TMI Blog1951 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ns urged by Dr. Tek Chand do not really arise and it is not necessary to express any opinion on them on this application. Those questions can only arise in appropriate proceedings and not on an application under Article 32. In our judgment this application fails on the simple ground that no fundamental right of the petitioner has been infringed either under Article 14 or under Article 31(1) and we accordingly dismiss the petition. - W.P.(C) 135 OF 1950 - - - Dated:- 12-1-1951 - Judge(s) : MUKHERJEE., KANIA., FAZL ALI., PATANJALI SASTRI., DAS JUDGMENT The Judgment of the Court was delivered by DAS, J.---This is an application under Article 32 of the Constitution for appropriate orders for the protection of what the petitioner claims to be his fundamental rights guaranteed by Articles 14 and 31. This is said to be a test case for on its decision, we are told, depend the rights of numerous other persons whose interests are similar to those of the petitioner. There is no serious controversy as to the facts material for the purposes of this application. They are shortly as follows : On May 5, 1948, the then Rulers of eight Punjab States including Patiala and Nabha w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amukh thereafter took over the administration of the different Covenanting States. The Administration of Nabha State was taken over by the Raj Pramukh on August 20, 1948. On the same day the Raj Pramukh, in exercise of the powers vested in him, promulgated an Ordinance (No. 1 of 2005) called the Patiala and East Punjab States Union Administration Ordinance, 2005. The following provisions of this Ordinance are relevant for our purpose :---- " 1. (2) It shall extend to the territories included in the Covenanting States on and from the date on which the administration of any of the said State or States has been or is made over to the Raj Pramukh. 2. * * * 3. As soon as the administration of any Covenanting State has been taken over by the Raj Pramukh as aforesaid, all laws, Ordinances Acts, Rules, Regulations, Notifications, Hidayats and Firmans-i-Shahi having force of law in Patiala State on the date of commencement of this Ordinance shall apply mutatis mutandis to the territories of the said State and with effect from that date all laws in force in such Covenanting State immediately before that date shall be repealed; Provided that proceedings of any nature whatsoever pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this Ordinance, be disposed of in accordance with the laws governing such proceedings in force in any such Covenanting State immediately before the appointed day." By Section 2(a) the "appointed day" was defined as meaning the 5th day of Bhadon, 2005, corresponding to August 20, 1948. There was a section providing for adaptation similar to Section 6 of the Ordinance I of 2005. There was another Ordinance to which reference has to be made, namely, Ordinance No. I of 2006 called the Finance Ordinance promulgated on April 13, 1949, which came into force on that very date. Section 5 of that Ordinance introduced several amendments to the Patiala Income-tax Act, 2001. It recast Sections 3 and 34 of that Act and introduced a new section as Section 23B. Section 6 of that Ordinance runs thus :-- " 6. For the assessment year beginning on the 1st day of Baisakh, 2006, that is to say, in respect of the accounting the income, profits and gains of the previous year ending on the last day of Chet, 2005,--- (a) income-tax shall be charged at the rates specified in Part I of the Second Schedule to this Ordinance, and (b) rates of super tax shall, for the purposes of Section 55 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed if the tax was not paid up. The contention of the petitioner in the first place is that he has been denied the fundamental right of equality before the law and the equal protection of the laws guaranteed to him by Article 14 of the Constitution. His grievances are formulated in paragraphs 10 and 11 of his petition. It is said that while the people of Kapurthala which is included in Pepsu have been asked to pay income-tax for the period, prior to August 20, 1948, at the old rate fixed by the Kapurthala Income-tax Act which was lower than the rate fixed by the Patiala Income-tax Act, 2001, the people of Nabha who had not to pay any income-tax prior to August 20, 1948, at all have been made liable to pay at the higher Patiala rate and that such discrimination offends against the provisions of Article 14. This charge is refuted by paragraph 10 of the affidavit of Sardar Gurbax Singh, the Additional Director of Inspection (Income-tax), New Delhi, who was formerly the Commissioner of Income-tax, Punjab and Pepsu, which has been filed in opposition to the present petition. It is there stated that for the assessment year 2005, in Kapurthala the assessees whose cases were pending o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undamental right to property guaranteed by Article 31(1) of the Constitution. Article 31(1) runs as follows :--- " (1) No person shall be deprived of his property save by authority of law. " It will be noticed that clause (1) reproduces sub-section (1) of Section 299 of the Government of India Act, 1935, without the words "in British India." Reference has next to be made to Article 265 which is in Part XII, Chapter I, dealing with "Finance." That Article provides that no tax shall be levied or collected except by authority of law. There was no similar provision in the corresponding chapter of the Government of India Act, 1935. If collection of taxes amounts to deprivation of property within the meaning of Article 31(1) than there was no point in making a separate provision again as has been made in Article 265. It, therefore, follows that clause (1) of Article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, for otherwise Article 265 becomes wholly redundant. In the United States of America the power of taxation is regarded as distinct from the exercise of police power or eminent domain. Our Constitution e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
