T. M. KANNIYAN versus INCOME-TAX OFFICER, PONDICHERRY AND ANR.

T. M. KANNIYAN

INCOME·TAX OFFICER, PONDICHERRY AND ANR.

(With Connected Petitions)

October 30, 1967

[K. N. WANCHOO, C.J., R. S. BACHAWAT, V. RAMASWAMI, G. K. MITTER AND K. S. HEGDE, JJ.)

Constitution of India, Articles 240(1) and Proviso,, 246--Power of President to 111ake Regulation for Unlon territories, scope ·of-"Pepce, progress a1td good governn1erit:', 111eaning of-Taxation Laws (Extension to Union Territories) Regulation (3 of 1963)-General Clauses Act, 1897, s. 3(58)-D.efinition of "State" Including Union territories if re-p1111nant to the subject and context of Ari, 246.

Parliament enacted the Pondicherry Administration Act. 1962, which provided that all laws in ·force immediately before August 19, 1962, 1when Pondicherry became Union territory, were to continue to b-~ in force until amended or repealed by competent 1egis1ature or other competent authority. The President, in exercise of the powers conferred on him by Art. 240 of the Constitution to ·make regulations for the "pea~e. progress and good government" of the Union territories promul-gated the Tax Laws (Extension to Union Territories) Regulafon. 1963. By this Regulation the laws in force in relation to income tax in the Union territory of Pondicherry were repealed J.nd tJ:ie Indian Income-tax Act, 1961 was made applicable. The petitioners challenged the, vires of t!..te Regulation.

HELD : The Regulation is valid .

. The power of the President to make regulations under Art. 240 is not limited to the subject of law and order. Authority to make regula-tion~ for "peace, progress and good government" is common form of grant of legislative power and the express[1]on ".peace, progress and good· government" is of very wide import giving wide discretion to the autho-rity empowered to pass laws for such purposes. The President can make--regulations with respect· to Union territory occupying the same field on which Parliament can· also make laws. Such reguiation may repeal or amend .any .Act made by Parliarrient or any existing law which "is for the time being applicable to the Union terr;tory and when promulgated has the same force and effect as an Act of Parliament wh'.ch applies to· to that territory. [!07E-!08D]

Riel v. Queen, [1865) 10 AC. 675, Chenard and Co. v. Joachim Ari"<Ol, [1949] A.C. 127, AttornR,v-General for Saskatchewan v. Canadian Pacific· Ry. Co., [1953] AC. 594, King Emperor v. Benoari fq/ Sarma. [1914) L.R. 72 I.A. 57. loJ?endra NaraYan Deb v. Debendra Narayan Roy, [1942) L.R. 69' I.A. 76 and Girindra Nath Banerjee v. Birendra Nuth Pal. [1927] l.L.R. 54 Cal. 727, referred to.

Parliament has, by virtue of Art. 246(4). power to make laws with respect to any matter including matters enumerated in the State List, for any part of the territory of India not included in State. With re-gard to Union territor'.es there is no dis~rbution of l"egfs[1]ative power

and P.:1rli:nnent ha\ plenary power to n1ake la\\'s for those territories on :inv 'uhjccl. Though the definition of "State" in s. 3(58) of the Gcncr:1l Clau~cs Act, 1897. taking v.ilhin it Union territories. applies to lhe inlcr-prcration of the Constitution. this inclusive definition is repugnant to t\1c subject and context of Art. 246. ·rhcrc. the expression "Sta1c" n1cans the State socci:.~d in the First Schedule. Parliament can bv l;:l\V extend the JncomC-tax Act, 1961, to Union territory y,·ith such inodi-tications as it think~ fit. l"hc President can, therefore, by regulation do 1hc same. { 108E; J09A-D]

R. K. St•n v. Union, [1966) I S.C.R. 430, reforr"J ro.

The power of the President to make regul<ilions for any of the \;nion territories specified in Art. 240(1) so long as no legislature is created for the territory is not f:tlcreJ by the proviso to A". 240( I) or limited to matters enumerated in the State List ano the Concurrent list [llOG)

It is not necessary to n1ake any distribution of income·taX "'ith rcc;pect to Union territories. as those territories or~ centrally administered through the President. II I IA-BJ •

ORIGISAL ]URISD!CTJOS: Writ Petitions ]Sos. 49, 60, 61 and 80 of 1967.

