{"id":62511,"date":"1961-12-31T00:00:00","date_gmt":"1961-12-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhaiyalal-shukla-vs-state-of-madhya-pradesh-on-31-december-1961"},"modified":"2015-08-08T20:22:01","modified_gmt":"2015-08-08T14:52:01","slug":"bhaiyalal-shukla-vs-state-of-madhya-pradesh-on-31-december-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhaiyalal-shukla-vs-state-of-madhya-pradesh-on-31-december-1961","title":{"rendered":"Bhaiyalal Shukla vs State Of Madhya Pradesh on 31 December, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bhaiyalal Shukla vs State Of Madhya Pradesh on 31 December, 1961<\/div>\n
Equivalent citations: 1962 AIR 981, \t\t 1962 SCR Supl. (2) 257<\/div>\n
Author: Hidayatullah<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Kapur, J.L., Hidayatullah, M., Shah, J.C., Mudholkar, J.R.<\/div>\n
           PETITIONER:\nBHAIYALAL SHUKLA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MADHYA PRADESH\n\nDATE OF JUDGMENT:\n31\/12\/1961\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nSINHA, BHUVNESHWAR P.(CJ)\nKAPUR, J.L.\nSHAH, J.C.\nMUDHOLKAR, J.R.\n\nCITATION:\n 1962 AIR  981\t\t  1962 SCR  Supl. (2) 257\n CITATOR INFO :\n R\t    1963 SC 222\t (27)\n APL\t    1963 SC 853\t (15)\n R\t    1964 SC1179\t (4)\n R\t    1978 SC 747\t (32)\n F\t    1980 SC   1\t (21,22,23,29)\n E\t    1984 SC 121\t (16)\n\n\nACT:\n     Sales Tax-C  p  and  Berar\t Act  extended\tto\nVindhya Pradesh-Validity-C.P.  & Berar\tSales  Tax\nAct, 1947  (21 of  1947), as  extended to  Vindhya\nPradesh-Part C\tStates (Laws)  Act,  1950,  s,\t2-\nGovernment of  Part C  States Act (49 of 1951) ss.\n21, 22-Part C State (Miscellaneous Laws) Repealing\nAct (66 of 1951)-Vindhya Pradesh Laws (Validating)\nAct (6\tof 1952)  s. 7-Vindhya\tPradesh Sales  Tax\nOrdinance (2  of 1949)\tConstitution of India Art.\n14.\n\n\n\nHEADNOTE:\n     The   appellant   was   doing   business\tof\nconstruction  as  contractor  under  Public  Works\nDepartment in Vindhya Pradesh, now Madhya Pradesh.\nHe challenged  the levy\t of Sales  Tax on building\nmaterials supplied  by him for the year 1953-54 to\n1958-59. The contention of the Petitioner was that\nthe tax\t was not  leviable in view of the decision\nof the\tSupreme Court  in Gannon  Dunkerley's case\nand Pandit  Banarsi Das's  case.  The  respondents\nclaimed that the tax was leviable because the case\nfell within the derision in Mithan Lal's case. The\nRajpramukh of  the United State of Vindhya Pradesh\npromulgated  the   Vindhya   Pradesh   sales   Tax\nOrdinance 2  of 1949.  On Vindhya Pradesh becoming\nPart C\tState  of  India  the  said  ordinance\tof\nRajpramukh was\tapplied to  the whole  of it  with\neffect from  April 1,  1950, by notification No. 7\nof March 28, 1951. Under s. 2 of the Part C States\n(Laws) Act,  1950, by  notification No.\t S.R.O.\t 6\ndated December\t29, 1950,  the Central Provinces &\nBerar Sales  Tax Act 1947, was extended to Vindhya\nPradesh. The  notification also added s. 29 to the\nMadhya Pradesh Act so extended, by which ordinance\n2 of  1949 was repealed. By reason of the decision\nof this\t Court in  the Delhi  Laws  Act\t case  the\naddition of s. 29 was unconstitutional. Parliament\nthen  enacted  the  Part  C  States  (Misc.  Laws)\nRepealing Act (66 of 1951). By s. 2 of the Act the\nVindhya Pradesh\t Sales Tax  ordinance,\t1949,  was\ndeemed to  have been  repealed from  December  29,\n1950. The  Vindhya Pradesh  Laws  (Validity)  Act,\n1952, also  provided  and  declared  that  Central\nProvinces &  Berar Sales  Tax Act, 1947, which was\nextended to Vindhya Pradesh under s. 2 of the Part\nC States  Laws Act,  1950, has\tbeen and  shall be\ndeemed to  be in  force in  Vindhya  Pradesh  from\nApril 1,  1951. The  said C.  P. & Berar Sales Tax\nAct defined  contract, goods,  sales etc,  and\tby\nthese definition the materials used or supplied by\n258\na building  contractor in  the constructions  etc,\nwere made  liable to  Sales Tax in accordance with\nthe schedule rates. The question is, whether C. P.\nJUDGMENT:\n<\/pre>\n
been extended  for the\tfirst time  by the Vindhya
\nPradesh legislature  in 1952,  when it\tpassed the
\nVindhya Pradesh\t Laws (Validating)  Act, 1952,\tto
\nthe  exclusion\tof  the\t order\tcontained  in  the
\nnotification No.  S.R.O.  6  or\t whether  the  Act
\ncontinued to  be in  force in Vindhya Pradesh even
\nbefore and all that the Vindhya Pradesh Act did as
\nto remove any doubts about its validity.\n<\/p>\n
     The rival\tcontentions of\tthe appellant  and
\nthe respondents\t are reduced  to  the  proposition
\nthat if\t the State  Legislature of Vindhya Pradesh
\nextended the  Central Province and Berar Sales Tax
\nAct, the extended Act would suffer from disability
\npointed out in Gannon Dunkerley’s case, but if the
\nsaid Act  was extended\tby the\tnotification under
\nPart C\tStates (Laws)  Act, 1950,  then it must be
\ntreated as incorporated in the Act and to have the
\nauthority of Parliament which, in relation to Part
\nC States, had no limitation whatever.
