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Kalbarga Nagaiah and ors. Vs. the State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition Nos. 236 to 1317 of 1957 and 6 to 346 of 1958
Judge
Reported inAIR1959AP225; [1959]10STC378(AP)
ActsHyderabad Sales of Motor Spirit Taxation Regulation, 1358F - Sections 1; Constitution of India - Articles 245 and 246; Constitutional Law; Andhra Pradesh General Sales Tax Act, 1957 - Sections 2, 5, 8 and 41; Hyderabad General Sales Tax Act, 1950 - Sections 27; Essential Supplies (Temporary Powers) Act, 1946 - Sections 17(4); Essential Supplies (Temporary Powers) (Amendment) Act, 1950; Essential Commodities Act, 1955 - Sections 16(1)
AppellantKalbarga Nagaiah and ors.
RespondentThe State of Andhra Pradesh and ors.
Appellant AdvocateK. Rajah Iyer, ;T. Anantababu, ;P. Kameswara Rao, ;G. Ramanujulu Naidu, ;I.V. Narasimha Rao, ;A.S. Prakasam, ;C. Mallikharjuna Rao and ;B. Satyanarayana, Advs.
Respondent AdvocateD. Narasa Raju, Adv. General and ;P. Ramachandra Reddy, 3rd Govt. Pleader
DispositionPetition dismissed
Excerpt:
sales tax - constitutional validity - section 1 of hyderabad sales of motor spirit taxation regulation 1358f, section 2 (f) of hyderabad general sales tax act, 1950, sections 8 and 41 of andhra pradesh general sales tax act, 1957 and article 245, list 1 entry 53 and list 2 entry 54 of constitution of india - writ seeking direction to refrain state government from imposing tax under provisions of hyderabad sales of motor spirit taxation regulation - motor spirit was exempted from tax under hyderabad sales tax act as they were already being taxed under regulation - consequently regulation cannot be deemed to have been repealed by provisions contained in sales tax act. - - they complain that the respondent has been levying and collecting sales-tax on the sales of petrol, purporting to.....p. chandra reddy, c.j.1. these petitions raise common questions of law and could, therefore, be disposed of together. they are filed for the issuance of a writ of mandamus or any other appropriate writ directing the state of andhra pradesh to refrain from imposing or collecting any tax under the provisions of the hyderabad sales of motor spirit taxation regulation, (xxiv of 135s-f). the petitioners are dealers in motor spirit, diesel oil, etc., and have banks situated either in the city of hyderabad or other places in the state of andhra pradesh.they complain that the respondent has been levying and collecting sales-tax on the sales of petrol, purporting to exercise the powers conferred on them under the above mentioned regulation and are threatening to cancel the licences in the event of.....
Judgment:

P. Chandra Reddy, C.J.

1. These petitions raise common questions of law and could, therefore, be disposed of together. They are filed for the issuance of a writ of mandamus or any other appropriate writ directing the State of Andhra Pradesh to refrain from imposing or collecting any tax under the provisions of the Hyderabad Sales of Motor Spirit Taxation Regulation, (XXIV of 135S-F). The petitioners are dealers in motor spirit, diesel oil, etc., and have banks situated either in the city of Hyderabad or other places in the State of Andhra Pradesh.

They complain that the respondent has been levying and collecting sales-tax on the sales of petrol, purporting to exercise the powers conferred on them under the above mentioned Regulation and are threatening to cancel the licences in the event of failure of the petitioners to comply with the demands of the Sales-tax Department, though such an impost is illegal and ultra vires the powers of the State Government.

2. In these petitions, the constitutionality of the Regulation mentioned above is impugned. Before, we refer to the contentions urged on behalf of the petitioners, it is convenient to refer to the material portions of this Regulation :

'Whereas it is expedient for the levy of a tax on retail sales of motor spirit in Hyderabad State;

Now, therefore, in exercise of the powers vested in me as the Military Governor of the Hyderabad State and all other powers enabling me in that behalf, I hereby make the following Regulation :

Section 1, This Regulation may be called the Hyderabad Sales of Motor Spirit Taxation Regulation 1358-F and shall come into force at once in the whole of Hyderabad State.'