Writ Petitions under Ari. 32 of the Conslitution of India for the enforcement of fundamental right~. ·

K. Narayanaswamy and Lily Thomas, for the oelitioner r in

W.P. No. 49 of 1967).

Sadhu Singh, for the petitioner (in W.P. No. 60 of 190 I J.

S. K. Dholakia and Sadhu Singh, for the petitioner (in W.P. No. 61 of 1967).

S. T. Desai and Sadhu Singh, for the petitioner (in W.P. No. 80 nf 1967).

C. K. Daphtary, Attorney-General, B. L. Iyengar, R.H. Dhe-

har for R. N. Sachthey, for the respondents (in W.P. No 49 of 1967).

R. H. Dhebar for R. N. Sachthey, for the responelents (in

W.Ps. Nos. 60, 61and80 of 1967).

The Judgment of the Court was delivered by

Bachawat, J. In ali these writ petitions, the petitioners chal-lenge the vires of the Taxation Laws (Extension to Union Territo-ries) Regulation No. 3 of 1963. The contention is that the Presi-dent had no power to promulgate the Regulation under Art. 240 of the Constitution. On August 16. 1962, Pondicherry became Union Territory. On Decemb.:r 5, 1962, Parliament enacted the Pondichcrry Administration Act. 1962 (Act No. 49 of 1962). Section 4( I) of this Act provided that all Jaws in force imme-diately before August 19, I 962 would continue to be in force in

Pondicherry until amended or repealed by competent legislature or other competent authority. Section 4(2) empowered the Central Government to make necessary adaptations and modifica-tions for the purpose of facilitating the application of any such law in relation to the administration of Pon<licherry and bringing the provisions of any such law into accord with the. provisions of the Constitution. Section 7 provided that all taxes, duties, ce.>ses and fees which immediately before August 19, 1962 were being lawfully levied would continue to be levied in Pondicherry and to be applied for the same purposes, until other provision was made by competent legislature or other competent authorit}. After the passing of this Act, the petitioners continued to be sub-ject to the existing French laws relating to incon:e-tax. On · March 30, 1963, the President in the exercise of the powers con-ferred on him by Art. 240 of the Constitution promulgated the impugned Regulation No. 3 of 1963. The Regulation ex.tended certain Indian Acts relating to taxation to the Union territories mentioned therein. Section 3 ( 2) of the Regulation extended the Income-tax Act. 1961, subject to tbe modifications mentioned in Part II of the Schedule, to Pondicherry as from April 1, 1963. Section 4( 1) provided that any law in force in Pondicherry ·cor-responding to the Income-tax Act, 1961 would stand repealed on April 1, 1963. The petitioners carry on busine.>s at Pondicherry and are being assessed to inccme-tax under the Income-tax Act. 1961. They have filed ~he present writ petitions asking for dec-E laration that the Tncome-taic Act, 1961 was not legally extended to Pondicherry and direction prohibiting the respondents from implementing that Act in relation to Pondicherry.In the Constitution of India as originally enacted, India was declared to be Union of States, [Art. I ( 1)]. The States and their territories were specified in Parts A, and of the First Schedule [Art. 1 (2) ]. The territory of India consisted of the territories of the States, the territories specified in Part of thc-First Schedule (Andaman and Nicobar Islands) and such other territories as may be acquired, [Art. I (3) ]. As originally enacted .. Part VI of the Constitution dealt with Part States, Part VII dealt with Part States, Part VIII dealt with Part States and Part IX dealt with the territories specified in r'art of the First Schedule. The Constitution (Seventh Amendment) Act passed on October 19, 1956 altered the scheme of division of India into A, and States and the territories mentioned in Part of the First Schedule. Article 1 and the First Schedu1c were amended so that the territory of India would comprise the territories of the States, the Union territories specified in the First Schedule and such other territories as may be acquired. By cl. 30 added to Art.. 366, "Union territory" was defined to mean any Union territory specified in the First Schedule an<l to include any other territory LIOSup. C.1./68-8

comprised within the territory of India but not specified in that Schedule. Consequential amendments were made in Part VI and other Parts of the Constitution. Parts Vil and IX were repealed. Part VIII wa~ drastically amended. The title of Part VIII was al-tered to that of "Union Territories". The amended Art. 239 pro-vided for the administration of Union territories by the President acting through an administrator to be 'lppointed by him. The amended Art. 240 was in these terms:

