1. In these writ petitions, the validity of the Gift-tax Act (Central Act No. 18 of 1958) to be referred to as the 'Act' hereinafter, in so far as it purports to reach gifts of 'lands and buildings' is challenged. The gifts with which we are concerned in these petitions are gifts of agricultural lands.
2. In Writ Petition No. 1077/59, though the gift deed in question (date January 21, 1958) includes properties other than agricultural lands, the tax levied in respect of non-agricultural lands is not challenged. The total tax levied on the petitioner by the Second Gift-tax Officer, Mangalore, as per his proceedings No. 83/58-59 dated November 25, 1959, is Rs. 35,612. Out of this sum, a sum of Rs. 34,036.18 was levied as gift-tax in respect of a gift of a coffee plantation. It is this levy which the subject-matter of challenge in that petition.
3. In Writ Petition No. 19/1960, the settlement deed dated May 14, 1957, the one with which we are concerned, includes only agricultural lands; partly paddy fields and partly areca garden. A tax of Rs. 880 was levied on the petitioner therein by the Gift-tax Officer, Udipi, South Kanara, as per Assessment Proceedings No. G. T. 21/58-59 on his file.
4. There is no dispute that the 'Act' purports to bring within its reach gifts of all properties movable as well as immovables; agricultural as well as non-agricultural properties.
Section 2(xii) of the 'Act' says :
''gift' means the transfer by one person to another of any existing movable or immovable property made voluntarily and without consideration in money or money's worth, and includes the transfer of any property deemed to be a gift under section 4;'
'Property' is defined in section 2(xxii) as that including any interest in property, movable or immovable.
Section 3 is the charging section and that says :
'Subject to the other provisions contained in this Act, there shall be charged for every financial year commencing on and from the 1st day of April, 1958, a tax (hereinafter referred to as gift-tax) in respect of the gifts, if any, made by a person during the previous year (other than gifts made before the 1st day of April, 1957), at the rate or rates specified in the Schedule.
Section 5 provides for certain exemptions. We are not concerned with those exemptions. It is conceded on behalf of the petitioners that if the provisions of the act are valid, then the disputed transactions are within the mischief of the Act.
5. It is urged on behalf of the petitioners that the Act in so far as it purports to affect gifts of 'lands and buildings' is ultra vires the powers of the Parliament. Admittedly, there are no specific entries in any of the Lists in Schedule VII of the Constitution conferring powers either on the Parliament or on the State legislature to tax 'gifts'. According to the petitioners, that power is conferred on the State legislatures as per entry 18 with entry 19 of List II. But, according to the Revenue, it is an unallocated field and, therefore, it comes within entry 97 of List I. We have to judge between these rival contentions. Before doing so, it is desirable to recapitulate certain well-accepted canons of construction in the matter of interpreting the scope of an entry in any of the lists.
6. An entry in the lists has to be read not in a narrow or restricted sense. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it (United Provinces v. Mt. Atiqa Begum). In determining whether a particular legislation is in respect of matters included in any of the lists, one has to ascertain the pith and substance or true nature and character of the impugned statute (Subramanyan v. Muthuswamy. The rules which apply to the interpretation of other statutes apply equally to the interpretation of a constitutional enactment subject to this reservation that their application is of necessity conditioned by the subject-matter of the enactment itself. None of the items in the lists is to be read in a narrow or restricted sense and each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to comprehended in it; it is, therefore, clear that in construing an entry in a list conferring legislative powers the widest possible construction according to their ordinary meaning should be put upon the words used therein; reference to legislative practice may be admissible for cutting down the meaning of a word in order to reconcile two conflicting provisions in two legislative lists or to enlarge their ordinary meaning; the cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude; see Navinchandra Mafatlal v. Commissioner of Income-tax. To put it differently, in interpreting the scope of entries in the lists in Schedule VII, the widest possible amplitude should be given to the words used and each general word must be held to extend to ancillary or subsidiary matters which can fairly be said to be comprehended in it (Chaturbhai M. Patel v. Union of India).
7. If there are two possible interpretations, it is the duty of the court to accept that one which is more reasonable, more consistent with ordinary practice and less likely to produce impracticable results (United Provinces v. Atiqa Begum 3).
8. It is not possible to make a clean cut between the powers of the Union and the State legislatures; they are bound to overlap and where they do, the question to be considered is what is the pith and substance of the impugned enactment and in what list is its true nature and character to be found; the extend of invasion by the States into subjects in the Union Lists is an important matter not because the validity of an Act can be determined by discriminating between degrees of invasion but for determining the pith and substance of the impugned Act. The question is not has it trespassed more or less but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not a State matter but an Union matter; once that is determined, the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true import (Prafulla Kumar Mukherjee v. Bank of Commerce Ltd.)
9. But if the Act is within the competence of the legislative which enacted it, then the fact that it incidentally trenches upon the matters reserved for the other legislatures does not render that Act invalid; Prafulla Kumar Mukherjee's case .
10. In every case where the legislative competence of a legislature in regard to a particular enactment is challenged with reference to the entries in the various lists, it is necessary to examine the pith and substance of the Act and if the matter comes substantially within an item in the Central List, it is not deemed to come within an entry in the Provincial List even though the classes of subjects looked at singly overlap in many respects; it is within the competence of the Central Legislature to provide for matters which may otherwise fall within the competence of the Provincial Legislature if they are necessarily incidental to effective legislation by the Central Legislature on a subject of legislation expressly within its power; moreover it is a fundamental principle of constitutional law that everything necessary to the exercise of a power is included in the grant of the power (Chaturbhai M. Patel v. Union of India).
11. The legislatures in this country possess plenary powers of legislation. This is so even after the division of legislative powers subject to this that the supremacy of the legislatures is confined to the topics mentioned as entries in the its conferring powers to them. These entries though meant to be mutually exclusive are sometimes nor really so. They occasionally overlap and are to be regarded as enumerator simplex of broad categories. Where in an organic instrument there is a conflict between the rival lists, it is necessary to examine the impugned legislation in its pith and substance and only if that pith and substance falls substantially within an entry or entries conferring legislative powers, is the legislation valid, a slight transgression upon a rival list, notwithstanding : State of Rajasthan v. G. Chawla.
12. There is another rule of construction also well settled and that is the entries in two legislative lists must be construed if possible so as to avoid a conflict : Province of Madras v. Boddu Paidanna & Sons.
13. It has been held in Sundararamier & Co. v. State of Andhra Pradesh that despite the fact that an entry in the list should be widely read, the conferment of general legislative power conferred by any particulars entry does not include within its fold the power to tax or levy fees. This conclusion was reached because of the pattern of constitutional legislation in this country and further because of the scheme adopted in drawing up the several lists. It is observed in paragraph 51 of that judgment :
'The above analysis-and it's not exhaustive of the entries in the lists-leads to the inference that taxation is not intended to be comprised in the main subject in which it might on an extended construction be regarded as included, but is treated as a distinct matter for purposes of legislative competence. And this distinction is also manifest in the language of article 248, clauses (1) and (2) and of entry 97 in List I of the Constitution.'
14. The principle that an item in the legislative list should be given the widest possible amplitude applies not only to the general items but also to the entries relating to taxation. In principle I see no distinction between a general entry and an entry relating to taxation. In Nashville, Chattanooga & St. Louis Railway v. Roy C. Wallace, the Supreme Court of America held that the power to tax property necessarily includes the power to tax a right or an incidence of ownership.
15. It was observed by the Federal Court in Subramanyan's case that for the purpose of determining the category in Lists I, II and III into which the matters with which a particular Act deals falls, resort to the residual power under section 104 (of the Government of India Act, 1935) should be the very last refuge; it is only when all the categories in the three lists are absolutely exhausted that the court should fall back upon a non-descript.
16. Gokhale J. in Servants of India Society v. Charity Commissioner of Bombay observed that when considering the ambit of an express legislative power in relation to an unspecified residuary power, a broad interpretation can be given to the former at the expense of the latter; the case, however, is different where under the Constitution there are two complementary powers each expressed in precise and definite terms; in such a case, there is no jurisdiction for giving a broader interpretation to one power rather than to other; attempt should be made to reconcile two different legislative powers to avoid a conflict.
17. In these writ petitions, we are in search of the legislative power in the matter of taxing gifts relating to 'lands and buildings'. Therefore, general entries are of no assistance to us. We must necessarily look to the entries relating to taxation and see whether we can reasonably locate that power in any of those entries. It is only if we cannot do so, then we should have recourse to entry 97 of List I.
18. It was contended by Sri G. K. Govind Bhat, the learned counsel for the petitioners, that as a general rule, though not an invariable one, the powers of taxation are closely linked with powers of general legislation. If a field is reserved either to the States or to the center for the purposes of general legislation, by and large power of taxation in respect of that field was also allocated to that unit to which the general powers of legislation were allocated. It was urged by him that the scheme adopted in the Constitution following the pattern set in the Government of India Act, 1935, was to divide the legislative field into three sectors : (1) that reserved for Parliament; (2) that reserved for the State Legislatures; and (3) the concurrent field. As far as possible, it is said, the powers of taxation in respect of the field reserved for the centre in the matter of general legislation was assigned to the centre; similarly the powers of taxation in respect of the field allocated to the States was assigned to the States; no head of taxation (cesses apart) was included in the Concurrent List. It was contended by him that the entries relating to agricultural lands have been assigned to the State field; therefore, it is reasonable to assume that the power of taxation in respect of these subjects would have also been assigned to the States. In this connection he pointedly invited our attention to the fact that powers to levy estate duty and duty on succession of agricultural lands were assigned to the States while powers to impose estate duty and duty on succession on lands other than agricultural lands were assigned to the centre. The gift-tax according to him was not unknown at the time the Constitution was drawn up. It was in force in several countries like United Kingdom, United States etc. for several years prior to the framing of our Constitution. Therefore, it could not have been left out by ignorance. It was observed by a Bench of the Madras High Court in Santhamma v. Neelamma (in paragraph 20 of that judgment) :
'In addition we might note the fact that the Joint Select Committee of Parliament, which finalised the Lists, which were subsequently enacted as the entries in Schedule 7, intended the three Lists to completely exhaust the whole field of law such as they were then able to visualise, though they foresaw a remote possibility of some omissions and with a view to provide for such an exceptional case devised the machineries under section 104. Dealing with this aspect of the framing of the Lists, they said in para 54 :
'These Lists are so widely drawn that they might seem at first sight to cover the whole field of possible legislative activity, and to leave no residue of legislative power unallocated. It would, however, be beyond the skill of any draftsman to guarantee that no potential subject of legislation has been overlooked nor can it be assumed that new subjects of legislation unknown and unsuspected at the present time, may not hereafter arise; and, therefore, however carefully the Lists are drawn, a residue of subjects must remain, however small it may be, which it is necessary to allocate either to the Central or to the Provincial Legislatures. The plan adopted in the White Paper is that the allocation of this residue should be left to the discretion of the Governor-General and settled by him ad hoc on each occasion when the need for the legislation arises.' Again at para 232, they said dealing with the Lists as revised under their direction subsequent to the White Paper draft :
'We are convinced that the laborious and careful enumeration of both sets of subjects has secured, that in fact no material and unforeseen accretion of power, either to the Centre or Provinces would result from the elimination of one List or the other; and we are satisfied that the process has reduced the residue to proportions so negligible that the apprehensions which have been felt on the one side or the other are without foundation.'
The conclusion, therefore, that a subject of legislation which is of normal and ordinary occurrence has been omitted to be included in the Lists is not to be lightly reached. To hold that a topic falls within section 104 should be the last resort of a court of construction.'
19. These observations are equally applicable when we consider the scope of the entries in the Lists (in Schedule VII of the Constitution).
20. The principles recognised - so far as they are relevant for our purpose-are : (1) Every entry, in the three Lists (in Schedule VII of the Constitution) except entry 97 in List I, should be given the widest possible construction. This principle applies both to entries relating to general powers of legislation as well as to entries relating to powers of taxation; (2) recourse to residuary powers must be had only as a last resort; (3) general powers of legislation do not take within their fold the power to tax; and (4) the power to tax a property necessarily includes power to tax a right or an incidence of ownership.
21. It is conceded that the power to tax gifts cannot be traced to any of the entries 1 to 96 in List I. List III does not concern itself with powers of taxation. Hence we have to see whether that power can be located in any of the entries in List II. In that List, entries 1 to 44 are general entries. The important topics of legislation allocated to the States are : (1) Law and order; (2) Administration of justice; (3) Local government; (4) Public health; (5) Education; (6) Communications; (7) Irrigation; (8) Land, that is to say in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization; (9) Fisheries; (10) Industries; (11) Trade and commerce within the State; (12) State legislature; (13) Powers and privileges of the members of the Legislative Assembly and (14) State public services and Public Service Commission.
22. Now we may proceed to consider the important heads of taxation allocated to the States. They are : (1) Land revenue; (2) Taxes on agricultural income; (3) Duties in respect of succession to agricultural land; (4) Estate duty in respect of agricultural land; (5) Taxes on lands and buildings; (6) Taxes on mineral rights; (7) Duties of excise on certain goods manufactured or produced in the State; (8) Taxes on the entry of goods into a local area for consumption, use or sale therein; (9) Taxes on the consumption of electricity; (10) Taxes on sale or purchase of goods subject to the provisions of entry 92A of List I; (11) Taxes on certain advertisements; (12) Taxes on goods and passengers carried by road or on inland waterways; (13) Taxes on animals and boats; (14) Tolls; (15) Taxes on vehicles; (16) Taxes on professions, trades, callings and employments; (17) Capitation taxes; (18) Taxes on luxuries, including entertainments, amusements, betting and gambling; and (19) Stamp duty excepting to the extent it comes under List I. Fees in respect of any of the matters in List II but not including fees taken in any court.
23. From the foregoing, it is seen that the scheme adopted by the Constitution makers is, first assign the field regarding general powers of legislation, then allocate powers of taxation in respect of that field. There appears to be a close connection between these two sets of powers. As far as possible a particular field of legislation was more or less completely allocated either to the Centre or to the States. This principle in the very nature of things cannot apply to the field covered by List III. Entry 18 in List II, which is a general entry, shows that the legislative jurisdiction of State covers land including 'transfer and alienation of agricultural land.' Transfer of non-agricultural 'land' is provided in List III. That is probably to reason why it became necessary to give an artificial connotation to the word 'land' in entry 18 of List II. Otherwise the word 'land' would have brought within its scope 'transfers and alienations' of 'land'. The State has been given power not merely to levy land revenue and tax on agricultural income, it has also been given power to levy duty on succession as well as estate duty in respect of agricultural land. Then comes entry 49 which says : 'Taxes on lands and buildings'. No principle of public finance was brought to my notice justifying an interpretation that 'taxes on lands and buildings' means merely the power to tax the lands and buildings as such and not any incidence of ownership, such as alienation, transfer, gift, etc. No reason is shown why the State legislature which is authorized to impose duties on succession to agricultural land and estate duty in respect of agricultural land should have been denied the power to tax gifts. A gift is but one form of transfer. It is one mode of enjoying the ownership of land. As laid down in Nashville, Chattanooga's case, a power to tax property necessarily includes the power to tax a right or an incidence of ownership, Sri D. M. Chandrasekhar, the learned counsel for the Revenue, contended that this conclusion would have been unassailable if our Constitution had been written on a tubula-rasa. According to him, by the pattern of constitutional legislation adopted in this country not only the powers of taxation were separated from the general powers of legislation, but also the power to tax a 'dealing' with a property was distinguished and separately dealt with from the power to tax that property as such. Thus the ratio of the decision in Sundararamier's case was tried to be further extended. In support of the above contention, my attention was invited to entries 87 and 88 of List I, entries 48 and 49 of List II and the corresponding entries in the Government of India act of 1935. I think there is no firm basis for the above theory. Entries 48 and 49 of List II became necessary in view of entries 87 and 88 of List I. As the Constitution makers wanted to split up estate duties and duties on succession and allocate a portion of each of those heads to the Centre and to the States, those entries became necessary. Same is the case and to the States, those entries in the Government of India Act, 1935. These entries in my opinion do not disclose any pattern of legislation. I should hesitate to cut down the import of these entries on the supposed basis of the pattern of legislation, unless that pattern is clear and unmistakable. The entries in several Lists have not been scientifically drawn up. There is a great deal of overlapping. The fact that in some cases 'alienations and transfers' of properties were separately dealt with is not sufficient to conclude that as a rule power to legislate on 'transfers and alienations' of properties is not included in the power to legislate on the property itself.
24. It is well known that the sources of taxation allocated to the States are inelastic and the needs of the States are ever growing. Naturally we should be reluctant to place any further limitations on the taxation powers of the States by means of any strained constriction. If the States are financially starved, the provincial autonomy, slender as it is, would be further impaired resulting in the collapse of the basic structure of our Federation. That could not have been the intention of the Constitution makers. The saying that he who pays the piper has a right to call for the tune is also true in the matter of relationship between the Centre and the States.
25. Next Sri D. M. Chandrasekhar relied on the presumption of constitutionality of a statute. The presumption recognised by courts arises only when it is otherwise not possible to come to a satisfactory conclusion as to the constitutionality of a statute. If we consider that presumption as a 'China Ball', then the sanctity of the constitutional provisions would vanish. Such a view is bound to incite the Centre and the States to trespass on each other's fields. Presumptions are relevant only when more than one reasonable conclusion is possible. That, I think, is not the case here.
26. Strong reliance was placed by the learned counsel for the Revenue on the decision in Jupudi Sesharatnam v. Gift-tax Officer, Palacole, That decision fully supports the case for the Revenue. Their Lordships came to the conclusion that the Act is not open to challenge on any ground and is intra vires, even in so far as it affected agricultural lands. They opined that they requisite power of legislation does not fall within any of the entries in Lists II and III; nor is it included in any of the entries 1 to 96 in List I; hence recourse must be had to entry 97 of List I. The learned Chief Justice who delivered the judgment of the bench observed :
'Alternatively, it was argued that entry 18 read with entry 49 discloses the intendment of the Constitution to authorise the State Legislatures to legislate on all subjects in regard to lands including the imposition of taxes. Item 188 mentions also transfer of agricultural lands and entry 49 speaks of taxes on lands and buildings. A combined operation of the two entries brings taxes on transfer of agricultural lands within the jurisdiction of State Legislatures. Each of the entries in the two Lists should receive the widest possible construction and should be interpreted as extending to every form of legislation on that subject and resort to the residual powers contained in entry 97 of the Union List should be had only as a last refuge continued the learned counsel.
We are unable to acceded to this view. In this context we cannot ignore the facts that while the first part of the entry refers to land in general terms, the next two clauses specifically refer to only agricultural lands and have to be read with item 6 of List III. They both deal with the method of transfer or alienation of agricultural land but do not concern land itself. The alienation or transfer of agricultural land is subject to State legislation while lands other than agricultural lands lies within the sphere in which the provincial and the federal powers are concurrent.
Thus, transfer and alienation of lands are distributed in Lists II and III assigning agricultural lands to List II and non-agricultural lands to List III. It is true 'Land' is a generic term and the words that follow, i.e., up to 'collection of rents', are explanatory and illustrative... Though it is an allied subject, it is not comprised in 'land'. If the word 'land' was intended to include transfer or alienation of agricultural land etc., the latter becomes redundant as that expression would have served the purpose. Further, transfer or alienation would not have been confined to agricultural lands. Again, item 6 of List III would conflict with item 18 if that interpretation were to be accepted. That being so, we find it difficult to import transfer and alienation of agricultural land into 'lands' in entry 49. The latter item concerns itself with an altogether different head of legislation, that is, tax on the ownership of property. The object of this item is the levy of a tax on the ownership of property as such, while gift-tax is a tax on a particular use of the property or the exercise of a single power subsidiary to ownership. The owners of a property may put it to several uses. A gift inter vires is one of the several rights a person may have in a property. This form of tax attaches itself to a transfer of property, while the tax envisaged in entry 49 is incidental to the ownership irrespective of any use to which it may be put.'
27. With great respect to the learned judges who decided that case, I am unable to agree to the conclusion reached therein. I have earlier mentioned the reason for separately mentioning 'transfers and alienations of agricultural lands' from the 'transfer of non-agricultural land'. For good reasons the latter was placed in the Concurrent List. But, taxation power in that regard is not separately dealt with and hence there is no justification to cut down the scope of entry 49 in List II. No question of a particular excluding the general arises in the present case.
28. For the reasons already mentioned, I am also unable to subscribe to the view that a power to levy tax on ownership of property does not include power to levy tax on a particular use of that property or the exercise of a single power subsidiary to ownership.
29. Support was sought for the view taken in Jupudi Sesharatnam's case from some of the decisions of the American Courts. In America the allocation of financial powers was made on a different basis. There, distinction is made between direct taxes and indirect taxes. It is true that the American courts have taken the view that a gift-tax is not a tax on property as such; its imposition does not rest on general ownership but it is an excise upon the use of property, upon the exertion of the privilege of transmitting title by gift. (See paragraph 315, 28 American Jurisprudence). The correctness of this conclusion is not open to question. But the question before us whether a power to tax ownership of a property includes power to tax an use made of that ownership. Hence I do not think that the decision in Joseph H. Bromley v. Blakely D. Mc. Caughan or the decision in Graniteville Manufacturing Co. v. Query is of any assistance for our present purpose.
30. For the reasons mentioned above, I am of the opinion that power conferred on the States under entry 49 of List II includes power to tax gifts of 'lands and buildings'. Consequently, there is no need to resort to entry 97 of List I. As a result of this conclusion, it follows that the 'Act' in so far as it purports to impose tax on gifts of 'lands and buildings' is ultra vires of the powers of the Parliament and to that extend unconstitutional.
31. For the reasons mentioned above, the order of the Second Gift-tax Officer, Mangalore, in Proceedings No. 83-n/58-59 dated November 25, 1959, to the extent if is challenged in Writ Petition No. 1077/59 has to be quashed. It is ordered accordingly. Similarly, the order dated October 28, 1959, passed by the Gift-tax Officer, Udipi, South Kanara, in Assessment Proceedings No. G.T. 21/58-59 on his file has to be quashed. It is so ordered.
32. The respondent shall pay the costs of the petitioners in these petitions. Advocate fee Rs. 250 (one set).
Mir Iqbal Husain, J.
33. I agree.
34. Orders quashed.