Section 3 is the charging section and provides for the levy of two annas per gallon of petrol sold, payable by the persons effecting the sale thereof. Section 5 (1) anacts :

'No person shall, after the commencement of this Regulation carry on business in motor spirit as an importer or a wholesale or retail dealer at any place in Hyderabad State unless he has been registered as such under this Regulation.''

Sub-section 2 (a) of Section 5 :

'No importer or wholesale dealer shall unless also registered as a retail dealer under this Regulation, sell motor Spirit for consumption Or sale in Hyderabad State 'to any person other than an importer or a wholesale dealer or retail dealer, registered as such under this Regulation.'

Sub-section 2 (b) of Section 5 :

'No retail dealer shall use or transfer for consumption any motor spirit stocked by him without its being included in his accounts and in the next return of retail sales submitted by him under Section 6 (b).'

Section 9 casts an obligation on importers and wholesale deallers to keep books of account and submit returns. Penalties for infringement of any of the rules contained in the statute, are contained in Section 11.

3. It is urged that as the Military Governor carried on the administration of the erstwhile Hyderabad State as a conqueror all acts and laws attributable to him in such capacity came to an end the moment that regime ceased to exist.

Alternatively, it was contended that assuming it was in his capacity as a Civil Administrator that he enacted various laws, it was ultra vires his powers as he had no competence to do it. The first part of the argument lacks substance. The position of the Military Governor could not be equated to that of a conqueror. When he assumed the role of an administrator it was not as a conqueror that he did it. We do not think that the police action undertaken by the Union of India could be described as an invasion of Hyderabad State.

It has to be; remembered that there was a standstill agreement between the erstwhile Hyderabad State and the Union of India prior to the police notion which took place in September, 1948 by and under which all administrative arrangements as to matters of common concern including external affairs, defence and communications which were existing between the Crown and the Nizam immediately before 15-8-1947 should continue between the Dominion of India and the Nizam.

There was some lawlessness and trouble in the State consequent upon the activities of some Organisations which were inspired by some ulterior motives. This led to the Union Government sanding some force to restore law and order in the State. In such a situation, we find it difficult to regard it an invasion of Hyderabad State as argued by the counsel for the petitioners.

4. However, it is not necessary for us to determine the exact nature of the police action from a juridical point of view as the attendant circumstances and all the material that is placed before us clearly establish that the Military Governor acted as an administrator only, as a representative of the Nizam of Hyderabad and not as an invader who wanted to administer martial law.

5. The very passage called in aid by the counsel for the petitioners in V.P. Menon's ' Story of the Integration of Indian States' destroys the theory put forward for the petitioners :

'The first question we discussed was the basis of administration of Hyderabad. There were two choices before us. The first was to administer the State under Martial law; the second, which was more acceptable from all points of view, was to carry on the administration with the co-operation and in the name of the Nizam. The Nizam whom I saw that same afternoon was ready to co-operate.

Shiva Lal and I then sat together to work out a formula which without affecting the subordination of the Military Governor in service matters to the G. O. C.-in-G., Southern Command, invested him not only with full executive authority, but also with power to issue regulations having the force of law. The formula was embodied in a Firman which was promulgated by the Nizam on the following day. This Firman provided the basis for authority we exercised in Hyderabad until the new Constitution came into force.'

It is thus clear that the Military Governor did not seek to administer the State under the Martia law, but exercised his authority derived from the Nizam. The Firman referred to in the passage was issued by the Nizam on 18-9-1948 and published in the Gazette (Extraordinary) dated 20-9-1948, and is in the following words :

'Whereas the General Officer Commanding-in-Chiff Southern Army has appointed Major General J.N. Chaudary, O. B. E., to be the Military Governor for the Hyderabad State and whereas all 'authority for the administration of the State vests in him' I hereby enjoin all the subjects of the State to carry out such orders as he may deem fit to issue from time to time.

1 appeal to all officers of the State administration and subjects of the; State to render faithful and unflinching obedience to the military Governor and conduct themselves in a manner calculated to bring about the speedy restoration of law and order in the State.'

It is maintained by the learned Counsel for the petitioners that this Firman has not invested the Military Governor with any authority for the administration of the State but merely recognised the independent authority which the Military Governor possessed as a representative of the Union of India and did not have the effect of conveying any authority to him to administer the State;, having regard to the language employed therein. This result flows from the nature of the first two clauses of toe Firman. The operative words of the document do not indicate that any power was sought to be conferred on the Military Governor, argues the learned Counsel.

