{"id":148108,"date":"1997-05-07T00:00:00","date_gmt":"1997-05-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-r-s-rekhchand-vs-state-of-maharashtra-on-7-may-1997"},"modified":"2015-10-17T01:53:34","modified_gmt":"2015-10-16T20:23:34","slug":"ms-r-s-rekhchand-vs-state-of-maharashtra-on-7-may-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-r-s-rekhchand-vs-state-of-maharashtra-on-7-may-1997","title":{"rendered":"M\\S. R.S. Rekhchand … vs State Of Maharashtra on 7 May, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\\S. R.S. Rekhchand … vs State Of Maharashtra on 7 May, 1997<\/div>\n
Bench: K. Ramaswamy, S. Saghir Ahmad, G.B. Pattanaik<\/div>\n
           PETITIONER:\nM\\S. R.S. REKHCHAND MOHOTASPINNING & ORS WEAVING MILLS LTD.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT:\t07\/05\/1997\n\nBENCH:\nK. RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t\t O R D E R
\n     This appeal  by special  leave arises from the judgment
\nof the\tDivision Bench\tof Bombay  High Court passed in Writ
\nPetition No.  1509 of 1981 on November 8,  1989. The primary
\nquestion is: whether the state legislature has power to levy
\nrates of cess on use of flowing water from the river “Wana’.\n<\/p>\n
     The facts\tare as under.  The appellant had installed a
\nmill in\t the year  1898\t and  has  been\t drawing  water\t for
\nindustrial purpose  from the  said river by installing water
\npumps at  its bank  with the help of artificial contrivance.
\nUnder section  70 of  the  maharashtra\tLand  Revenue  Code,
\n1966, (for short, ‘the Code’), The Government of Maharashtra
\npassed the following Resolution on June 5, 1972 thus;\n<\/p>\n
     “In exercise of the power conferred
\n     in\t it   by  section   70\tof   the
\n     Maharashtra  Land\t Revenue   Code,
\n     1966, the\tGovernment is pleased to
\n     sanction the  following  rates  for
\n     the use  of  water\t (the  right  to
\n     which vest\t in  Government\t and  in
\n     respect of\t which no rate is liable
\n     under any\tlaw in force in any part
\n     of the  state) for\t non-agriculture
\n     purpose.\n<\/p><\/blockquote>\n
NON- AGRICULTURE PURPOSE\t   Rate\t\t  Unit\n<\/p>\n
1. Industrial purpose\t    (a\tRs.8\/- for the\t Per ten
\n\t\t\t\tfirst two years\t thousand
\n\t\t\t\t\t\t cft. of
\n\t\t\t\t\t\t water\n<\/p>\n
\t\t\t    (b) Rs. 10\/- for\t  -do-\n<\/p>\n
\t\t\t\tthe third &
\n\t\t\t\tfourth year\n<\/p>\n
\t\t\t    (c) Rs. 12.50 for\t  -do-\n<\/p>\n
\t\t\t\tthe fifth and
\n\t\t\t\tsubsequent
\n\t\t\t\tyear\n<\/p>\n
2. Purpose for the\t\t Rs. 5\/-\t  -do-<\/p>\n
\n   Municipality\n3. Purpose for the\t\t  Rs. 12.50\t   -do-\n   Railways\n4. Domestic use\n   (i.e. for drinking\n   water)\t\t\t Nil\n<\/pre>\n
     The  Collector   or  such\tother  officers\t as  may  be
\nauthorised in  that behalf  should fix\tthe water  rates  in
\naccordance with rates sanctioned above.\n<\/p>\n
     These orders  supersede all  the  prevalent  orders  or
\npractice in  regard to\tthe quantum  or the rates chargeable
\nunder Section 70 of the Maharashtra Land Revenue Code, 1966.\n<\/p>\n
     These orders  were issued\twith the  concurrence of the
\nFinance Department vide in official reference No. 7041 dated
\n29th April, 1972.”\n<\/p>\n
     The Tehsildar  of Hinganghat  on the  appellant  levied
\ncess in the sum of Rs. 18,348.30 for the period from 1967-68
\nto 1973-74  on the use of water for industrial purpose.\t The
\nappellant, feeling  aggrieved, filed   an  application under
\nSection 20(2) of the Code before the Sub-Divisional officer,
\nHinganghat, challenging\t the demand  of cess, dated December
\n19, 1974,   inter  alia, contending  that he had easementary
\nright  to   draw  flowing  water  from\tthe  river,    wane,
\nuninterruptedly\t and  continuously  since  he  had  been  so
\ndrawing the  water for\tover 70 years; that it had perfected
\nas his\tprospective right  to draw  water from\tthe  flowing
\nriver,\t and the  Government is,  therefore,   devoid of any
\npower to levy cess on the use of water.\n<\/p>\n
     The Sub-Divisional\t officer dismissed  the\t application
\nafter consideration  after considering\tnecessary  evidence.
