Skip to content


State of Mysore Vs. K. Mohamed Ismail - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtKarnataka High Court
Decided On
Case NumberCriminal Referred Case No. 3 of 1954
Judge
Reported inAIR1958Kant143; AIR1958Mys143; 1958CriLJ1327; ILR1958KAR74; (1958)36MysLJ61; [1958]9STC714(Kar)
ActsConstitution of India - Articles 14, 15, 16, 254 and 372; Mysore Sales Tax Act, 1948 - Sections 14, 15 and 22; Code of Criminal Procedure (CrPC) , 1898 - Sections 1(2) and 5; Income-tax Act - Sections 67; Evidence Act; Travancore-Cochin General Sales Tax Act - Sections 21; Madras General Sales Tax Act - Sections 16A; Code of Civil Procedure (CPC), 1908 - Sections 9; Bihar Maintenance of Public Order Ordinance, 1949; Bombay City Civil Court Act
AppellantState of Mysore
RespondentK. Mohamed Ismail
Appellant AdvocateD.M. Chandrasekhar, High Court Govt. Pleader
Respondent AdvocateG.S. Ullal, Adv.
Excerpt:
.....which the legislature of a state has, to make a law in respect of a matter falling within the state list. we are not satisfied that by the enacting of a provision like section 22, there would be any encroachment in regard to any matter falling under the concurrent list. under, these circumstances, when a provision like section 22 could be made by the legislature of a state in the exercise of its legislative competence derived wholly from the entries in the state list, there is absolutely no reason as to why this provision found in a pre-constitution law which is continued under article 372 of the constitution, should not be held to be valid. having regard to all these circumstances, we arc not satisfied that there is any substance in the contention that section 22 of the act offends..........of a law made by the legislature of a state in regard to a subject falling entirely within the state list and the state legislature is acting wholly within its powers under, the state list.this is the effect of the decision of the privy council reported in megh raj v. allah rakhia, air 1947 pc 72 (l). under entry 54 of list ii of the seventh schedule to the constitution, the legislature of a state is competent to make a law pertaining to taxes on the sale or purchase of goods other than newspapers. under entry 64 of list ii, the legislature of a state has the competence to make a law in regard to offences against laws with respect to any of the matters in the state list. under entry 65 of list ii, the legislature of a state has competence to legislate in regard to jurisdiction and.....
Judgment:

M. Sadasivayya, J.

1. The question of the validity of Section 22 of the Mysore Sales Tax Act, 1948 having arisen in C. G. Nos. 288 and 289/54 on the file of the First Class Magistrate, Civil Station, Bangalore, the said Magistrate has made this reference under Section 432 of the Cr. P. C. The question which has been referred to the High Court is

'Whether Section 22 of the Mysore Sales Tax Act is ultra vires of the Constitution of India and of the Cr. P. C. and whether the accused is entitled to question the validity of the assessment order passed by the Assessing Authority, in this Court'.

A short time prior to the making of this reference, the Madras High Court had held in the case of In re Guruviah Naidu and Co., reported in : AIR1954Mad833 (A), that Section 16-A of the Madras General Sales Tax Act (which corresponds to Section 22 of the Mysore Sales Tax Act, 1948) was ultra vires of the Constitution and of the Code of Criminal Procedure.

The counsel for the accused in the two criminal cases before the learned Magistrate above referred to, appears to have based his arguments on a newspaper report of the above-said decision of the Madras High Court and contended before the learned Magistrate that Section 22 of the Mysore Sales Tax Act, 1948 was ultra vires of the Constitution and the Code of Criminal Procedure. The learned Magistrate took the view that there was force in the contention of the learned counsel and has made this reference.

2. Section 22 of the Mysore Sales Tax Act, 1948, as it stood at the time when the learned Magistrate made this reference, was as follows :

'Save as provided in Section 16, no assessment made and no order passed under this Act or the rules made thereunder by any assessing authority shall be called in question in any Court, and save as is provided in Sub-section 14 and 15, no appeal or application for revision shall lie against any such assessment or order.'

3. The question as to the effect of Section 22 of the Mysore Sales Tax Act, 1948, had come up, quite a number of times, for consideration before the High Court of the former State of Mysore (Vide Kotrappa v. Asst. Sales Tax Officer, AIR 1951 Mys 37 (B); Rama lyer v. Govt. of Mysore, AIR 1951 Mys 70 (C); Kariappa v. Govt. of Mysore, AIR 1953 Mys 12 (D); Venkatachalu Chetty v. Govt. of Mysore, AIR 1953 Mys 18 (E) and Narayana Setty v. State of Mysore, AIR 1954 Mys 17 (F). Of these decisions, the two cases reported in AIR 1953 Mys 12 (D) and AIR 1953 Mys 18 (E), wore decided by Mallappa, J., and the other three cases were all decided by Balakrishnaiya, J.