6. We do not think we can accede to this contention. It should he borne in mind that this Firman is addressed to the people and the officers of the State, the former to carry out the orders and the latter to obey him and help him in the speedy restoration of law and order in the State. The preamble indicates in no uncertain terms that (he 'Military Governor appointed by the General Officer Commanding-in-Chief was invested with all powers of administration.

The intendment of these clauses is to inform the people about the position of the Military Governor from the moment of the issue of the Firman and they do not communicate the idea of an acknowledgment of the pre-existing authority of the said Military Governor. It cannot be thought that the Nizam was derogating from his own sovereignty by recognising the power of some other outside body to vest administrative authority in the Military Governor.

We cannot give weight to the argument of the learned Counsel for the petitioners that the expression 'now vests in him' connotes that the vesting of authority had already taken place without any reference to the Nizam. These words denote that the power is vested in him from that moment and by reason 'of the Firman.

If really the Military Governor owed his authority to some one else and was not constituted his agent or delegate, the Firman was unnecessary and uncalled for because the former could compel the obedience of the subjects as well as the officers concerned in his own right dc hors the directions of the Nizam. He would not look to the Nizam for the issue of instructions to his people or to his officers.

7. That the import of the earlier part of the Firman is the one attributed to it by us could be gathered from the second Fiman issued on 7-8-1949 which is in the following words :

'With reference to my Firman dated 19-9-1948, in which I referred to the fact that all authority for the administration of the State now vests in the Military Governor, I hereby declare that the said authority includes and has always included authority to make Regulations.'

This declaration, in our opinion, establishes beyond doubt that the Nizam regarded himself as the source of all the authority of the Military Governor whether it be in the executive or the legislative fields. This clarification would not be needed if be had nothing to do with the original conferment if authority on the Military Governor. The third Firman dated 1-12-1949 appointing Mr. M.K. Vellodi to be the Chief Minister in the place of the Military Governor and directing that 'all the power of administration including powers of legislation vested in the Military Governor before the said date are exercisable by the Chief Minister,' has also the same effect.

8. That apart, the passage from V.P. Menon's Story of Integration of States, extracted supra establishes that the Firman was the result of talks between Mr. Menon and the Nizam and the powers of administration which the Military Governor exercised were clearly traceable to that Firman. It has to be noted that up to the date of the talks mentioned above the Nizam of Hyderabad was the supreme head of the State and he was not divested of any of his powers by any outside authority.

Thus, being the sole repository of the judicial, executive and legislative powers he alone could delegate either all or any of the functions prior to the inauguration of the Constitution to whomsoever he chose. Further no cliam has been put forward by the Military Governor that his authority was derived from the Union of India.

9. In construing a document of this description or statute we must take into account the avowed intention, the purpose and the surrounding circumstances in which it came into existence. 'The interpreter should so far put himself in the position of those whose words he is interpreting, as to be able to see what those words relate to.' (Maxwell's Interpretation of Statutes, 10th edition, p. 20) Applying three criteria, the only reasonable conclusion that should be reached is that the Military Governor had derived the, authority to carry on the administration and to enact law from the Nizam, Even, if (his document is ambiguous and susceptible of: two constructions, we should not lean against an interpretation which would lead to inconvenient results.

10. It was next urged that whatever might have been the intention of those who drafted the Firman the language had not given expression to it. The language of the Firman is not adequate to convey such a concept. The wording by which the sovereign powers are sought to be conferred should be specific and unambiguous. In the absence of it, the delegation of powers cannot be inferred. We are unable to accept this contention.

It is an act of a sovereign in the exercise of his supreme powers and no particular words or a special form is needed to clothe an individual of his choice with power to do anything which he himself could have done. In our opinion, the object and intention of the Nizam are clearly expressed in the Firman.

11. We are supported in this view by a judgment in Habeeb Mohammad v. State of Hyderabad, : [1954]1SCR475 . It was remarked by Mahajan, J- (as he then was) who delivered the opinion of the Court that the Nizam under a Firman had delegated all his powers of administration including power of legislation to the Military Governor and that being so no further reference to Niznm was necessary and the Military Governor was entitled to issue the Ordinance in question. It is true that this point was not specifically put in issue and debated and it was assumed that the delegation was effected by means of the Firman.