\nThe appeal  filed by  the appellant against the order of the
\nSub-Divisional\t officer    also   was\t dismissed.\t The
\ncommissioner,\tNagpur dismissed  the revision.\t Thereafter,
\nthe appellant  after filing  unsuccessful revision  petition
\nbefore Revenue Tribunal,  filed a  writ petition in the High
\ncourt.\t The High court has    found that the Government has
\npower to  levy cess  on water;\tthe  resolution,  therefore,
\npassed by  the Government  under Section  70 of\t the Code is
\nwithin the  legislative competence  under Article 246 of the
\nConstitution of India.\tAccordingly, it upheld the action of
\nthe respondent.\t  On  leave being  granted and\ta  reference
\nhaving been made to three-Judge Bench,\tthe matter  has come
\nup before us.\n<\/p>\n
     Shri  Sanghi,     learned\tcounsel\t for  the  appellant
\ncontends that  the code envisages collection of land revenue
\nfrom agriculturists    for  use\t of  water  for\t cultivation
\npurpose.  admittedly, the use of water by the appellant,  is
\nfor industrial purpose. By operation of Section 70 read with
\nSection 20  of the  code,  land revenue is relatable to levy
\non land\t of cess on the water used for agricultural purpose.
\nEven if\t it is\tconstrued that the Resolution  is valid, the
\nlegislature lacks  competence to  enact\t law  since  neither
\nEntry 18  nor entry  45 or Entry 49 of List are available to
\nsustain the demand under Section 70; therefore, it cannot be
\nconstrued that\tsection 70  is law  made under\tany  of\t the
\nEntries.   As a\t consequence, he is  entitled to the relief.
\nHe further  contends that  in view of the fact that the High
\ncourt has  recorded a  finding\tthat  the  appellant  has  a
\nnatural right  to draw\twater from  the flowing\t river,\t the
\nappellant cannot  be made  to  make  payment  which  has  no
\nlegislative sanction.  Alternatively,\tas the last straw on
\nthe  camel’s\tback,  learned\tcounsel\t for  the  appellant
\ncontends   that the collector has no power to levy cess with
\nretrospective effect.\n<\/p>\n
     Shri Andhyarujina,\t  learned  solicitor General, on the
\nother hand,  contends that  though the\tappellant  has\tbeen
\nusing the  water for  industrial purpose,  he is  using\t the
\nwater by  artificial contrivance,   drawing  water  from the
\nflowing river;\tthe levy of cess stands vested in the state;
\nand, therefore,\t the state has power to regulate the payment
\nof cess.   The\tResolution came\t to be passed in exercise of
\nthe power  under section 70 of the Code relating to the mode
\nof payment  and the manner in which the land revenue or cess
\ncan be computed.  Sub-sections (2) & (3)  of section 20, are
\nthe essential  provisions providing for the appellate remedy
\nwhich the  appellant has    availed  of.  List\tII  Entries,
\nnamely,\t Entries 18, 45 and 49 are to be read with reference
\nto the use to which land and water are put. Water is nothing
\nbut integral  part of  land; without  land, water  does\t not
\nexist.\t Section 70  would come\t within Entry  45  since  it
\nrelates to  the use  of land or water regulated in the rural
\nIndia.\t Entry 49  relates to  use of  land  or water in the
\nurban area.   since the factory of the appellant is situated
\nin a  rural area,  Entry 45  is the appropriate Entry and is
\nrequired to  be broadly\t interpreted so\t as  to\t bring\tback
\nwithin the  legislative competence  under Article 246 of the
\nConstitution.\t  He  further  contends\t that  though\t the
\nappellant had been using the water for a period of 70 years,
\nhe does\t not have  a natural  right which right is exercised
\nwith the  help of  artificial contrivance  for\t carrying on
\nindustrial activity.  That finding of the High Court  is not
\ncorrect since  the appellant  has been\tusing the  water for
\nindustrial purpose.  The levy  as land\tcess can  be used by
\noperation   of section\t70 read\t with  section\t20  and\t the
\ndefinition     of  the\t word  ‘land’\tand  ‘and   revenue’
\nrespectively under  the code.\tHe also contends that though
\nthe demand  can be  made under\tsection\t 70  read  with\t the