In these two sets of cases, the learned Judges took slightly divergent views as to what exactly would be an assessment made or an order passed under the Act, within the meaning of Section 22. For this purpose, they also relied on the interpretation of the expression 'assessment made under the Act' as used in Section 67 of the Income-tax Act. Ultimately in AIR 1954 Mys 17 (F). Balakrishnaiya, J. took the view that the meaning and the scope of the expression 'made under the Act', in Section 67 of the Income-tax Act, were much wider than that indicated by Mallappa, J., in the earlier decisions.

For taking this view, Balakrishnaiya, J. relied on the decision of the Privy Council reported in Raleigh Investment Co. Ltd, v. Governor-General in Council, AIR 1947 PC 78 (G), wherein their Lordships of the Privy Council had held that the phrase 'made under the Act' describes the provenance of the assessment, and does not relate to its accuracy in point of law, and that 'the use of the machinery provided by the Act, not the result of the use is the test'. But, in these cases the question of the constitutional validity of Section 22 had not tome up for decision.

4. The main contentions which have been urged by the learned counsel Sri Ullal who has appeared for the accused persons in those cases is that Section 22 is repugnant to the provisions of the Code of Criminal Procedure and the Indian Evidence Act and that therefore it cannot have effect; it is also contended by him that it offends Article 14 of the Constitution and that therefore it is void. His arguments were more or less on the lines of the arguments advanced on behalf of the petitioners in the ease reported in : AIR1954Mad833 (A).

In that case it was held by the Madras High Court that Section 16-A of the Madras General Sales Tax Act was repugnant to the provisions of the Code of Criminal Procedure and the Evidence Act and also offended Article 14 of the Constitution. In a Full Bench case reported in P. K. Velayudhan, In re, 1955-6 STC 331: ((S) AIR 1955 Trav-Co 220) (FB) (H), the High Court of Travaucore Cochin had to consider the constitutional validity of Section 21 of the Travancore-Cochin General Sales Tax Act.

In that Full Bench Case, their Lordships did not accept the contentions similar to those which had been advanced in the case of : AIR1954Mad833 (A), and did not concede that the said decision laid down the correct law. Instead, they agreed with the views which had been expressed in the earlier Madras decision viz. Syed Mohammed and Co. v. State of Madras, reported in : AIR1953Mad105 (I), and held that the section in question was not ultra vires of any of the provisions of the Constitution, the Code of Criminal Procedure or the Indian Evidence Act.

The State of Madras had appealed to the Supreme Court against the decision of the High Court of Madras in Guruviah Naidu's case (A), and the decision pertaining to that appeal is reported in State of Madras v. Guruviah Naidu and Co. Ltd., (S) : 1956CriLJ331 (J). The Supreme Court set aside the judgment of the Madras High Court, on grounds other than those pertaining to the validity or otherwise of Section 16-A of the Madras General Sales Tax Act. In regard to the question pertaining to Section 16-A, their Lordships of the Supreme Court have expressly stated as follows :

'In the view we have taken about the validity of the assessment on which the prosecutions were founded, we do not consider it necessary on this occasion to express any opinion on any of the questions raised about the validity or otherwise of Section 16-A of the Madras General Sales Tax Act.'

In a later decision of the Madras High Court reported in R. D. Fernandes, In re, 1957-8 STC 365 (K), Ramaswami, J., while holding that Section 16-A of the Madras General Sales Tax Act is intra vires, has followed the earlier decisions of the Madras High Court (including the decision in Syed Mohammed's Case (I), and has declined to follow the decision in Guruviah Naidu's case (A).

5. The Mysore Sales Tax Act, 1948 is a pre-constitution law which was passed by the legislature of the former State of Mysore, which was an Indian State subject to the sovereignty of the Maharaja. After the Constitution came into force, this law continued by virtue of Article 372 of the Constitution. It is not disputed by Sri Ullal, that the Legislature of the former State of Mysore was competent to make a law like the Mysore Sales Tax Act of 1948.

But, it is urged by Sri Ullal that Section 22 is repugnant to the provisions of the Cr. P. C. and the Indian Evidence Act which are Laws made by Parliament and it is therefore void. On the other hand, the contention of Sri D. M. Chandrasekhar the learned counsel who appeared for the Advocate-General, is that Section 22 is really a provision limiting the power or jurisdiction of the Court and that no question of any repugnance either with the Code of Criminal Procedure or with the Evidence Act, really arises.

