{"id":138797,"date":"1959-12-02T00:00:00","date_gmt":"1959-12-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chaturbhai-m-patel-vs-the-union-of-india-and-others-on-2-december-1959"},"modified":"2018-07-12T08:50:50","modified_gmt":"2018-07-12T03:20:50","slug":"chaturbhai-m-patel-vs-the-union-of-india-and-others-on-2-december-1959","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chaturbhai-m-patel-vs-the-union-of-india-and-others-on-2-december-1959","title":{"rendered":"Chaturbhai M. Patel vs The Union Of India And Others on 2 December, 1959"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Chaturbhai M. Patel vs The Union Of India And Others on 2 December, 1959<\/div>\n
Equivalent citations: 1960 AIR 424, \t\t 1960 SCR (2) 362<\/div>\n
Author: K L.<\/div>\n
Bench: Imam, Syed Jaffer, Das, S.K., Kapur, J.L., Sarkar, A.K., Hidayatullah, M.<\/div>\n
           PETITIONER:\nCHATURBHAI M. PATEL\n\n\tVs.\n\nRESPONDENT:\nTHE UNION OF INDIA AND OTHERS\n\nDATE OF JUDGMENT:\n02\/12\/1959\n\nBENCH:\nKAPUR, J.L.\nBENCH:\nKAPUR, J.L.\nIMAM, SYED JAFFER\nDAS, S.K.\nSARKAR, A.K.\nHIDAYATULLAH, M.\n\nCITATION:\n 1960 AIR  424\t\t  1960 SCR  (2) 362\n CITATOR INFO :\n R\t    1962 SC 922\t (13)\n RF\t    1967 SC1512\t (63)\n\n\nACT:\nLegislative  Competence-Validity of enactment-Competence  of\nCentral Legislature-Levy of excise duty on tobacco-Pith\t and\nsubstance of legislation-Central Excises and Salt Act,\t1944\n(1  of 1944), ss. 6, 8, Rules-Government of India Act,\t1935\n(26 Geo.  V. Ch. 2), s. 100, Sch. 7, List 1, Entry 45,\tList\n11, Entries 27, 29.\n\n\n\nHEADNOTE:\nThe petitioner who was doing business in tobacco was charged\nwith  the  contravention  of Rules 151(C)  and\t226  of\t the\nCentral Excise Rules, 1944, framed under the Central Excises\nand Salt Act, 1944.  The Collector finding the charges to be\nproved\tordered\t confiscation  of the  goods  found  in\t the\npetitioner's  warehouse and levied duty thereon in  lieu  of\nconfiscation  and also imposed a penalty of RS. 2,000.\t The\npetitioner  challenged\tthe validity of the  orders  on\t the\ngrounds,  inter\t alia, that ss. 6 and 8 of the Act  and\t the\nRules made thereunder were beyond the legislative competence\nof  the Central legislature in view of the fact that  though\nthe  provisions\t of the Act which provided for the  levy  of\nexcise duties might fall within item 45 of List 1 read\twith\nS.  100\t of the Government of India Act, 1935,\tthe  Act  in\nquestion  would also be covered by items 27 and 29, of\tList\n11,  as\t the  possession  and trade  in\t tobacco  were\talso\nregulated, and would, to that extent, be ultra vires.\n\t\t     363\nHeld, that the various provisions of the Central Excises and\nSalt   Act,  1944,  and\t the  Rules  made  thereunder\twere\nessentially  connected\twith the levying and  collection  of\nexcise\tduty  and in its true nature and character  the\t Act\nremained one under item 45 of List 1 and that the incidental\ntrenching  upon\t the provincial field of items 27 or  29  of\nList 11 would not affect its constitutionality.\nIt  is within the competence of the Central  legislature  to\nprovide\t for  matters which may otherwise  fall\t within\t the\nCompetence  of\tthe  Provincial\t Legislature  if  they\t are\nnecessarily  incidental\t to  effective\tlegislation  by\t the\nCentral\t legislature on a subject of  legislation  expressly\nwithin its power.\nState  of Rajasthan v. G. Chawla, A.I.R.<\/a> 1959 S.C. 544,\t and\nCooverjee  Bharucha  v. The Excise  Commissioner  of  Ajmer,<\/a>\n[1954] S.C.R. 873, followed.\nAttorney-General for Canada v. Attorney-General for  British\nColumbia, [1930] A.C. 111 and Attorney-General for Canada v.\nAttorney-General for Quebec, [1947] A.C. 33, relied on.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION: Petition No. 9 of 1957.
