# mE PUNJAB STATE, CHANDIGARH v. SANSARI MAL PURAN CHAND August 22, 196 7

- **Citation:** [1968] 1 S.C.R. 336
- **Court:** Supreme Court of India
- **Decided:** 1968
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/me-punjab-state-chandigarh-v-sansari-mal-puran-chand-august-22-196-7-4133
- **Pages:** 13

## Headnote

mE PUNJAB STATE, CHANDIGARH
v.
SANSARI MAL PURAN CHAND
August 22, 196 7
A
[K. N.
WANCHOO, C.J., R. S.
BACHAWAT, V. RAMASWAMI,
B
G. K. MITTER AND K. S. HEGDE, JJ.)
East Punjab General Sales Tax Act 46 of 1948, ss. 5 and 6(2)-
Whether s. 5 as amended by East Punjab Act 19 of 1962 effective in
imposition of Sal.es Tax on Essential goods prior to amendment of
Art. 286(3) of the Constitution and repeal of s. 3 of Central Act 52
of 1952.
The respondents were dealers assessable to sales tax under. the
C
East Punjab General Sales Tax Act, 1948, and, in respect of the
assessment years 1955-56 to 1957-58, lhey claimed an exemption from
tax on sales of edible oil produced by them in ghanis run by mechanical process. The assessing authority rejected this ciaim on the ground
that such sales were not exempt from tax in view of the amendment
of the Schedule to the Act specifying tax-free goods by the notification dated August 5, 1954. The respondent's appeals to the Excise
and Taxation Commissioner and to the Financial Commissioner
D
were rejected but the High Court, upon a reference, held that the
notification was a law made by the State legislature after the enactment of Central Act No, 52 of 1952 which, read with Art. 286(3) of
the Constitution, placed a bar on a State by a law imposing or authorising the imposition of a tax on the sale of essential goods unless
the law in question had received the assent of the President; and
since the notification had not received such assent, it was ultra vires
and invalid; the respondents were, therefore, entitled to exemption
under Item No. 57 of the Schedule prior to its amendment by the
B
notification of August 5, 1954.
On appeal to this Court,
Held: The respondents were not liable to pay tax on sales of
edible .oils produced in ghanis run by mechanical power effected by
ihem before September U, 1956; but they were liable to pay tax on
such sales made after September 11, 1956. [348E)
·
(i) The amended s. 5 inserted in East Punjab Act No. 46 of 1948
F
by East Punjab Act No. 19 of 1952 authorising the fixation of the
rate of tax leviable on the taxable turnover, was a law authorising
the imposition of a tax within the purview of the unamended Art.
286(3) of the Constitution. As the East Punjab Act No. 19 of 1952
was passed after the enactment of Art. 286(3) of the Constitution
and after Parliament had by Central Act 52 of 1952 declared edible
oil to be essential for the life of the community and it was not
reserved for consideration of the President and did not receive his
G
assent, it could not take effect during the currency of Art. 286(31
prior to its. amendment in so far as it authorised the imposition of
a tax on the sale or purchases of edible oil. It could however take
effect in respect of sale and purchases of other goods. [344A-C;
348B-CJ
(ii) The effect of the amendment of Art. 286(3) of the Constitution by the Constitution (Sixth Amendment) Act with effect from
B
September 11, 1956 was that the restriction put by Art. 286(3) on the
operation of the amended s. 5 in respect of essential goods was
336
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,.
•
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PUNJAB I/, SANSABI MAL (Bacltawill, J.)
337
A
lifted and the section thereafter took effect on .. such goods also.
There was no force in the contention that the amended '!. 5 was 'a
still-born Jaw and that the section was not revived by the remfl\'el
of the ban. It was inserted by the East Punjab Act No. 19 of 1962
-which was passed by a competent legislature and always took effect
in respect. of non~ssential goods. [344D-F]
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B
Section 3 of Central Act 52 of 1952 had no independent existence
and after the amendment of Art. 286(3) it had no force from· Sedtem-
~er )1, 1956 until its repeal with effect from Janu"1"' 5, 195'7 by
Central Act 74 of 1954. [345C.D, E-F]
(iii) The notification of August 5, 1954 which
~ncled the
Schedule of tax.free goods was authorised by s. 6(2) which was a preConstitution law outside the purview of Art. 286(3) .. 'The notification
did not require th

## Text

mE PUNJAB STATE, CHANDIGARH
v.
SANSARI MAL PURAN CHAND
August 22, 196 7
A
[K. N.
WANCHOO, C.J., R. S.
BACHAWAT, V. RAMASWAMI,
B
G. K. MITTER AND K. S. HEGDE, JJ.)
East Punjab General Sales Tax Act 46 of 1948, ss. 5 and 6(2)-
Whether s. 5 as amended by East Punjab Act 19 of 1962 effective in
imposition of Sal.es Tax on Essential goods prior to amendment of
Art. 286(3) of the Constitution and repeal of s. 3 of Central Act 52
of 1952.