\n^
\n     Held, that\t the extended  law in  the C. P. &
\nBerar Sales  Tax Act,  1947, did not depend on the
\nrepeal of  the earlier\tlaw for\t its validity.\tIt
\nwould have been operative, even if the earlier law
\nwas not\t repealed, but the earlier law was in fact
\nrepealed from  December 29,  1950, and no question
\nof conflict  between the  new and the old law ever
\narose.\n<\/p>\n
     Held,  further,   that  the  Vindhya  Pradesh
\nAmending Act made only verbal changes, but did not
\nalter the structure of the tax. No doubt, that Act
\ncontained certain  provisions under which sales of
\nbuilding  materials   are  taxable,   and  if  the
\nauthority to tax the so-called sales emanated from
\na State\t Legislature, then the law would fail. The
\nlaw was\t first extended\t to the Vindhya Pradesh by
\nthe Central  Government acting under the authority
\nof Parliament  legislating for\ta  Part\t C  State.
\nParliament and\tthe Central  Government\t were  not
\nsubject to  the disabilities pointed out in Gannon
\nDunkerley’s case,  and the  matter was\tcovered by
\nMithan Lal’s case. Even if the notification S.R.O.
\nNo.  6\tfailed\tto  repeal  ordinance  2  of  1949
\nParliament by  its own\tlaw effaced that ordinance
\nin Vindhya  Pradesh from  December 29,\t1950,  and
\nenacted that  ordinance\t shall\tbe  deemed  to\tbe
\nrepealed from  that day.  The ordinance\t 2 of 1949
\ndid  not  continue  in\tVindhya\t Pradesh  down\tto
\nJanuary 8,  1953 because  by fiction the ordinance
\nwas repealed from December 29, 1950.\n<\/p>\n
     Held,  also,   that  the  laws  in\t different
\nportions of  new  State\t of  Madhya  Pradesh  were
\nenacted by different legislatures and under s. 119
\nof the States Reorganisation Act, all
\n259<\/span>
\nlaws in\t force in  a state  were to continue until
\nrepealed   or\t altered   by\t the   appropriate
\nLegislature.  The  different  sales  tax  laws\tin
\ndifferent parts of Madhya Pradesh are valid on the
\nground\tthat   the  differentiation   arises  from
\nhistorical    reasons,\t  and\t a    geographical
\nclassification based  on historical reasons is not
\naffected by Art. 14 of the Constitution.\n<\/p>\n
     State of  Madras v.  Gannon Dunkerley  &  Co.
\n[1959] S.C.R.  379, Pandit  Banarsidas v. State of
\nMadhya Pradesh,\t [1959] S.C.R.\t427, Mithan Lal v.
\nState of  Delhi,<\/a> [1959] S.C.R. 445 In re the Delhi
\nLaws  Act,   1912,  [1951]   S.C.R.  747,   Gannon
\nDunkerley v. State of Madras, [1954] 1 S.C.R. 216,
\nBehram Khurshed\t Pesikaka v.  The State of Bombay,<\/a>
\n[1955] 1  S.C.R. 613,  Deepchand v. State of Uttar
\nPradesh,  [1959]   Supp.  2   S.C.R.  S,  John\tM.
\nWilkerson v.  Charles A.  Rahrer, (1891) 140 U. S.
\n545, M.\t K. Prithi  Rajji v. State of Rajasthan C.
\nA. No.\t327\/56 decided\ton 2-11-60  and\t State\tof
\nMadhya Pradesh v. The Gwalior Sugar Co. Ltd. C. A.
\nNos.<\/a> 98\t and 99\t of 1957  decided  on  30-11-1960,
\nreferred to.\n<\/p>\n
&
\n     ORIGINAL JURISDICTION:  Petitions Nos. 110 to
\n115 of 1960.\n<\/p>\n
     (Under Article  32\t of  the  Constitution\tof
\nIndia for enforcement of Fundamental Rights)
\n     A. V.  Viswanatha Sastri,\tR. K.  Garg, D. P.
\nSingh, S.  C. Aggarwal\tand M.\tK. Ramamurthi, for
\nthe Petitioner.\n<\/p>\n
     B. Sen,  B. K. B. Naidu and I. N. Shroff, for
\nthe Respondents.\n<\/p>\n
     1961. December  21. The Judgment of the Court
\nwas delivered by
\n     HIDAYATULLAH, J.-These  six  petitions  under
\nArt. 32 of the Constitution have been filed by one
\nBhaiyalal  Shukla,   who  was  doing  business\tof
\nconstruction of\t buildings, roads, bridges etc. as
\ncontractor for the Public Works Department in Rewa
\nCircle of  the former Vindhya Pradesh State, now a
\npart of\t the State  of Madhya  Pradesh.\t By  these
\npetitions, he  challenges the levy of sales tax on
\nbuilding  materials   supplied\tby   him  in   the
\nconstruction of\t buildings, roads  and bridges for
\nthe years,  1953-54 to 1958-59. For the first year
\nin question,  sales tax amounting to Rs. 1,840-5-0
\nhas
\n260<\/span>
\nalready been  charged and paid. He seeks refund of
\nthis amount.  For the  remaining years\texcept the
\nlast two,  proceedings for  assessment\thave  been
\ncompleted, but the amounts have not been paid. For
\nthe remaining  two years,  proceedings are pending
\nfor assessment\tof the tax. The respondents in the
\ncase are the State of Madhya Pradesh, which stands
\nsubstituted for\t the State of Vindhya Pradesh, and
\ndiverse officers connected with the assessment and
\nlevy of\t the tax. The contention of the petitioner
\nis that\t the tax  is not  leviable in  view of the
\ndecisions of  this Court  in two cases reported in
\nThe State  of Madras  v. Gannon\t Dunkerley and Co.
