TMI Blog1965 (12) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned law. Mr. S. P. Gupta, who has appeared in Writ Petition No. 566 of 1961, has however submitted that the impugned legislation is bad so far as it includes in its ambit the imposition of tax even on gifts of land and buildings. Relying upon entry 49 of List II of the Seventh Schedule of the Constitution he has contended that all legislation relating to tax on land and building, including a tax on the gift of land and building, fell within the sphere of the State legislature and the Central Parliament was incompetent to have made the impugned Act applicable to gifts of lands and buildings also. On behalf of the State the submission is that Parliament has legislative competence to enact the impugned statute by virtue of article 248 read with entry No. 97 of the Seventh Schedule of the Constitution. Article 248 of the Constitution reads : " 248. (1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. (2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists." Entry 97 of List I of the Seventh Schedule reads : " 97. Any other matter not en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act. Again, if the text says nothing expressly, then it is not to be presumed that the Constitution withholds the power altogether. On the contrary, it is to be taken for granted that the power is bestowed in some quarter unless it be extraneous to the statute itself (as, for example, a power to make laws for some part of His Majesty's Dominions outside of Canada) or otherwise is clearly repugnant to its sense. For whatever belongs to self-government in Canada belongs either to the Dominion or to the provinces, within the limits of the British North America Act." The submission that there can be a subject of legislation in respect of which neither the Central Parliament nor the State legislatures can enact laws was rejected by two Full Benches of this court, of both of which one of us (Jagdish Sahai J.) was a member: (see Oudh Sugar Mills Ltd. v. State of U.P. and Jugal Kishore v. Wealth-tax Officer ). This court has consistently taken the view that in view of the clear language of article 248 read with entry No. 97 in List I of the Seventh Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplates is a tax on ownership or enjoyment of lands and buildings and not on the transfer of the same. We find some support for the view we are taking from Ralla Ram v. Province of East Punjab. In that case entry 42 in List II of the-Seventh Schedule of the Government of India Act, 1935 (hereinafter referred to as the 1935 Act), was considered by their Lordships. That entry is the same as entry 49 and reads : " Taxes on lands and buildings, hearths and windows. " In Rajahmundry Electric Supply Corporation Ltd. v. State of Andhra Pradesh 2, the question that their Lordships had to consider was whether in view of there being no express entry in any of the Lists in the Seventh Schedule of the 1935 Act relating to compulsory acquisition of an electric company, it was possible for the Provincial legislature to enact a law for the purpose of acquiring the electric companies. In the Concurrent List of the 1935 Act there was an entry permitting legislation on "compulsory acquisition of land " and another permitting legislation on " electricity " thus enabling the Madras legislature to enact in respect of those subjects. There was, however, no entry permitting compulsory acquisit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s : " An Act to provide, during a limited period, for powers to prevent black-marketing. " The provision was struck down on the finding that, even though the Provincial legislature had the power to pass laws for preventive detention with the object of preventing disturbances of law and order, it was not competent to enact a law of preventive detention in order to prevent blackmarketing and that for that purpose action could only be taken under the residuary clause (section 104 of the 1935 Act). It is true that an entry must be so read as to include all ancillary and incidental matters but that does not mean that matters not strictly covered by the entry should also be included in its purview. The three cases that we have mentioned above clearly illustrate the legal proposition that, even though an entry in a List is to be read in its widest amplitude, including legislation in respect of ancillary matters, it cannot be so widely read as to include something which cannot be comprehended within it and, if that thing is not specifically provided for in an independent entry, recourse must be had to the residuary clause. In the Madras case, matters relating to acquisition of land a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ; encumbered and attached estates ; treasure trove." Their Lordships observed as follows : " Item 21 is part of a Constitution and would on ordinary principles receive the widest construction, unless for some reason it is cut down either by the terms of item 21 itself or by other parts of the Constitution which has to be read as a whole. As to item 21, 'land', the governing word is followed by the rest of the item, which goes on to say, 'that is to say'. These words introduce the most general concept---'rights in or over land'. 'Rights in land' must include general rights like full ownership or leasehold or all such rights. 'Rights over land' would include easements or other collateral rights, whatever form they might take their Lordships cannot accept the view that so important a subject as mortgages was left out of the Constitution and merely left to the Governor-General's powers under section 104, Constitution Act, as a residual subject. So far as land at least is concerned, item 21 would include mortgages as an incidental and ancillary subject." Entry 21 was clearly comprehensive enough to include mortgages of land as an incidental and ancillary subject, because creati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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