\nResolution  passed by the Government, since the\t Legislature
\nhas authorised\tunder section  70 the  Collector to levy and
\ncollector having  made the impugned demand in the year 1972,
\nthe demand  could only be prospective and it cannot be given
\nretrospective effect.\n<\/p>\n
     In view  of the  respective contentions,\tthe question
\nthat raises  for consideration is: whether the appellant has
\na natural  right to use water form flowing river and whether
\nthe water  used by  it is exigible to land cess? Entry 17 of
\nList   II of  the seventh schedule to the constitution reads
\nas under:\n<\/p>\n
     “Whether,\tI.e.   to   say,   water
\n     supplies,\tirrigation  and\t canals,
\n     drainages and  embedments,\t   water
\n     storage and water power, subject to
\n     the provisions  of Entry 56 List-I”
\n     Entry 56 of List I reads as under:
\n     “Regulation  and\tdevelopment   of
\n     Entry  states   rivers  and   river
\n     valleys to the extent to which such
\n     regulation\t and  development  under
\n     the  control   of\tthe   Union   is
\n     declared by Parliament by law to be
\n     expedient in the public interest.”<\/p><\/blockquote>\n
     Entry 97  of list I which was relied upon by Mr. Sanghi
\nreads as under :\n<\/p>\n
     “Any other matter not enumerated in
\n     List II  or List  III including any
\n     tax  not  mentioned  in  either  of
\n     those lists.:\n<\/p><\/blockquote>\n
     Entry 45 of List II reads as under :<\/p><\/blockquote>\n
     “Land   revenue,\t including   the
\n     assessment\t and\tcollection    of
\n     revenue,\tthe maintenance\t of land
\n     records,\tsurvey\t  for\t revenue
\n     purposes and records of rights, and
\n     a lienation of revenues.”
\n     Section 70 of the code reads as under:
\n     “70. Rates for use of water.
\n     The State\tGovernment may authorise
\n     thus collector  or the  officer  in
\n     charge of\ta survey  or such  other
\n     officer as\t it deems  fit,\t to  fix
\n     such rates\t as it\tmay from time to
\n     time  deem fit to sanction, for the
\n     use, by  holders and other persons,
\n     of water,\t the\tright  to  which
\n     vests in no rate is  leviable under
\n     any law  relating to irrigation  in
\n     force in  any   part of  the state.
\n     Such  rates   shall  be  liable  to
\n     revision at  such periods\t as  the
\n     state Government shall from time to
\n     time  determine,\t  and  shall  be
\n     recoverable as land revenue;
\n     Provided that,  the rate for use of
\n     water  for\t  agricultural\tpurposes
\n     shall be  one rupee  only per  year
\n     per holder.”\n<\/p><\/blockquote>\n
     Section 20 of the Code reads as under :
\n     “Title of\tstate  in  all\tlands  ,
\n     public roads,  etc. which\trate nor
\n     property  of others.\n<\/p><\/blockquote>\n
     (1) All  public  roads,  lanes  and
\n     paths, the\t bridges, ditches, dikes
\n     and fences,  on ,\tor  beside,  the
\n     same, the\tbed of\tthe sea\t and  of
\n     harbours and  creeks below the high
\n     watermark, and  of rivers, streams,
\n     nallas,   lakes and  tanks and  all
\n     canals and\t water-courses, and  all
\n     lands wherever  situated, which are
\n     not  the\tproperty   of\tpersons,
\n     legally\tcapable\t   of\t holding
\n     property, and  except in  so far as
\n     any rights\t of such  persons may be
\n     established, in  or over  the same,
\n     and except\t as may\t   be  otherwise
\n     provided in  any law   for the time
\n     being in  force, are and are hereby
\n     declared to be,  with all rights in
\n     or over  the same,\t or appertaining
\n     thereto,  the property of the State
\n     Government and  it shall  be lawful
\n     for the  collector, subject  to the
\n     orders  of\t  the  Commissioner,  to
\n     dispose of\t them in  such manner as
\n     may  be  prescribed  by  the  state
\n     Government in  this behalf, subject
\n     always to\tthe rights  of way,  and
\n     all other\trights of  the public or
\n     of individuals legally subsisting.