\n(Madras) Ltd.<\/a>(1)  and  Pandit  Banarsidas  v.  The
\nState of  Madhya  Pradesh  (2).\t The  respondents,
\nhowever, claim\tthat the  tax is leviable, because
\nthe case  falls within\tthe decision of this Court
\nreported in Mithan Lal v. The State of Delhi<\/a> (3).\n<\/p>\n
     The  United  State\t of  Vindhya  Pradesh  was
\nformed by  the Rulers of the States in Baghelkhand
\nand Bundhelkhand,  who\tagreed\tto  unite  into\t a
\ncommon State,  with the\t Maharaja of  Rewa as  the
\nRajpramukh. By the Covenant which was entered into
\nby them at that time, it was provided that until a
\nConstitution for  the United  State would  vest in
\nthe Rajpramukh,\t and he was authorised to make and
\npromulgate  Ordinances\tfor  the  peace\t and  good
\ngovernment  of\t the  United  State  of\t any  part
\nthereof, and  any Ordinance  made by  him had  the
\nforce of  an Act  passed by the legislature of the
\nUnited State.\n<\/p>\n
     The Rajpramukh,  in exercise  of  his  powers
\ndrawn from  the Covenant,  promulgated the Vindhya
\nPradesh Sales Tax Ordinance 2 of 1949 for the levy
\nof a  tax on the sale of goods in Vindhya Pradesh.
\nOn the inauguration of the present Constitution of
\n261<\/span>
\nIndia, Vindhya\tPradesh became, at first, a part B
\nState but  later by the Constitution (Amendment of
\nthe First  and Fourth  Schedules) Order,  1950, it
\nwas transferred\t from Part  B to  Part\tC  of  the
\nConstitution. The  ordinance of the Rajpramukh was
\napplied to  the\t whole\tof  Vindhya  Pradesh  with
\neffect from April 1, 1950 by Notification No. 7 of
\nMarch 28,  1950 by the Chief Commissioner, Vindhya
\nPradesh, acting under s. 1(2) of the ordinance.\n<\/p>\n
     Parliament then  passed  the  Part\t C  States
\n(Laws) Act, 1950. Section 2 of that Act provided:\n<\/p>\n
\t  “Power to  extend enactments\tto certain
\n     Part C States:-The Central Government may, by
\n     notification in  the Official  Gazette extend
\n     to any  Part C  State…… or to any part of
\n     such  State,   with  such\t restrictions  and
\n     modifications as it thinks fit, any enactment
\n     which is  in force\t in a  Part A State at the
\n     date of the notification and provision may be
\n     made in  any enactment  so extended  for  the
\n     repeal  or\t amendment  of\tany  corresponding
\n     law(other than  a Central\tAct) which  is for
\n     the time  being applicable\t to  that  Part\t C
\n     State,”\n<\/p><\/blockquote>\n
In exercise  of the  power conferred  by the above
\nsection, the  Central Government  by  Notification
\nNo. S.R.O.  6 dated December 29, 1950, extended to
\nthe State of Vindhya Pradesh the Central Provinces
\nand Berar  Sales Tax  Act, 1947 (21 of 1947) as in
\nforce for  the time  being in  the State of Madhya
\nPradesh,   subject    to   certain   modifications
\nnecessitated by the application of the Act to this
\nnew area.  By the same Notification, a new section
\nwas added to the Madhya Pradesh Act, which read as
\nfollows:\n<\/p>\n
\t  “29.\tRepeal\tand  Saving:  The  Vindhya
\n     Pradesh Sales Tax Ordinance 2 of 1949 is here
\n     by repealed, provided that……..”\n<\/p><\/blockquote>\n
and here  follow  certain  provisions  saving  the
\nprevious operation of the Ordinance.\n<\/p>\n
262<\/span><\/p>\n
     On March  20, 1951,  the  Central\tGovernment
\nissued Notification  No. 52\/ECON.  in exercise\tof
\nthe powers  conferred by sub-s. (3) of s. 1 of the
\nCentral Provinces  and Berar  Sales Tax Act, 1947,
\nas extended  to the  State of  Vindhya Pradesh\tby
\nNotification No.  S.R.O.  6,  ordering\tthat  from
\nApril 1,  1951 the  extended Act  would come  into
\nforce in  the State of Vindhya Pradesh. On May 23,
\n1951, this  Court rendered  its judgment  in In re
\nthe  Delhi  Laws  Act  1912(1).\t It  was  held\tby
\nmajority by  this Court\t that s.  2 of\tthe Part C
\nStates (Laws)  Act, 1950  was intra  vires, except
\nfor the\t concluding sentence,  “provision  may\tbe
\nmade in\t any enactment\tso extended for the repeal
\nor amendment  of any corresponding law (other than
\na  Central  Act)  which\t is  for  the  time  being
\napplicable to  that Part  C State”, inasmuch as it
\nwas ultra vires the Indian Parliament.\n<\/p>\n
     Parliament then passed the Government of Part
\nC States  Act, 1951  (49 of  1951) on September 6,
\n1951. Under  that Act, Legislative Assemblies were
\nset up,\t and under  s.\t21,  they  were\t invested,
\nsubject to  certain limitations,  with\tPowers\tof
\nlegislation with  respect to  any of  the  matters
\nenumerated in  the State List or in the Concurrent
\nList. Section 22 of that Act provided:\n<\/p>\n
\t  “If any  provision of\t a law made by the
\n     Legislative Assembly  of a State is repugnant
\n     to any provision of a law made by Parliament,
\n     then  the\tlaw  made  by  Parliament  whether
\n     passed before  or after  the law  made by the
\n     Legislative  Assembly  of\tthe  State,  shall
\n     prevail and  the law  made by the Legislative
\n     Assembly of the State shall, to the extent of
\n     the repugnancy, be void.\n<\/p><\/blockquote>\n
\t  Explanation: For  the purposes  of  this
\n     section,  the   expression\t  ‘law\t made\tby
\n     Parliament’ shall\tnot include  any law which
\n     provides
\n263<\/span>
\n     for the  extension to the State of any law in
\n     force in  any other  part of the territory of
\n     India.”\n<\/p><\/blockquote>\n
In view of the decision of this Court in the Delhi
\nLaws Act  case(1) the Part C States (Miscellaneous
\nLaw) Repealing\tAct, 1951 (66 of 1951) was enacted
\nby Parliament on October 31, 1951. By s. 2 of that
\nAct, laws  described in\t Column 2  of its Schedule
\nwere repealed or were deemed to have been repealed
\nwith  effect  from  the\t dates\tspecified  in  the
\ncorresponding entry  in column 3 of that Schedule.