The respondents were dealers assessable to sales tax under. the
C
East Punjab General Sales Tax Act, 1948, and, in respect of the
assessment years 1955-56 to 1957-58, lhey claimed an exemption from
tax on sales of edible oil produced by them in ghanis run by mechanical process. The assessing authority rejected this ciaim on the ground
that such sales were not exempt from tax in view of the amendment
of the Schedule to the Act specifying tax-free goods by the notification dated August 5, 1954. The respondent's appeals to the Excise
and Taxation Commissioner and to the Financial Commissioner
D
were rejected but the High Court, upon a reference, held that the
notification was a law made by the State legislature after the enactment of Central Act No, 52 of 1952 which, read with Art. 286(3) of
the Constitution, placed a bar on a State by a law imposing or authorising the imposition of a tax on the sale of essential goods unless
the law in question had received the assent of the President; and
since the notification had not received such assent, it was ultra vires
and invalid; the respondents were, therefore, entitled to exemption
under Item No. 57 of the Schedule prior to its amendment by the
B
notification of August 5, 1954.
On appeal to this Court,
Held: The respondents were not liable to pay tax on sales of
edible .oils produced in ghanis run by mechanical power effected by
ihem before September U, 1956; but they were liable to pay tax on
such sales made after September 11, 1956. [348E)
·
(i) The amended s. 5 inserted in East Punjab Act No. 46 of 1948
F
by East Punjab Act No. 19 of 1952 authorising the fixation of the
rate of tax leviable on the taxable turnover, was a law authorising
the imposition of a tax within the purview of the unamended Art.
286(3) of the Constitution. As the East Punjab Act No. 19 of 1952
was passed after the enactment of Art. 286(3) of the Constitution
and after Parliament had by Central Act 52 of 1952 declared edible
oil to be essential for the life of the community and it was not
reserved for consideration of the President and did not receive his
G
assent, it could not take effect during the currency of Art. 286(31
prior to its. amendment in so far as it authorised the imposition of
a tax on the sale or purchases of edible oil. It could however take
effect in respect of sale and purchases of other goods. [344A-C;
348B-CJ
(ii) The effect of the amendment of Art. 286(3) of the Constitution by the Constitution (Sixth Amendment) Act with effect from
B
September 11, 1956 was that the restriction put by Art. 286(3) on the
operation of the amended s. 5 in respect of essential goods was
336
'"
. '
,.
•
•
PUNJAB I/, SANSABI MAL (Bacltawill, J.)
337
A
lifted and the section thereafter took effect on .. such goods also.
There was no force in the contention that the amended '!. 5 was 'a
still-born Jaw and that the section was not revived by the remfl\'el
of the ban. It was inserted by the East Punjab Act No. 19 of 1962
-which was passed by a competent legislature and always took effect
in respect. of non~ssential goods. [344D-F]
B
0
D
B
Section 3 of Central Act 52 of 1952 had no independent existence
and after the amendment of Art. 286(3) it had no force from· Sedtem-
~er )1, 1956 until its repeal with effect from Janu"1"' 5, 195'7 by
Central Act 74 of 1954. [345C.D, E-F]
(iii) The notification of August 5, 1954 which
~ncled the
Schedule of tax.free goods was authorised by s. 6(2) which was a preConstitution law outside the purview of Art. 286(3) .. 'The notification
did not require the assent of the President for affecting l!Sl'ential
goods. The notification was therefore valid and took effect in ~
of edible oil as from August 5, 1954 and thet'eafter "sales of· edible
oil produced in ghanis run by mechanical power were taxable. But
as the amended s. 5 could not then affect edible oil, no tax was
effectively imposed on it until September 11, 1956 during the currency of the unamended Art. 286(3). [346A-C, E-FJ
(iv) Although the notifications issued by the State Government
under the unamended s. 5 which was invalid were not authorised by
law and also invalid, after the passing of the East Punjab Act 1'9
of 1952 the resu.lt was that from the very commencement of the
main Act the amen'ded s. 5 was deemecl to have authorised the State
Government to issue notifications fixing the .. rate of tax. The notifications issued under s. 5 before 1952 must, ther~fore, be deemed to
. be and ·always to have been valid and not still-bbrn. a was not
necessary to pass another Act validating those notifications nor was it
necessary' for the State Government to issue fresh notifications fixing the rate of tax. Here again. such notifications could not take
effect in respect of sales or purchases of essential goods before
September 11, 1956. [346R-347C]
(v) There was no force in the contention that the present appeale
were not maintainable because the· Financial Commissioner had
already directed disposal of the case under s. 22(5) . of the ·East
Punjab. ACt 46 of 1948 in accordance with the judgment of the .High
Court. Effect had to be given to the order of this Court and the
Financial Commissioner must direct disposal of the cases accordingly. [347F-348A)
F
Case law reviewed.
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CIVIL APPELLATE. JURISDICTION: Civil Appeals Nns. 11821184 of 1965.
Appeals by special leave from the judgment and order dated
August 19, 1963 of 'the Punjab High Court in General Sales Tax
Reference Nos. 8, 10 and 11 of 1962.
R. Ganapathy Iyer, R. N. Sachthey for R. H. Dhebar, for the
appellant (in all the appeals).
