are for convenience themselves used for different subsidiary purposes, they would not constitute different shop. Taking the case of a tailor to which Mr. Patel referred, if in a tailor's shop at one corner there is a chair and table which is treated as an office, at another corner is a stock of cloth and at a third corner workmen sit for cutting or stitching the clothes, these three different places used for convenience for three different purposes would not, in my opinion, constitute three different shops. If for the premises in question there is the same entrance and the same exit and inside the premises for convenience different portions are used for different purposes, they would constitute only one shop within the meaning of the definition under S. 2(27). If, on the other hand, in the same premises, say on the same floor or on different floors of the same are building, different rooms or flats of rooms are used separately for different purposes, they would constitute different shops. The argument of hardship on which Mr. Patel seemed to rely does not really help him, because a patty shopkeeper would not on this view be called upon to obtain two or three different registration certificates at all. On the other hand, it must be remembered that the Act applies as much to small establishments as to larger ones, and in construing the term 'shop' as defined in the Act, care must be taken to see that the object of the Act is served in respect of both the kinds of establishments large and small. In the case of a large establishment it is quite possible that the premises where goods are sold may be in one area and the warehouse or the godown may be in different premises in a different area. In such a case if the warehouse or the godown is not regarded as a shop, then it would lead to a very anomalous position that for inspecting the godown or the warehouse the inspector would get no material in the godown or the warehouse itself, but would have to go to the main premises where the registers would be kept. Indeed, under S. 7 as it stands, it seems to me that the scheme of the Act clearly is that for every one of the premises constituting a shop there must be a separate registration and the registration certificate issued under the Act must be prominently displayed at every one of these shops. On the construction urged by Mr. Patel the registration certificate would be displayed at one place, whereas the warehouse and the godown may be at different places. It is common ground that in respect of every shop only one registration certificate should be issued. Section 7 in my opinion is consistent with the interpretation of the term 'shop' which I am disposed to accept and is inconsistent with the view taken by the learned Sessions Judge. Incidentally, it may be pointed out that the amount which has to be paid by the employer for registering his shop is by no means excessive. In respect of the bidi shop with which we are concerned, the registration fee is only one rupee.

9. The argument that the view taken by the learned Sessions Judge might defeat the object of the Act appears to me to be sound particularly in cases where the premises where the business is carried on may be in one local areas and the godown or the workplace may be a in a different local area. Schedule I shows that the Act has been applied to the Poona City and suburban municipal boroughs and the Poona Cantonment. Similarly it has been applied to the Sholapur Municipal Borough and the Barsi Municipal Borough. It is also applied to Greater Bombay and to Thana and Kalyan. Now, it is quite possible in the case of big concerns that the premises where their business is actually carried on would be situated in one local area and their workplaces or godown may be situated in another local area. In the case of such establishments the inspectors who would be authorized to inspect would be different. One inspector would not be authorized to inspect both parts of the establishment, because the jurisdiction of the inspector appointed by a local authority is confined to the territorial limits of the local authority itself. So that even if it is assumed that the form is amended and a shopkeeper is required to mention all details about the godown as constituting an adjunct of the shop, it is difficult to under stand how this godown could be inspected unless the godown is separately registered with the local authority within whose jurisdiction it is situated. Holidays are not uniform in every local area, and indeed S. 30(2) provides for different holidays for different areas. This again leads to the inference that for proper enforcement of the provisions of the Act a godown which otherwise satisfies, the tests laid down by S. 2(27) must be regarded as a shop in itself.

10. A godown or a warehouse would normally be expected to employ employees and their employment would have to be regulated by the provisions of this Act. If the godown or the warehouse and the premises where the business is actually carried on are situated in different places, it seems but reasonable that different registers should be kept in all the different places, because form H which is to be kept by the employer seems to refer to each one of the premises where employees are employed. The scheme of the Act, in my opinion, is clear. The inspector would step into a shop as defined and would immediately want to see the registers kept in order to satisfy himself that the material provisions are complied with. Therefore, the form of the register prescribed in form H and the form of the application prescribed in form A are, in my opinion, consistent with the provisions of S. 7 of the Act and they support the construction of the term 'shop' which I am disposed to accept. The provisions of S. 18 which require that a list or calendar of holidays should be conspicuously displayed in a shop support the same conclusion.