\nIn the\tSchedule, the  Vindhya Pradesh\tSales  Tax
\nOrdinance, 1949\t (2 of\t1949)  was  repealed  from
\nDecember 29, 1950. The Vindhya Pradesh Legislative
\nAssembly,  which  was  set  up,\t then  passed  the
\nVindhya Pradesh\t Laws (Validating) Act, 1952 (6 of
\n1952). By  that Act,  which was\t to extend  to the
\nwhole of Vindhya Pradesh and to come into force on
\nJanuary 8,1953, it was provided as follows:\n<\/p>\n
\t  “2. For  the removal of all doubts it is
\n     hereby    declared\t   that……..\t   Central
\n     Provinces and  Berar Sales\t Tax Act,  1947 as
\n     extended to  Vindhya Pradesh  under section 2
\n     of the  Part C  States Laws  Act,\t1950  (has
\n     been) and\tshall be  deemed to be in force in
\n     Vindhya Pradesh from April 1, 1951.\n<\/p><\/blockquote>\n
\t  7. Repeal and savings:-As from the dates
\n     of\t the   actual  enforcement   of\t the  Acts
\n     specified\tin  section  2\tof  this  Act  the
\n     corresponding  laws   in  force   in  Vindhya
\n     Pradesh immediately  before  the  said  dates
\n     shall be deemed to have been repealed without
\n     prejudice\tto   anything  done   or  suffered
\n     thereunder\t  or\tany   right,\tprivilege,
\n     obligation or  liability acquired, accrued or
\n     incurred  thereunder   before  the\t aforesaid
\n     dates.”<\/p><\/blockquote>\n
     Section 2\tof the Central Provinces and Berar
\nSales Tax Act, 1947, which was extended to
\n264<\/span>
\nVindhya Pradesh,  defined “contract”  to mean  any
\nagreement  for\t the  carrying\tout  for  cash\tor
\ndeferred payment  or other valuable consideration,
\nthe  construction,  fitting  out,  improvement\tor
\nrepair of  any building,  road,\t bridge\t or  other
\nimmovable property, and further defined “goods” to
\nmean  all   kinds  of\tproperty   including   all
\nmaterials, articles  and commodities,  whether\tor
\nnot to\tbe used\t in the construction, fitting out,
\nimprovement or\trepair of  immovable property, and
\nfinally defined\t “sale” as  including transfer\tof
\nproperty in  goods  made  in  the  course  of  the
\nexecution of a contract. By these definitions, the
\nmaterials  used\t  or  supplied\t by   a\t  building
\ncontractor  in\t the  construction  of\tbuildings,
\nroads, bridges, etc. were made liable to sales tax
\nin accordance  with a  schedule of  rates to which
\nreference seems unnecessary.\n<\/p>\n
     The legality  of these and similar provisions
\nof law\tpurporting to impose sales tax on building
\nmaterials in  State Acts came up for consideration
\nbefore High  Courts in India, and two well-defined
\nviews were  expressed, one  holding that the power
\nto disentangle\tin a building contract the sale of
\nmaterials from\tthe execution of works with a view
\nto  taxing   such  a  sale,  was  not  beyond  the
\nlegislative power of the States acting under Entry
\n48, List II, Seventh Schedule of the Government of
\nIndia Act,  1935, corresponding to Entry 54 of the
\nlike List  in the  Constitution. It  was  held\tin
\nthose  cases  that  a  building\t contract,  though
\nentire, involved  labour  plus\tmaterials  and\tin
\nrespect\t of   the  materials   there  was  a  sale
\ninvolving transfer  of property for consideration,
\nand that  the legislature had the power to frame a
\ndefinition of  “sale” to  separate  the\t two.  The
\nother  view   was  that\t building  contracts  were
\nentire, and  that there\t was no\t sale of  goods as
\ncontemplated by\t the Indian  Sale  of  Goods  Act,
\nwhich was the sense in which the Entry was framed,
\na sense which had a well-recognised legal import.\n<\/p>\n
265<\/span><\/p>\n
This Court in Gannon Dunkerley’s case (1) approved
\nthe latter view, which is found in the decision of
\nthe Madras  High Court in sub nom Gannon Dunkerley
\nv.  State   of\tMadras(2),   and  disapproved  the
\ncontrary view. It was pointed out that though in a
\npopular sense  there was  a sale of the materials,
\nthere  was   none  in\tthe  sense  in\twhich  the
\nexpression “sale  of goods”  is used in the Indian
\nSale of Goods Act, since there was no agreement to
\nsell or\t sale of  materials as\tsuch, nor  did the
\nproperty  pass\ttherein\t as  movables.\tIn  Pandit
\nBanarsi Das’s  case (3), which was a case from the
\nState  of  Madhya  Pradesh  and\t which\twas  heard
\nsimultaneously, it  was held  that if  the parties
\nentered into  distinct and separate contracts, one
\nfor transfer  of materials for money consideration
\nand the\t other, for  payment of\t remuneration  for
\nservices or  works done,  then there  was  a  sale
\nwithin the  meaning of\tthe Sale  of Goods Act and
\nthe levy  of  tax  was\tvalid;\tbut  that  if  the
\ncontract was  an entire\t one, the levy was without
\ncompetence. The\t sections of the Central Provinces
\nand Berar Sales Tax Act making such a division and
\ntaxing\tthe  so-called\tsales  of  materials  were
\ndeclared to  be beyond\tthe powers  of\tthe  State
\nLegislature.\n<\/p>\n
     The petitioner  contends  that  the  impugned
\nsections of  the Central Provinces and Berar Sales
\nTax Act,  as  applied  to  Vindhya  Pradesh,  fell
\nwithin\tthese\ttwo  rulings,  and  must  also\tbe
\ndeclared ultra\tvires the  Vindhya  Pradesh  State
