State of Bihar and ors. Vs. DulhIn Shanti Devi - Court Judgment

Excerpt:
- a.p. tax on professions, trades,callings and employments act, 1987. section 2(j), schedule1, explanation no.1:[s.h. kapadia & b. sudershan reddy, jj] profession tax- person definition held, it is an inclusive definition and is not beyond legislative competence of state government. section 3(42) of general clauses act does not restrict power of legislature to differently define person.-- words & phrases. includes; it enlarges the meaning of the defined word. constitution of india -- articles 246, 32 & 226: [s.h.kapadia & b. sudershan reddy, jj] constitutionality of law scope of power of constitutional courts to decide- held, the rules that guide the constitutional courts in discharging their solemn duty to declare laws passed by a legislature unconstitutional are well known. there is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; to doubt the constitutionality of a law is to resolve it in favour of its validity. where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld. in pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or un-wisdom, the justice or injustice of the law. if that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. article 276: [s.h. kapadia & b. sudershan reddy, jj] taxes on profession, trade etc. state governments power to levy held, a plain reading of article 276 makes it abundantly clear that a state legislature is precluded from making laws enabling the authorities to impose tax on professions, trades, callings etc. in excess of the prescribed amount, such law if enacted by a legislature would be in the teeth of article 276 of the constitution. the total amount payable in respect of any one person to the state or to any one municipality or other local authority etc. in the state by way of tax on profession etc. shall not exceed rs.2,500/- per annum. entry 60 of list ii which authorises the state legislature to make a law relating to tax on profession is to be read along with article 276 of the constitution. article 276 is also declaratory in its nature inasmuch as it declares that notwithstanding anything contained in arti8cle 246, no law of the legislature of a state relating to taxes for the benefit of state etc. in respect of profession, trades etc. shall be invalid on the ground that it relates to tax on income. likewise, it also declares the power of the legislature of a state to make such law with respect to taxes on professions etc. shall not be construed as limiting in any way the parliaments power to make laws with respect to taxes on income accruing from or arising out of profession, trade etc. constitution of india -- articles 367 & 276; [s.h. kapadia & b. sudershan reddy, jj] andhra pradesh tax on professions, trades, callings and employments act (22/1987), section 2(j), schedule1, explanation no.1- profession tax- person definition held, it is an inclusive definition and is not beyond legislative competence of state government. section 3(42) of general clauses act does not restrict power of legislature to differently define person - proceeding, however, on the well established principle that the apparent state of things should be taken to be the real state of things, unless the contrary is shown, we think that on the materials on the record, the petitioner shanti devi should for the purpose of the present petition, be held to have become genuinely a raiyat under her husband, before the date of vesting.k.c. das gupta, j.1. this appeal is against an order of the patna high court directing the issue of a writ of certiorari on the application of the respondent under article 226 of the constitution, that though she as theraiyat in possession of the plots mentioned in the application had the right to hold mela thereupon the revenue authorities were proposing to settle the right to collect tolls from the mela and her objections had been rejected. admittedly the ex-proprietor of the estates in which these lands lay was her husband, and while she claimed that there was a bona fide settlement of these lands with her in raiyati by her husband the revenue authorities disregarded the settlement and proceeded on the basis that these lands were the bakasht lands of the proprietor himself. the high court did not find it necessary to consider the question whether the settlement was merely a paper transaction or a real settlement with the petitioners. it was of opinion that even assuming that the lands were bakasht of the proprietor the state government had no right to hold melas thereupon. in that view the high court directed the issue of a writ in the nature of certiorari quashing the orders of the revenue officers. 2. against this decision the state of bihar and its officers have filed the present appeal after obtaining special leave. 3. in 1959, after the special leave was obtained the bihar legislature amended the bihar land reforms act and as we have decided in state of bihar v. rameshwar pratap narain singh, and writ petns. nos. 20 and 106/60: : [1962]2scr382 , in which judgment has been pronounced this day the consequence of the amendment is that the state had and the proprietor had not with effect from the date from the vesting of the 'estates' in the state, the right to hold mela on the bakasht lands of the proprietor. 4. the position, therefore, is that if the alleged settlement by the proprietor shri narendra prasad narain singh in favour of his wife was a mere paper transaction the state has the right to hold melas on the lands in question and the respondent dulhin shanti devi has not got such right. if, on the other hand, the alleged settlement of a raiyati right on the lands in her favour was real and bona fide transaction the vesting of the estate in the state of bihar would in no way affect her right to hold the mela on the lands. 5. the high court found it unnecessary to examine this matter, as on the law as it stood before the amendment in 1959, it had no difficulty in holding that whether the settlement was real or not, government could not interfere with the petitioner's right to hold mela on the lands. on the law as it now stands, the question whether the settlement was benami or not becomes important. proceeding, however, on the well established principle that the apparent state of things should be taken to be the real state of things, unless the contrary is shown, we think that on the materials on the record, the petitioner shanti devi should for the purpose of the present petition, be held to have become genuinely a raiyat under her husband, before the date of vesting. the order of the high court issuing the writ of certiorari in her favour should, therefore, stand. 6. the appeal is dismissed with costs. it would, however, be open to the state and its officials to establish in appropriate proceedings before a competent court, that the settlement of 1944 in favour of the respondent is sham and nominal and was not intended to convey any real title to the lands.