R. K. Garg, S. C. Agarwal, Shive Pujab Singh and Anll
Kumar,: for the rcsjiondent (in all the appeals).
The Judgment of the Court was delivered J>y
Bacllawat, J.
The reswndents arc dealers ,a.osessablc w ..ues
tax under the East Punjab General Sales Tax Act, 1948, In their
. return for the assessment years 1955-56, 1956-57 and)957-S8 they
SUPlllillll COURT BllPOBTS
(1968] 1 S,Q,L
claimed exemption from tax in respect of sales of edible oils. It A
is common case before us that this exemption was claimed in res.
pect of sales of edible oil produced in ghanis nin by mechanical
pr<>CellS. By his orders dated March 3, 1959, April 9, 1959 and
lilly 17, 1959; the Assessing Authority, Jullundur held that exemption from tax was not allowable under item No. 57 of the schedule
of tax-free goods as substituted by· the Punjab Government NoliB
fication No. 3483-E & T-54/723(CH) dated August 5, 1954. The
appeals from these orders were dismissed by the Deputy Excise
and Taxation Commissioner, Jullundur Division by his orders
dated August 3, 1959 and February 16, 1960. Revision Petitions
from these orders were dismissed by the Excise and Taxation
Commissioner, Punjab by his orders dated November 24, 1961.
Revision Petitions from the last orders were dismissed by the o
Financial Commissioner, Revenue, Punjab by his orders dated
April 27, 1962. On the application of the respondents, the Financial Commissioner, Revenue, Punjab by his order dated August 9,
1962 referred under s. 22(1) of the Punjab General Sales Tax Act,
1948 the following question of law for the decision of the High
Court of Punjab at Chandigarh:
"Whether notification No.
3483-E & T-54/723(CH),
!>
dated the 5th August, 1954, whereby exemption from
Sales Tax granted by the Government in respect of edible
oils was abolished in the case of such edible1 oils produced in ghanis run by mechanical process was in(ra vires anil
not the law made by the Legislature of the State which
requires the previous assent of the President of India." ·
These References were marked as Sales Tax References Nos. 8,
B
10 and 11 of 1962. By its judgment dated August 19, 1963 the
High Court held following its earlier decision in Ganga Ram Suraj
Prakash v. The State of Punjab(') .that the notification was a law
made by the State Legislature after the enactment of Central Act
No. 52 of 1952, and since it did not receive the assent of the President it was ultra vires and invalid. In the earlier decision, the
Punjab High Court held that (I) s. 5 of the East Punjab General I'
Sales Tax .Act, 1948, as it originally stood, was invalid on the
ground of excessive delegation of legislative power to the executive,
(2) the remaining sections of the Act including s. 6 could not
survive the invalidity of s. 5, (3) .the Act did not become valid
until the insertion of the new s. 5 in the main Act by the East
Punjab Act No. 19 of 1952 and (4) as the East Punjab Act No. 19
of 1952 which alone could sustain the impugned notification dated
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August 5, 1954 was passed after the Central Act No. 52 of 1952,
the impugned notification could not be justified and was invalid.
The High Court observed that it was not impressed with the argument that the notificatic.n was not a law made by the legislature of
the State and therefore the assent of the President could be dispensed with. The present atipeals 'have been preferred from the orders B
of the High Court dated August 19, 1963.
(1) S.T.C. 476.
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PUNJAB v. $ANSARI MAL (BadUlwat, J.)
339
To appreciate the points in controversy, it is. necessary to
refer to the course of legislation. The Easi Punjab G;;n~rnl Sale~
Tax Act (East Punjab Act No. 46 of 1948) was enacted on November 15, 1948. Section 4 of the Act provided for the incidence of
taxation and declared that the classes of dealers specified in subss. (1), (2), {3) and (4) would be liabe to pay tax under the Act.
Section 5(1) was in these terms:
"5. Rate of tax-(!) Subject to the provisions of this Act
there shall be levied on the taxable turnover every year
of a dealer a tax at such rates as the Provincial Government may by notification direct."
'Turnover' as defined in s. 2(i) included the aggregate of the amount
of sales. 'Taxable turnover' as defined in s. 5(2) was ascertained
after deducting from the gross turnover inter alia ·sales of goods
declared tax-free under s. 6. Section 6(1) provided that no tax shall
be payable under the Act on the sale of goods specified in the first
column of the schedule to the Act. Section 6(2) provided:
"The Provincial Government after giving by notification
not less than three months' notice of its intention so to
do, may by like notification add to or delete from the
schedule, and thereupon the schedule shall be deemed to
be amended accordingly."
On November 19, 1952 the East Punjab General
Sales
Tax
(Second Amendment) Act, 1952 (Act No. 19 of 1952) was passed
amending s. 5 of the East Punjab Act No. 46 of 1948. Section 2
of the amending Act was in these terms:
"In sub-section (I) of section 5 of the East Punjab General
Sales Tax Act, 1948, after the word 'rates' the following
words shall be inserted, namely. 'not exceeding two pice
in a rupee'."