6. The question of inconsistency between laws made by Parliament and laws made by the Legislatures of Stales is dealt with, in Article 254 of the Constitution. Under Article 254, any question of repugnancy can arise only as between a law made by the Legislature of a State in regard to a matter in the Concurrent List; and a law made by Parliament in regard to the same subject in the Concurrent List; no question of repugnancy under Article 254, could arise in respect of a law made by the Legislature of a State in regard to a subject falling entirely within the State List and the State Legislature is acting wholly within its powers under, the State List.

This is the effect of the decision of the Privy Council reported in Megh Raj v. Allah Rakhia, AIR 1947 PC 72 (L). Under Entry 54 of List II of the Seventh Schedule to the Constitution, the Legislature of a State is competent to make a law pertaining to taxes on the sale or purchase of goods other than newspapers. Under Entry 64 of List II, the Legislature of a State has the competence to make a law in regard to offences against laws with respect to any of the matters in the State List. Under Entry 65 of List II, the Legislature of a State has competence to legislate in regard to jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in the State List.

From a consideration of these entries taken together, it becomes clear that the Legislature of a State in making a law pertaining to the subject matter of Entry 54 of List II, is also competent to legislate with regard to offences against that law and to regulate and control the jurisdiction and powers of Courts (except the Supreme Court) in regard to any matter falling within the scope of that law. It may also be noticed that in Entry 1 of the Concurrent List which pertains to Criminal Law, offences against laws with respect to any of the matters specified in List II, are excluded; it is also seen from Entry 46 of the Concurrent List which pertains to the jurisdiction and powers of all Courts (except the Supreme Court), that the entry is confined to jurisdiction and powers of Courts only with respect to any of the matters in the Concurrent List.

Sub-section (2) of Section 1 of the Code of Criminal Procedure provides that in the absence of any specific provision to the contrary, nothing contained in the Code shall affect any special jurisdiction or power conferred by any other law for the time being in force; likewise Section 9 of the Code of Civil Procedure, which deals with the jurisdiction of Courts to try all suits of a civil nature, excepts from the jurisdiction of the Courts such suits the cognizance of which is expressly or impliedly barred.

In a case reported in Lakhi Narayan Das v. Province of Bihar, AIR 1950 FC 59 (M), it was contended against certain provisions of the Bihar Maintenance of Public Order Ordinance, 1949, that they were in conflict with the provisions of the Code of Criminal Procedure and were therefore ultra vires of the Provincial Government. While repelling that contention, the Federal Court has observed as follows ;

'It is true that violation of the provisions of the Ordinance or of orders passed under it have been made criminal offences but offences against laws with respect to matters specified in List II would come within item (37) of List II itself, and have been expressly excluded from item (1) of the Concurrent List. The ancillary matters laying down the procedure for trial of such offences and the conferring of jurisdiction on certain Courts for that purpose would be covered completely by Item (2) of List II and it is not necessary for the Provincial Legislature to invoke the powers under Item (2) of the Concurrent List. ......

In our opinion, if the Provincial Legislature can create offences in respect to matters which are exclusively within List II, it can also provide for arrest and trial of the offenders who violate such laws. This seems to he the clear implication of Item (37) of List II and Item (1) of the Concurrent List.'

7. Again, in a decision of the Supreme Court which is reported in State of Bombay v. Naroltamdas Jethabhai, : [1951]2SCR51 (N), while considering the constitutional validity of the Bombay City Civil Court Act, the Supreme Court, with reference to entries in the Lists pertaining to the jurisdiction and powers of the Courts states as follows ;

'The effect of these entries is that while legislating with regard to the matters in their respective Legislative Lists, the two legislatures are competent also to make provisions in the several Acts enacted by them, concerning the jurisdiction and powers of Courts in regard to the subject matter of the Acts, because otherwise the legislation may not be quite complete or effective. The words used in Entry 2 of List II and Entry 55 of List I are wide enough to empower the two legislatures to legislate negatively as well as affirmatively, with regard to the jurisdiction of the Courts in respect of the matters within their respective legislative ambits. In other words, they can exclude or bar the jurisdiction of the Courts in regard to those matters, and they can also confer special jurisdiction on certain Courts. They can also, apart from the general power which the Courts usually exercise, confer power on the Courts to pass certain special orders. .....'

8. It is thus seen that when Legislature of a State has the competence to make a law pertaining to taxes on sales or purchases, it has also the competence to provide punishments, in that law for the non-compliance or contravention of the provisions of that law, and may also for the purposes of the enforcement of that law vest jurisdiction in Courts. The limits of the jurisdiction of Courts, may be prescribed by that law. The legislature of a State can do all these in the exercise of the legislative competence available to it under the entries in List II and without being gut to the necessity of having recourse to any of the powers available under the Concurrent List.

