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Mohammad Bhudan Khan and ors. Vs. the State of Andhra Pradesh, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes;Constitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 215 of 1957 and 743, 744 and 780 of 1958
Judge
Reported inAIR1959AP237; [1959]10STC263(AP)
ActsMadras Sales of Motor Spirit Taxation (Andhra Pradesh Extension and Amendment) Act, 1958; Constitution of India - Articles 245, 246 and 246(3); States Re-organisation Act, 1956 - Sections 119 and 120; Madras Sales of Motor Spirit Taxation Act, 1939
AppellantMohammad Bhudan Khan and ors.
RespondentThe State of Andhra Pradesh, Hyderabad and ors.
Appellant AdvocateT. Lakshmiah and ;T. Dhanurbhandu, Advs.
Respondent AdvocateAdv. General and ;3rd Govt. Pleader
DispositionPetition dismissed
Excerpt:
.....- validity of state law - articles 245 and 246 of constitution of india, sections 53 and 54 of andhra state act, 1953, sections 119 and 120 of states re-organisation act, 1956 and madras sales of motor spirit taxation (andhra pradesh) extension and amendment act, 1958 - vires of madras act, 1958 in question - challenged on ground that statute originally enacted by madras legislature and therefore andhra pradesh legislature cannot amend the same - section 53 of andhra state act, 1953 corresponding to section 119 of states re-organisation act made all laws operative which were in force in that part of madras as if act was originally enacted by andhra pradesh legislature - circumstance of it being originally enacted by madras legislature made difference - andhra pradesh legislature by..........their application to the new state. that section had not vested any authority in the andhra state legislature to alter laws. one legislature cannot, in the absence of power expressly conferred, amend, modify or repeal laws made by another.consequently, it was beyond the jurisdiction of the andhra state legislature to amend or repeal the madras sales of motor spirit taxation act, 1939 which was originally passed by the madras state legislature. that could be done only by the madras state legislature. the act is unconstitutional for another reason.under article 246(3) of the constitution, the state legislatures have exclusive power to make laws for the states in respect of subjects assigned to them and this duty could be properly discharged only by making independent legislations.....
Judgment:

P. Chandra Reddy, C.J.

1. These three petitions raise a common question of law and were, therefore, heard together.

2. The petitioners, who are dealers in petroleum products, have petrol hunks in different parts of the city of Hyderabad. They were called upon to register themselves as dealers among other things, as required by the provisions of the Madras Sales of Motor Spirit Taxation (Andhra Pradesh Extension and Amendment Act. 1958) Act V of 1958 (hereinafter referred to as the Act) which was passed by the Andhra Pradesh Legislature and to which the assent of the Governor was obtained on 25-3-1958.

This led them to file the petitions under Article 226 of the Constitution of India for the issue of a Writ of Mandamus directing the respondents to forbear from giving effect to the provisions of the Act, questioning the validity of the said Act. The vires of the Act are challenged before us on the ground that it was not competent for the Andhra Pradesh legislature to amend the Madras Sales of Motor Spirit Taxation Act 1939 (Act VI of 1939) and to extend it to the territory compendiously called 'Telangana'.

3. The contention is enaborated thus. After the creation of the Andhra State, the Madras Sales of Motor Spirit Taxation Act, 1939 became extraterritorial and the Madras legislature could not have extended its territorial limits. For that reason, it had become inoperative in that area which was once comprised in the Madras State.

It is to obviate that difficulty that the Parliament, which enacted the Andhra State Act (30 of 1953) in exercise of the constituent power vested in it by Articles 2, 3 and 4 of the Constitution, inserted Sections 53 and 54 in the said Act. Section 53 provided for the continuance of the laws in force immediately before the appointed day in the new State.

Section 54 enabled the appropriate Government to make adaptations and modifications of those laws to facilitate their application to the new State. That section had not vested any authority in the Andhra State legislature to alter laws. One legislature cannot, in the absence of power expressly conferred, amend, modify or repeal laws made by another.

Consequently, it was beyond the jurisdiction of the Andhra State Legislature to amend or repeal the Madras Sales of Motor Spirit Taxation Act, 1939 which was originally passed by the Madras State Legislature. That could be done only by the Madras State Legislature. The Act is unconstitutional for another reason.

Under Article 246(3) of the Constitution, the State Legislatures have exclusive power to make laws for the States in respect of subjects assigned to them and this duty could be properly discharged only by making independent legislations and not by adapting laws enacted by another legislature. The latter course amounts to abdication, which is a breach of duty cast on the Legislature, Adaptation and extension of laws do not fulfil the requirements of Article 246(3) of the Constitution.

In the absence of specific conferment of such power, the legislature has no authority to do it. These arguments are sought to be founded upon Shib Nath v. A. E. Porter, AIR 1943 CM] 377 (SB), Attorney General for Ontario v. Attorney General for the Dominion of Canada, 1896 AC 348, which was followed in AIR 1943 Cal 377 (SB) etc., and some other cases.