\nPetition  under Article 32 of the Constitution of India\t for
\nenforcement of fundamental rights.\n<\/p>\n
B.   D. Sharma, for the petitioner.\n<\/p>\n
C.   K.\t Daphtary, Solicitar-General of India R.  H.  Dhebar
\nand T. M. Sen, for the respondents.\n<\/p>\n
1959.\tDecember 2. The Judgment of the Court was  delivered
\nby
\nKAPUR J.-The petitioner was a wholesale and retail dealer in
\ntobacco at Banaras and also owned a private bonded warehouse
\nfor  tobacco  and  held\t licences for  the  same.   In\tthis
\npetition he challenges the legality of certain orders passed
\nby the Collector of Excise, Allahabad, which on appeal\twere
\nconfirmed and revisions against those orders were  dismissed
\nby  the Central Government.  The petitioner’s warehouse\t was
\nchecked\t by Inspector Das who on finding  some\tirregularity
\nsealed\tthe warehouse on December 8, 1953, and\tsubsequently
\ntook  possession of all the registers and stock\t cards.\t  On
\nDecember22,1953,  11  1\/2  bags of kandi  i.e.\t”  stems  of
\ntobacco\t “. which were found in the petitioner’s  warehouse,
\nwere removed from the warehouse by the Inspector and  stored
\nin some other
\n364<\/span>
\nplace.\t Against  those orders the petitioner  made  certain
\nrepresentations\t to  the Collector and\tsome  correspondence
\npassed.\t  On June 15, 1954, the Collector,  Central  Excise,
\nissued\ta  notice  to the petitioner to\t show  cause  why  a
\npenalty\t should not be imposed on him for the  contravention
\nof  Rules 151(C)and 226 of the Central Excise  Rules,  1944,
\nand  why the bags of kandi should not be confiscatted.\t The
\npetitioner showed cause, the Collector heard the  petitioner
\nwho  had also filed written arguments.\tFinding the  charges
\nagainst\t  the  petitioner  proved,  the\t Collector   ordered
\nconfiscation of the bags of kandi, imposed a fine of Rs. 150
\nand  the duty leviable thereon in lieu of confiscation.\t  He
\nfurther imposed a penalty of Rs. 2,000 under rr. 151(C)\t and
\n226  of the Central Excise Rules.  The appeal taken  to\t the
\nCentral\t Board\tof Revenue was dismissed as  the  petitioner
\nrefused\t to deposit the penalty of Rs. 2,000 and a  revision
\nto  the Central Board of Revenue was also dismissed for\t the
\nsame reason.  This is one of the orders which is  challenged
\nby the petitioner.\n<\/p>\n
On  July 29, 1954, the Collector called upon the  petitioner
\nto  produce another surety as the previous  surety  Mohammad
\nSatar  was  not\t prepared to act as  such.   The  petitioner
\nstates that he thereupon furnished two bonds in Form B-4 and
\nB-5 for Rs. 7,000 and Rs. 10,000 respectively.\tAs there was
\na  sum of Rs. 15, 263-8-0 due from him (the  petitioner)  as
\nExcise duty, 373 Mds. of tobaco were attached by the  Excise
\nDepartment  and\t sold  by auction  for\tRs.  6,878-5-0\tthus
\nleaving a balance of Rs. 8,385-3-0.  As the Department\tmade
\ndemands\t for  the  recovery  of this  balance  of  duty\t the
\npetitioner  filed  a civil suit in the court  of  the  First
\nAdditional  Civil Judge, Banaras, who issued  an  ad-interim
\ninjunction against the Department restraining it to  recover
\nthe  amount.   On January 25, 1956,  the  Superintendent  of
\nExcise called upon the petitioner to deposit a cash security
\nof  Rs.\t 10,000 otherwise his licence would  be\t treated  as
\ncancelled under r. 181(1) of the Central Excise Rules.\t The
\npetitioner demurred to this and as the outstanding amount of
\nexcise duty was not paid the Deputy
\n\t\t\t    365<\/span>
\nCollector  ordered  on\tFebruary 13,  1956,  that  till\t the
\ndeposit\t was  made  the petitioner’s  licence  shall  remain
\ninoperative.   The  petitioner took an appeal  against\tthis
\norder to the Central Board of Revenue which was\t dissmissed.