11. Therefore, in my opinion, the learned Sessions Judge was in error in accepting the view that the godown in question does not amount to a shop within the meaning of S. 2(27) of the Act. Both Mr. Tarkunde who appeared for the municipality and the learned Government Pleader for the State made it clear to us that they were not keen on obtaining a conviction of the accused in the present case. Indeed, the business carried on by the accused appears to be on a small scale and the municipality and the Government would not have cared to oppose the reference in the ordinary course. But it has been urged before us that the interpretation of the term 'shop' which the learned Sessions Judge was disposed to accept might cause great inconvenience in a administering the provisions of the Act and might in many cases enable employers to evade these provisions altogether. That is why this case is treated as a test case and we have been asked to construe the expression 'shop' as defined in S. 2(27) so as to leave no doubt in the matter of the employers' obligations in respect of godowns and other places mentioned in the second part of the said definition.

12. I would therefore, make no order on the reference, because in my opinion the learned magistrate was right in holding that the godown of the accused amounts to a shop under S. 2(27) of the Act.

13. As to the order of conviction itself, a slight modification would have to be made. The conviction of the accused under S. 7(1) and S. 18 would be confirmed; but that under rule 18 would be confirmed; but that under rule 18 would have to be reversed because the charge in respect of the breach of rule 18(4) has not been pressed before us. The fine imposed by the learned magistrate should, in my opinion, be reduced to one of Rs. 5.

Chainani, J.

14. I regret I am unable to agree with the view taken by my learned brother.

15. The accused has a bidi shop in house No. 567 at Nana Peth, Poona. Attached to this shop is a godown. The accused has another godown at No. 231/1 Nana Peth which also is used by him for storing bidi leaves.

16. The two main questions, which arise for consideration, are :

(1) whether this godown at 231/1, Nana Peth, is a shop within the meaning of the Act, and

(2) whether under S. 7 of the Act it should be registered separately apart from the accused's bidi shop.

17. Clause 27 of S. 2 of the Act defines a shop as follows :-

'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 storeroom, godown, warehouse or workplace, whether in the same premises or otherwise, mainly used in connexion 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.'

18. Leaving out of consideration the words beginning with 'but does not include ....,' which are not material, the definition consists of two parts. Under the first part any premises in which goods are sold or services are rendered to customers is a shop. The second part of the definition states that the shop includes an office, a storeroom, godown, warehouse or a workplace whether in the same premises or otherwise, mainly used in connexion with such trade or business. The words 'such trade or business' refer to the trade or business mentioned in the first part of the definition, namely, that of selling goods or rendering services to customers. It will therefore be seen that every office, storeroom, godown, warehouse or workplace is not a shop within the meaning of the Act. It becomes a shop only if it is mainly used in connexion with the business carried on at a shop as defined in the first part of the definition, that is in connexion with the business of selling goods or rendering services to customers.

19. Two constructions of this clause have been advanced before us. Mr. Tarkunde on behalf of the municipality has contended, and the Government Pleader has advanced the same arguments, that the words 'includes an office, storeroom, godown, warehouse or workplace, whether in the same premises or otherwise mainly used in connexion with such trade or business' should be read apart from the first part of the definition. They have urged that the word 'includes' enlarges the meaning of the word 'shop' and that the office, storeroom, godown, warehouse or workplace, would by itself be a shop for the purposes of the Act, apart from the shop to which it pertains and where goods are sold or services are rendered to customers. Mr. Patel on behalf of the applicant-accused has on the other hand contended that the words 'and includes' must be read along with all the preceding words in the definition, that is to say, that the shop as defined in the first part, will, for the purposes of the Act, be deemed to include its office, storeroom, godown, warehouse or workplace and that such office, storeroom, godown, warehouse or workplace will consequently not have to be separately registered under S. 7.

