Niharendu Dutt Majumdar vs The King Emperor

Srinivasa Varadachariar, J.—This appeal arises out of proceedings taken by the Respondent to challenge the validity of an octroi duty on

salt imposed by the municipal adminis-tration of Lahore. Under Section 61(2) of the Punjab Municipal Act, 1911 Punjab Act No. 11l of 19011.,

the municipal administration is empowered, with the previous sanction of the Provincial Government, to impose any ""tax which the Provincial

Legislature has power to impose in the Province under the Government of India Act, 1935"". In April, 1938, the Appellant who, under Section 238

of the Municipal Act, had been exercising the powers of the superseded Municipality of Lahore published a notification imposing octroi duties at

varying rates on goods imported into Lahore, and salt was one of the commodities specified in the schedule under the heading ""articles of food and

drink In October 1939, the Respondent brought two maunds of salt into the municipal limits and, with the evident object of making it a test case,

he paid the duty under protest and later applied for refund of the amount. When the matter was taken on appeal to the Deputy Commissioner,

under Section 84 of the Punjab Municipal Act, he referred to the High Court the question whether the notification above referred to was

authorized by law so far as it related to the impost on salt. The learned Judge who heard the reference held that in imposing a tax on salt the

Appellant had transgressed the limits of his authority under the law. The Appellant now appeals to this Court.

On behalf of the Respondent, a preliminary objection was taken to the form of the appeal. It was contended that only a party to the proceedings

in the court below could appeal to this Court and that the Municipal Committee, and not the Administrator, was the party in the High Court. It was

also urged that as the Municipal Committee had been constituted by Section 18 of the Municipal Act a body corporate with perpetual succession,

its supersession did not put an end to the corporation and that all legal proceedings by or against the corporation must, as provided in that section,

be instituted only in the name of the corporation. These objections seem to us devoid of substance. The proceedings before the Deputy

Commissioner and the reference by him to the High Court were not framed on the lines of formal pleadings; but taking them as a whole it would

appear that it was the Administrator who was treated therein as the opposite party though in the title of the judgment of the High Court the

Municipal Committee, Lahore"" is described as the Respondent. The provisions of Section 18 of the Punjab Municipal Act relating to the

corporate character of the Committee and the manner of suing must be read subject to the provisions of Section 238(2) which lays down the

consequences of a supersession. It may be (as held in Mahamahopadyaya Rangachariar v. The Municipal Council of Kumbakonam I.L.R. [1906]

Mad. 539, that a supersession has not the effects of a dissolution and that when another Committee is constituted in the place of the superseded

Committee, it is a revival of the old corporation and not the creation of a new one. But during the period when the order of supersession is in force,

the statute makes it clear that all the members of the Committee vacate their seats and that all the powers and duties of the Committee are to be

exercised and performed by the Administrator. It seems to us that we should be carrying the legal fiction to a needless length if we insisted that,

even in this state of facts, proceedings must be taken only in the name of the dormant corporation. It has not been disputed that the person

competent to take proceedings is the Administrator; and even if the true view should be that he should take proceedings in the name of the

Committee, the defect is one purely of a formal character which can be cured by amendment.

The decision of the question of law arising in the case turns on the combined effect of entry No. 47 of List I and entry No. 49 of List II of the

Seventh Schedule to the Constitution Act. Under the latter, a Provincial Legislature is entitled to levy ""cesses on the entry of goods into a local area

for consumption, use or sale therein""; and the Appellant claims that the octroi duty in question falls within this description. The Respondent

contends that this entry must be interpreted in the light of entry No. 47 in List 1 which makes salt a subject within the excluive control of the

Federal Legislature. One way of putting the Respondent''s argument in(sic) to say that, reading the two Lists together, the general description

goods"" in entry No. 49 of List II must be understood as referring to goods other than salt. It is also contended that under Section 100(1) of the

Constitution Act, the Provincial Legislature has expressly been denied the power to make laws with respect to salt, since salt"" is one of the matters

enumerated in List I. Both these contentions were upheld by the learned Judge who dealt with the caso in the Higli Court and he was also of the

opinion that Section 140(1) of the Constitution Act lent some support to this view.

In support of this appeal, it has been contended by the Advocate-General of the Punjab that the learned Judge ""erred in treating entry No. 47 in

List I. as the source of the Central Legislature''s authority to impose any duty or tax on salt, and that he also erred in relying upon Section 140 as

though it were a charging section. By a reference to various entries in Lists I and II counsel attempted to show that, whenever a power to tax was

intended to be conferred, it was expressly given; and he urged that a general mention of a subject as in entry No. 47 was only meant to give a

general power of control and had no relation to powers of taxation. He invited attention in this connection to entries Nos. 19, 20, 28 and 33 of List

I and compared them with entries Nos. 44, 58, 57 and 4G. He likewise compared entries Nos. 21 and 36 of List II with entries Nos. 43 and 50 in

the same List, and entry No. 52 of List II with entry No. 32 of List III. On this footing he argued that so far as the levy of tax or duty on salt was

concerned, the subject must be deemed to be provided for only in entries Nos. 44 and 45 of List I and that, as the impost now in question was not

in the nature of a customs duty or excise duty, there was no reason for restricting the scope of the general language used in entry No. 49 of List II

or for bringing into operation the prohibition enacted in s.S. (1) of Section 100 of the Constitution Act.