\n     Explanation :-  In\t  this\tsection,
\n     “high watermark”  means the highest
\n     point reached  by\tordinary  spring
\n     tides at any season of the year.
\n     (2) Where any property or any right
\n     in or  over any property is claimed
\n     by or  on behalf  of the Government
\n     or by  any person\tas  against  the
\n     Government,  it   survey\tofficer,
\n     after formal  inquiry of  which due
\n     notice has\t been given,  to pass an
\n     order deciding the claim.
\n     (3)  An   order   passed\tby   the
\n     Collector or  survey officer  under
\n     sub-section (1)  or sub-section (2)
\n     shall be  subject to one appeal and
\n     revision  in  accordance  with  the
\n     provisions of this code.
\n     (4)  Any  suit  instituted\t in  any
\n     civil court  after\t the  expiration
\n     of one  year from\tthe date  of any
\n     order passed  under sub-section (1)
\n     or sub-section  (2) or,  if  appeal
\n     has been  made against  such  order
\n     within the\t period\t of  limitation,
\n     then from\tthe date  of  any  order
\n     passed by\tthe appellate authority,
\n     shall   be\t   dismissed\t(through
\n     limitation has not been set up as a
\n     defence ) if the suit is brought to
\n     set aside\tsuch  order  or\t if  the
\n     relief claimed is inconsistent with
\n     such order,  provided that\t in  the
\n     case of  an order under sub-section
\n     (2)  the\tplaintiff  has\tbad  due
\n     notice of such order.\n<\/p><\/blockquote>\n
     (5) Any  person shall  be deemed to
\n     have had  due notice  of an inquiry
\n     or\t order\tunder  this  section  if
\n     notice thereof  has been  given  in
\n     accordance with  rules made in this
\n     behalf by the state Government.”<\/p><\/blockquote>\n
     A conjoint\t reading of  the provisions  of the code and
\nthe respective\tEntries would indicate that the land revenue
\nincluding the  assessment and  collection  of  revenue,\t the
\nmaintenance of land records, survey for revenue purposes and
\nrecords of  rights, and\t alienation of revenue lie under the
\nbroad-head  ‘land  revenue’.\tIt  is\twell  settled  legal
\nposition that  the land\t has  been  widely  interpreted.  In
\nNavinchandra Mafatlal  vs.   The Commissioner of Income-tax,
\nBombay<\/a> city  [(1965) 1\tSCR 829 at 836] a Constitution Bench
\nhad observed that the question\tbefore this court related to
\nthe correct  interpretation    of  a  word  appearing  in  a
\nConstitution   Act which,  as\thas been  said , must not be
\nconstrued in a narrow and pedantic sense. The interpretation
\nof the\tstatute would  apply to\t the interpretation   of the
\nEntries subject\t to reservation that their application is of
\nnecessity conditioned by the subject matter of the enactment
\nitself. It should be remembered\t that the problem before  us
\nis to construe a word appearing\t in Entry 54 which is a head
\nof legislative\tpower.\t It cannot  be read  in a  narrow or
\nrestricted   sense and that each general word should be held
\nto extend  to all ancillary or subsidiary matters  which can
\nfairly and  reasonably be  said to be comprehended to it, It
\nis, therefore,\tclear that in construing  an Entry in a List
\nconferring   legislative   powers,   the   widest   possible
\nconstruction ,\taccording to their ordinary meaning, must be
\nput upon  the words used therein.  Reference to\t legislative
\npractice may be\t admissible  for cutting down the meaning of
\na word\tin order  to reconcile two conflicting provisions in
\ntwo\tlegislative   lists.\t  The\tcardinal   rule\t  of
\ninterpretation, however, is that words should be given their
\nordinary, natural  and grammatical  meaning subject  to\t the
\nrider  that   in  construing   words  in   a  constitutional
\nenactment, conferring  legislative power  under Article 246,
\nthe most  liberal construction\tshould be put upon the words
\nin the\tEntries in  the\t respective  Lists  in\tthe  Seventh
\nSchedule so  that the  same may have effect in their  widest
\namplitude. The\tsame principle\twas reiterated\tin Kunnathat
\nThatcunni Moopil Nair vs. The state of Kerala & Anr. [(1961)
\n3 SCR  77 at  106] by Sarkar, J. though in a dissenting tone
\nbut on this principle there is no dissent by majority and it
\ncannot be dissented. It was said thus:\n<\/p>\n
     “It is  well known\t that entries in
\n     the legislative  lists have  to  be
\n     read   as to  cut\tdown  the  plain
\n     meaning of the word “land” in entry
\n     49 to  give full effect to the word
\n     “forest” in  entry 19.  In my view,
\n     the two  entries,\tnamely, entry 49
\n     and entry\t18  deal  with\tentirely
\n     different\tmatters.      Therefore,
\n     under entry  49 taxation on land on
\n     which   a\t forest\t  stands      is
\n     permissible and legal.<\/p><\/blockquote>\n
     In the  case of  Synthetics and  chemicals &  Ors.\t vs.