20. In my opinion, there are several difficulties in accepting the contentions urged on behalf of the prosecution. If the argument that any place used as an office, a storeroom, godown, warehouse or workplace would by itself be a shop, was correct, then the words 'whether in the same premises or otherwise' would be superfluous. A statute ought to be so construed that, if it can be prevented no clause, sentence or word shall be superfluous void or insignificant. [The Queen v. Bishop of Oxford (1879) 4 Q.B.D. 245 A construction which will leave without effect any part of the language of a statute will normally be rejected [Maxwell, 10th edn., p. 16]. The words 'whether in the same premises or not' must have been used by the legislature with some purpose. They clearly suggest that the two parts of the definition should be read together and that an office, a storeroom, godown, warehouse or workplace would for the purposes of the Act be deemed to be included in the shop, where goods are sold or where services are rendered. In other words, if a shop, as defined in the first part, has a godown, the godown will be deemed to form part of the shop and the two together will constitute one establishment, whether the godown is situated in the same premises or elsewhere. The same conclusion is suggested by the words 'mainly used in connexion with such trade or business.'

21. A large number of shops have different parts of their premises set apart for selling goods, for office, for a storeroom or godown and for a workplace. For instance in a tailor's shop, one part of the premises is usually set apart for selling cloth and for receiving orders of customers. Another portion, frequently separated from the other by a screen or a curtain, is used as a workplace for stitching clothes. Sometimes a room may also be set apart for use as an office or a storeroom. If Mr. Tarkunde's arguments be correct, each of these portions would be a separate shop according to the definition. It would be immaterial for this purpose whether these portions have the same or different entrances and exits. Each of these portions or rooms would therefore have to be separately registered as a shop. Separate fees will have to be paid for each registration. (In Poona, they vary from one rupee to five rupees according to the kind of shop, which is to be registered.) Separate notices will have to be displayed in each portion of the premises and the various registers will have to be maintained separately for each portion. I find it difficult to believe that the legislature could have intended to cause so much inconvenience and hardship to the trade and particularly to patty shop-keepers. A construction which leads to inconvenience and hardship should ordinarily be avoided [see Maxwell, 10th edn., pp. 131, 191 and 229].

22. Mr. Tarkunde invited our attention to the definitions of the expressions 'commercial establishment' and 'establishment' in Cls. (4) and (8) of S. 2 in which also the words 'means' and 'and includes' are used. All words in a statute are however to be read in the context in which they are used and there is no universal rule that the same words are used in different parts of a statute in the same sense [Maxwell, 10th edn., p. 322]. It is true that

'the word 'include' is generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.' [Per Lord Watson, Dilworth v. Commissioner of Stamps : Dilworth, v. Commissioner for Land and Incometax (1899) A.C. 99

23. Mr. Tarkunde also referred us to S. 7 of the Act, Sub-section (1) of which states that the employer of every establishment shall sent to the inspector of the local area concerned a statement in a prescribed form, together with such fees as may be prescribed, containing

(a) the name of the employer and the manager, if any,

(b) the postal address of the establishment, and

(c) such other particulars as may be prescribed.

24. Sub-section (2) of this section states that 'on receipt of the statement and the fees, the inspector shall, on being satisfied about the correctness of the statement, register the establishment in the register of establishments in such manner as may be prescribed and shall issue, in prescribed form, a registration certificate to the employer' and that the registration certificate shall be prominently displayed at the establishment.

25. Mr. Tarkunde has urged that words 'the postal address of the establishment' are used in singular and that consequently S. 7 contemplates that only one postal address of the establishment should be communicated to the inspector. In case where the office, storeroom, godown, warehouses or workplace of a shop is situated in different premises, the postal address of the shop might be different from that of its office, storeroom, godown, warehouse or workplace. Mr. Tarkunde has therefore contended that the fact that S. 6 contemplates only one postal address being communicated to the inspector shows that the legislature intended that the office, storeroom, godown, warehouse, workplaces of a shop should for the purposes of the Act be deemed to be a separate shop, in which case its postal address would also have to be reported separately to the inspector. I do not think that there is any force in this argument. Under the Bombay General Clauses Act words in the singular include the plural. In Clause (a), the word 'employer' is used in singular but it cannot be seriously contended that if an establishment is run by two persons jointly and has two employers, the name of only one of them is to be communicated to the inspector. Therefore, if an establishment has more than one postal address, which might be the case if the shop is situated at one place and its godown in another, all its postal addresses will have to be mentioned in the statement required to submitted under S. 7 of the Act.