It is common ground before us that before the passing of
the East Punjab Act No. 19 of 1952 the State Government had
issued notifications under s. 5 fixing the rates of tax. In exercise
of its powers under s. 6(2) of the Act, the Punjab Government
issued the notification No. :1483-E & T-51 /2518, dated May 30,
1951 adding item No. 57 (edible oils) to the schedule referred to
in s. 6(2). The entry was as follows:
"57. Edible oils produced from sarson, toria and
till
ghanis but not in hydrogenated from e./i. vegetable. ghec,
vanaspati etc."
By a later notification No. 3483-E & T-54/723(CH) dated August
5, 1954, the Punjab Government substituted the following entry
No. 57 in the schedule:
"57. Edible oils produced from sarson, toria and till indigenous kohlus worked by animal or hl!man agency when
sold by the owners of such kohlus only".
llUPRBIB COURT llBPORTS
(1968) 1 s.0.11.
It is common case before us that as a result of this notification,
sales of edible oil produced by ghanis run by mechanical power
ceased to be tax-free after August 5. 1954. It may be recalled that
Art. 286(3) of the Constitution as it stood before the Constitution
{Sixth Amendment) Act, 1956 provided :
"No Jaw made by the Legislature of a State imposing, or
authorising the imposition of, a tax on the sale or purchase of any, such goods as have been declared by Parliament by la,w to be essential for the life of the community
shall have effect unless it has been reserved for the consideration of the President and has received his assent."
On August 9, 1952 Parliament passed the Essential Goods (Declaration and Regulation of Tax on Sale or Purchase) Act, 1952
(Central Act No. 52 of 1952). By s. 2 of this Act read with item
5 of the schedule, edible oils were declared to be essential for the
life of the community. Section 3 of this Act was in these terms:
"3. Regulation of tax on sale or purchase of essentic:I
goods.-No law made after the commencement of this Act
by the legislature of a State imposing, or authorising the
imposition of, a tax on the sale or purchase of any goods
declared by this Act to be essential for the life of the community shall have effect unless it has been reserved for
the consideration of the President and has received his
·assent."
On Sepember 11, 1956 the Constitution (Sixth Amendment) Act,
1956 was passed substituting a new cl. (3) in Art. 286. The amended Art. 286(3) did not put any check on a State law imposing or
authorising the imposition of a tax on the sale or purchase of
essential goods. The Central Act No. 52 of 1952 was repealed by
s. 16 of the Central Sales Tax Act, 1956 (Act No. 74 of 1954)
passed on December 21, 1956. The repealing section came into
force on January 5, 1957.
It is to be noticed that the respondents claimed that they were
not liable to pay tax on their sales of edible oil produced in ghanis
run by mechanical power. The revenue authorities rejected this
claim Oii the ground that such sales were not exempt from tax in
view of the amendment of the schedule of tax-free goods by the
notification dated August 5, 1954. Confronted with this notificati1>n, the respondents challenged its validity on the ground that it
required the assent of the President of India. On the materials and
arguments before us, we are satisfied that the real dispute between
the respondents and the revenue authorities· was whether the tax
was effectively imposed on those sales so that the respondents may
be held liable to pay tax thereon during the assessment years in
question. This dispute was not properly brought out in the question
referred to the High Court. We, therefore, re-frame the question
thus: "Was tax effectively imposed on sales of edible oil produced
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PUNJAB 11. SAN!WII JUL (Bacliatoat, J.)
341
in ghanis run by mechanical power, so tha.t the respondents can
be held liable to pay tax on such sales during the assessment years,
1955-56, 1956-57 and 1957-58?" This question involves considera- .
tion of the validity of s. 5 and other sections of the East Punjab
Act No. 46 of 1948, s. 5 as amended by East Punjab Act No. 19
of 1952 8Jld the notifications issued under ss. 5 and 6(2) as also
the effect of Art 286(3) of the Constitution, its amendment by
the Constitution (Sixth Amendment) Act, s. 3 of Central Act No. 52
of 1952 and its repeal by Central Act No. 7 4 of 1954
On the arguments addressed before us, the following questions arise for decisions :
(I) Was s. 5 of the East Punjab Act No. 46 of 1948 as
originally passed in 1948, invalid?
(2) If so, did the invalidity of s. 5 invalidate the other
provisions of the Act?
(3) Is s. S of the East Punjab Act No. 46 of 1948 as
amended by East Punjab Act No. 19 of 1962 invalid?
(4) Was the amended s. S a law imposing or authorising
the imposition of a tax within the meaning of Art. 286(3)
of the Constitution as it stood before. the Constitution
(Sixth Amen~t) Act? If so, with what effect?
(5) What is the effect of the amendment of Art. 286(3) of.
the Constitution by the Constitution (Sixth Amendment)
Act and the repeal of Central Act No. 5i of 1952 by
Central Act No. 74 of 1954?
(6) Is the notification dated August 5, 1954 issued under
s. 6(2) valid?
(7) Are the notifications issued under s. 5 before the passing of the East Punjab Act No. 19 of 1952 valid?
(8) Was tax effectively imposed on sales of the edible oil
in question during the relevant assessment years?
The first three questions are concluded by the decision of this
Court in MI s. Devi Das Gopal Krishan and others v. State of
Punjab and others('). In that decision, this Court held that (!) s.