All the same, it has great weight (even if it has not got the binding character). The Hyderabad High Court on two occasions had to consider the powers of the Military Governor. In Kasim Rizvi v. State of Hyderabad, AIR 1951 Hyd. 97, a Bench of the Court ruled that H. E. H., the Nizam vested all authority of the Government in the then Military Governor who enacted the Regulations impugned in that case, which consequently dispensed with the necessity for the assent of the Nizam to Regulations of that kind and the words 'all authority' in the Firman in question were comprehensive words.

12. In Sarwarlal v. State, AIR 1954 Hyd 227, the problem that was posed was whether the Hyderabad Jagir (Commutation) Regulation (XXV of 1359-F) was valid- The answer to this depended upon whether it was within the Jurisdiction of the Military Governor to issue such Regulations. The learned Judges decided that the legislative power was delegated by the Nizum to the Military Governor and later to Sri M.K. Vellodi who succeeded the Military Governor and consequently both were competent to legislate laws for the State. In dealing with this controversy, it was observed by Jagan-mohan Reddy, J.:

'Neither the validity of this delegation of legislative powers by the Nizam nor the competency of the Military Governor or Shri M.K. Vellodi to make the aforesaid Regulation can be challenged after what has been held by the Supreme Court in : [1954]1SCR475 (supra).'

It may be mentioned in passing that the constitutional validity of this Regulation is not put in the present form in any of the petitions. All that was objected to is that the power to promulgate Regulations was not comprehended within the ambit of authority conferred on the Military Governor. The answer to that is furnished by the second Firman referred to above. The authority was an all comprehensive one and included the executive and legislative powers. So, the Regulation in dispute was well within his legislative competency.

13. For alt these reasons, we disallow the objection in this behalf.

14. We may here dispose of an allied topic raised by Sri Narasimharao counsel for some of the petitioners. The contention pressed upon us by him is that it was not within the competence of the Military Governor to make this Regulation as there was no valid delegation of legislative power to him.

According to him, it was not constitutionally permissible for the Military Governor to receive any powers from the Nizam being only a subordinate to the Government of India and not that of the Nizam.

15. Support for this proposition is sought from a passage in Salmond's Jurisprudence occurring at page 159 (30th Edition) :

'Legislation is either supreme or subordinate. The former is that which proceeds from the supreme or sovereign power in the state which is not therefore capable of being repealed, annulled or controlled by any other legislative authority. Subordinate legislation is that which proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority.

The legislation of the Imperial Parliament is supreme for 'what the Parliament doth, no authority on earth can undo. All other forms of legislative activity recognised by the law of England are subordinate. They may be regarded as having their origin in a delegation of the power of Parliament to inferior authorities, which has in the exercise of their delegated functions remained subject to the control of the sovereign legislature.'

We do not think this passage warrants the proposition put forward by the learned Counsel. This does not involve the idea that the delegation can only he to an official subordinate. There is no concept of a delegation being a subordinate in the sense that he has to carry out the directions of the official superior. AH that it implies is that the delegatee should operate under the control of the Legislature from which authority is derived and ''on the continuing operation of which its capacity to function rests.'

It is only in that sense that there is dependency [by the delegatee. The power delegated could be (withdrawn, altered, expanded or further curtailed at any time. So, the, subordination contemplated is only, legislative subordination. As was said by Dixon, J., which is extracted by Mukherjea, J. (as he then was), In re Article 143 of The Constitution of India and Delhi Laws Act (1912), 1951 SCJ 527 : (AIR 1951 SC 332), 'a subordinate legislation cannot have the independent and unqualified authority which is an attribute of true legislative power.' Further there is no analogy of subordinate legislation in a case where a sovereign body entrusts an authority with legislative powers, and the maxim delegatus nonpotest delegare has no application.

16. Another aspect of the matter is that the action of the supreme head delegating his authority could not be questioned in a court of law. The Nizam was 'legal ommi-potent despot' in the three spheres i.e., the executive, legislative and judicial, prior to the inauguration of the Constitution. He could exercise his sovereign power by delegating these functions or even by creating new bodies empowering them to enact laws.