\nLegislature, when  the latter  enacted the Vindhya
\nPradesh Laws (Validating) Act, 1952.\n<\/p>\n
     As against this, the respondents contend that
\nthe Notification  S.R.O. No.  6, which added s. 29
\nrepealing the  Vindhya Pradesh Sales Tax Ordinance
\n2 of  1949, the Part C States (Miscellaneous Laws)
\nRepealing Act,\t1951 and  the Vindhya Pradesh Laws
\n(Validating) Act, 1952 all concurred in repealing
\n266<\/span>
\nOrdinance 2  of 1949  from December  29, 1950, but
\nleft intact the operation of the Central Provinces
\nand Berar  Sales Tax  Act as  extended to  Vindhya
\nPradesh by  S. R.  O. No.  6 of\t 1950. The Vindhya
\nPradesh Laws (Validating) Act, 1952 merely removed
\nthe doubts  by\tstating\t again\tthat  the  Central
\nProvinces and  Berar Sales  Tax Act  had been  and
\n“shall be deemed to be in force in Vindhya Pradesh
\nfrom April  1, 1951”,  but did\tnot re-enact  that
\nAct. According\tto the\trespondents,  the  Central
\nProvinces and  Berar Sales Tax Act was in force in
\nVindhya Pradesh\t as a  result of  its extension by
\nNotification S.\t R. O.\t6 and  Notification No. 52<\/span>
\n(Econ), the  repeal of\tOrdinance 2  of 1949 being
\nachieved by the Part C States (Miscellaneous Laws)
\nRepealing Act,\t1951 from  December 29,\t 1950. The
\nrespondents,  therefore,   seek\t to   uphold   the
\nimpugned provisions  on the basis of the ruling of
\nthis Court  in Mithan  Lal’s case(1), where it was
\npointed out  that whatever  might be  said of  the
\nState Legislatures operating under List II did not
\nhold good  in the case of Parliament which derived
\nits powers  in relation\t to legislation\t in Part C
\nStates, not  only from all the Lists but also from
\nthe residuary powers of taxation mentioned in Art.
\n248(2). It  was also  held that s. 2 of the Part C
\nStates (Laws)  Act, 1950 was not repugnant to Art.
\n248(2), that  the extended law became incorporated
\nby reference  in the Part C States (Laws) Act, and
\nthat the  tax was  thus one  imposed by Parliament
\nitself. The  respondents, therefore, contend that,
\nas held\t in Mithan  Lal’s case(1)  when parliament
\nenacted the  Part C  States (Laws)  Act, 1950  and
\nconferred  power  on  the  Central  Government\tto
\nextend any  Act of  a Part  A State  to any Part C
\nState, that power of extension carried with it the
\nplenary powers\tof Parliament, and even though the
\nlaw  so\t extended  might  have\tbeen  outside  the
\ncompetence of  the State Legislature which enacted
\nit, when extended under the
\n267<\/span>
\nauthority of  Parliament was  a valid piece of law
\nin Part C State.\n<\/p>\n
     The rival\tcontentions may\t be reduced to the
\nproposition  that  if  the  State  Legislature\tof
\nVindhya Pradesh extended the Central Provinces and
\nBerar Sales  Tax Act,  then the extended Act would
\nsuffer from  the disability  pointed out in Gannon
\nDunkerley’s case (1), but if the Central Provinces
\nand Berar  Act was  extended by\t the  Notification
\nunder the  Part States\t(Laws) Act,  1950, then it
\nmust be treated as incorporated in that Act and to
\nhave  the   authority  of   Parliament\twhich,\tin
\nrelation to  Part C  States,  had  no  limitations
\nwhatever. We  have, therefore,\tto see whether the
\nCentral Provinces  and Berar  Sales Tax\t Act, 1947
\ncan be\tsaid to\t have been  extended for the first
\ntime by\t the Vindhya  Pradesh Legislature  in 1952
\nwhen  it   passed   the\t  Vindhya   Pradesh   Laws
\n(Validating) Act,  1952 to  the exclusion  of  the
\norder contained\t in the\t Notification No. S. R. O.
\n6, or  whether the Act continued to be in force in
\nVindhya Pradesh\t even before,  and  all\t that  the
\nVindhya Pradesh\t Act did  was to remove any doubts
\nabout its validity.\n<\/p>\n
     The contention on behalf of the petitioner is
\nthat the  Notification dated December 29, 1950 was
\ninvalid in  its latter\tpart, as  decided by  this
\nCourt in the Delhi Laws Act case (2). That portion
\ndealt with  the repeal of Ordinance 2 of 1949, and
\nif the Notification was invalid in that part, then
\nthe Central  Provinces and  Berar Sales\t Tax  Act,
\nwhich was extended by the opening part, never came
\ninto force.  Mr. Viswanatha  Sastri contended that
\nthe notification  must be looked at compendiously,
\nand that  it was  impossible  to  think\t that  the
\nCentral Government would have extended the Central
\nProvinces and  Berar Sales Tax Act, if the earlier
\nOrdinance still continued to operate. He relied in
\nthis connection\t upon  the  observations  of  this
\nCourt in Pesikaka’s case (3) to urge that the
\n268<\/span>
\nNotification which  was beyond\tthe powers  of the
\nCentral Government  in its  latter  part  must\tbe
\nregarded as  a nullity,\t and contended that if the
\ninvalid\t  portion    of\t  the\tNotification   was
\nfundamental to\tthe operation  of the  valid, then
\nthe valid  portion also\t must equally fail because
\nit could  not have  been intended that two laws on
\nthe same  topic were  to operate simultaneously in
\nVindhya Pradesh.  According to\thim, the extension
\nof the\tCentral Provinces  and Berar Act could not
\nand would not have been made, if the Ordinance had