26. As will be seen from the preamble, the object of the Act is to regulate the conditions of work and employment in shops and other establishments. In the view, which I am inclined to take, the provisions of the Act with regard to these matters will also apply to the places used as offices, storerooms godowns, warehouses, or workplaces. The persons employed in such premises will therefore enjoy all the benefits of the Act. The object of the Act is therefore not likely to be frustrated, if the arguments advanced on behalf of the defence by Mr. Patel are accepted. If necessary, Government may make a rule under Clause (c) of Sub-section (2) of S. 67 read with Clause (e) of S. 7, Sub-section (1), that in cases where the office, storeroom, godown, warehouse or workplace of a shop is situated in different premises full particulars of the place where it is situated and the number of persons employed in it should be given in the statement required to be submitted under S. 7. Form A, in which this statement is to be submitted, is prescribed by rule 5 and can therefore easily be amended by Government. If such a rule is framed, there would be an obligation on the employer to give the required information in respect of his godown and it would be possible for the inspector to inspect it like any other premises of the shop. It would also be open to Government to make a rule under S. 67 providing that a copy of the notice referred to in S. 18 should also be displayed in the office, storeroom, godown or workplace of a shop, if it is situated in different premises. In my opinion such rules can validly be made under S. 67.

27. The definition of 'commercial establishment' provides that this expression shall not include a shop. There may be cases in which a shop is situated in one local area and its godown or workplace in another local area. If the words used in the definition of 'shop' are interpreted as suggested by the defence, the godown or workplace might escape inspection, as the inspector of the local area, in which the shop is registered, will have no jurisdiction outside that local area. Mr. Tarkunde pointed out that this will not happen if the fact is interpreted as urged by him. I do not however think that this will be a sufficient ground for construing the words differently. As pointed out by Lord Macmillan in London and Northeastern Ry. Co. v. Berriman (1946) A.C. 278,

'... Where penalties for infringement are imposed it is not legitimate to stretch the language of a rule, however beneficent its intention, beyond the fair and ordinary meaning of its language.'

28. Such cases are likely to be very few and this may probably be the reason why no provision has been made for them by the legislature.

29. The Act prescribes penalties for breach of its provisions. In Tuck & Sons v. Priester (1887) 19 Q.B.D 629 Lord Esher, M.R., said (638) :

'... We must be very careful in construing that section because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.'

30. This has been cited with approval in London and Northeastern Ry. Co. v. Berriman [1946 A.C. 278.

31. In R. v. Tronoh Mines, Ltd. [1952 All. E.R. 698], McNair. J., observed (p. 699) :

'... On the whole, therefore, although I appreciate that the point is fully arguable. I think that the construction contended for by the defence on this point is correct. It is not, however, necessary in a criminal case such as this to go to that length. It is sufficient to say that, in my judgment, it is a reasonable and possible construction. For in the construction of a penal statute - to use the words of Lord Simons in Howell v. Falmouth Boat Construction, Ltd. (1951) 2 All. E.R. 281 - a man should not be put in peril on an ambiguity.'

32. In Tolaram Relumal v. State of Bombay [1954 S.C.J. 547, Mahajan, C.J., has observed :

'... it is a well-settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty.'

33. The construction which has been suggested on behalf of the defence in this case is a reasonable and a possible construction. It puts less obligations on the subject and avoids the considerable inconvenience which the interpretation would cause to the business community. It should therefore, in my opinion, be preferred.

