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(4) Without prejudice and in addition to su ch conviction and fine the person retaining possession of a ny land in excess of the ceiling area applicable to him sha ll be deemed to be a trespasser liable to ejectment from su ch excess land and to pay penalty in accordance with clause ( a) of sub section (i) of section 1... |
(5) All lands coming to the State Government by surrender under sub section (2) or by ejectment under su b section (4) shall vest in it free from all encumberances. PRE |
. . (Omitted as unnecessary)" The rights and obligations under this provision had h ad to be determined with reference to the notified date i. e. 1.4.1966. PRE |
Referring to analogous provision of the Maharas h tra Agricultural Lands (Ceiling on Holdings) Act, 1961, th is Court in Raghunath vs Maharashtra, ; at 57 observed: "The scheme of the Act seems to be to determine t he ceiling area of each person (including a family) with refe r ence to the appointed day. PRE |
The policy of the Act appears to be that on and after the appointed day no person in t he State should be permitted to hold any land in excess of t he ceiling area as determined under the Act and that ceili ng area would be that which is determined as on the appoint ed day. " PRE |
Again in Bhikoba Shankar Dhumal (dead) by LRs.& Ors.vs Mohan Lal Punchand Tathed & Ors., 18 at 228, it was observed: "A close reading of the aforesaid provisions of the Act shows that the determination of the extent of su r plus land of a holder has to be made as on the appointed day. PRE |
If 171 any person has at any time after the fourth day of Augus t, 1959, but before the appointed day held any land (includi ng any exempted land) in excess of the ceiling area, su ch person should file a return within the prescribed peri od from the appointed day furnishing to each of the Collecto rs within whose juri... |
If any person acquires, holds or com es into possession of any land including any exempted land in excess of the ceiling area on or after the appointed da y, such person has to furnish a return as stated above with in the prescribed period from the date of taking possession of any land in excess of the ceiling area . .... |
A contention similar to the one urged for the appellan ts here that the title respecting the surplus land would ve st in the Government upon such land being taken possession of by Government after the declaration regarding the surpl us was noticed in that case. Ratio |
But, it was held that the liabil i ty to surrender the surplus land would date back to t he appointed day. Ratio |
This Court said: " .Any other construction would make t he Act unworkable and the determination of the extent of su r plus land of a holder ambulatory and indefinite . " PRE |
This was again reiterated in State of Maharashtra vs Ann a purnabai and Ors., [1985] Supp.SCC 273 at 275. Ratio |
This Cou rt said: "Section 21 of the Act no doubt states that t he title of the holder of the surplus land would become vest ed in the State Government only on such land being taken po s session of after a declaration regarding the surplus land is published in Official Gazette. PRE |
But the liability to surre n der the surplus land relates back to the appointed day in case of those who held land in excess of the ceiling on t he appointed day. PRE |
Therefore, even if the holder dies befo re declaration of any part of his land as surplus land, t he surplus land is liable to be determined with reference to his holding on the appointed day . " PRE |
It is, therefore, seen that the right of the Sta te to take over excess land vested in it as on the appoint ed day and only the quantification remained to be worked out. Ratio |
As observed by Lord Morris, in 172 Director of Public Works vs Ho Po Sang, [1961] 2 All.E. R. 721. PRE |
"It may be, therefore, that under some repealed enactment, a right has been given, but that, in respect of it, so me investigation or legal proceeding is necessary. PRE |
The right is then unaffected and preserved. PRE |
It will be preserved even if a process of quantification is necessary. PRE |
But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether so me right should be or should not be given. PRE |
On a repeal t he former is preserved by the Interpretation Act. PRE |
The latter is not. PRE |
The above passage was referred to with approval in M. section Shivananda vs K.S.R.T. Corpn., ; at 81. 18. Ratio |