\nnot been  first repealed.  Section  29\twhich  was
\nadded,\tthough\t composed  of\ttwo  parts,   was,
\naccording to him, really a part of a single scheme
\nand the\t repeal of the Ordinance and the extension
\nof the Central Provinces and Berar Act could stand
\nor fall\t together, and\tsince  the  Ordinance  was
\nnever validly repealed, it continued to operate in
\nVindhya Pradesh\t till its  repeal on  October  31,
\n1951, by  the Part  C States  (Miscellaneous Laws)
\nRepealing Act,\t1951, and when the Act repealed it
\nfrom December  29, 1950, the effect was that there
\nwas no\tsales tax  law\tin  operation  in  Vindhya
\nPradesh, because  the Part C States (Miscellaneous
\nLaws) Repealing Act, 1951, did not enact or extend
\nany law\t on the\t subject of  sales tax\tin  or\tto
\nVindhya\t Pradesh.   According  to  him,\t till  the
\nenactment of the Vindhya Pradesh Laws (Validating)
\nAct 6 of 1952 on January, 8, 1953 there was no law
\nimposing sales tax in Vindhya Pradesh, and the law
\nwas  then  made\t by  the  Legislature  of  Vindhya
\nPradesh by  extending the  Central  Provinces  and
\nBerar  Sales  Tax  Act\tfrom  April  1,\t 1951.\tHe
\ntherefore, contended  that since the powers of the
\nVindhya Pradesh\t Legislature did  not include  the
\npower of imposing sales tax on building materials,
\nthis Act of the Vindhya Pradesh Legislature, if it
\nsought to  impose sales tax on building materials,
\nfell within  the ruling in Gannon Dunkerley’s case
\n(1) and\t must be declared as of no effect. He also
\nreferred to Act 9 of 1953
\n269<\/span>
\npassed by  the Vindhya\tPradesh State Legislature,
\nby which  the Act  was further amended, and stated
\nthat  the  extended  Act,  as  amended,\t owed  its
\nexistence neither to Parliament nor to the Central
\nGovernment acting  under the  Part C States (Laws)
\nAct but\t to the\t Vindhya Pradesh Laws (Validating)
\nAct, 1952  (6 to  1952) and  the  Vindhya  Pradesh
\nAmendment Act, 1953 (9 of 1953).\n<\/p>\n
     There is  a fundamental  fallacy involved\tin
\nthis   reasoning.    We\t  are\t considering   the
\napplicability of  the Central  Provinces and Berar
\nSales Tax  Act as extended to Vindhya Pradesh. The
\nVindhya Pradesh\t Amending  Act\tmade  only  verbal
\nchanges, but  did not  alter the  structure of the
\ntax.  No   doubt,  that\t  Act,\tcontained  certain
\nprovisions under which sales of building materials
\nare taxable,  and if  the authority to tax the so-
\ncalled sales  emanated from  a State  Legislature,
\nthen the  law would fail. But we have to remember,
\nin  this   connection,\tthat  the  law\twas  first
\nextended  to   Vindhya\tPradesh\t  by  the  Central
\nGovernment   acting   under   the   authority\tof
\nParliament  legislating\t  for  a   Part\t C  State.
\nParliament and\tthe Central  Government\t were  not
\nsubject to  the disabilities pointed out in Gannon
\nDunkerley’s case  (1), and  the matter was covered
\nby the decision of this Court in Mithan Lal’s case
\n(2). Even  if the  Notification, S.  R. O.  No. 6,
\nfailed to  repeal ordinance  2 of 1949, Parliament
\nby its\town law\t effaced that Ordinance in Vindhya
\nPradesh from  December 29,  1950, and enacted that
\nthe Ordinance  shall be deemed to be repealed from
\nthat day.  After the  passing of the Repealing Act
\nby parliament,\tit is  impossible  to  argue  that
\nOrdinance 2  of 1949  continued in Vindhya Pradesh
\ndown to\t January 8,  1953, because  by fiction the
\nOrdinance was  repealed from  December\t29,  1950.
\nParliamentary legislation,  therefore, came to the
\nrescue, so to speak, of the Notification by making
\nroom for  the extension\t of the\t Central Provinces
\nand
\n270<\/span>
\nBerar Act  by repealing\t Ordinance 2 of 1949 which
\nthe Notification  proprio  vigore  was\tunable\tto
\nachieve\t as  laid  down\t in  the  Delhi\t Laws  Act
\ncase(1).   The\t Notification\tof   the   Central
\nGovernment (S.\tR. O.  No. 6)  and Act 66 of 1951,
\ntherefore concurred  in removing  the Ordinance on
\nDecember 29,  1950 and\tin extending  the  Central
\nProvinces and  Berar Sales Tax Act in its place on
\nthe same date.\n<\/p>\n
     Mr. Viswanatha Sastri argued, on the strength
\nof ruling  of this  Court in Deepchand v. State of
\nUttar Pradesh  (2) that the validity of a law must
\nbe judged  as on  the date on which it was passed,
\nand if\tthe law was invalid on that date, then the
\nlaw must  be deemed  not to  have existed  at all,
\nunless it was later re-enacted. The passage relied
\nupon is as follows:\n<\/p>\n
\t  “The validity\t of a  statute\tis  to\tbe
\n     tested  by\t the  constitutional  power  of\t a
\n     legislature at  the time  of its enactment by
\n     that legislature  and, if\tthus tested, it is
\n     beyond  the  legislative  power,  it  is  not
\n     rendered valid without re-enactment if later,
\n     by constitutional\tamendment,  the\t necessary
\n     legislative  power\t  is  granted.\t An  after
\n     acquired power  cannot,  ex  proprio  vigore,
\n     validate a\t statute void  when enacted.”  (p.\n<\/p><\/blockquote>\n
     24).\n<\/p><\/blockquote>\n
This argument  would be\t applicable if\twe were to
\nconsider that  Notification No.\t S.  R.\t O.  6\tin