S of East Punjab Act No. 46 of 1948, as originally passed in 1948,
was void on the ground of excessive delegation of legislative power
to the State Government, (2) the striking down of s. 5 did not
render void s. 4 and the other sections .of the Act though till an
appropriate s. 5 was inserted s. 4 remained unenforceable and (3)
s. 5 as amended by 'the East Punjab Act No. 19 of 1952 was not
. invalid on the ground of excessive delegation of legislative authority nor was it invalid on the ground that Act 19 of 1952 purport·
cd to amend a stillborn section. The Court held that though in
(1) [1967) 3 S.C.R. 657.
342
SUPREll!E COURT REPORTS
(l968] 1 s.o.R.
terms Act No. 19 of 1952 amended s. 5, in substance it inserted
A
a new amended s. 5 in Act No. 46 of 1948 with retrospective
effect.
The fourth question is whether the amended s. 5 inserted by
East Punjab Act No. I 9 of 1952 levying a tax on the taxable
turnover of the dealer at such rates not exceeding 2 pice in a rupee
as the State Government by notification may direct was a law
imposing or authorising the imposition of a. tax on essential goods
within the meaning of Art. 286(3) of the Constitution as it stood
before the Constitution (Sixth Amendment) Act, and if so; what
are the consequences. As pointed out by Ramachandra Iyer, J.
in Sreenivas and Co. v. Deputy Com1nercial
Tax Officer('), the
decisions on the interpretation of s. 55 of the Australian Constitu·
tion are not a reliable guide to the interpretation of the words
"imposing or authorising the imposition of a tax" in Art. 286(3)
of the Constitution and s. 3 of Central Act No. 52 of 1952. Section
55 which is directed to preserving the privileges of the House of
Representatives with respect to finance and providing against
their abuse has received a somewhat narrow interpretation from
the Australian Courts. See the cases collected in Wynes. Legislative, Executive and Judicial Powers, 3"rd Edn., p. 240. We may
add that the observations of lsaccs, J. in Federal Commissioner of
Taxation
v.
Munro(') suggest that an Act naming the rate· but
leaving the persons on whom the tax should fall to be thereafter
determined would be a measure "imposing taxation" even for the
purposes of s. 55.
Nor is much light thrown on the interpretation of those words
by the decisions under the Indian Income-tax Act. In Messrs.
Chatturam Hori/ram Ltd. v. Commissioner of Income-tar, Bihar
and Orissa(') this Court held that income was chargeable under
s. 3 of the Indian Income-tax Act though the Finance Act was
not extended to the relevant area during the year in question. In
Kesoram Industries v. Commissioner of Wealth Tax(') this Court
by a majority following the dicta in Wallace Brothers & Co. Ltd.
v. Commi.l'.fioner of Income-tax. Bombay('), Chatturam
v. Commissioner of Income-tax, Bihar(') and explaining the dicta in Com·
missioner of Income-tax v. Western India Turf Clul> Ltd.Cl and
Maharaja of Pithapuram v. Commissioner of Income-tax, Madra,('), held that there was a liability to pay income-tax and a debt
owed by the assessee in respect of income-ta.x on the last day of
the accounting year within the meaning of s. 2(m) of the Wealth
Tax Act, 1957. None of these decisions dealt with the construction of the words "imposing or authorising the imposition of a
tax" in Art. 286(3) of the Constitution. It is remarkable, however,
-----,-----· .
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(1) [1960] 11 S.T.C. 68, 75-77, on appeal from (1959) 10 S.T.C. 171.
(2) 38 C.L.R 153. 189.
(3) [1955] 2 S.C R. 290, 297-300
(4) [1966] 2 S.C.R. 688.
(5) (1948) 16 T.T.R. 240, 244.
(6) (1947) 15 I.TR 302. 308. (7) (1927) L.R 55 IA 14, 17.
(8) (1945) 13 I.T.R. 221, 223-24.
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PUNJAB V. SANSABI llAL (Bac/iawat, J.)
343
that in the Maharaja of Pithapuram's case(') the language used by
Lord Thankerton s11ggests that the income-tax is imposed for a
particular fiscal year by a Finance Act and in Chatturam Hori/-
ram's case('), Jagannadhadas, J. said that the Finance Act of each
year imposed the obligation for the payment of a determinate sum
for each such year. Moreover, in Luipaard's Vlei Estate and Gold
Mining Co. Ltd. v. The Commissioner of Inland Revenue('), Rowlatt, J. said the English Income-tax was annually imposed by the
Finance Act and in Bowels v. Bank of England('), Parker, J. held
that the Crown could not Ia.wfully levy income-tax before the rate
of tax was ascertained and the tax was actually imposed by Act
of Parliament. These dicta suggest that an Act fixing the rate of
tax is a law imposing a, tax.