\nState of  U.P. &  ors. [(1990)\t1 SCC 109], a Bench of seven
\nJudges of  this court  constitution and legislative  Entries
\nin paragraph 67 which reads  as under:\n<\/p>\n
     ” It  is well  to remember that the
\n     meaning of\t the expressions used in
\n     the Constitution must be found from
\n     the  language   used.   We\t  should
\n     interpret\t the\twords\tof   the
\n     Constitution on  the same principle
\n     of\t interpretation\t compel\t one  to
\n     take into\t account  the nature and
\n     scope of  the  Act\t which\trequires
\n     interpretation.   A Constitution is
\n     the mechanism  under which laws are
\n     to be  made and  nor merely an  Act
\n     which declares  what the laws is to
\n     b. It  is also well  settled that a
\n     constitution  must not be construed
\n     in any narrow or pedantic sense and
\n     that  construction\t  must\tnot   be
\n     construed in any narrow or pedantic
\n     sense   and that construction which
\n     is most  beneficial to  the  widest
\n     possible amplitude\t of  its  power,
\n     must be  adopted.\tAn  exclusionary
\n     clause in any of the entries should
\n     be\t  strictly    and,    therefore,
\n     narrowly\tconstrued.    No   entry
\n     should, however,  be so read as nor
\n     to rob  it of  entire content,    A
\n     broad and\tliberal\t spirit\t should,
\n     therefore, inspire those whose duty
\n     it\t   is\t  to\tinterpret    the
\n     Constitution,   and the  courts are
\n     nor free  to stretch  or to  courts
\n     are  nor  free  to\t stretch  or  to
\n     pervert   the    language\t of   an
\n     enactment in  the interest\t of  any
\n     legal or\t constitutional\t theory.
\n     Constitutional adjudication  is not
\n     strengthened by such an attempt but
\n     it must  not try to give meaning on
\n     the theory\t of what  the law should
\n     be but  it\t must  so  look\t upon  a
\n     organic thing and must adapt itself
\n     to\t  the  changing\t situations  and
\n     pattern  in  which\t it  has  to  be
\n     interpreted.  It  has  also  to  be
\n     borne in  mind that  where division
\n     of powers\tand jurisdiction in a is
\n     desirable to  read the Constitution
\n     in\t harmonious   way.  It\tis  also
\n     necessary that  in deciding whether
\n     any particular enactment is  within
\n     the purview  of one  legislature or
\n     the  other,  it  is  the  pith  and
\n     substance\tof  the\t legislation  in
\n     question  that  has  to  be  looked
\n     into. It  is well\tsettled that the
\n     various entries  in the three lists
\n     of the  Indian constitution are not
\n     powers but\t fields of  legislation.