34. In my opinion, therefore, the better view will be to hold that both the parts of the definition should be read together, that is to say, that an office, a storeroom, godown, warehouse, or workplace if used in connexion with the trade or business of selling goods or rendering services to customers, would for the purposes of the Act be part of the shop to which it appertains and where goods are sold or services are rendered to customers. In other words the shop and its storeroom, godown, warehouse or workplace would for the purposes of the Act constitute one establishment. The provisions of the Act with regard to the hours of work, leave and other conditions of service of employees will apply to such office, storeroom, godown, warehouse or workplace, but it will not to be registered separately under S. 7.

35. Coming to the facts of the present case, the accused has stated in his written statement that the godown at 231/1 Nana Peth has no connexion with his bidi shop. It is difficult to accept this statement for this godown is also used for storing bidi leaves which are required for making bidis which the accused sells in his bidi shop. This godown is therefore obviously maintained by the accused in connexion with the business of his bidi shop. It would therefore be deemed to be part of the accused's bidi shop and the provisions of the Act will consequently apply to it, but in my view, it need not be registered separately under S. 7 of the Act. The conviction of the accused for breach of the provisions of this section will consequently have to be set aside.

36. It is not alleged that the accused has not displayed the notice referred to in S. 18 in his bidi shop. There is no provision in the Act or the rules that where the godown of a shop is situated in different premises, the notice required to be displayed under S. 18 should also be displayed in such premises. The accused's conviction for contravention of the provisions of S. 18 will therefore also have to be set aside.

37. The third charge against the accused has not been pressed.

38. I would, therefore, accept the reference made by the Sessions Judge, Poona, and set aside the convictions of and the sentence passed upon the accused.

39. Curiam :- Since we have not been able to agree in this matter, we direct that the papers in the case including our two judgments should be placed before the learned Chief Justice to enable him to nominate a Judge who would hear this matter.

[The case was referred to Shah, J., who heard the reference.]

Shah, J.

40. There was difference of opinion between Mr. Justice Gajendragadkar and Mr. Justice Chainani as to the true meaning and effect of the definition of the expression 'shop' in S. 2(27) of the Bombay Shops and Establishments Act, 1948, and the case has been referred to me for decision.

41. Govindiji C. Kotak (hereinafter referred to as the accused) carries on business in 'bidi' and 'bidi-leaves' in the town of Poona. He has a shop for sale of 'bidis' in a part of building municipal census No. 567 in Nana Peth, Poona. In another part of the same building he has a godown where he keeps stocks of his merchandise. The accused maintains another godown in another building also in Nana-Peth, which is municipal census No. 23/1. The shop and godown at municipal census No. 567 are duly registered under S. 7(4) of the Bombay Shops and Establishments Act. The accused did not submit any application in respect of the godown at municipal census No. 231/1 under S. 7(4)(i) in form A, even though the godown was used for more than six months before 9 August, 1953, for storage of 'bidi leaves' required for his business which was carried on in the shop in municipal census No. 567. On 9 August, 1953, the inspector of shops appointed under the Act visited the godown at municipal census No. 231/1 and found that the statement in form A has not been submitted in respect of the godown and a 'closure notice' board was not displayed a required by S. 18(1), and a visit book as required by rule 18(14) of the rules framed under the Act was also not maintained.

42. The inspector of shops thereupon filed a complaint against the accused in the Court of the Judicial Magistrate, First Class, Poona, for offences under Ss. 7(1) and 18(1), and rule 18(4) read with S. 52 of the Act.

43. The accused pleaded that the godown was not required to be registered as a shop and that no employees were employed in that godown and that it was rarely opened. He admitted that it was used for storage of 'bidi-leaves.'

44. The learned Magistrate convicted the accused holding that the godown at municipal census No. 231/1 was a shop and was required to be separately registered. The learned magistrate sentenced the accused to pay a fine of Rs. 25 in respect of all the three offences.

45. The accused preferred a revision application to the Court of Session at Poona against the conviction and sentence. The learned Sessions Judge at Poona has referred the case against the accused to this Court recommending that the conviction of the accused be set aside. In the view of the learned Session Judge as no goods were sold and no services were rendered in the godown which was exclusively used for storage of merchandise, the godown could not be regarded as a shop and was not required to be registered under S.(4)(i) of the Act and failure to maintain the 'closure notice' board and the visit book did not render the accused liable to be punished under S. 18(1) and rule 18(14) read with S. 52 of the Act.