"240. Power of President to make regulations for cutain Union territories.-· (1) The President may make regulations for the j*!CC, progress and good govern-ment of the Union territo!j' of-

( a) the Andaman and Nicobar Islands;

( b) the Lai:cadive, Minicoy and Amindivi Islands.

(2) Any regulation w made may repeal or amend

any Ac:.t made by Parliament or any existing law which is for the time being applicable to the Union territory and, when promulgated by the President, shall have the same force and effect as an Act of Parliament which applies to -.hat 1erritory."

The amended Art. 241 dealt with High Courts for Union territo-ries. Article 242 relating to Coorg"was repealed. Article 240(1) and the First Schedule were anJended from time to time. The Constitution (Fourteenth Amendment) Act passed on Decem'.Jcr 28, 1962 amended the First Schedule and Art. 240 and a~ded Art. 239A. Article 239A and the amended Art. 240 •arc m thc>c lerms :

"239A. (I) Parliament may by Jaw create for any of the Union territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu, and Pondicherry-

( a) body, whether elected or partly nominated and partly elected, to function as Legislature for lite Union territory, or

( b) Council of Ministers,

or both with such constitution, powers and functions, in each ca~c. as may be specified in the law.

(2) Any such law as is referred to in clause (1) shall not be deemed to be an amendment of tllis Cons-titution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending tllis Constitution.

240. ( l) The President may make regulations for the peace, progress and good government of the Union territory of-

( a) the Andaman and Nicobar Islands;

(b) the Laccadive, Minicoy and Amindivi Islands;

(c) Dadra and Nagar Haveli;

(d) Gao, Daman and .Diu;

( e) Pondicherry:

Provided that when any body is created under article 239A to function as Legislature for the Union terri· tory of Goa, Daman and Diu or Pondicherry, the President shall not make any regulation for the peace, progress and good government of that Union territory with effect from the date appointed for the first meeting of the Legislature.

(2) Any regulation so made may repeal or amend any Act made by Parliament or any existing law which is for the time being applicable to the Union territory and, when promulgated by the President, shall have the same force and ·effect as an Act of Parliament which applies to that territory."

Regulation No. 3 of 1963 was made by the President in. the exercise of the power conferred on him to make regulations for the peace, progress and good government of the Union territories. The contention that under Art. 240 the President can make regu-lations limited to the subject of law and order only cannot be accepted. The grant of legislative power to make laws, regula-tions or ordinances for British dependencies has long been express-F ed in the common form of that of making laws, regulations or ordinances for "peace and good government" of the territory or similar objects such as "pe:M;c, order and good government", "peace, welfare and good government" and "peace, progress and good government" of the territory. Instances of this common form of grant of legislative power to legislatures and authoritie~ in India arc s. 42 of the Indian Councils Act, 1861, ss. 71, 72, BOA of the Government of India Act, 1915, s. 72 of the ninth Schedule and s. 92(2) of the Government of India Act, .1935. Such po·wer was held to authorise the utmost discretion of enactment for the attainment of peace, order and good government of the terri-tory and Court will not enquire whether any particular enact-ment made in the exercise of this power, in fact, promotes those objects, Riel v. Queen('), Chenard and Co. v. Joachim Aris-sol(2). The words "peace, order and good government.. and

(I} [188!>] JO A.C. 675, 678-679.