4. We shall first turn to the rulings referred to by the learned counsel for the petitioners. In AIR 1943 Cal 377 (SB) what happened was this. The Federal Court declared that Rule 26 of the Defence of India Rules was ultra vires Section 2, Sub-section 2, Clause (o) of the Defence of India Act.

To nullify the effect of this decision, the Governor General promulgated an Ordinance enlarging the rule-making power of the Central Government under the Defence of India Act so as to cover the terms of Rule 26 as it had all along stood. This was done by substituting a new clause for Clause 10 of Sub-section (2) of Section 2 and it was so worded as to make this change operative as from the date of the Defence of India Act. Section 3 was added declaring the validity of the orders passed under Rule 26.

5. The legality of the Ordinance was questioned by some persons who were detained, on various contentions those relevant for the purpose of this enquiry and which found favour with the Calcutta High Court being these. The Governor-General had no power to repeal or amend directly any Act of the Central Legislature by an Ordinance made under Section 72 of the Government of India Act and Section 3 of the Ordinance had no independent existence apart from Section 2 of the Ordinance and therefore would stand or fall with that section. These propositions were accepted by the High Court with the result that the detenus were directed to be released.

6. On appeal by the Provincial Government, the Federal Court reversed the judgment of the High Court. The decision of the appellate Court was based on the validity of Section 3. The learned Judges disagreed with the High Court with regard to the incidence of Section 3. They said that Section 3 had not amended or repealed any provision of the Defence of India Act and that it was not so dependent upon or connected with Section 2 as to be incapable of being enforced by itself.

They did not express any final opinion on the other issue, as they felt it unnecessary to go into the other matter. In passing it was observed that an Ordinance could for the period of its duration suspend the operation of the whole or any portion of the pre-existing statutes.

7. When a similar question arose in Emperor v. Benoari Lal, AIR 1945 PC 48, the Judicial Committee decided that the Governor-General, acting under Section 72 of the Government of India Act, 1935 may repeal or alter the ordinary law just as the Indian Legislature itself could do. The pronouncement of the Privy Council makes it clear that the powers of the Governor General derived under Section 72 of the Government of India Act, 1935, were coextensive with those of the Indian Central Legislature. However, that need not detain us, as we are not confronted with such a situation here. We will presently show that the impugned enactment has-not the effect that is attributed to it.

8. The decision in 1896 AC 34S also does not afford any analogy here. That ruling related to the interpretation of Sectios 91 and 92 of the British North America Act. In dealing with the nature of the power of the Dominion Parliament of Canada, in relation to that of a Provincial Legislature corresponding to a situation to that under Section 107 of the Government of India Act, 1935, Lord Watson remarked that while the Dominion Parliament could make laws within its competence so as to override provincial legislation, it could not directly repeal it as no such power has been conferred upon it.

That case is not in point here. We are not here concerned with co-ordinate' legislatures exercising jurisdiction over a particular area. No question of simultaneous authority operating on the same field arises here. This is a case where the local extent of the legislative power of the two bodies is clearly different. Consequently, the doctrine adumbrated in that pronouncement does not apply here.

9. Attorney General of Nova Scotia v. Attorney General of Canada, 1951 Can LR SC 31 also involved the interpretation of Sections 91 and 92 of the British North America Act. It was ruled there that the-Parliament could legislate only on subject assigned to it. Likewise, the provinces could legislate in regard to topics reserved for them. One body could not delegate its legislative powers to the other body, nor was competent to receive them. This decision does not render any assistance to the petitioners. No such problem arises here.

10. The observations in Article 143, Constitution of India and Delhi Laws Act In re, 1951 SCJ 527: (AIR 1951 SC 332) to which our attention has been, drawn bear only on the question of delegation of powers and are not relevant to the present controversy. It is needless to advert to the other reports cited by the learned counsel for the petitioners, as they deal with either distribution of legislative powers or the delegation of legislative functions and no rule which can serve as a guide in this enquiry can be extracted from any of them.

Nor do the principles cited in the text books throw any light on the question to be answered by us. It is, therefore, unfruitful to undertake a detailed survey of those fields'. The problem which presents itself here can be tackled with reference to the governing legal principles and material provisions of the Andhra State Act, the States Re-organisation Act and the impugned Act.

11. By force of Section 53 of the Andhra State Act which corresponds to Section 119 of the States Reorganisation Act, all the laws which were in force in that part of the territory of Madras which was incorporated in the Andhra State, continue to be operative. The Madras Sales of Motor Spirit Taxation Act 1939 (Act VI of 1939) being one such laws, has the same sanctity and same force as laws made by the Andhra Legislature the circumstance that it was originally enacted by the Madras Legislature not making any difference. Section 54 of the Andhra State Act which is analogous to Section 120 of the States Re-organisation Act, has only authorised the State Government to make the necessary adaptations.

12. We need not pause here to consider the soundness of the contention that the moment a territory formerly covered by one State is constituted into a separate State all the laws previously in force within that territory are wiped out, in view of the specific provisions in the Andhra State Act dealing with the local extent of laws.

It is not Section 54 of the Andhra State Act that is the source of authority for the Andhra State legislature to legislate for the State of Andhra, as wrongly conceived by the learned counsel for the petitioners. It is not by virtue of any of the sections of the Andhra State Act that the legislature of a newly formed State could make laws for the people of that State.

It is the Constitution that clothes these bodies with such power and it is traceable to Articles 245 and 240 of the Constitution. Lists 1 and 2 in Schedule VII contain the subjects that are allotted to States and the Union and list III is the list of topics in regard to which both the Parliament and the State legislature have concurrent powers.

The only effect of Section 53 is that the laws prevailing in the area in question prior to the formation of the Andhra State became equally the laws of the new State. It is as if they were enacted by the Andhra State legislature. When once an enactment is regarded as made by a particular legislative body, it is that legislature that is empowerd to amend or repeal that statutory law.

That being the position, the only legislative authority which is invested with jurisdiction to amend, alter or repeal these laws is that which has legislative authority over the local area comprised in the new State. The argument that any amendments to the Madras Saks of Motor Spirit Taxation Act 1939 (Act VI of 1939) as adapted by the State, of Andhra Pradesh get incorporated in the original Act is without any basis and does not deserve much thought. The operation of the original law passed by the Madras legislature within its local areas is not in any way affected by the changes in the Statute as introduced by the legislature of Andhra Pradesh.

13. That the Andhra Pradesh legislature had purported to do what we have indicated above is apparent from Section 3 of the Act in dispute. It is in these terms:

'The Madras Sales of Motor Spirit Taxation Act 1939 (Act VI of 1939) as in force at the commencement of this Act in the territories of the State of Andhra Pradesh which, immediately before the 1st November, 1956, were comprised in the State of Andhra, (hereinafter referred to as the principal Act), as amended by Sections 4 to 11, is hereby extended to and shall be in force in the transferred territories.'

It is thus plain that it was the enactment which became part of the laws of the Andhra State that was amended and extended to the transferred territories which, as a result of the States Re-organisation Act, became merged in the State of Andhra Pradesh.

14. The submission that the adaptation and extension of laws made by another legislative authority is obnoxious to the principle of Article 246(3) and detracts from the exclusive, character of the legislation contemplated by that article, is equally fallacious. The Constitution has not prescribed any form in which a law has to be made. The legislature may choose any pattern it likes to make laws.

It need not indulge in the device of re-enacting a statute. It has only to see that any measure passed by it is within the general scope of the dominion assigned to it. When once that is done, the statute cannot be attacked on the ground that it does not conform to any particular mode. As pointed out by the Privy Council in Express v. Burah, ILR 4 Cal 172 at pp. 180 and 181 (PC)..

'..... the only way in which they (establishedCourts of Justice) can properly do so, is by lookingto the terms of the instrument by which affirmatively, the legislative powers were created and bywhich, negatively, they are restricted. If what hasbeen done is legislation within the general scope ofthe affirmative words which give the power and ifit violated no express condition or restriction, bywhich that power is limited x x xIt is not for any Court of Justice to inquire furtheror to enlarge constructively those conditions andrestrictions,'

It is, therefore, clear that a Court cannot enlarge any restrictions that might be imposed by the Constitution by requiring a legislature to adopt a particular form for enacting laws. It is idle to contend that adapting or extending the laws made by a different legislature is tantamount to abdication of its powers and breach of the 'sacred trust' reposed in the legislature.

When the legislature adopts a statute made by a different legislative body it amounts to a declaration that within the area subject to its authority the law shall be as enacted by itself and not as made by another legislature. It is not controverted that it could reproduce the provisions of such an enactment.

But what is contended is that it should re-enact the whole statute, thereby showing that it has exercised independent judgment. There can be no purpose in insisting on the legislature going through the process of repeating each and every one of the provisions which is a meaningless formality. The same object can be achieved by adapting the laws and extending them to territories within its own ambit.

It is difficult to maintain that the result can be accomplished only by a self-contained statute. Surely, the power to make legislation includes the power to adopt a measure enacted by another legislature. Such a device is a form of legislation. In Venkatasurya Shivarama v. State of Madras (now Andhra Pradesh), W. P. Nos. 28, 29, 67 and 512 of 1953 (Andh Pra) in dealing with a similar contention, it was observed thus:

'The legislative goal can be achieved by not only making new Acts but also by incorporating or referring to statutes enacted by another legislature.'

We cannot, therefore, assent to any of the theories propounded by the learned counsel for the petitioners. It follows that Act V of 1958 is a valid piece of legislation and cannot be attacked on any ground whatsoever.

15. In the result, these petitions are dismissedwith costs in W. P. Nos. 743. 744 and 780 of 1958.Advocate's fee is fixed at Rs. 200/- in each.


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