S. H. SHETH, J. ( 1 ) THESE six petitions have been filed by the Trustees of public charities. There are Jain Dharma shalas at Palitana in the District of Bhavnagar They were called upon by the Mamlatdar of Palitana to pay education cess for the period commencing from 1/08/1962 to 31 March 197 ). He also demanded from the petitioners penalty for not having paid education cess in time. Those notices of demand and levy of penalty are challenged by the petitioners in these petitions. . . . . . . . . . . . . . . ( 2 ) THE first question which has been raised is whether under sec. 12 of the Gujarat Education Cess Act 1962 education cess could have been levied on the petitioners with effect from 1/04/1962 In that behalf Mr. Hathi has relied upon sub-sec. (1) of sec. 12 which reads as follows:subject to the provisions of this Act there shall be levied and collected with effect from the 1st day of April 1970 a tax on lands and buildings situated in an urban area at the following rates. . . . . . . This sub-section was amended by Gujarat Act 8 of 1970. Prior to its amendment by Gujarat Act 8 of 1970 the date which was mentioned was 1st of August 1962. The unamended sub-sec. (1) of sec. 12 read as under:subject to the provisions of this Act there shall be levied and collected with effect from the 1st day of August 1961. The argument which has been raised is that since it was by amendment made by Gujarat Act 8 of 1970 that 1st day of April 1970 was inserted in sub-sec. (1) of sec. 12 education cess which became payable for the period prior thereto could not now be recovered because according to Mr. Hathi there is no saving clause. Now sec. 6 of the Amending Act provides for savings. However it provides for savings in respect of secs. 19 and 20 only. It reads thus:notwithstanding the amendments made in sections 19 and 20 of the principal Act by this Act a person shall be entitled to recover the amount of tax under the said sec. 19 or as the case may be the amount of difference under the said sec. 19 and 20 only. It reads thus:notwithstanding the amendments made in sections 19 and 20 of the principal Act by this Act a person shall be entitled to recover the amount of tax under the said sec. 19 or as the case may be the amount of difference under the said sec. 2n in relation to the tax levied for any period prior to the commencement of this Act whether the tax is paid before or after such commencement as if this Act had not been passed. SEC. 19 of the Act provides for the right of a person who has been held liable to pay tax to recover it from the occupier of the land or building. Sec. 20 provides for apportionment of liability for tax in respect of lands or buildings which have been let and in respect of which rateable value exceeds the amount of rent. Mr. Hathi has argued that since sec. 6 does not save the levy and recovery of education cess which became due and payable prior to 1/04/1970 it cannot now be recovered. It is true that sec. 6 of the Amending Act does not come to the rescue of the taxing authority. However sec. 7 of the Bombay General Clauses Act 1904 helps the taxing authority. It provides thus: 4where this Act or any Bombay Act or Gujarat Act made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made then unless a different intention appears the repeal shall not. . . . . . . . . . . . . (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder. . . . . . . . . . . . IT is clear therefore that unless the Amending Act expresses a contrary intention the liability to pay education cess which accrued for a period or periods prior to 1/04/1970 is saved. We find nothing in the Amending Act which discloses such a contrary intention. Therefore the previous operation of unamended sec. 12. (1) of the Gujarat Education Cess Act 1962 is not at all affected by Gujarat Act 8 of 1970. The first contention raised by Mr. Hathi therefore fails and is rejected. We find nothing in the Amending Act which discloses such a contrary intention. Therefore the previous operation of unamended sec. 12. (1) of the Gujarat Education Cess Act 1962 is not at all affected by Gujarat Act 8 of 1970. The first contention raised by Mr. Hathi therefore fails and is rejected. ( 3 ) THE second contention which he has raised turns upon the construction of a notification which has been issued by the State Government under sec. 13 (3 ). It provides as follows: the tax under sec. 12 shall not be leviable in respect of the following that is to say. . . . . . . . . . . . . . . . . . (3) any building or land or class of buildings or lands which the State Government if it considers it necessary to do so in the public interest may by notification in the official Gazette exempt from payment of the tax under sec. 12:notification issued by the State Government has been annexed to the petition. It provides inter alia as follows:lands and buildings or portions thereof solely used for public worship or for a public charitable purpose and held for a public trust registered under the Bombay Public Trusts Act 1950 or for a society registered under the Societies Registration Act 1860the classes of lands and buildings described in the paragraph extracted above have been exempted from payment of education cess. There are two conditions which must be satisfied by them. It is nobodys case that the properties which belong to public charities (which are the petitioners) are used solely for public worship. The question is whether they are used for public charitable purpose. Secondly whether they are held by public