\n     The power\tto legislate is given by
\n     Articles of  the Constitution.  The
\n     three lists of the Seventh Schedule
\n     to\t    the\t    Constitution     are
\n     legislation.   These demarcate  the
\n     area  over\t which\tthe  appropriate
\n     legislature can  operate.\t  It  is
\n     well settled  that widest amplitude
\n     should be given  to the language of
\n     the entries in three Lists but some
\n     of these entries in different lists
\n     or in  the same  list may\toverride
\n     and sometimes  may appear\tto be in
\n     direct conflict  with  each  other,
\n     then and  then only  comes the duty
\n     of\t the  court  to\t find  the  true
\n     intent and\t purpose and  to examine
\n     the   particular\tlegislation   in
\n     question.\tEach genera world should
\n     be held  to extend\t to all axillary
\n     or\t subsidiary  matters  which  can
\n     fairly    and     reasonably     be
\n     comprehended    in\t   it.\t      In
\n     interpreting an  entry it would not
\n     be\t  reasonable   to   import   any
\n     limitation\t by comparing or  import
\n     ay\t limitation   by  comparing   or
\n     contrasting  that\tentry  with  any
\n     other in  the same list.  It has to
\n     be\t\t  interpreted\tas   the
\n     Constitution must be interpreted as
\n     an organic document in the light of
\n     the  experience  gathered.\t In  the
\n     constitutional   scheme of division
\n     of\t powers\t under\tthe  legislative
\n     lists, there  are separate\t entries
\n     pertaining to  taxation  and  other
\n     laws.  The aforesaid principles are
\n     fairly well    settled  by\t various
\n     decisions of  this court  and other
\n     courts.   Some   of these decisions
\n     have  been\t  referred  to\t in  the
\n     decision have  been referred  to in
\n     the decision  of  this  court    in
\n     civil Appeal   No.\t 62 (N)\/70 India
\n     cement Ltd.  v. state of Tamil Nadu
\n     (1990) 1 SCC 12.<\/p><\/blockquote>\n
     In recent\tjudgment, this\tcourt, by  a  Bench  of\t two
\nJudges, to  which K.  Ramaswamy and  G.P. Pattanaik,JJ. were
\nmembers, in  Indian Aluminium co. & Ors. vs. State of Kerala
\n& Ors.\t[(1996) 7  SCC 637], considered the same question in
\nparagraphs 12 and 20 which read as under:\n<\/p>\n
     ” The  primary question, therefore,
\n     is:  whether   the\t  impugned   Act
\n     enacted by the state Legislature is
\n     one under\tEntry 53  of  the  state
\n     List,   viz.,    “Taxes   on    the
\n     consumption    or\t  sale\t      of
\n     electricity”.    Indisputably,  the
\n     title of  the Act\tas well\t as  the
\n     charging section 3 Employ the words
\n     “duty on  supply  of  electricity”.<\/p><\/blockquote>\n
     Under   Article   246(3)\tof   the
\n     Constitution,\tevery\t   state
\n     legislature has  explicit power  to
\n     make law for that stat with respect
\n     to the  matters enumerated\t in List
\n     II (state\tList)\tto  the\t seventh
\n     Schedule to  the constitution.  The
\n     entries in\t the three  lists of the
\n     Seventh Schedule  are not\tpower of
\n     legislation   but merely  fields of
\n     legislation.   The power is derived
\n     under Article 246 and other related
\n     articles of  the constitution.  The
\n     legislative fields\t are of enabling
\n     character designed\t to  define  and
\n     delimit  the  respective  areas  of
\n     legislative  competitive  areas  of
\n     legislative   competence\tof   the
\n     respective legislature.   There  is
\n     neither implied restriction imposed
\n     on the  legislature nor is any duty
\n     prescribed\t  to\texercise    that
\n     legislative power\tin a  particular
\n     manner.   But the\tlegislation must
\n     be\t subject   to  the   limitations
\n     prescribed under the Constitution.
\n     When the  vires of\t an enactment is
\n     challenged,   its is very difficult
\n     to\t ascertain  the\t limits\t of  the
\n     legislative power.\t Therefore,  the
\n     controversy must be resolved as far
\n     a\tpossible,   in\tfavour\t of  the
\n     legislative body\tputting the most
\n     liberal  construction   upon  there
\n     relevant legislative  entry so that
\n     it may  have the  widest amplitude.
\n     The court\tis required  to look  at
\n     the substance  of the registration.