46. At the hearing of the reference Mr. Justice Gajendragadkar was of the view that the godown at municipal census No. 231/1 was a shop within the meaning of the Bombay Shop and Establishments Act, 1948, distinct from the shop of the accused in municipal census No. 567 and was liable to be registered separately under S. 7(4)(i) of the Act. Mr. Justice Chainani was of the view that the godown at municipal census No. 231/1 and the shop and godown at municipal census No. 567 constituted one shop and the former was not required to be separately registered. In the view of Mr. Justice Chainani.

'The shop and its storeroom, godown, warehouse or workplace would for the purposes of the Act constitute one establishment. The provisions of the Act with regard to the hours of work, leave and other conditions of service of employees will apply to such office, storeroom, godown, warehouse or workplace, but it will not have to be registered separately under S. 7.'

47. Before the learned Judges who heard the reference the charge under rule 18(14) was not pressed, and the prosecution sought to maintain the conviction of the accused only under Ss. 7(1) and 18 of the Act.

48. Section 2(27) of the Bombay Shops and Establishments Act defines the expression 'shop' as meaning

'any premises where goods are sold, either by retail or wholesale or where services are rendered to customers, and includes an office, storeroom, godown, warehouse, or workplace, whether in the same premises or otherwise, mainly used in connexion 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.'

49. The definition consists of three parts and may for a clearer appreciation of the effect thereof be expanded as follows : The expression 'shop' means

(1) 'any premises where goods are sold either by retail or wholesale or where services are rendered to customers,'

(2) and the expression 'includes an office, a storeroom, godown, warehouse or workplace, whether in the same premises or otherwise, mainly used in connexion with such trade or business,'

(3) but the expression 'does not include a factory a commercial establishment, residential hotel, restaurant, eating house, theatre, or other place of public amusement or entertainment.'

50. The exception contained in the third part of the definition appears to have been made with a view to make separate provisions applicable to factories, commercial establishments, residential hotels, restaurants, eating houses, theatres or other places of public amusement or entertainment. It is clear that the legislature has devised a special definition of 'shop' of wide import for purposes of the Act. Ordinarily, in every use of the word 'shop' an essential element is the presence of goods in the building in which they are sold. But by the first part of the definition premises in which goods are sold wholesale are also included, Premises in which only services are rendered are also covered by the definition. An attorney's office, a dentist's surgery a hairdresser's rooms, medical practitioner's repair establishment would be included in the definition, though in popular parlance they may not be regarded as shops. By the second part of the definition several establishments which may not be covered by the first part are 'included' in the definition. The word 'include' and its grammatical variations are generally used to enlarge the normal or popular connotation of an expression for purposes of a statute. As observed in Stroud's Judicial Dictionary, Vol. 2, 3rd edn., p. 1416,

''Include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used, these words and phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include.'

51. The second part of the definition therefore extends the meaning of the expression 'shop' still further. It included in the connotation of the expression 'shop' offices, storerooms, godowns, warehouses or workplaces, mainly used in connexion with the sale retail or wholesale of goods or for rendering services, whether the actual trade or business is carried on in the same premises in which the office, storeroom, godown warehouse or workplace is situate or otherwise. The expression 'whether in the same premises or otherwise' in the second part of the definition is a parenthetical clause which could in the interest of greater clarity of expression have been made to follow the expression 'mainly used in connexion with such trade or business' instead of preceding it. But the intention of the legislature in enacting that clause appears to be fairly clear. The expression 'shop' by the second part of the definition is intended to cover offices, storerooms, godowns, warehouses or workplaces, even if goods are not sold either by retail or wholesale and no services are rendered to customers therein, provided they are used in connexion with the sale of goods or rendering of services, and whether they are in the same premises in which the goods are sold or services are rendered or otherwise.