trusts registered under the Bombay Public Trusts Act 1950 It is not in dispute before us that all the public charities which are the petitioners before us have been registered under the Bombay Public Trusts Act 1950. The first condition is therefore satisfied. ( 4 ) ALL the public charities are in respect of Dharmashalas which admit pilgrims who go to Palitana for religious purposes. To admit a pilgrim for a day or two or more depending upon the situation in each individual case indeed amounts to a charitable purpose. The first condition is therefore satisfied. ( 4 ) ALL the public charities are in respect of Dharmashalas which admit pilgrims who go to Palitana for religious purposes. To admit a pilgrim for a day or two or more depending upon the situation in each individual case indeed amounts to a charitable purpose. However there are certain exceptions which have been laid down in the explanation which has been appended to that notification. The Explanation says that the following buildings and lands or portions thereof shall not be deemed to be solely occupied and used for public worship or for a public charitable purpose within the meaning of clause 2 namely :- (A) buildings or lands or portions thereof in which any trade or business is carried on and (B) buildings or lands or portions thereof in respect of which rent is de rived whether such rent is or is not applied solely to religious or charitable purposes. PARAGRAPHS 3 and 4 of the Notification are not relevant for the purposes of the present case. These two exceptions which have been made in our opinion mean this. If there is a Dharmashala which admits pilgrims who go to Palitana for religious purposes and has let out a part of its building for any trade or business then it is not exempt from payment of education cess. In each case the Mamlatdar will have to find out whether a part of any such Dharmashala has been let out for trade or business. It is not alleged in any case that the whole of any Dharmashala has been let out for trade or business. Therefore we are not concerned with that aspect in this case. ( 5 ) SECONDLY rent in our opinion has a commercial element in it. If the public charities are charging the pilgrims something which is in the nature of maintenance charge or service charges it is in our opinion not rent. Rent is ordinarily something more than a maintenance charge or a service charge. Any Dharmashala in respect of which something more than a maintenance charge or a service charge is collected from the pilgrims can be regarded as collecting rent. Rent is ordinarily something more than a maintenance charge or a service charge. Any Dharmashala in respect of which something more than a maintenance charge or a service charge is collected from the pilgrims can be regarded as collecting rent. In each case the Mamlatdar of Palitana shall have to find out whether what the petitioner charges in respect of a particular Dharmashalas is a mere maintenance charge or a service charge or whether there is a commercial element in the amount which the pilgrims are charged. If he comes to the conclusion that what is collected from the pilgrims is a maintenance charge or service charge or both and that there is no commercial element in such charges they will be entitled under the said notification to exemption from payment of education cess indeed subject to the fact that no portion thereof has been let out for business or trade. These very principles shall apply to Chhatralayas or students residential homes. ( 6 ) IT is not possible for us to do anything more in these petitions than what we have stated because there are several petitioners whose facts are totally different and they have been joined together in each of the petitions. ( 7 ) MR. Hathi has shown us in some of the petitions that some of the public charities have already been exempted by orders made in that behalf. If those orders are in force they are certainly entitled to exemption and the Mamlatdar of Palitana cannot demand from them any education cess nor can he levy penalty on them for its nonpayment. ( 8 ) IN the result the petitions are partly allowed and it is declared that the public charities which have not let out the whole or a portion of their premises for trade or business and which are collecting from the pilgrims who are admitted to their premises only a maintenance charge or a service charge or both not containing an element of rent in commercial sense as stated above are entitled to exemption from payment of education cess. It shall be open to each of the petitioners to make an appropriate application to the Mamlatdar Palitana seeking an exemption from payment of education cess in respect of the property held by it in terms of the construction which we have placed upon the exemption notification dated 24/12/1963. It shall be open to each of the petitioners to make an appropriate application to the Mamlatdar Palitana seeking an exemption from payment of education cess in respect of the property held by it in terms of the construction which we have placed upon the exemption notification dated 24/12/1963. If whey satisfy the requirements of the notification as interpreted by us the Mamlatdar Palitana shall grant exemption from payment of education cess in those cases. He shall not enforce the demand for education cess and penalty against those public charitics in whose favour exemption has alreadly been granted if such exemption is still in force. Rule is made partly absolute in each case with no order as to costs. .