\nThe petitioner also filed a petition under  Art. 226  in the
\nPunjab\tHigh Court which was also dismissed and\t a  revision
\nagainst the order of the Deputy Collector making the licence
\ninoperative was dismissed by the Central Board of Revenue on
\nDecember  20,  1956.   This is the  second  order  which  is
\nchallenged.\n<\/p>\n
The present petition was filed on January 21, 1957, in which
\nthe petitioner prayed (1) that the provisions of ss. 6, 8, 9
\nand  10 of the Central Excises and Salt Act, 1944, Act 1  of
\n1944 (which for the sake of convenience will hereinafter  be
\ntermed the Act) and the rr. 140 to 148, 150, 171 to 181, 215
\nand  226 of the Central Excise Rules made under the  Act  be
\ndeclared  ultra vires and to issue a writ of  certiorari  or
\nany  other writ to quash the orders passed by the  Collector
\nas confirmed on appeal and revision by the Central Board  of
\nRevenue\t and  the Central  Government  respectively.   These
\norders\thave  already been referred to. (2) For\t a  writ  of
\nmandamus directing the respondents not to interfere with the
\nfundamental  right  of the petitioner to carry on  trade  in
\ntobacco\t or to store tobacco; (3) directing the\t respondents
\nto return the goods confiscated by them.\n<\/p>\n
For the petitioner three points were raised: (1) that ss.  6
\nand  8 of the Act and the Rules made thereunder were  beyond
\nthe legislative competence of the Central legislature  under
\nthe  Constitution Act of 1935; (2) even if they were  within
\nthe   legislative  competence  they  impose  excessive\t and
\nunreasonable  restraint\t on  the fundamental  right  of\t the
\npetitioner  to\ttrade in tobacco and they were\tnot  in\t the
\ninterest of the general public and therefore were not  saved
\nby  Art. 19(6); (3) orders passed were ultra vires  the\t Act
\nand the Rules made thereunder.\n<\/p>\n
Before\twe  proceed  to consider the  arguments\t raised\t  on
\nbehalf of the petitioner, it is necessary to examine
\n47<\/span>
\n366<\/span>
\nthe  scheme of the Act.\t Its scope as given in the  preamble
\nis:-\n<\/p>\n
“to consolidate and amend the law relating to central-duties
\nof  excise  on goods manufactured  or  produced\t in  British
\nIndia and to salt.”\n<\/p>\n
  Section-2  of the Act gives the definitions.\t Chapter  11
\nprovides  for  levy and collection of duty.   The  two\tmain
\nsections, i.e., 6 and 8 fall under this Chapter.  Section  6
\nprovides  for certain operations to be subject\tto  licences
\nand when quoted it runs as follows:\n<\/p>\n
S.  6 ” The Central Government may, by notification  in\t the
\nofficial  Gazette,  provide that, from such date as  may  be
\nspecified in the notification, no person shall, except under
\nthe   authority\t and  in  accordance  with  the\t terms\t and
\nconditions of a licence granted under this Act engage  in\n<\/p>\n
(a)  the  production or manufacture or any  process  of\t the
\nproduction  or manufacture of any specified excisable  goods
\nor  of\tsaltpetre  or of any specified\tcomponent  parts  or
\ningredients of such goods or of specified containers of such
\ngoods, or (b) the wholesale purchase or sale (whether on his
\nown  account  or  as a broker or commission  agent)  or\t the
\nstorage of any excisable goods specified in this behalf,  in
\npart A of the Second Schedule.”\n<\/p>\n
Section\t 8  imposes restriction on possession  of  excisable
\ngoods.\tIt is as follows:\n<\/p>\n
“From  such date as may be specified in this behalf  by\t the
\nCentral Government by notification in the official  Gazette,
\nno person shall, except as provided by rules made under this
\nAct, have in his possession any excisable goods specified in
\nthis  behalf in Part B of the Second Schedule in  excess  of
\nsuch  quantity as may be prescribed for the purpose of\tthis
\nsection\t as  the  maximum amount of such  goods\t or  of\t any
\nvariety of such goods which may be possessed at any one-time
\nby such a person.”\n<\/p>\n
Section\t 9  deals with offences and penalties.\t Section  10
\ngives  to the court the power to order forfeiture.   Section
\n11 makes provision for recovery of duties due to
\n\t\t\t    367<\/span>
\nGovernment.    Chapter\t VI  deals  with   adjudication\t  of
\nconfiscation  and  penalties specifying the  powers  of\t the
\nCollector of Central Excise and appeals against such  orders
\nand  revision  to  the\tCentral\t Government.   Chapter\t VII
\ncontains  supplementary provisions; s. 37  therein  empowers
\nthe Central Government to make rules and in the Schedule the
\nrates  or duties leviable on each class of goods  are  given
\nand tobacco falls in item 9.\n<\/p>\n
The question is, as to whether the Act falls within item No.
\n45  of\tList 1 read with s. 100 of the Government  of  India
\nAct.  It was contended on behalf of the petitioner that even
\nthough\tthe imposition of excise duties may fall under\titem
\nNo.  45\t of List 1 of the Constitution Act it is  a  serious
\nencroachment on the territory covered by items 27 and 29  of
\nList 11 of that Act.  The argument raised was that  although
\nthe Act imposes duty of excise within item 45 of List 1 and,
\nthat  was  one of its objects, it also\tregulates  trade  or
\ncommerce  and  therefore falls\twithin\tthe  above-mentioned
\nitems of List 11 and would, to that extent, be ultra  vires.
\nIt  was contended that the pith and substance of  a  statute
\nmay  cover  two\t fields and in support\tre  -lied  upon\t the
\nfollowing  observation\tof Mahajan, C.J.,  in  Cooverjee  B.
\nBharucha   v.\tThe  Excise  Commissioner  and\t The   Chief
\nCommissioner Ajmer & Ors.<\/a> (1):\n<\/p>\n
” The pith and substance of the regulation is that it raises
\nexcise revenue by imposing duties on liquor and intoxicating
\ndrugs by different methods and it also regulates the import,
\nexport,\t transport,  manufacture,  sale\t and  possession  of
\nintoxicating liquors.”\n<\/p>\n
But  that  case did not raise the  question  of\t legislative
\ncompetence ; the point for decision was whether the  statute
\nthere  impugned,  infringed the right to carry on  trade  in
\nliquor\tand  also whether the auction money was a fee  or  a
\ntax.   It was in that connection that the observation  above
\nquoted was made.\n<\/p>\n
It was also argued that if the purpose and object of the Act
\nis  levying of duty of excise then it could not provide\t for
\nregulation of trade and reliance was
\n(1)  [1954] S.C.R. 873, 877, 882.\n<\/p>\n
368<\/span><\/p>\n
placed on King v. Barger (1) where by a majority it was held
\nthat  the question in substance was not an exercise  of\t the
\npower  of  taxation  and if it was,  the  statute  would  be
\ninvalid\t as  being  in\tcontravention  of   S.\t55  ‘of\t the
\nConstitution  Act of Australia.\t The minority, however,\t was
\nof  the opinion that the reserved powers of the\t States\t are
\nthose which remain after full effect was given to the powers
\ngranted to the Commonwealth.\n<\/p>\n
In support of the argument that the Act did not only  relate
\nto  levying  of\t excise duties\tbut  also  regulated  trade,
\nreference  was made to rr. 174 to 182 of the Central  Excise
\nRules  which relate to licensing.  Particular  reliance\t was
\nplaced on r. 176(2) imposing a licence fee which in the case
\nof  tobacco is as much as Rs’ 100.  Reference was also\tmade
\nto  r.\t181 which deals with revocation\t and  suspension  of
\nlicences and empowers the Licensing Department to revoke  or
\nsuspend a licence under certain circumstances.\tThe rule  is
\nas follows:-\n<\/p>\n
R.   181 ” (1) Any licence granted under. these Rules may be
\nrevoked\t or  suspended\tby the licensing  authority  if\t the
\nholder,\t or  any  person in his employ,\t is  found  to\thave
\ncommitted a breach of the conditions thereof, or any of\t the
\nprovisions of the Act or these Rules (or has been  convicted
\nof an offence under s. 161, read with s. 109 or with s.\t 116
\nof the Indian Penal Code).\n<\/p>\n
(2)……………………….\n<\/p>\n
(3)…………………………\n<\/p>\n
Counsel\t then drew our attention to r. 182 which relates  to
\nmatches\t Only  but which places limitation on the  issue  of
\nlicences for the manufacture of matches.
\nThe next set of Rules which were relied upon were rr. 140 to
\n148  in\t regard to warehousing and then\t our  attention\t was
\ndrawn to rr. 210 to 215 relating to penalties,\tconfiscation
\nand  appeals.  In regard to the latter set of Rules  it\t was
\nsubmitted that they laid down no procedure and did not\tmake
\nany provision for issuing of notice to licensees or  hearing
\nthem or their witnesses before imposing penalties.  From all
\nthis
\n(1)  (1908) 6 C.L.R. 41.\n<\/p>\n
\t\t\t    369<\/span><\/p>\n
the conclusion which counsel wished us to draw was that\t the
\nAct read with Rules shows that the pith and substance is not
\nmerely\tlevying\t an excise duty but the\t possession  of\t and
\ntrade  in  tobacco  was also  regulated\t and  therefore\t the
\nsubject\t matter of the Act did not fall\t exclusively  in the
\nlegislative field covered by List 1 but it trenched upon the
\nprovincial  field  of legislation and must be held  to\tfall
\nunder List 11 also.\n<\/p>\n
In  every  case\t where\tthe  legislative  competence  of   a
\nlegislature   in  regard  to  a\t particular   enactment\t  is
\nchallenged  with  reference to the entries  in\tthe  various
\nlists  it is necessary to examine the pith and substance  of
\nthe Act and if the matter comes substantially within an item
\nin the Central List it is not deemed to come within an entry
\nin the Provincial list even though “the classes of  subjects
\nlooked\tat singly overlap in many respects”.  It  is  within
\nthe  competence\t of the Central legislature to\tprovide\t for
\nmatters\t which may otherwise fall within the  competence  of
\nthe   Provincial   legislature\tif  they   are\t necessarily
\nincidental   to\t  effective  legislation  by   the   Central
\nlegislature on a subject of legislation expressly within its
\npower.\t Attorney-General for Canada  v.  Attorney-General,’
\nfor  British  Columbia (1); Attorney-General for  Canada  v.
\nAttorney-General  for Quebec (2).  In Gallagher v. Lynn\t (3)
\nit was held that if the true nature and character of an\t Act
\nis to protect the health of the inhabitants then even though
\nit  may\t incidentally affect trade, it is not enacted  ”  in
\nrespect of ” trade.  Moreover it is a fundamental  principle
\nof  constitutional  law\t that everything  necessary  to\t the
\nexercise, of a power is included in the grant of the  power.
\nEdward Mills Co. Ltd. v. The State of Ajmer<\/a> (4).
\nThe  item which falls for consideration in the present\tcase
\nis No. 45 of List 1 which is as follows:\n<\/p>\n
” Duties of excise on tobacco and other good,%\tmanufactured
\nor produced in India except\n<\/p>\n
(a)  alcoholic liquors for human consumption;\n<\/p>\n
(b)  opium,  Indian  hemp  and\tother  narcotic\t drugs\t and
\nnarcotics; non-narcotic drugs;\n<\/p>\n
(1)  [1930] A.C. 111, 118.\n<\/p>\n
(2)  [1947] A.C. 33, 43.\n<\/p>\n
(3)  [1937] A.C. 863.\n<\/p>\n
(4)  [1955] 1 S.C.R. 735, 749.\n<\/p>\n
370<\/span><\/p>\n
(c)  medical and toilet preparations containing alcohol,  or
\nany substance included in sub-paragraph (b) of this entry.”
\nThe  other  items  which have to  be  considered  are  items
\nNos. 27, 29 and 31 of List 11 which are as follows :-
\nItem 27.  “Trade and commerce within the Province ;  markets
\nand fairs; money lending and money lenders.”
\nItem  29.   “Production, supply and distribution  of  goods;
\ndevelopment of industries, subject to the provisions in List
\n1  with\t respect to the development  of\t certain  industries
\nunder Federal control.”\n<\/p>\n
The question for decision is whether the Act in question  is
\na  law with respect to the matters enumerated in item 45  of
\nList  1\t or to the matters enumerated in item 27 and  29  of
\nList  11.   In other words does it, in pith  and  substance,
\nrelate\tto duties of excise on tobacco as contained in\titem
\n45  or it falls within the boundaries of items 27 and 29  of
\nthe  provincial list and if it falls within the\t former,  is
\nits  validity affected by its incidental trespass  into\t the
\nterritory  reserved  for  provincial  legislation.   In\t the
\ninterpretation\tof  the\t scope of  these  items\t the  widest
\npossible amplitude must be given to the words used and\teach
\ngeneral\t word  must  be\t held  to  extend  to  ancillary  or
\nsubsidiary   matters  which  can  fairly  be  said   to\t  be
\ncomprehended  in it.  United Provinces v.Mst. Atiqa Begum  &
\nOrs.  (1);  Navinchandra  Mafatlal  v.The  Commissioner\t  of
\nIncometax (2); The State of Madras v. Gannon Dunkerley & Co.<\/a>
\n(5).  In Subramanyan Chettiar v. Muthuswamy Goundan (4)\t Sir
\nMaurice\t Gwyer,\t C.J.,\tdealing\t with  items  in  the  Lists
\nobserved:\n<\/p>\n
”  It  must  inevitably\t happen\t from  time  to\t time\tthat
\nlegislation, though purporting to deal with a subject in one
\nlist,  touches\talso on a subject in another list,  and\t the
\ndifferent  provisions  of the enactment may  be\t so  closely
\nintertwined  that  blind  adherence  to\t a  strictly  verbal
\ninterpretation\twould result in a large number\tof  statutes
\nbeing declared invalid because
\n(1)  [1940] F.C.R. 111.\n<\/p>\n
(2)  [1955] 1 S.C.R. 829, 833, 836.\n<\/p>\n
(3)  [1959] S.C.R. 379, 391, 393.\n<\/p>\n
(4)  [1940] F.C.R. 188, 201.\n<\/p>\n
\t\t\t    371<\/span><\/p>\n
the Legislature enacting them may appear to have  legislated
\nin a forbidden sphere.”\n<\/p>\n
We  agree  as  did  the\t Privy\tCouncil\t in  Prafulla  Kumar
\nMukherjee  and\tOrs. v. Bank of Commerce Ltd. (1)  and\tthis
\nCourt did in State of Rajasihan v. G. Chawla (2) that\tthis
\npassage correctly describes the ground on which the rule  is
\nfounded\t and  in  our  opinion it is  a\t correct  method  of
\ninterpreting  the  words of the various items in  the  Lists
\nread with s. 100 of the Constitution Act.  Hidayatullah, J.,
\nin State of Rajasthan v. G. Chawla<\/a>(2) said at p. 546 :-
\n” It is equally well-settled that the power to legislate  on
\na  topic  of  legislation  carries  with  it  the  power  to
\nlegislate  on  an ancillary matter which can be said  to  be
\nreasonably included in the power given.”
\nWe now proceed to determine the true nature and character or
\nthe  pith and substance of the Act.  It is a fiscal  measure
\nto  levy  and  realise\tduty  on  tobacco.   The  method  of
\nrealising duty must be left to the wisdom of the legislature
\ntaking\teach  individual  trade and  its  peculiarities\t and
\ndifficulties which arise in that matter.  Various provisions
\nof  the Act and the Rules show that the authorities  are  on
\nthe  track  of the movement of tobacco from the time  it  is
\ngrown to the time it is manufactured and sold in the  market
\nand  the  various provisions of the Act and the\t Rules\tmade
\nthereunder  have been considered necessary for\teffectuating
\nthe  purpose of the Act.  Rules made under the Act also\t are
\ndirected  for achieving the same objective.  Chapter  IV  in
\nthe  Rules  deals  with unmanufactured\tproducts.   Rule  15
\ntherein\t requires  the\tgrowers to  make  a  declaration  in
\nrespect of all land upon which tobacco is to be grown.\tRule
\n17  which  requires curing to be done on  the  declared\t and
\napproved  premises  is also a step in  the  same  direction.
\nUnder  Rule 18 a security can be demanded from a grower\t and
\ncurer,\tRules  19, 20 and 21 deal with\tliability  to  duty,
\nexemption from duty of certain kinds of tobacco for personal
\nuse, books to be kept by growers and curers and the
\n(1) [1947] L.R. 74 I.A. 23, 41.\n<\/p>\n
(2) A.I.R. 1959 S.C. 544.\n<\/p>\n
\t  372<\/span><\/p>\n
manner of keeping the entries in the books.Rule\t 31  deals
\nwith transport of tobacco from thegrower to   the  premises
\nof a curer and from the premises of a curer   to a public or
\na  private warehouse.  Chapter V of the\t   rules  deals with
\nmanufactured  tobacco  and  how\t that  is  to  be  kept\t  in
\nwarehouses.  Similarly at every stage\twhether the  tobacco
\nis in unmanufactured stage or\t   manufactured\t       stage
\nprovisions have been made in the Rules to keep a watch\tover
\nthe  movement  of  tobacco. All these Rules  show  that\t the
\nobject of the Act is to make collection of excise duties  on
\ntobacco\t effective  and\t the  levying  of  fees\t is  only  a
\ncollection  of money for the upkeep of supervision over\t the
\nmovement  of  tobacco for the purpose of excise\t duty.\t The
\nsystem\t of  licensing\tof  bonded  warehouses\twas   always
\nconsidered  to be a part of effective control of evasion  of
\ntax  in\t England  and  Parliament must\tbe  deemed  to\thave
\ncontemplated  the  inclusion of this  power.   Besides,\t the
\nlevying\t of  licence  fees is itself  a\t form  of  taxation.
\nCooverji B. Bharucha v. The Excise Commissioner of Ajmer<\/a> (1)
\nand would in this case be within the legislative  competence
\nof  the Central legislature whose powers of taxation  should
\nnot be restricted so as to exclude the raising of revenue by
\nimposing  licensing fees. In the State of Madras  v.  Gannon
\nDunkerley  & Co.<\/a> (2) the following passage from\t the  Broken
\nHill South Ltd. v.  Commmissioner of Taxation (N.S. W.) (3):
\n” In any investigation of the constitutional powers of these
\ngreat  Dominion legislatures, it is not proper that a  Court
\nshould\tdeny  to  such a legislature the  right\t of  solving
\ntaxation  problems unfettered by a priori  legal  categories
\nwhich often derive from the exercise of legislative power in
\nthe  same constitutional writ ” was quoted with approval  by
\nVenkatarama  Aiyar,  J.,  and  if it  is  only\ta  fee,\t its
\nconstitutionality  cannot be challenged because of  item  69
\nrelating  to  fees  on matters in List 1.  Counsel  for\t the
\npetitioner  relied  upon  r. 181.  This\t rule  may  have  an
\nindirect effect of depriving an owner of a bonded  warehouse
\nfrom the
\n(1)  [1954]  S.C.R. 873, 877, 822.  (2) [1959]\tS.C.R.\t379,
\n391, 393.\n<\/p>\n
(3) (1936-37) 56 C.L.R. 337, 379.\n<\/p>\n
373<\/span><\/p>\n
privilege of keeping such a warehouse but that does not mean
\nthat  the object and purpose of the Act is  not\t imposition,
\ncollection and realisation of duty of excise.  This rule  is
\na  means  of making the realisation of\tduty  effective\t and
\nnecessarily   incidental   to  effectual   legislation\t for
\ncollection   of\t duties.  Attorney-General  for\t Canada\t  v.
\nAttorney-General  for British Columbia (1).  Looking at\t the
\nscheme\tof the Act, its object and purpose, its true  nature
\nand  character and the pith and substance the conclusion  is
\ninevitable   that  the\tAct  was  within   the\t legislative
\ncompetence of the Central legislature and although there may
\nbe   certain  matters  otherwise  within   the\t legislative
\ncompetence   of\t  the  provincial   legislature\t  they\t are
\nnecessarily  incidental\t to  effective\tlegislation  by\t the
\nCentral legislature.  The various provisions of the Act\t and
\nthe Rules made thereunder were, in our opinion,\t essentially
\nconnected  with the levying & collection of excise duty\t and
\nin  its true nature and character the Act remains  one\tthat
\nfalls  under item 45 of List 1 and the incidental  trenching
\nupon the provincial field of items 27 or 29 would not affect
\nits constitutionality because the extent of invasion of\t the
\nprovincial field may be a circumstance to determine the true
\npith and substance but once that question is determined\t the
\nAct, in our opinion, would fall on the side of Central field
\nand  not  that\tof the\tprovincial  field.   Prafulla  Kumar
\nMukherjee v. Bank of Commerce Ltd. (“).\n<\/p>\n
It  was\t then contended that the restrictions  imposed\twere
\nunreasonable  and  therefore not saved by Art.\t19(6).\t The
\nbasis  of this argument was that there is no procedure\tlaid
\ndown  in  the  provisions  for\tlevying\t penalties  nor\t any
\nprovision  made\t for notice or the taking  of  evidence\t and
\npower of confiscation was given to persons who could not  be
\ntermed\tunbiased.  If the tribunal is to act  judicially  it
\nmust  confirm to the principles of natural justice  of\taudi
\nalteram\t partem and there is no dispute that in the  instant
\ncase there was no breach of this rule.\tNot only this, there
\nis  a  right of appeal and a revision is also  provided\t and
\nboth these remedies the petitioner availed himself of.\tThe
\n(1)  [1930] A.C. 111, 118.\n<\/p>\n
48<\/span><\/p>\n
(2) [1947] L.R. 74 I.A. 23, 41,
\n374<\/span>
\nargument of unreasonable restriction because of this  ground
\nmust  also fail.\n<\/p>\n
Lastly,\t it  was contended that the two main  orders  passed
\nwere  ultra vires because in the first case  the  petitioner
\nwas  asked  to\tdeposit the penalty before  his\t  appeal  or
\nrevision could be heard and reliance was     placed\t  on
\nHimmatlal Harilal Mehta v. The State of\t     Madhya  Pradesh<\/a>
\n(1).   But  it is difficult to see how\tthat  case  applies.
\nThere was no illegal imposition on the petitioner nor is  it
\nshown  that anything was threatened to be  realised  without
\nthe  authority\tof  law.   In regard  to  the  second  order
\nMohammad Satar had ceased to be the petitioner’s surety\t and
\ntherefore  in terms of the proviso to r. 140 of\t the  Excise
\nRules which was as follows :-\n<\/p>\n
”  Provided  that  in  the event  of  death,  insolvency  or
\ninefficiency  of the surety or where the amount of the\tbond
\nis inadequate, the collector may in his discretion demand  a
\nfresh bond; and may, if the security furnished for a bond is
\nnot adequate, demand additional security.”
\nThe  Collector was acting within his powers if he asked\t for
\nthe  deposit of cash security of Rs. 10,000.  This is not  a
\nmatter\twith  which  we can, in the  circumstances  of\tthis
\ncase,’ interfere.  It was also urged that the orders  passed
\nwere  mala  fide  but no such allegation  was  made  in\t the
\npetition nor is it shown as to why the orders are mala fide.
\nIn  our\t opinion this petition is without substance  and  is
\ntherefore dismissed with costs.\n<\/p>\n
Petition dismissed.\n<\/p>\n
(1) [1954] S.C.R. 1122.\n<\/p>\n
375<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Chaturbhai M. Patel vs The Union Of India And Others on 2 December, 1959 Equivalent citations: 1960 AIR 424, 1960 SCR (2) 362 Author: K L. Bench: Imam, Syed Jaffer, Das, S.K., Kapur, J.L., Sarkar, A.K., Hidayatullah, M. PETITIONER: CHATURBHAI M. PATEL Vs. RESPONDENT: THE UNION OF INDIA AND OTHERS DATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-138797","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nChaturbhai M. Patel vs The Union Of India And Others on 2 December, 1959 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chaturbhai-m-patel-vs-the-union-of-india-and-others-on-2-december-1959\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chaturbhai M. 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