It is not permissible 'to test it on the touchstone of judicial precedent or judicial scrutiny.'' He was the supreme sovereign till 26-1-1950 and consequently the expression of his opinion could not be impugned on any ground in any court. An act of a sovereign whatever might be the consequences could not be attacked on the ground that it was illegal or unconstitutional.

17. In this context, a passage in Holland's Jurisprudence is pertinent (page 364 11 Edition)' :

'The sovereign part of the State, as thus ascertained, is omnipotent. Since, it is the source of all law its acts can never be illegal. As little can they be, strictly speaking, unconstitutional. The latter term is properly applied only to characterise an act of an inferior political authority in excess of its delegated powers. X X X X X

But the authority of the King, Lords and Commons in England is fettered by no such limitation. An act is, strictly speaking, never unconstitutional unless it is also illegal and can never be either, if it is the act of the Sovereign power.'

To the same effect is the rule stated in Diceys Law of Constitution (page 90, 9th Edition) :

'There does not exist in any part of the British Empire any person or body of persons, executive, legislative or judicial, which can pronounce void any enactment passed by the British Parliament on the ground of such enactment being opposed to the Constitution or on any ground whatever of course, its being repealed by Parliament.'

The position of the Nizam could be equated to King, Lords and Commons in England before the Constitution. He was the 'supreme legislature, supreme judiciary and supreme head of the executive' and there were no constitutional limitations upon his authority to act in any of these capacities. See Ameer Un-Nissa Begum v. Mahanoob Begum, AIR 1935 SC 352. Therefore, we reject this contention also.

18. We will now advert to the point sought to he made bv Mr. Rajah lyer on the basis of Entry No. 53 in die Union List, Schedule VII of the Constitution :

'Regulation and development of oil fields and mineral oil resources; petroleum and petroleum products other liquids and substances declared by Parliament by law to he dangerously inflammable.'

What is maintained is that this entry has concentrated the legislative power touching the subjects enumerated therein in the centre and has divested all the States of law-making power in that behalf. We think this submission is misconceived. The item referred to has no reference to the imposition of safes-tax in regard to this subject. The authority to levy these taxes is given to the States under the Constitution by means of Entry 54, List 2, Schedule VII;

'Taxes on the sale or purchase of goods other than newspapers, subject to the provision, of Entry 92-A of 'List' I.'

The impost in question is not covered by the provisions of Entry 92-A of List I and is, therefore, not subject to the qualification. It is thus clear that the levy of taxes on sales of all goods other than newspapers and those enumerated in Entry 92-A of List I is within the exclusive field of the State Legislatures and in enacting a few for imposing sales tax on petroleum and petroleum goods, the State Legislature does not transgress on the domain allotted to the centre. There is, therefore, no substance in this argument either.

19. We will now pass on to the contention founded on the Hyderabad General Sales-tax Act (XIV of 1950). What is said is that this Act has specifically exempted motor spirit as defined in Hyderabad Sales of Motor Spirit Taxation Regulation under Section 2 (f) read with item 35 of Schedule I and consequently the provisions of the Regulation must be deemed to have been nullified or repealed by necessary implication.

20. The learned Counsel draws our attention to the definition of turnover in the later enactment which says :

'Turnover means the aggregate amount lor which the goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration'

and argues that since a dealer is required to include all the sales which include petroleum and petroleum products and since exemption has been granted under Section 2(f) of this Act in regard to ail the goods specified in Schedule I including motor spirit as defined in the Hyderabad Sales Motor Spirit Taxation Regulation, petroleum products, have been excluded from the purview of taxation for all purposes. Consequently the offending Regulation must he deemed to have been repealed by necessary intendment. We are not impressed with this argument.

21. The turnover envisaged in the Act is that relating to goods which are taxable under it. The dealer is not called upon to include sales in respect of goods which are exempted from taxation altogether. If these goods are not liable to imposition of tax they do not come within the scope of the Act.

In that premises the turnover need not contain their sale or purchase of such goods. As pointed out by Bhagwati, J. in A.V. Fernandez v. State ot Kerala, (S) : [1957]1SCR837 , 'the very fact of their non-liability to tax is sufficient to exclude them from the calculation of the gross-turnover as well as the net turnover on which sales tax can be levied or imposed.'

22. Even on the footing that the turnover should comprise such sales we do not see how that advances the case of the petitioners. The exemption granted by the Act is only in relation to that Act and it is not a general examination for all purposes and from the purview of all Acts. Section 2 itself commences with the words:

'In this Act unless there is anything repugnant in the subject or context.'

It is clear from this very enactment that motor spirits were exempted from tax under the Act for the reason that they were taxed under another enactment. This is not a case of there being two parallel enactments seeking to impose tax on the same articles in which case it may be permissible to infer that the earlier one stands repealed in that regard.

23. Moreover, the impugned Regulation deals with specified articles while the Hyderabad General Sales-tax Act of 1950 concerns itself with the generality of the goods. In such a position the maxim Generalia Specialibus non derogant i.e., general provisions will not abrogate special provisions, also applies to a case like this.

24. That apart, the later enactment does not purport to touch die petroleum and petroleum products. On the other hand it has specifically exempted in view of the circumstances that they were dealt with under another enactment. This view of ours accords with the opinion expressed by the Nagpur High Court in Firm A. Ahamedji Bhai v. State of Madhya Pradesh, AIR 1953 Nag 29.

25. An argument is built on Section 27 of this Act which recites;

'Nothing in this Act shall affect the application of the Luxury Sales-tax Act, 1357F. (hereinafter in this section and in Section 28 referred to as the said Act) to the assessment and levy of tax imposed by the said Act in respect of the year 1357-F and 1358-F and to all matters arising therefrom.'

It is submitted that when the Legislature intended to leave an earlier enactment unaffected it has made a specific provision in that behalf under this section and it follows as a corollary that the Hyderabad Sales of Motor Spirit Taxation Regulation was not saved. Section 27 cannot reasonably give rise to any such contention. Aside that, Sub-section (3), destroys altogether this argument.

'Save as provided in Sub-sections (1) and (2) the said Act shall cease to have effect.'

It is manifest that when the Legislature wanted to repeal an earlier law, it has specifically said so. It it has contemplated that the Regulation in question should not continue to be in force it would have expressed it in unambiguous language. Nor is there any scope to infer such a repeal by necessary implication. The submission in this regard is therefore not well-founded.

26. An identical argument is advanced in relation to the latest enactment, the Andhra Pradesh General Sales Tax Act, 1957. This statute also contains similar provision in regard to the motor spirits. The charging section in that Act is Section 5. Section 8 specifically exempts from tax all goods enumerated in the schedule to that Act and motor spirit is one of them. Our answer in regard to the Hyderabad General Sales Tax Act governs this also. It is also worthy of note that the repealing section here i.e., Section 41 does not embrace the Regulation now questioned.

27. Another point raised in regard to this subject was that at any rate even it this Regulation was kept alive, the rate of tax cannot exceed that contemplated by Section 5 of the Andhra Pradesh General Sales Tax Act. This does not require much thought. The short answer is that the rate contemplated by this new Act has application only to tax leviable under that Act and cannot be attracted to cases which are governed by another law.

28. There remains the question posed with reference to the Essential Supplies (Temporary Powers) Amendment Act, 1950 and the Essential Commodities Act of 1955. What is maintained is this. The first-mentioned Act has been extended to Hyderabad State by a notification dated 17-8-1950. That Act comprehends within its compass petroleum and petroleum products.

It contains provisions regulating the production, supply and distribution of trade and commerce and other commodities which are essential for the life of the community. Section 3 provides inter alia for regulating by licences, permits or otherwise, the production or manufacture of any essential commodity, for controlling the prices at which any essential commodity may be bought or sold, for regulating by licences, permits, or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity. Section 17(4) of the Act recites:

'If immediately before the day on which, this Act comes into force in a Part-B State there is in force in that State any law which corresponds to this Act such corresponding law shall on that day stand repealed in so far as it relates to any of the essential commodities governed by this Act.'

The second of the Acts contained similar provisions in regard to matters enumerated above. By Section 16(1) of that enactment, any other law in force in any State before the commencement of this Act in so far as such law controls or authorises the control of production, supply and distribution of and trade and commerce in any essential commodity is repealed. Since the offending Regulation contains analogous provisions in regard to the subjects catalogued above, the Regulation must be deemed to have been repealed by these two statutes.