52. It is difficult to accept the contention raised on behalf of the accused that the second part of the definition was intended to be an extension of the expression 'premises' in the definition of 'shop' and it was not intended to be an enlargement of the connotation of 'shop' as normally understood or as defined in the first part of the definition. There is nothing in the first part of the definition which supports the view that only that portion of the premises where goods are sold or services are rendered is a shop. Where services are rendered or goods are sold in any premises, the whole premises must be regarded as a shop, and it would be plainly unnecessary to state in the second part of the definition that portions of the same premises, which are not used for sale of goods or rendering services, are also to be regarded as shops when that is clearly implicit in the first part. That there is some obscurity in the definition cannot be disputed. The legislature having provided for registration of premises in which goods are sold or services are rendered, it could not have been the intention that when any premises in which goods are sold or services are rendered to customers are registered, an establishment, such as a office, storeroom, godown warehouse or workplace in which no such activity is carried on but is in premises which are registered, should also be separately registered as a shop for purposes of the Act. As already pointed out, the entire premises in which goods are sold or services are rendered would be regarded as a shop, even though the rest of the premises are not used for that purpose. An office, storeroom, godown, warehouse or workplace in the premises where goods are sold or services are rendered, would not therefore be required to be separately registered as shop, even though it falls within the second part of the definition. It is only where the office, storeroom, godown, warehouse or workplace is independent of the premises were goods are sold or services are rendered to customers that the question of separate registration arises. Undoubtedly an office, storeroom, godown, warehouse or workplace is liable to be registered as shop only if it is mainly used in connexion with the sale of goods or rendering services to customers. Whether the office, storeroom, etc., should be separately registered or the registration of the shop in which goods are sold or services are rendered would include office, storeroom, etc., must depend upon the circumstances of each case. If the premises in which goods are sold or services are rendered are so intimately connected with the office, storeroom, godown, warehouse or workplace that they may be regarded as one business unit, one registration of the place, where goods are sold or services re rendered, and of the office, storeroom, godown, etc., mainly used in connexion with that activity would be sufficient. Where, however, the office, storeroom, godown, warehouse or workplace is not so intimately connected with the premises where goods are sold or services are rendered, though used in connexion with the trade or business, it would be required to be separately registered.

53. It was urged by counsel for the municipality and the learned Government Pleader that for one shop there can be one premises only and where there are more premises than one, even though they are closely and intimately connected with the nature of the business carried on, each must be regarded as an independent shop and will have to be registered separately. I am unable to accept that contention. There is nothing in the Act which suggests that one premises can contain only one shop, or that one shop can have only one premise. It is not the unity of premises which makes a shop; it is the unity of trade or business establishment which distinguishes one shop from another. Several different establishments belonging to different owners or under distinct managements but carrying on trade or business in one premises are not unknown, and it cannot be suggested that such independent establishments would, for purposes of the Bombay Shops and Establishments Act, be regarded as a single shop. Again, a single business establishment may occupy distinct and independent structures constructed or adapted for separate activities of the establishment, such as executive management, accounts, consultations, preparation and manufacture of goods, and for sale of goods and rendering of services. Independent structures in which different activities are carried on may make them distinct premises but would not make the structural units separately registerable as shop. In each case it would be a question of fact whether the office is a part of the shop in which goods are sold or services are rendered to customers or whether the office is a distinct shop. Under the rules framed for applications for registration under S. 7 it does not appear to be necessary to set out details of the locality where the premises of the shop are situate. The Government may be well advised in framing a rule requiring that the applicant for registration of a shop should mention where the premises of a shop are situate. In the present case it appears clear that the godown at municipal census No. 231/1 is entirely independent of the shop in which goods are sold, and it is in my judgment required to be separately registered. The accused having failed to get the godown separately registered, he was guilty of offences under Ss. 7(1) and 18(1) read with S. 52 of the Act.

54. In the view of the case, the conviction of the accused for breach of rule 18(14) will be set aside, but the order of conviction for breach of Ss. 7(1) and 18(1) of the Bombay Shops and Establishments Act will be maintained. The sentence passed by the trial Court will, in view of the observation made by Mr. Justice Gajendragadkar, be reduced to Rs. 5.