12) [1949] A. C. 127, 132.

similar expressions arc words of very ,,,;de import giving wide dis cretion to the authority empowered to pass laws· for such purposes, Attomey-Genera/ for Saska1c/1c1rnn v Canadian Pacific Ry Co.('). King Emperor v. /Jcnoari Lal Sar111a(') In Jogendra Nara.mn Deb v. Debendra Narayan Ruy(") Sir George Rankin said that the words have reference to the scope and not to the merits of the legislation. In Girindra Nath Banerjee v. Bire11dra Nmli Pal( [1 ]), he said that •·these words are used because they arc words of the widest significance and it is not open to Court of Jaw to consider with regard to any particular piece of legislation whether in fact it is meritorious in the sense that 11 will conduce to .reace or to good government. It is sufficient that they are words which are intended to give, subject to the restrictions of the Act, legis-lating power to the body which it invests with that authority." Article 240 of the Constitution confers on the Prcsidcnt 1a general power of making regulations for the peace, progress and good government of the specified Union tcrritorie>. In exercise of this power. the President may make regulation repealing or amend-ing any Ac~ made by Parliament or any existing Jaw which is for the time being applic;i.blc to the Union territory. The regulation when promulgated by the President has the sa111e ftlfce and effect as an Act of Parliament which applies to that territory. The Pre-sident can thus make regulations on all subiccts 0•1 which Parlia ment can make law, for the territory.Parliament has plci;ary power to legislate [or the Union terri-tories with regard to any sub jeer. With regard to Union territories there is no distribution of legislative power. Article 246( 4) enacLs that "Parliament has power to make laws with respect tc any matter for any part of the territory of India not included in State notwithstanding that such matter is matter enumerated in the State List." In R. K. Se11 v. Union(") it was pointed out that having regard to Art. 367, the definition of "State" ins. 3(58) of the General Clauses Act, 1897 applies for the interpretation of the Constitution unless there is anything repugnant in the subject or contc.\t. Under. that definition, the expression "State" as respects any period after the commencement of the Constitution (Seventh Amendment) Act. 1956 "shall mean State specified in the First Schedule to the Constitution and shall include Union territory ~ But this incltLsive deCTnition is repugnant to the subject and con-text of Art. 246. 1l1crc, the expression "State" means the States ~pccificd in the First Schedule. 1bere is distribution of legisla-ti\'I} power between Parliament and the legislatures of the States. Exclusive power to legislate with re.spec! to the matters enumerated in the State List is assigned to the legislatures of the State5 esta -----·-·· (I)

-----·-·· (I) (1•53J A.C. 594, 6t3-6!4.

(2) [C9t4J L.R. 721.A. 57. 72.

(3) [l94Z] L.R. 6S I.A. 76, 90.

(4) [1927] I.LR. 54 Cal. 727, 73~.

(5) 11966) I S.C.R. 430, 433.

blishcd by Part '-':. fhere is no distribution of legislative power with respect to Union territodes. That is :-VhY Parliament is given power by Art. 246 ( 4) to_ legislate ev~n w1~h respe~t. to ~rntte~ enumerated in the State List. If the mclustve defimt10n of State in s: 3 ( 58) of the Gene0ral Clauses Act were to apply to Art. 246 ( 4), Parliament would have no power to legislate for the Union territories with respect to matters enumerated in the State List and until legislature empowered to legislate on those matters is creat-ed under Art. 239A for the Union territories, there would be no legislature competent to legislate on those mattel"l!; moreover, for certain territories such as the Andaman and Nicobar Islands no legislll!ure can be created under Art. 239A, and for such territories. there can be no authority competent to legislate with respect to matters enumerated in the State List. Such construction is re-pugnant to the subject and context of Art. 246. It follows that in view of Art. 246(4), Parliament has plenary. powers to make laws for Union territories on all matters. Parliament can by law extend the Income-tax Act, 1961 to Union:'territory with such modifications as it thinks fit. The President fo the exercise· of his ll powers under Art. 240 can make regulations which have the same force and effect as an Act of Pariiament which applies to that terri-tory. Tile President can therefore by regulation made under Art.. 240 extend the Income-tax Act. 196 l to that territory with such mOdifications as he thinks fit.