The specification of the class or. classes of persons liable to
pay the tax and the fixation of the rate of tax are both necessary
for the imposition of a tax. Section 4 of the East Punjab Act No. 46
of 1948 took the first step for imposing the ta.x. It declared who
were the persons liable to pay tax under the Act. But s. 5 of East
Punjab Act No. 46 of 1948 was invalid and until the passing of
the East Punjab A~t No. 19 of 1952 and the insertion of the
amended s. 5 there was no provision in the main Act fixing or
authorising the fixation of the rate at which the ta.x was to be
levied. In the absence of such a provision, there could be no levy,
assessment and collection of the tax from the dealer and s. 4 remained unenforceable. The East Punjab Act No. 19 of 1952 by
inserting the amended s. 5 in the main Act for the first time provided for the levy on the taxable turnover of every dealer a tax
at a rate to be fixed by the State Government. The rate of tax
could be fixed and the tax could be actually imposed under·the
amended s. 5 only. The East Punjab Act No. 19 of 1952 therefore
belonged to the category of laws authorising the imposition of a
tax cm the sale of goods.
The object of Art 286(3) of the Constitution was to put a
constitutional check on the operation of a State law imposing or
authorising the imposition of a tax on the sale or purchase of
essential goods. Commerce in such goods was a matter of national
concern and no such law could take effect unless it had been
reserved for the consideration of the President and had received
his. assent. An arbitrary or unjust rate of sales tax would unduly
hamper dealings in such goods, a.nd it is reasonable to think that
a measure fixing or authorising the ra.te of tax would be subject
to the salutary check of Art. 286(3). In our opinion, the amended
s. 5 inserted in East Punjab Act No. 46 of 1948 by East Punjab
Act No. 19 of 1952 authorising the fixation of the rate of tax
Ieviable on the taxable turnover was a law authorising the imposition of a tax within the purview of the unamended Art. 286(3) of
the Constitution.
(1) (1945) 13 I.T.R. 221.
(2) (1955] 2 S.C.R. 290.
(3)
crn29J 15 r.c. 573, 581.
(4J (1913) i. Ch. 57, 87.
BUPREll.E COURT REPORTS
(1968) ! B.C.R.
The East Punjab Act No. 19 of 1952 was passed after the
enactment of Art. 286(3) of the Constitution and after Parliament
had by Central Act No. 52 of 1952 declared edible oil to be
essential for the life of the community. It was not reserved for the
consideration of the President and did not receive his assent. It
was a law authorising the imposition of a tax on the sale of goods.
In so far as it authorised the imposition of a tax on the sales or
purchases of edible oil, it could not take effect during the currency
of Art. 286(3) of the Constitution as it stood before its amendment
by the Constitution (Sixth Amendment) Act. The fact that the
amended s. 5 inserted by the East Punjab Act No. 52 of 1952 was
·retrospective in operation made no difference. It was still a Jaw
made after the Constitution came into force and after Parliament
had by law declared. edible oil to be essential for the life of the
community. As the East Punjab Act No. 52 of 1952 did not receive the assent of the President, the amended s. 5 could not take
effect at all either prospectively or retrospectively' in respect of
sales and purchases of essential goods while the ban of Art. 286(3)
continued. But it could take effect in respect of sales and purchases
of other goods,
The fifth question involves consideration of the effect of the
amendment of Art. 286(3) of the Constitution and the repeal of
Central Act No. 52 of 1952. The .Constitution (Sixth Amendment)
Act, 1956 passed on September II, 1956 substituted a new cl. (3)
in Art. 286. The effect of this amendment was that the restriction
put by Art. 286(3) on the operation of the amended s. 5 inserted
by the East Punjab Act No .. 19 of 1952 in respect of essential goods
was lifted, and the section thereafter took effect on such goods
also. Counsel for the respondent submitted that in view of the ban
imposed by Art. 286(3), the amended s. 5 was a stillborn law and
the section was not revived by the removal of the ban. In this
connection, our attention was drawn to the decisions under Arts.
286(2) and 13 of the Constitution. Article 286(2), as it stood before
the Constitution (Sixth Amendment) Act provided that "Except
in so far as Parliament may by law otherwise provide. no law of
a State shall impose, or authorise the imposition of, a tax on the
sale or purchase of any goods where such sale or purchase takes
place in the course of inter.State trade. or commerce". In spite of
the prohibitory words of Art. 286(2), in M. P. V. Sundararamier &
Co. v. The State of Andhra Pradesh(') and Messrs. Ashok Leyland
Ltd. v. The State of Madras('), this Court held that a State law
imposing a tax on sales of goods in the course of inter-State trade
and commerce was not void, and the effect of the Sales Tax Laws
Validation Act, 1956 was to liberate State laws from the fetter
placed on them by Art. 286(2) and enable such laws to operate on
their own terms. In Mahendra Lal Jaini v. State of U. P.(') this
Court held, reviewing the earlier cases, that a post-Constitution
(1) (1958] S.C.R. 1422. 1459.
(2) (1962] 1 S.C.R. 607.
(3) [1953] Supp. 1 S.C.R. 912.
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PUNJAB ~. SANSARI JllAL (Bachawat, J.)