\n     It is  an equally\tsettled law that
\n     in order to determine whether a tax
\n     statute   is within  the competence
\n     of the legislature, it is necessary
\n     to determine  the nature of the tax
\n     and  whether  the\tlegislature  had
\n     power to  enact such  a law.    The
\n     power to  enact such  a law.    The
\n     primary guidance  for this\t purpose
\n     is to be gathered from the charging
\n     section. It is the substance of the
\n     impost  and  not  the    form  that
\n     determines the nature of tax.”<\/p><\/blockquote>\n
     Thus, it  is settled  principle  of interpretation that
\nlegislative Entries  are required  to be interpreted broadly
\nand widely  of as  to give power to the legislature to enact
\nlaw with  respect to  matters enumerated  in the legislative
\nEntries.   Substantive power of the legislature to enact law
\nis under  Article 246  of the  Constitution and\t legislative
\nEntries in  the respective  Lists 1  to\t 3  of\tthe  Seventh
\nScheduled are  of enabling  character,\tdesigned  to  define
\ndelimit the  respective areas  of legislative  competence of
\nthe  respective\t legislature.\t the  substantive  power  in
\nArticle 246 and all other related articles.\n<\/p>\n
     In Province  of Madras  vs. Lady  of  Dolours  Convent,
\nTrichinopoly ,\trepresented by\tMother Superior\t & Ors. [Air
\n1942 Madras  719] ,   the  word ‘land’\twas  interpreted  to
\ninclude land  cess.   In Kandukuri  Bala Suryaprasada  Raw &
\nAnr. vs.  secretary to state for India [AIR 1971 PC 42], the
\nprivy council  had also interpreted “charge” on water in the
\nnature of  land cess.\tIt  was followed  by the Madras High
\nCourt,\t similarly, water cess is land\trevenue as was\theld
\nin K.S.\t Ardanareeswarar Gounder  vs. Tahsildar,  Bhavani  &
\nAnr. [Air  1976 Madras\t318 at\t320].\tWith regard  to\t the
\nincidence of cess on the use of water in the urban area. the
\nDivision Bench\t of  the Andhra\t Pradesh High court in Nizam
\nSugar Factory  Ltd. vs.\t  city\tMunicipality Bodhan  &\tAnr.
\n[AIR 1965  AP 91]  had held  that it  is land  revenue under
\nEntry 49.  Similarly, Allahabad\t High court  in Raza  Buland
\nSugar Company  Ltd., Rampur vs. Municipal Board, Rampur<\/a> [AIR
\n1962 All.  83] rates  of cess  on water\t under the municipal
\nlimits was  held to be the cess of land revenue in the urban
\narea.\tThus, we  hold that the legislative Entry 45 of List
\nII of the seventh Schedule of the Constitution brings within
\nthe ambit power of the legislature under Article 246 to levy
\ncess  on   use\tof   the  water\t even  from  flowing  river.
\nTherefore, section  70 of the code comes within\t Entry 45 of
\nList II of the Seventh Schedule to the Constitution.\n<\/p>\n
     Mr. Sanghi,  learned  counsel  for\t the  appellant\t has
\nrelied upon  a judgment\t of this  court in  Shankar  Narayan
\nRanade vs.  Union   of India<\/a>  [(1964)  1  SCR  885  at\t893]
\ncontending that\t this court  made distinction  between still
\nwater and  flowing water.  Water for the purpose of cess and
\nthe impost  thereof are not referable of cess and the impost
\nthereof are nor referable  to flowing water of the river and
\nthe river water is nor amenable to land cess;  therefore, it
\nis contended  that the\tflowing water  is  nor\texigible  to
\nregulation of  the land\t cess.\t We find  no  force  in\t the
\ncontention. The use of the word “water” in the sand property
\nwas construed to exclude the running water  of the river and
\nit could  nor be said that the title to the   flowing water.
\nThere existing\twords of  difference between  still water in
\nthe land  like\t in the pound and  flowing water in a river.
\nThis court  negatived  the  contention\tand  held  that\t the
\nflowing water  vests in\t the state. In that context, at page
\n894, the  title to  the bed  of the river was negatived and,
\ntherefore, it  was held that there were two difficulties  in
\naccepting   the contention.   The  first difficulty was that
\nthe use\t of the\t word “water”  in  the\tsand,  excluded\t the
\nrunning water  of the  river.\tBesides, it  is by  no means
\nclear that  the title  to the\tflowing\t water of  the river
\nnecessarily goes  with the  title to  the bed  of the river.