The President can thus make regulations under Art. 240 with respect to Union territory occupying the same field on which Parliament can also make laws, We are not impressed by the argument that such overlapping of powers would lead to clash between the President and Parliament. The Union territories are centrally administered through the Prcsidem acting through an 'administrator. In the cabinet system of Government the Presi-dent acts on the advice of the Ministers who are responsible to Parliament. ·The proviso to Art. 240 (1) Jays down the condition for the ccsser of power of the President to make regulations under Art. 240( I). The power of the President to make regulations for the Union territory of Goa, Daman and Diu or Pondicherry ceases when legislature for the territory is created with effect from the date appointed for the first meeting of the legislature, But unti.1 such legislature is created, the President retains his full power to make regulations for those territories. The proviso does not net as fetter on the general power of the President to make regula-H tions for the Union territory while no legislature for that territory is brought into existence. The proviso docs not enact, as is sug-gested ·by the petitioners, that the power of the Presid~nt is confined

to making laws with respcci to the matters enumerated in the State List and the Concurrent List. The argument is that legis-lature created under Art. 239A can be authorised to pass laws with respect to those matters only and having regard to the proviso to Art. 240( I) the President's power to make regulations under Art. 240 is similarly circumscribed. As matter of fact, the Government of Union Territories Act, 1963 created local le)!isla-B tilres for the Union territories of· Himachal Pradesh, Manipur. Tripura, Goa, Daman and Diu and Pondicherry and s. 18 of the Act conferred on those legislatures power to make laws for those territories with respect to the matters enumerated in the State List or the Concurrent List. Assuming that the local legislature created under Art. 239A can be authorised to make laws with res-pect only to the matters enumerated in the State List or the Con-current Li~t. it docs not follow that the power of the President to make regulations under Art. 240 is so limited. By the express words of Art. 240, the President can make regulations for the peace, progress and good government of the specified Union terri-tories. Any regulation so made may repeal or amend any Act made by Parliament and applicable to that territory. When pro-D mulgated by the President the regulation has the same force and effect as an Act of Parliament applicable to that territory. This general power of the President to make regulations extends to all 1aauers on which Parliament can legislate. It may be recalled that Art. 239A and the proviso to Art. 240( I) were inserted by the Constitution (Fourteenth Amendment) Act. Under Art. 240 as it stood after the Constitution (Seventh Amendment) Act and before the enactment of the Constitution (Fourteenth Amendment) Act, it could net be contended that the general pvwer of the Pre-sident to make regulations under Art. 240 ( I ) was limited to matters enumerated in the State List and the Concurrent List. The position wa~ not changed by the insertion of Art. 239A and the . proviso to Art. 240( I) by the Cons;itution (Fourteenth Amend-ment) Act. . Moreover, Art. 239A docs not authoris~ Parliament to create legislatures for the Union territories of the Andaman and Nicobar Islands, Laccadivc, Minicoy and Amindivi Islands and Dadra and Nagar Havcli. It is clear, therefore, that tile power of the President to make regulations with respect to those territories is not limited by the proviso to Art. 240( I). We arc satisfied that the proviso to Art. 240( I) on its true construction docs not fetter the power of the President to make regulations for any of the Union territories specified in Art. 240( I) including Pondi-cherry as long as no legislature is created for the territory.

It wa~ suggested that there is no provision for the distribution of the income-tax attributable to Union territories and therefore the President could not extend tlic Income-tax Act, 1961 to the Union territories. If this argument were sound, ev~n Parliament

~ould not extend the Income-tax Act to the Union territories. Moreover, the argument overlooks Art. 270 which shows that the income-tax attributable to Union territories forms part of the Consolidated Fund of India. It is not necessary to make any dis--tribution of income-tax with respect to Union territories as those territories are centrally administered through the President.

There is no force in the contention that the President cannot make law with respect to income-tax in the absence of an ex-press grant bf such power. - There is distribution of legislative power between the Centre and the States and consequently dis-tinct grants of taxing power a~e made in the legislative lists. With respect to Union territories, there is no distribution of legislative power. For the Union territories, Parliament has plenary poWers to make laws and the President has general powers to make regu~ lations. In the exercise of his powers under Art. 240, the Presi-, dent could make Regulation No. 3 of 1963 extending the Incorne-tax Act, 1961 and other laws to the Union territories. The petitions are dismissed with costs, one hearing fee. Y.P. Petitions dismissed