29. We think this submission is inadmissible. We are not satisfied that the Hyderabad Sales ot Motor Spirit Taxation Regulation embodies any law corresponding to either of the two Central Acts though it deals with petroleum and petroleum products.

The object and the purpose of the Regulation is essentially different from those of the other Statutes. It does not seek the production or manufacture of any essential commodity or control the prices at which such commodities might be bought or sold or regulate the storage, transport, distribution, disposal, etc., of the petroleum and petroleum products.

30. It is argued that the impugned Regulation purports to regulate the distribution and storage of petroleum and to control the price at which it should be purchased and sold. We are unable to agree with this proposition.

31. First of all, the Regulation does not enforce any restrictions in regard to storage and transport of petroleum and petroleum products. The learned counsel has not been able to draw our attention to anything in the Act bearing on that particular aspect.

He only relies upon Sections, 5, 6, 8 and 11. The first three sections require the importers and dealers to register themselves, to keep books of account and submit returns. Section 11 only provides for penalties for infringement of any of the rules enacted in the Regulation, These cannot have the effect of interfering in any way with either the storage of these commodities or the transport or distribution thereof. The scope and the ambit of the sections set out above are altogether different from those of either the Essential Supplies (Temporary Powers) Act or the Essential Commodities Act.

The former seeks to exercise effective controlover the dealers and to see that they do not escapefrom the charging section They are not independentor fundamental provisions but are merely ancillaryto the real purpose, namely, the levy and collectionof the impost permitted by the Regulation. TheseI two 1 legislations belong to two distinct fields andI they do not impinge upon one another.

In considering the character of a legislation, we have to take into account the pith and substance of the Act. If in enacting a law within the exclusive field of a Legislature it encroaches incidentally upon any subject within the purview of another list, still it is saved having regard to the dominant purpose of that law. It is a well accepted canon of construction that legislative heads should be construed liberally and that it should be assumed that a Constitution intended to invest an appropriate Legislature with a right to legislate not only in respect of a particular legislative topic but in regard to all matters ancillary thereto. The provisions in the Regulation in issue are meant only to subserve the main purpose of the enactment. In such a position, there is no question of any repeal thereof by trie Central Statute.

32. Lastly, it was urged that by levying tax on the sale of motor spirits the Provincial Legislature Is interfering with the price structure of these products. According to the learned counsel, the price has to be fixed by the Union Government and the dealers have to conform to it.

By adding a tax of two annas on every gallon of petrol the price is enhanced and this amounts to fixation of a different price by the State Government and thus the State Government seeks to control the prices. So far as the consumer is concerned, what matters to him is the ultimate price he pays and he has no concern with the component parts of the price. The effect of the tax is to vary the price filed by the Central Government. Since this is a parallel provision conflicting with that of the other two enactments referred to above, this must be deemed to have been repealed.

33. We do not think that this consequence flows from the imposition of sales-tax on these commodities. The levy of tax has nothing to do with the control of price. The State Government is not in any way concerned with the price at which petroleum is bought or sold and it is only interested in the collection of the tax.

That cannot amount to fixation or controlling on prices. It is also not the look-out of the State Govern-ment as to how the dealer makes up for the payment of this tax. It does not in the least matter to me State whether this is collected from the consumer or not. It is the primary liability of the seller to pay the tax irrespective of whether he has any authority to_ collect it from the purchaser or not. It is open to him to put up the price so as to include the sales-tax even If there is no obligation or liability on the part of the consumer to pay it as sales-tax. It is any-the-less a tax on goods.

It could not be said that the intention of the Legislature in passing either the Essential Supplies (Temporary Powers) Act or the Essential Commodities Act was to prevent the State Governments from levying taxes on the sales of goods, a subject which is entirely within their sphere. In these circumstances, we are of opinion that the impact of the two pieces of Central legislation on the Regulation in question has not produced any adverse results

They have left the operation of the Regulation unaffected. It has survived in spite of these statute and still holds the field, and the imposition of taxes by virtue of that Regulation is legal. Hence, no exception can be taken to it on any of the grounds urged in support of these petitions.

34. In the result, all the writ petitions are dismissed with costs. Advocate's fee in each of them la fixed at Rs. 75/-.


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