\nisolation, and\tthe question was one of validation
\nof that\t Notification. The  Notification is  being
\nquestioned, because  it sought to repeal Ordinance
\n2 of  1949, which  it could  not do. But, today we
\nare not\t in a  position to say that Ordinance 2 of
\n1949  continued\t  in  Vindhya\tPradesh,   because
\nParliament by  the Part\t C  States  (Miscellaneous
\nLaws) Repealing\t Act, 1951  has enacted\t that  the
\nsaid  ordinance\t  must\tbe  deemed  to\thave  been
\nrepealed from  December 29,  1950. Indeed,  in the
\nruling
\n271<\/span>
\nof this\t Court at the same page are cited passages
\nfrom Willoughby\t on  Constitution  of  the  United
\nStates (2nd  Edn.) Vol.\t 1, p.\t10  based  on  the
\ndecision in John M. Wilkerson v. Charles A. Rahrer
\n(1) to\tthe  effect  that  if  the  cause  of  the
\nunconstitutionality is\tremoved then  the law does
\nnot need  to be re-enacted. The facts of this case
\nare entirely  different from  those in Deepchand’s
\ncase (2).  The extended\t law did not depend on the
\nrepeal of  the earlier\tlaw for\t its validity.\tIt
\nwould have been operative, even if the earlier law
\nwas not\t repealed; but\tthe earlier  law  was,\tin
\nfact, repealed\tfrom  December,\t 29,1950,  and\tno
\nquestion of  conflict between  the new and the old
\nlaw  ever   arose.  Parliament\tby  repealing  the
\nordinance rendered  the ineffective portion of the
\nNotification  a\t mere  surplusage.  The\t necessary
\nresult thus  was that  its operative part survived
\nand the Central Provinces and Berar Sales Tax Act,
\n1947 was  validly extended to Vindhya Pradesh, and
\nwas valid  law as  laid down  in Mithanlal’s  case
\n(3). It\t did not  suffer from  the defects pointed
\nout by\tthe this  Court in Gannon Dunkerley’s case
\n(4), as\t it was\t not enacted  or extended  by  the
\nState Legislature.\n<\/p>\n
     It remains\t to consider  the last argument on
\nthis point,  and it  is that the Central Provinces
\nand Berar Sales Tax Act was re-extended to Vindhya
\nPradesh by  Act 6  of  1952,  and  thus\t owed  its
\nexistence to  a law  made by  a State  Legislature
\nwhich was incompetent to enact a law that building
\nmaterials in  a works  contract, which was entire,
\nwere liable  to sales tax. The preamble of the Act
\nshows that it was enacted to remove certain doubts
\nwhich were  entertained as to whether the extended
\nSales Tax  Act became  operative only from October
\n31, 1951  when Act  66 of 1951 was passed, or from
\nan earlier  date, viz.,\t April 1, 1951, from which
\ndate it was brought into force in
\n272<\/span>
\nVindhya Pradesh\t by Notification  No. 52  (Econ.),
\ndated March  20, 1951. To remove these doubts, the
\nVindhya\t Pradesh   Laws\t (Validating)  Act,  1952,
\nenacted with the assent of the President, declared
\nby  s.\t 2  (already   quoted)\tthat  the  Central
\nProvinces and  Berar Sales  Tax Act  had been  and
\n“shall be deemed to be in force in Vindhya Pradesh
\nfrom April  1, 1951.”  This  declaration  did  not
\nextend prorio  vigore the  Central  Provinces  and
\nBerar Sales  Tax Act,  but only\t declared that\tit
\nmust be\t deemed to  be validly in force from April
\n1, 1951.  Section 7,  on which\tmuch reliance  has
\nbeen placed, may be quoted again:\n<\/p>\n
\t  “Repeal and  savings:-As from\t the dates
\n     of\t the   actual  enforcement   of\t the  Acts
\n     specified\tin  Section  2\tof  this  Act  the
\n     corresponding  laws   in  force   in  Vindhya
\n     Pradesh immediately  before  the  said  dates
\n     shall be deemed to have been repealed without
\n     prejudice\tto   anything  done   or  suffered
\n     thereunder\t  or\tany   right,\tprivilege,
\n     obligation or  liability acquired, accrued or
\n     incurred  thereunder   before  the\t aforesaid
\n     dates”\n<\/p><\/blockquote>\n
It is  said that,  if the  two sections\t are  read
\ntogether they  mean that the Central Provinces and
\nBerar Sales  Tax Act  was  freshly  extended  from
\nApril 1,  1951 by  the Vindhya Pradesh Act and any
\nlaw made  by any  authority  earlier  was  freshly
\nrepealed to  make room\tfor  the  extension.  This
\nargument, in our opinion, is erroneous.\n<\/p>\n
     To begin  with, the  powers  of  the  Vindhya
\nPradesh Legislature were circumscribed by s. 22 of
\nthe Government\tof part C States Act, 1951, quoted
\nearlier. Under\tthat section,  the powers  of  the
\nState Legislatures  did not  extend to making laws
\nrepugnant to  any  law\tmade  by  Parliament.  The
\nExplanation defines  the expression  “law made\tby
\nParliament”, and excludes a law which provides for
\nthe extension to the State of any law in force
\n273<\/span>
\nin any\tother part  of the territory of India. The
\nVindhya\t Pradesh  Legislature,\thowever,  did  not
\nrepeal either s. 2 of the Part C States (Laws) Act
\nor the\tNotification, and all that the Legislature
\ndid was to add its own authority by a declaration,
\nto the laws earlier extended. The law was extended
\nfirst by Notification S.R.O. No. 6 on December 29,
\n1950, but  it  was  brought  into  force  only\tby
\nNotification No.  52 (Econ.)  dated March 20, 1950
\nfrom April 1, 1951. The Notification, S. R. O. No.
\n6 had  substituted for\tsub-s.(3) of  s. 1  of the
\nCentral Provinces  and Berar  Sales Tax\t Act,  the
\nfollowing:\n<\/p>\n
\t  “(3) It  shall come  into force  on such
\n     date  as  may  be\tnotified  by  the  Central
\n     Government in the Official Gazette.”\n<\/p><\/blockquote>\n
Till the Notification No. 52 (Econ.) was made, the
\nAct was\t extended but  was not in force in Vindhya
\nPradesh.  There\t  is  a\t  difference  between  the
\nextension of  a law  subject to\t its being brought
\ninto force  latter and\tits coming into force on a
\nlater date.  Section 7\tof Act\t6 of 1952 repealed
\nonly the  laws in force prior to the date on which
\nthe Central  Provinces and Berar Sales Tax Act was
\nbrought into force. It speaks of “laws in force in
\nVindhya Pradesh immediately before April 1, 1951”,
\nand the\t law which was in force immediately before
\nthat date  was not the Central Provinces and Berar
\nSales Tax  Act which  had not  been  brought  into
\nforce, but might be Ordinance 2 of 1949, if it had
\nnot been successfully repealed earlier. The former
\nAct was extended on December 29, 1950, but was not
\nbrought into  force till  April 1,  1951, and  the
\nsection speaks\tof “laws  in force”.  The section,
\ntherefore, refers  to Ordinance\t 2 of  1949, which
\nwould be  in force  immediately\t before\t April\t1,
\n1951, if not successfully repealed, but not to the
\nCentral Provinces  and Berar  Sales Tax\t Act which
\nwas only  extended before  that date  but had  not
\nbeen brought  into force.  In other words, s. 7 of
\nthe Act does no more than replea
\n274<\/span>
\nfrom  April   1,  1951\t (if  repeal  was  at  all
\nnecessary) Ordinance  2 of  1949, which\t might\tbe
\nsupposed to have continued as law till October 31,
\n1951, when  it was  repealed by Act 66 of 1951. In
\npoint of  fact and  also in  law,  it  was  really
\nrepealed  from\t December  29,\t 1950  under   the
\nRepealing Act  66 of 1951. The Vindhya Pradesh Act
\n6 of  1952 cannot,  therefore,\tbe  said  to  have
\nenacted\t for  the  first  time\tthat  the  Central
\nProvinces and  Berar Sales Tax Act shall come into
\nforce from  April 1,  1951 in  Vindhya Pradesh. It
\nonly declared  what was\t a legal fact even without
\nthis declaration.  Nor did  the Central\t Provinces
\nand Berar Sales Tax Act owe its existence to Act 6
\nof 1952.  Act 6\t of 1952  only declared\t what  the
\nresult of  the earlier\tlaws was,  and\tadded  the
\nauthority of  the Vindhya  Pradesh Legislature\tto
\nremove doubts  and to save the law from any attack
\non the\tground\tthat  the  wrong  Legislature  had
\nrepealed the  Ordinance or  extended  the  Central
\nProvinces and Berar Sales Tax Act. In our opinion,
\nthis argument cannot be accepted.\n<\/p>\n
     One further argument was advanced to which we
\nhave not  referred so  far, and\t which may  now be
\nnoticed. It  is that  after the\t reorganisation of
\nthe States,  Madhya Pradesh  has as  many as  four
\nSales Tax  Acts. It  is contended  that\t a  person
\nbelonging to  the area\tof  the\t former\t State\tof
\nMadhya Pradesh\tis not\tliable\tto  sales  tax\ton
\nbuilding materials  in a  works contract under the
\nCentral Provinces  and Berar Sales Tax Act because
\nof the\tdecision in  Pandit Banarsi Das’s case(1),
\nbut another person living in the area forming part
\nof the\tformer Vindhya\tPradesh is liable to sales
\ntax under  the same  Act, as  extended to  Vindhya
\nPradesh. This, it is said, is patently contrary to
\nthe spirit  of the equal protection clause in Art.\n<\/p>\n
14.
\n     The laws  in different  portions of  the  new
\nState of  Madhya Pradesh were enacted by different
\nLegislatures, and  under  s.  119  of  the  States
\nReorganisation
\n275<\/span>
\nAct, all  laws in  force  are  to  continue  until
\nrepealed   or\t altered   by\t the   appropriate
\nLegislature. We\t have already  held that  the sale
\ntax law\t in Vindhya  Pradesh was  validly enacted,
\nand it\tbrought its  validity with it under s. 119
\nof the States Reorganisation Act, when it became a
\npart of\t the State  of Madhya Pradesh. Thereafter,
\nthe different  laws in\tdifferent parts\t of Madhya
\nPradesh can  be sustained  on the  ground that the
\ndifferentiation arises\tfrom  historical  reasons,
\nand  a\t geographical  classification\tbased\ton
\nhistorical reasons  has been  upheld by this Court
\nin M. K. Prithi Rajji v. The State of Rajasthan(1)
\nand again  in The  State of  Madhya Pradesh v. The
\nGwalior Sugar  Co. Ltd.<\/a>(2).  The  latter  case\tis
\nimportant, because  the sugarcane  cess levied\tin
\nthe former  Gwalior State  but not  in the rest of
\nMadhya Bharat  of which\t it  formed  a\tpart,  was
\nchallenged on  the same\t ground as  here, but  was
\nupheld as  not affected by Art. 14. We, therefore,
\nreject this argument.\n<\/p>\n
     In the  result, the  Writ Petitions fail, and
\nare dismissed;\tbut in\tthe circumstances  of  the
\ncase we make no order about costs.\n<\/p>\n
\t\t\t       Petitions dismissed
\n276<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bhaiyalal Shukla vs State Of Madhya Pradesh on 31 December, 1961 Equivalent citations: 1962 AIR 981, 1962 SCR Supl. (2) 257 Author: Hidayatullah Bench: Sinha, Bhuvneshwar P.(Cj), Kapur, J.L., Hidayatullah, M., Shah, J.C., Mudholkar, J.R. PETITIONER: BHAIYALAL SHUKLA Vs. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT: 31\/12\/1961 BENCH: HIDAYATULLAH, M. […]<\/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-62511","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBhaiyalal Shukla vs State Of Madhya Pradesh on 31 December, 1961 - 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\/bhaiyalal-shukla-vs-state-of-madhya-pradesh-on-31-december-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhaiyalal Shukla vs State Of Madhya Pradesh on 31 December, 1961 - 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