An examination of the entries in the three Lists lends some support to counsel''s contention as to the lines on which the Lists have been framed.

But we are not prepared, nor do we think it necessary for the purpose of this case, to accept that contention in its generality. We hesitate at any

rate to say that the powers of the Central Legislature to impose duties or taxes on salt must be limited to those derivable under entries Nos. 44 and

45 of List I. It is true that Section 140 of the Constitution Act is not a charging section and that it occurs in a chapter dealing with the distribution of

revenues between the Federation and the federal units. But the express mention in that section of ""duties on salt"" separately from ""federal duties of

excise and ""export duties"" rather suggests that duties on salt were not contemplated as falling under entries Nos. 44 and 45 of List L'' Counsel

suggested that the separate reference to duties on salt might have been made with a view to include import duties thereon under the heads of

revenue divisible among the federal units. This is a possible explanation; but it is nevertheless difficult to get rid of the impression that duties on salt

were regarded as a category by themselves not comprised under the headings of excise or customs duties. Buch separate treatment would indeed

seem to be justified by the fact that, unlike other goods which may form the subject of excise or customs duties, salt is in a sense a state monopoly

in this country and its manufacture, transport and sale are subject to state control. It was for this reason clearly that entry No. 47 of List I included

salt in the exclusive jurisdiction of the Central Legislature.

Assuming however for the sake of argument that the Central Government''s power to levy any impost on salt must be derived only from entries

Nos. 44 and 45 of List I and that entry No. 47 was not intended to include the power of levying taxes or duties, the objection based upon Section

100(1) of the Constitution Act would nevertheless remain, so long as salt is an entry specifically included in the exclusive Federal List. The

Appellant''s counsel would read entry No. 47 as though it said in terms, ""salt except taxation"". We do not think that this is legitimate or permissible.

It is one thing to say that the entry does not authorize taxation, but it is a different thing to say that taxation is excluded, as that will make a material

difference in the operation of s.s. (1) of Section 100. If taxation is specifically excluded from entry No. 47 in List I, the effect will be to take away

pro tanto the prohibition against provincial legislation imposed by Section 100(1). It is on the other hand quite conceivable that, even without the

power of taxation, Parliament should have desired that the Central Government and the Central Legislature should retain exclusive control over salt

and to prohibit any kind of interference with it by Provincial Legislatures. It is, for instance, common knowledge that public opinion in this country

has always insisted that salt should be made available to the people at the lowest possible price; but the recognition of a power in the Provincial

Legislature to impose duties on salt, whether for the benefit of provincial revenues or for the benefit of local authorities, might materially affect the

policy of the Central Government in this respect.

It is noteworthy that in respect of opium and petroleum, the exclusive jurisdiction of the Centre is limited by the words ""so far as regards

cultivation and manufacture or sale for export"" in entry No. 31 and the words ""so far as regards possession, storage and transport"" in entry No.

Such a limitation justifies the view (confirmed by entry No. 40 of List II) that the Provincial Legislatures are not wholly deprived of jurisdiction

with reference to these goods. But the reference to salt in entry No. 47 is unqualified; and therefore it is not possible to put any limitation upon the

extent of exclusion of provincial interference, so far as this item is concerned. A comparison of entry No. 2 in List I with entry No. 10 of the same

List is instructive in this connection, as showing an instance of the total exclusion of provincial jurisdiction in respect of naval, military and air force

works while recognizing the possibility of provincial legislation even in respect of works, lands and buildings belonging to the Federation, if and so

far as they are not naval, military or air force works. In the view above stated, it is unnecessary to discuss the distinction sought to be drawn

between cesses and taxes, because, if the Provincial Legislature is wholly precluded from dealing with salt, it is immaterial whether the proposed

impost is one by way of tax or one by way of cess.

It may be a question whether, notwithstanding the generality of entry No. 47 in List I, a Provincial Legislature may not enact legislation which

only incidentally affects salt (see Gallagher v. Lynn [1937] A.C. 863, and see also observations in Att.-Gen. for the Dominion of Canada v. Atts.-

Gen. for the Provinces of Ontario, Quebec and Nova Scotia [1898] A.C. 700, at p. 716. But that question does not arise in the present case.

When taxes are imposed specifically upon a number of items, only some of which are within the jurisdiction of the Legislature which imposes them,

the validity of each impost can be dealt with by itself and there is no question of the one affecting the other. The situation is not parallel to one in

which legislation whose main object or pith and substance is legitimate is sought to be invalidated merely on the ground that it incidentally affects

something outside the sphere permitted to the Legislature which has enacted it.

The appeal fails and is dismissed with costs