State of West Bengal v. Washi Ahmed (1977)

This is the leading modern statement of the common-parlance rule: a word of every day use in a taxing statute is construed not in any technical sense, nor from any botanical point of view, but as understood in common parlance.

It is the best case for the rule because it does three things at once. It states the rule, it gives the rule a workable test — the sense "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it" — and it shows how the test is proved on evidence rather than asserted. It also sits inside the unit on construction by reference to subject matter, because the whole point is that the meaning is drawn from the trade and the market the statute addresses.

The Act levies sales tax on the taxable turnover of a dealer. Section 6(1) provides that no tax shall be payable on the sale of goods specified in the first column of Schedule I, subject to the conditions and exceptions set out in the corresponding entry in the second column. Item (6) of Schedule I specifies vegetables, green or dried, commonly known by their Bengali names, the exception in the second column being that they bear tax when sold in sealed containers.

The Sales Tax authorities levied tax on green ginger sold by the respondents. Their reasoning was that green ginger is used to add flavour and taste to food and is therefore not a vegetable commonly known by those names.

It was common ground that the green ginger was not sold in sealed containers, so the single question was whether it fell within the entry. A Single Judge of the Calcutta High Court, on a writ petition under Article 226, disagreed with the Sales Tax authorities; a Division Bench affirmed him on appeal under the Letters Patent; and the State came to the Supreme Court by special leave.

First, the rule. The word "vegetable" is not defined in the Act. The Court treated the position as well settled on its own earlier decisions — one holding that betel leaves are not vegetables, the other that sugarcane is not — that the word, "being a word of every day use, must be construed not in any technical sense, nor from any botanical point of view, but as understood in common parlance."

Second, the content the rule gives the word. Adopting a passage approved in the earlier case, the Court took the term as denoting those classes of vegetable matter "which are grown in kitchen gardens and are used for the table", and restated the holding that "the word 'vegetable' in taxing statutes is to be understood as in common parlance i.e. denoting class of vegetables which are grown in a kitchen garden or in a farm and are used for the table".

Third, the comparative support. The Court noted that the same principle of construction for words used in a taxing statute has been adopted in English, Canadian and American courts, and set out three formulations:

• Pollock B. — "if a statute contains language which is capable of being construed in a popular sense, such a statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning, of course, by the words 'popular sense' that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it."
• The Supreme Court of Canada, on the words 'fruit' and 'vegetable' in an excise statute — "They are ordinary words in every day use and are, therefore, to be construed according to their popular sense".
• Story, J. — "the particular words used by the Legislature in the denomination of articles are to be understood according to the common commercial understanding of the terms used, and not in their scientific or technical sense, for the Legislature does not suppose our merchants to be naturalists, or geologists, or botanists".

Fourth, the application. So construed, the entry covers green ginger. It is grown in a kitchen garden or in a farm and is used for the table; it may not be used as a principal item of the meal, but it certainly forms part of the meal as a subsidiary item. It is ordinarily sold by a vegetable vendor, and both the vendor who deals in vegetables every day and the housewife who goes daily to the market would regard it as a vegetable.

Fifth, the proof. The assessee placed material before the Sales Tax authorities showing that the railway authorities treated green ginger as a vegetable for railway tariff and charged the reduced rate applicable to vegetables, and that the Corporation of Calcutta included green ginger among vegetables in its fortnightly market bulletin of municipal market rates. This is the transferable lesson: common parlance is a question to be established by evidence of how the trade and the market in fact speak.

Sixth, the vernacular words. The entry did not speak simply of vegetables but of vegetables commonly known by their Bengali names, and the Division Bench had held green ginger to fall within those words. The Supreme Court said it should certainly be very slow to disturb a meaning placed on words in the Bengali language by two judges of the High Court who may reasonably be expected to be quite conversant with that language.

Green ginger is included within the entry for vegetables, green or dried, commonly known by those vernacular names, in Item (6) of Schedule I, and its sales are exempt from tax under s. 6 of the Bengal Finance (Sales Tax) Act, 1941. The State's appeals were dismissed with costs, in one set.