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1991 DIGILAW 230 (GUJ)

REUNION ENGG. CO. PVT. LTD. , POWER & INSTRUMENTATION v. UNION OF INDIA

1991-07-16

A.P.RAVANI, SHARAD D.DAVE

body1991
JUDGMENT A. P. RAVANI, J. - In both the petitions, the petitioners have challenged the validity of the Constitution (Forty-sixth Amendment) Act as being beyond the legislative competence of the Parliament and as being violative of articles 14, 19(1)(g), 265, 300A and 301 of the Constitution of India. Alternatively it is prayed that article 366(29A) is beyond the legislative competence of the Parliament and violative of articles 14, 19(1)(g), 265, 300A and 301 of the Constitution of India. As far as the challenge to the Constitution (Forty-sixth Amendment) Act, 1982 is concerned, the same cannot be entertained for the simple reason that the validity of the Constitution (Forty-sixth Amendment) Act, 1982 was challenged before the Supreme Court in the case of Builders Association of India v. Union of India reported in [1989] 73 STC 370; AIR 1989 SC 1371 and the Supreme Court has upheld the constitutionality of the same. The contention that the validity of the Constitution amendment was challenged on a particular ground only and that the Supreme Court has not examined the validity of the Constitution amendment from the stand-point of the grounds sought to be raised in this petition and therefore this Court should examine the grounds sought to be advanced by the petitioners has no merits. It is not open to this Court to examine the validity of the Constitution amendment once the Supreme Court upheld the constitutionality of the same. It is to be presumed that the Supreme Court has taken into consideration all the relevant aspects while upholding the constitutionality. For this reason alone, the aforesaid contention fails. The learned counsel for the petitioners submits that by Constitution (Forty-sixth Amendment) Act, articles 269(3) and 286 have been amended. The effect of the amendment of these articles is that any law of the State dealing with sale or purchase of goods covered by sub-clauses (b), (c) or (d) of clause (29A) of article 366 should be subject to restrictions and conditions in regard to the system of levy and rates and other incidence of tax as by law enacted by Parliament be specified. It is submitted that as far as transactions involved in execution of works contract and in hire-purchase agreement and in the transfer of the right to use any goods are concerned, the Parliament has not enacted law specifying restrictions and conditions to which the State law should conform. It is submitted that as far as transactions involved in execution of works contract and in hire-purchase agreement and in the transfer of the right to use any goods are concerned, the Parliament has not enacted law specifying restrictions and conditions to which the State law should conform. In absence of any such law having been enacted by the Parliament, the State Legislature could not and ought not to have enacted laws regarding the transactions in works contract, hire-purchase agreement and the right to use certain goods. The argument has no merits whatsoever. The Constitution does not impose any embargo on the powers of the State Legislature to enact laws in respect of the sale and purchase covered by sub-clauses (b), (c) and (d) of clause (29A) of article 366, of the Constitution. The provisions of article 269(3) and article 286(3)(b) enable the Parliament to enact laws specifying the conditions and restrictions to which the State law should conform in relation to the system of levy and rates and other incidence of tax. But if the Parliament has not enacted any such laws, the State Legislature is not deprived of its power to enact laws in relation to this transaction. The power of the State Legislature is not dependent on the enactment of law by the Parliament as contemplated under article 286(3)(b). Therefore the contention must fail. The argument that in absence of the law enacted by the Parliament in this behalf, chaotic situation will be created inasmuch as different States will impose tax on the transactions covered by sub-clauses (b), (c) and (d) of clause (29A) of article 366 has also no merits. If and when the Parliament thinks it necessary, the Parliament will enact such law. As far as the Gujarat Act is concerned, the provisions of section 87 of the Act expressly provides that nothing in the Act or the rules made thereunder shall be deemed to impose or authorise imposition of a tax on any sale or purchase of any goods where such a sale or purchase takes place in the course of inter-State trade or commerce or outside the State or in the course of the import of the goods into the territory of India or the export of the goods out of such territory. The section further provides that the provisions of the Act and the rules have to be read and construed accordingly. The section further provides that the provisions of the Act and the rules have to be read and construed accordingly. The explanation to the section makes it clear that transactions of sale and purchase mentioned therein are to be determined in accordance with the principles specified in sections 3, 4 and 5 of the Central Sales Tax Act, 1956. Thus the State Legislature is aware of its limitations. Despite this awareness, if during the working of the amended provisions of the Act if any difficulty arises, it will be for the Parliament to enact suitable legislation and impose conditions and place restrictions on the powers of the State. But an Act validly passed by a competent Legislature cannot be invalidated on an imaginary ground that the implementation of the Act will lead to chaotic situation. To do so itself, will be an invitation to chaos. For these reasons, the contention is rejected. No other contention is raised. For the aforesaid reasons, the petitions are rejected. Rule discharged. Petition dismissed.