A provision like Section 22 can be made in the exercise of the power that is available under the entries in List II. When that is so, there can be no question of any repugnancy with the provisions of any law falling under the Concurrent List. In a recent decision of the Supreme Court reported in A. S. Krishna v. State of Madras, : 1957CriLJ409 (O), in which the constitutional validity, of certain provisions of the Madras Prohibition Act was upheld by the Supreme Court, His Lordship Venkatarama Ayyar, J. has observed at, follows :

'The position, then, might thus be summed up : When a law is impugned on the ground that it is 'ultra vires the powers of the Legislature which enacted it, what has to he ascertained is the true character of the legislation. To do that, one must have regard to the enactment as a whole, to its objects and to the scope and effect of its provisions. If on such examination it is found that the legislation is in substance one on a matter assigned to the legislature, then it must be held to be valid in its entirety, even though it might incidentally trench on matters which are beyond its competence. It would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are 'intra vires', and what are not' The limitation which has been imposed by section 22, on the powers of the Courts in the matter of questioning any assessment made or order passed under the Act, or the Rules thereunder by any assessing authority, cannot be viewed independently of the other provisions in the Act under which it is open to an aggrieved party to have recourse to remedies by way of appeal, revision or reference to the High Court, in accordance with the procedure prescribed by the Act.

It is only in consequence of a separate and adequate machinery provided for by the Act, that it is enacted in Section 22 that no such assessment or order shall be called in question in any Court. It merely amounts to saying that under the circumstances, except as provided under the Act itself the Courts shall not have the power to question such assessment or order made under the Act or Rules by the assessing authority. A provision like this is also ancillary or incidental to the legislative competence which the Legislature of a State has, to make a law in respect of a matter falling within the State List.

We are not satisfied that by the enacting of a provision like Section 22, there would be any encroachment in regard to any matter falling under the Concurrent List. Even if it were to be assumed for purposes of argument that there has been any incidental encroachment, the same will not affect the validity of the law as long as the State Legislature is acting in the exercise of its competence arising wholly within the State List.

Under, these circumstances, when a provision like Section 22 could be made by the Legislature of a State in the exercise of its legislative competence derived wholly from the entries in the State List, there is absolutely no reason as to why this provision found in a pre-constitution law which is continued under Article 372 of the Constitution, should not be held to be valid. We do not find any substance in the contention that Section 22 of the Mysore Sales Tax Act, 1948, is void on the ground that it is repugnant to the provisions of either the Code of Criminal Procedure or the Indian Evidence Act.

9. Sri Ullal, the learned Counsel for the accused persons has also not been able to convince us as to why persons against whom any assessment has been made or any order has been passed under the Act or Rules by any Assessing Authority and who have not complied with such orders, should be placed on the same fooling as offenders under other laws. Offenders against other laws would be governed by the provisions of those laws. Subject to the remedies by way of appeal or revision or reference to the High Court as provided for in the Sales Tax Act itself, the intention of the Legislature is that an assessment made or an order passed by any assessing authority under the Act or the Rules should be final.

It is in order that this finality may not be disturbed, that Section 22 prohibits such an assessment or order being called in question in any Court. It cannot be said, under the circumstances, that such a provision is either unreasonable or unfair. In the case of Syed Mohanied and Co. v. State of Madras (which is reported in : AIR1953Mad105 (I), a contention was advanced that Section 16-A of the Madras General Sales Tax Act was repugnant to Article 14 of the Constitution. This contention was not accepted. His Lordship Venkataranm Ayyar, J. has observed as follows :

'The contention is that the Section prevents the petitioners from showing that they are not liable to be taxed under the Act and is, therefore opposed to rules of natural justice. There would have been substance in this objection, if the petitioners had been denied an opportunity of contesting the claim -- before an order of assessment was made. But where, as here, the tax is determined after notice to the assessees, it is not repugnant to rules of natural justice to provide that the validity of assessment shall not be questioned at the stags of realisation of the tax'.

The prohibition in Section 22 of the Act applies to all persons in respect of whom any assessment has been made or any order has been passed by any assessing authority under the Act and Rules; there is no discrimination as between persons falling under that category. Having regard to all these circumstances, we arc not satisfied that there is any substance in the contention that Section 22 of the Act offends Article 14 of the Constitution.

10. We answer the question referred to us, as follows :

'Section 22 of the Mysore Sales Tax Act, 1948 is not 'ultra vires' of the Constitution or the Code of Criminal Procedure and that the accused is not entitled to question any assessment or order made by the assessing authority under the Act or the Rules thereunder.'

11. Reference answered in negative.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //