Sardar Soma Singh and Others v. the State of Pepsu and Union of India

Judgment

S.C.R. arises out of my respect for the opinions of my Lord and other learned brothers-that the provisions of section 7 were necessary and reasonable and fell within clause (5) of article 19. In my Judgment the four appeals as well as Petition No. 57 of 1952 should be dismissed. Appeals allowed, cases remanded. Agents for· the appellants · and petitioners : S. Shukla, Govind, Sardar Bahadur and P. K. Chatterji. Agents for the respondents: G. H. Rajadhyaksha and C. P. Lal. SARDAR SOMA SINGH AND OTHERS tJ. THE STATE OF PEPSU AND UNION OF INDIA. [MEHR CHAND MAHAJAN C. J., MuKHERJEA, S. R. DAs .. VIVIAN BoSE and GHULAM HASAN JJ.J Constitution of India, art. 286(3)-The Patiala and East Punjab States Union General Sales Tax Ordinance, 2006 (XXXIII of 2006)-Whether ultra vires the Constitution. Held, that the Patiala and East Punjab States Union General Sales Tax Ordinance, 2006 (No. XXXIII of 2006) promulgated on 6th November, 1949, is not ultra vires art. 286(3) of the Constitution.

Clause (3) of art. 286 conten1plates a post-Constitution law, for it must be a law made by "Legislature of State" which must refer to the l~egislature of a State created by the Constitution. ORIGINAL JuRISDICTJON : Petition No. 325 of 1953. Petition to the Supreme Court under article 32 of the Constitution of India for enforcement of fundamental rights. S. P. Sinha (Bakshi Man Singh, with him) ·for the petitioners. C. · K Daphtary, Solicitor-General for India' and ]. N. Kaushal (P. G. Gokhale, with them) for respondent No. 1. C. K. Daphtary, Solicitor-General for India (Porus A. Mehta and P. G. Gokhale,·with him) for respondent No. 2. Ebrahim V a.tir Mavat The State of Bombay and Others. March 11. Sardar Soma Singh and Otf,ers The State of Pepsu and Union of India. Das]. [1954] 1954. March 11.

The Judgment of the Court was delivered by DAs J.-The short point raised on this petition filed in this court under article 32 of the Constitution is whether the Patiala and East Punjab States Union General Sales Tax Ordinance, 2006 (No. XXXIII of 2006) which was promulgated on the 6th November, 1949, has become void since the date of the commencement of the Constitution. Article 286 ( 3) of the Constitution of India runs as follows:- "286. (3) No law made by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent." The Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act, 1952 (Central Act No. LII of 1952) declared certain commodities as essential for the life of the community.

In the schedule appended to the Act item 8 relates to "all cloth, woven on handlooms, coarse and medium cotton cloth made in mills or woven on power looms." Section 3 of the same Act provides as follows :- Regulation of tax on sale or purchase of essential goods :- No law made after the commencement of this Act by the Legislature of a State imposing, or authorising the imposition of, a tax on the sale or purchase of any goods declared by this Act to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent." The petitioners are dealers in coarse cloth and medium cloth and their contention is that these commodities having been declared as essential for the life of the community they are not liable to pay sales tax on them. In the petition an allegation has been made that section 3 of Act LII of 1952 is in direct contravention of article 286(3) of the Constitution.

There S.C.R. does not appear to be any substance in this contention. Section 3 is in line with article 286(3) and there is no inconsistency between that section and the relevant provision of the Constitution. The peut10ners are sought to be taxed under the Ordinance XXXIII of 2006, which, as an existing law ; has been continued by article 372. The question is whether that Ordinance contravenes the provisions of article 286(3) or, has since been altered, repealed of amended by any competent legislative authority. It is quite clear that section 3 of Act LII of 1952 does not affect the Ordinance, for the Ordinance was not made after the commencement of that Act. The only question, therefore, is whether the Ordinance runs counter to clause (3) of article 286 of the Constitution.

A perusal of that clause will at once indicate that that clause contemplates a post-Constitution law, for it must be a law made by a "Legislature of a State" which must 'refer to the Legislature of a State created by the Constitution. Further, and what is more important, it contemplates a law which can be but has not been reserved for the consideration of the President and has not received his assent. This provision clearly points to post-Constitution law, for there can be no question of an existing law continued by article 372 being reserved for the consideration of the President for receiving his assent. As we are concerned in this application with a pre-Constitution law, it is not necessary for us to express any opinion as to the validity or otherwise of a law made after the commencement of the Constitution but before the coming into operation of Act LI! of 1952. The result, therefore, is that there is no substance in this petition and we dismiss it with costs. Petition dismissed.

Agent for the petitioners : Sardar Singh. Agent for respondent No. 1 : R. H. Dhebar . Sardar Soma Singh and Others Th, State of Pepsu and Union of India. Das].