We agree with the High Court that the right of the State to the excess land was not merely an inchoate rig ht under the Act, but a right "accrued" within the meaning of sec.6 (c) of the Rajasthan General Clauses Act, 1955, a nd the liability of the land owner to surrender the excess la nd as on 1.4.1986 was a liability... |
There is no substance in contention (b) either. Ratio |
These Appeals, Special Leave Petitions and t he WritPetition, accordingly, fail and are dismissed. RPC |
In t he circumstances of the case, there will be no order as to costs. RPC |
N.P.V. Appeals & Petitions dismissed. RPC |
No. 665 of 1988 (Under Article 32 of the Constitution of India). FAC |
Sanjay Parikh, M.L. Sachdev, C.S. Vaidyanathan, S.R. Bhat, S.R. Setia, S.C. Dhanda, H.K. Puri, Harish N. Salve, Rajiv Dutta, Anil Kumar and Sultan Singh for the Petition ers. FAC |
Raja Ram Agarwal, S.C. Manchanda, G.L. Sanghi, A.S. Nambiar, Ashok K. Srivastava, R.S. Rana, P.G. Gokhale, B.R. Agarwala, R.B. Hathikhanawala, C.M. Nayar, P.K. Manohar, P.N. Misra, Ms. Halida Khatoon and Santhanam for the Respondents. FAC |
G.L. Sanghi, Ms. Vrinda Grover, Miss Seita Vaidialingam, Kailash Vasudev and A.C. Gulathi for the Intervenor. FAC |
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ. FAC |
In these several writ petitions, we are concerned with the question of harmonising the power of different States in the Union of India to legislate and/or give 735 appropriate directions within the parameters of the subjects in list II of the 7th Schedule of the Constitution with the principle of economic unity envisag... |
We are also concerned with the provi sions of exemption, encouragement/incentives given by dif ferent States to boost up or help economic growth and devel opment in those States, and in so doing the attempt of the States to give preferential treatment to the goods manufac tured or produced in those States. Ratio |
The question essentially is the same in all the matters but the question has to be appreciated in the context of the provisions and the fact situation of the different States involved in these writ petitions. Ratio |
It would, therefore, be appropriate to first deal with writ petition No. 803/88 (Niksin Marketing Associate & Ors.vs Union of India & Anr.) which is under article 32 of the Constitution by four petitioners. Ratio |
Petitioner No. 1 in W '.P. FAC |
No. 803/88 is a partnership firm carrying on business in New Delhi. FAC |
Petitioner No. 2 is its partner and petitioner No. 3 is another partnership business carrying on business at Kanpur in U.P. consisting of petitioner No. 4 and other partners. FAC |
The petition chal lenges the constitutional validity of notification No. ST II7558/X 9(208) 1981 U.P. Act XV 48 order 85 dated 26th December, 1985 issued by Uttar Pradesh Govt. FAC |
u/s 4A of the Uttar Pradesh Sales Tax Act, 1948. FAC |
A prior notification No. ST II/604 X 9(208) 198 1 U.P. Act XV 48 Order 85 dt. 29th January, 1985 was superseded by the aforesaid notification dt. 26th December, 1985. FAC |
It also challenges the constitu tional validity of notification No. ST II/8202/X 9(208) 1981 issued by Uttar Pradesh Govt. u/s 8(5) of the which superseded a previous notification. FAC |
It also challenges the constitutional validity of section 4A of the Uttar Pradesh Sales Tax Act, 1948 as substituted by U.P. Act 22 of 1984 and also section 8(5) of the and consequentially all actions and proceedings taken by the respondent u/s 5A of the said Act. FAC |
The respondents to this application are the State of Uttar Pradesh, the Union of India, and the Commissioner of Sales Tax, Uttar Pradesh. FAC |
It is stated that the petitioners carry on the business of selling cinematographic films and other equipments like projectors, sound recording and reproducing equipment, industrial X ray films, graphic art films, Photo films etc. FAC |
in the State of Uttar Pradesh and in Delhi. FAC |
The petitioners sell the goods upon receiving these from the manufacturers from outside the State of U.P. FAC |
They are dealers on behalf of those manufacturers. FAC |
The petitioners are dealers of Hindu stan Photo Films Mfg. Co. Ltd., a Government of India under taking. FAC |
In 736 U.P. there is a single point levy of sales taX. FAC |
The State of U.P. had issued two notifications u/s 4A of the U.P. Sales Tax Act and u/s 8(5) of the exempting new units of manufacturers as defined in the Act in respect of the various goods for different periods ranging from 3 to 7 years as the case may be, from payment of any sales tax. FAC |
These notifications are annexed and terms thereof are set out in annexures A 1 & B 1 to the writ petition. FAC |
The notification dated 26th December, 1985 stated, inter alia: "The Governor is pleased to direct that in respect of any goods manufactured in an indus trial unit, which is a new unit as defined in the aforesaid Act of 1948 established in the areas mentioned in column 2 of the Table given below, the date of starting pr... |
" It is not necessary to set out the conditions. FAC |
In the annexure several districts have been mentioned. FAC |
In column 2 categories have been made for exemption and have been divid ed in 2 categories, one in case of units with capital in vestment not exceeding 3 lakhs of rupees and another in cases of the units with capital investment exceeding 3 lakhs of rupees. FAC |
For one the period of exemption is 5 years while for the latter it is 7 years. FAC |
Period of exemption various from 3 to 7 years in different districts. FAC |
More or less similar were the terms of notification dated 29th January 1985. FAC |
The case of the petitioners is that they did not ini tially feel the adverse effects or discrimination on account of these notifications. FAC |
Petitioners point out that the manufacturers covered by the said notification are entitled to sell the articles manufactured by them without liability to pay sales tax while the manufacturers in other States and non manufacturers of the same article selling the same goods in the State are liable to pay sales tax under ... |
The petitioners found that they had become liable to pay sales tax on their sales at 12% + 10% surcharge 737 (13.2%) under the U.P. Sales Tax Act on photographic and graphic arts material and @ 8% + 10% surcharge (8.8%) on medical x ray films and chemicals and a minimum of 10% on their inter State turnover whereas the ... |
Thus the petitioners contend that the goods sold by them became costlier by 8.8% to 13.2% depending on the item sold compared to the goods of manufacturers in the State of U.P. FAC |
They had given a chart illustrating the position. FAC |
They, hence, contended that they became subject to gross discrimi nation and their business was crippled and wanted to sustain the said contention by referring to a chart showing gross sale prices of the products in diverse States. FAC |
In the prem ises the petitioners challenge these provisions as ultra vires of the Constitution of India, the rights guaranteed under part XIII as also under articles 14 & 19(l)(g) of the Constitution. STA |
The question is, are these notifications valid, proper and sustainable in the light of part XIII of the Constitu tion of India judged in the background of the said articles. Ratio |
Appearing in support of the petition, Mr. Sanjay Parikh in writ petitions Nos. FAC |
790,665 and 1939 40/88, Mr. C.S. Vaidy nathan and Mr. S.C. Dhanda in writ petition No. 761/88, Mr. Harish N. Salve for the petitioners in writ petition No. 803/88. FAC |
Miss Seita Vaidialingam, Mr. G.L. Sanghi, Kailash Vasudev for the intervenors. FAC |
These petitions have been heard together. FAC |
Apart from the submission that the provisions impugned violate articles 19(l)(g) and 14 of the Constitution, and are in violation of the principles of natural justice, the main challenge to these provisions by Mr. Salve was that they violated the provisions of articles 301 to 305 of Part XIII of the Constitution of Ind... |
The contention of the petitioners was that, subject to other provisions of Part XIII, trade, commerce and intercourse throughout the terri tory of India was enjoined to be free. ARG |
Article 302 of the Constitution empowers the Parliament by law to impose such restrictions on the freedom of trade, commerce or inter course between one State and another or within any part of the territory of India as may be required in the public interest. STA |
Article 303 indicates the restrictions on the legislative powers of the Union and the States with regard to trade and commerce, and stipulates that, notwithstanding anything contained in article 302, neither Parliament nor the legislature of the States shall have power to make any law giving or authorising the giving o... |
Sub clause (2) of article 303 enjoins that nothing in clause (1) shall prevent Parliament from making any law giving, or authorising the giving of, any preference or making, or authorising the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a sit... |
Article 304 deals with restrictions on trade, commerce and intercourse among States, which is as follows: "304.Restrictions on trade, commerce and intercourse among States. STA |
Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law (a) impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods... |
" Article 305 saves certain existing laws and laws provid+ing for State monopolies. STA |
Our attention was drawn to the decision of this Court in Atiabari Tea Co. Ltd. vs The State of Assam & Ors., ; There this Court was concerned with the Assam Taxation (on goods carried by Roads and Inland Waterways) Act, 1954 which was passed under entry 56 of list II of the 7th Schedule to the Constitution. PRE |
The appellants therein contended that the Act had violated the freedom of trade guaranteed by article 301 of the Constitution and as it was not passed after obtaining the previous sanction of the President as 739 required by article 304(b), it was ultra vires. PRE |
The respondent therein had urged that taxing laws governed only by Part XII and not Part XIII (which contained articles 301 & 304) and in the alternative that the provisions of Part XIII applied only to such legislative entries in the 7th Schedule as dealt specifically with trade, commerce and intercourse. PRE |
Gajendragadkar, Wanchoo and Das Gupta, JJ. held that the Act violated article 301 and since it did not comply with the provisions of article 304(b) it was ultra vires and void. PRE |
On the contrary, Chief Justice Sinha held that the Assam Act did not contravene article 301 and was not ultra vires. PRE |
According to the learned Chief Justice, neither the one extreme position that article 301 included freedom from all taxation nor the other that taxation was wholly outside the purview of article 301 was correct; and that the freedom conferred by article 301 did not mean freedom from taxation simpliciter but only from t... |
Justice Shah on the other hand expressed the view that the Assam Act infringed the guarantee of freedom of trade and commerce under article 301 and as the Bill was not moved with the previous sanction of the President as required by article 304(b) nor was it validat ed by the assent of the President under article 255(c... |
In construing the provisions with which we are concerned herein, in our opinion, it is instructive to remind our selves, as was said in James vs Commonwealth of Australia, [19361 AC 578 at 613, that the relevant provision of the Constitution has to be read not in vacuo but as occurring in a single complex instrument in... |
The construction of article 301 should not be determined on a purely academic or doctrinaire considerations; in construing the said Article we must adopt a realistic approach and bear in mind the essen tial features of the separation of powers on which our Constitution rests. PRE |
It is a federal constitution which we are interpreting, and so the impact of article 30 1 must be judged accordingly. PRE |
Besides, it is not irrelevant to remem ber in this connection that the Article 23 are construing imposes a constitutional limitation on the power of 740 the Parliament and State Legislatures to levy taxes, and generally, but for such limitation, the power of taxation would be presumed to ,be for public good and would n... |
Thus considered we think it would be reasonable and proper to hold that restrictions freedom from which is guaranteed by article 301, would be such restric tions as directly and immediately restrict or impede the free flow or movement of trade. PRE |
Taxes may and do amount to restrictions; but it is only such taxes as directly and immedi ately restrict trade that would fall within the purview of article 30 1. PRE |
The argument that all taxes should be governed by article 301 whether or not their impact on trade is imme diate or mediate, direct or remote, adopts, in our opinion, an extreme approach which cannot be upheld. PRE |
If the said argument is accepted it would mean, for instance, that even a legisla tive enactment prescribing the minimum wages to industrial employees may fall under Part XIII because in an economic sense an addition al wage bill may indirectly affect trade or commerce. PRE |
We are, therefore, satisfied that in determining the limits of the width and ampli tude of the freedom guaranteed by article 301 a rational and workable test to apply would be: Does the impugned restriction operate directly or immediately on trade or its movement?" PRE |
It is in that light we must examine the impugned provision. Ratio |
It is necessary to bear in mind that taxes may and sometimes do amount to restrictions but it is only such taxes as directly and immediately restrict trade that would fall within the mischief of article 301. Ratio |
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