345
Act taking away or abridging the fundamental rights in contravention of Article 13(2) was a stil:born law but a pre-Constitution
Act inconsistent with a fundamental right was in view of Art. 13(1)
eclipsed for the time being and on the abolition of the fundamental right by a constitutional amendment the pre-Constitution Act
would begin to operate once again from the date of the amendment. These decisions show that .a law made by an incompetent
legislature or in contravention of some constitutional limitation is
void from its inception. But the amended s. 5 inserted by the East
Punjab Act No. 19 of 1952 was passed by a competent legislature.
It always took effect in respect of non-~ssential goods. Article 286
(3) did not prohibit its making. While the restriction imposed by
Art. 286(3) continued, the section could not affect essential goods,
but as soon as the restriction was removed, it became fully effective. The section was not void or stillborn.
But the question still remains whether the check on a State
law imposing or authorising the imposition of a tax on the sale
or purchase of essential goods continued even after September 11,
1956 until January 5, 1957 when Central Act No. 52 of 1952 was
repealed. Article 286(3) authorised Parliament to declare by law
w:;!ch goods were essential for the life of the community. Accordingly, Parliament passed Act No. 52 of 1952. The preamable to
the Act shows that it was an Act to declare in pursuance of cl. 3
of Art. 286 of the Constitution certain goods to be essential for
the life of the community. By s. 2, the goods specified in the schedule were declared to be so essential. As soon as this declaration
was made, Art. 286(3) came into play. Section 3 stated the conjoint effect of Art. 286(3) and s. 2 and declared tha.t no law made
after the commencement of the Act by the legislature of a State
imposing or authorising the imposition of a tax on· the sale or
purchase of any goods declared by the Act to be essential for the
life of the community would have efi'ect unless it had been reserved for the consideration of the President and had received his
assent. But s. 3 had no independent existence. The subject of a
tax on the sale or purchase of goods other than newspapers was
exclusively a State subject, see List II, Entry 54. Article 286(3)
did not authorise Parliament to legislate on this subject. It only
conferred on Parliament the authority to declare that certain goods
were essential for the life of the community. On such a declaration
being made, the check imposed by Art. 286(3) came into operation.
But on the amendmenL-of Art. 286(3) this check was lifted and
thereafter s. 3 had no force. It follows that as from September 11,
1956 the amended s. 5 inserted by East Punjab Act No. 19 of 1952
took effect on sales or purchases of edible oil also.
The sixth question relating to the validity of the notification
dated August 5, 1954 involves the interpretation of the expression
"law made by the legislature of a State" in Art. 286(3) as it stood
before the Constitution (Sixth Amendment) Act. We are not concerned in these appeals with the interpretation of the expression
SUPR&E COUHT REPORTS
[1968] I s.c.11.
"law of a State" in the amended Art. 286(3) and other Articles.
A
The notification dated August 5, J 954 was authorised by s. 6(2)
of East Punjab Act No. 46 of 1948. Section 6(2) being a pre-Constitution law was outside the purview of Art. 286(3) of the Constitution and Central Act No. 52 of 1952. See Sardar Soma Singh v.
The State of Pepsu and Union of India('). Consequently, s. 6(2)
from its inception affected essential goods. By force of s. 6(2) the
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notification dated August 5, 1954 issued under it took effect immediately in respect of essential goods. The notification issued by the
State Government was not a "law made by the Ieiiislature of a
State" within the meaning of Art. 286(3). Though issued after the
passing of Central Act No. 52 of 1952, it did not require the assent
of the President for affecting essential goods. In The Indore Iron &
Steel Registered Stockholders' Association v. The State of Madhya
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Pradesh('), this Court held that a notification dated October 24,
1953 specifying the goods whose sales were taxable under s. 5(2)
of the Madhya Bhara.t Sales Tax Act, 1950, a pre-Constitution Act,
was outside the purview of Art. 286(3) of the Constitution and s. 3
of Central Act No. 52 of 1952. Similarly, in Sreenivas & Co. v.
Deputy Commercial Tax Officer('), the Madras High Court held
that Rules 15 and 16 of the Madras General Sales Tax (Turnover
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and Assessment) Rules specifying the transactions attracting the
tax liability and framed under the Madras General Sales Tax Act,
1939, a pre-Constitution Act, did not require the assent of the President for affecting hides and skins which had been declared by
Parliament to be essential for the life of the community by Central
Act No. 52 of 1952. These decisions show that a notification issued
under the authority of a pre-Constitution Act is not a law made.
:&
by the legislature of a State within the meaning of the unamended
Art. 286(3). Jt follows that the impugned notification took effect
in respect of edible oil as from August 5, 1954 and thereafter sales
of edible oil produced in ghanis run by mechanical power were
taxable. But as the amended s. 5 could not then affect edible oil.
no tax was effectively imposed on it until September 11, 1956
during the currency of the unamended Art. 286(3) of the Constitur
tion. The respondents were. therefore. not liable to pay tax on
their sales of such edible oil effected before September l l, 1956.
It is common case before us that before the insertion of the
amended s. 5 by East Punjab Act No. 19 of 1952 the State Government had issued notifications under s. 5 fixing the rate of tax.
The seventh question relates to the validity of those notifications.
As the unamended s. 5 was invalid. under the law as it stood
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before the passing of the East Punjab Act No. 19 of 1952 those
notifications were not authorised by law and were invalid. The
East Punjab Act No. 19 of 1952, however. inserted s. 5 with retrosoective effect. The effect of the East Punjab Act No. 19 of
1952 was that the amended s. 5 was inserted and was deemed to
have always been inserted in the main Act. After the passing of ll
--·---~--
(1 l f19541 S.C.R. 955.
(2) [19621 2 S.C.R. 924
(3) [1960] 11 S.T.C. 68, 7f>-77, on appeal from [1959] 10 S.T.C. 171.
PlfflJAB v. SANSARI llAL (Bac!tawat, J.)
347
A
the East Punjab Act No. 19 of 1952 the result was that from the
very commencement of the main Act the amended s. 5 was deemed
to ha.ve authorised the State Government to issue notifications
fixing the rate of tax. The notifications issued by the State Government under s. 5 before 1952 must, therefore, be deemed to be and
always to have been valid and not stillborn. It was not necessary
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to pass another Act validating those notifications, nor was it necessary for the State Government to issue fresh notifications fixing
the rate of tax. In view of Art. 286(3), the amended s. 5 and the
notifications issued under it before 1952 could not take effect in
respect of sales or purchases of essential goods before September
fl, 1956. But they took effect in respect of such sales after September 11, 1956. The validity of the notifications issued after 1952
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under the amended s. 5 is not challenged before us.
It follows that the State la.w and the notifications issued thereunder effectively imposed tax on sales of edible oil from September
11, 1.956 and not before. The respondents are liable to pay tax on
all sales of edible oil effected by them after September 11, 1956,
but tbev are not liable to pay tax on their sales made before that
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In C. M. Ps. No. 877 to 879 of 1964, the respondents raised
several additional contentions. The first contention was that the
consideration of the several questions arising in this case is precluded by res judicata in view of the decisions of the Punjab High
Court in Sales Tax References Nos. 4 and 13 of 1961. But this
plea of res judicata has now been abandoned before us by counsel
for the respondents. Secondly, it was urged that the appeals are
infructuous because the respondents had obtained refund of the
tax deposited by them in respect of the years, 1958-59 and 195960. But the present appeals do not relate to those assessment years,
and the fact tha.t the respondents obtained refund of the tax for
those years is irrelevant in these appeals. Thirdly, it was pointed
out that by an order dated September 23,
1963 the Financial
Commissioner gave effect to the decision of the High Court under
appeal and directed that the assessment cases be disposed of accordingly. The contention of the respondents was tha.t in view of
this order of the Financial Commissioner the present appeals .are
not maintainable. There is no substance in this contention. The
order of the Financial Commissioner was passed under s. 22(5) of
East Punjab Act No. 46 of 1948. Section 22(5) provides that the
High Court shall send to the Financial Commissioner a copy of its
judgment in a Sales Tax reference under its seal and the signature
of the Registrar and the Financial Commissioner shall dispose of
the case accordingly. On receipt of the copy of the judgment of
the High Court in Sales Tax References Nos. ·8, 10, and 11 of 1962
the Financial Commissioner acting under s. 22(5) directed that the
cases should be disposer! of Hl'l"Ofding to the judgment of the High
Court. But those very judgments are under appeal in this Court.
In so far as those judgmenis are varied or reversed in these appeals,
348
BUPBBll'.E COURT BEPOBTB
(1968] 1 8.0.B,
effect must be given to the order of this Court and the Financial
Commissioner must direct the disposal of the cases accordingly.
In C. M. Ps. Nos. 877 to 879 of 1964, the respondents prayed for
revoca.tion of the special leave granted by this Court There is no
ground for revoking the special leave, and the petitions must be
dismissed.
To summarise our conclusions: (!) The unamended s. S of
East Punjab Act No. 46 of 1948 was void. (2) The invalidity of
s. 5 did not render ss. 4 and 6 -and other sections of the Act invalid. (3) The amended s. 5 inserted by East Punjab Act No. 19
of 1952 is valid. (4) The amended s. 5 was a law authorising the
imposition of a tax within the meaning of Art. 286(3) of the CoDStitution as it stood before the Constitution (Sixth Amendment)
Act. (5) The amended s. 5 and the notifications issued under it
did not take effect before September 11, 1956 in respect of sales
ot purchases of goods declared essential to the life of the com·
munity by Central Act No. 52 of 1952, but they took effect in
respect of such sales or purchases after September II, )956. (6)
The notification dated August 5, 1954 issued under s. 6(2) is valid.
(7) The notifications issued under s. 5 before the passillg of the
East Punjab Act No. 19 of 1952 are valid. (8) Tax was effectively
imposed on the sales or purchases of edible oil from September 11,
1956 and not before.
We, therefore, hold that the respondents are not liable to pay
tax on sales of edible oil produced in ghanis run by mechanical
power effected by them before September 11, 1956. But they are
liable to pay tax on such sales made after September 11, 1956. The
Sales Tax References and the appeals are disposed of accordingly.
C.M.Ps. Nos. 877 to 879 of 1964 are dismissed. There will be no
order as to costs.
·
R.K.P.S.
Appeals partly allowed.
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