\nShri  Sanghi   further\tcontends   that\t this\tcourt\tmade
\ndistinction   between the  cess on sale of goods in state of
\nMadras vs.  Cannon Dunkerley  & Co.  (Madras) Ltd.<\/a> [(1959) 1
\nSCR  379]   which  is\tpopularly  known   as  first  Cannon
\nDunkerley’s case.   Therein,  the question  was whether\t the
\nmaterial supplied  to the company was exigible to sales cess
\nunder\tthe Madras sales Tax Act. This Court held that since
\nsale of\t goods is  clearly covered  in different legislative
\nEntries,   it is  nor exigible\tto sales  cess.\t The  ration
\ntherein,  therefore,  has no application to the facts of the
\npresent case.  It is   seen  that Section  20  of  the\tCode
\nclearly includes  flowing water,  as investing title thereof
\nin the\tState as  integral part of the land.  The definition
\n‘land’ includes\t the right to the water flowing therefrom as
\nin  the\t  definition  in   the\tTransfer  of  Property\tAct.
\nTherefore, when the cess has been imposed by virtue of power
\nvested under Section  70 of the Code by the state Government
\nby way\tof legislation,\t the power of the state is traceable
\nto the\tlegislation,  the power of the state is traceable to
\nthe legislative\t Entry\t under Entry  45 of  List II  of the
\nSeventh Schedule to the Constitution.  Therefore, the demand
\nmade  is  with\tin    the  legislative\tcompetence  and\t the
\nlegislature i  s competent  to enact  law in exercise of the
\npower under  Article 246.   The\t Government have power under
\nSection 70  read with  section 20  of the Code to levy water
\ncess on the use of water  by the Resolution which came to be
\npassed by the state Government determining the rate at which
\nwater\tcess is\t cessable   on use   of water for industrial
\npurpose.  It is true  that  the appellant has been using the
\nwater for   over  70 years  but that  cannot be construed to
\nmean that  it has  a right  to draw  water    by  artificial
\ncontrivance from   the\tflowing river for use in its factory
\nfor  industrial\t purpose.    Having  used  the\twater\t for
\nindustrial purpose,  it\t  is taxable as incidence on cess on
\nwater as  land cess  and,   therefore,\t it is liable to pay
\nwater  cess at the rates prescribed by the Government.\n<\/p>\n
     Mr. Sanghi,   learned counsel for the appellant, lastly
\nsubmits that  no guidelined  have been\tfixed  for demand of
\ncess levied  on use  of water  from flowing  river.  we find
\nthat the  manner in which the prescription of the  rates has
\nbeen based,  is sufficient  guideline  for  determining\t the
\nrates at which the demand can be assessed to revenue cess.\n<\/p>\n
     It is  already seen  that the machinery provision under
\nsub-section (2) of Section 20 was  adopted by the Tehlsildar
\nand   after demand  was made,\tthe appellant approached the
\nappellate  authority   and  the\t reversional  authority\t who
\ncomplied with  the principles  of natural  justice. In\tview
\nof the\tfair stand  taken by  learned solicitor General that
\nthe executive cannot make  any\tdemand retrospectively,\t the
\ndemand must  be construed  to operate  from the\t date of the
\nResolution passed  by the  Government and   from  that date,
\nthe appellant is liable to pay the land cess for  use of the
\nwater at the rates  specified therein.\tThe  respondents are
\ndirected to compute the\t rate on that basis and make a fresh
\ndemand;\t on making such demand,\t the appellant shall pay the
\namount of  cess within\ta period of 30 days from the date of
\nreceipt of the\tdemand.\n<\/p>\n
     The appeal is accordingly disposed of.  No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\\S. R.S. Rekhchand … vs State Of Maharashtra on 7 May, 1997 Bench: K. Ramaswamy, S. Saghir Ahmad, G.B. Pattanaik PETITIONER: M\\S. R.S. REKHCHAND MOHOTASPINNING & ORS WEAVING MILLS LTD. Vs. RESPONDENT: STATE OF MAHARASHTRA DATE OF JUDGMENT: 07\/05\/1997 BENCH: K. RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT: O […]<\/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-148108","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\\S. R.S. Rekhchand ... vs State Of Maharashtra on 7 May, 1997 - 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\/ms-r-s-rekhchand-vs-state-of-maharashtra-on-7-may-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\\S. R.S. 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