High Court Of Gauhati
Pu. Liansuama vs. Wealth Tax Officer & Ors.
Sections WT 1(2), Art. 371G North-Eastern Areas (Reorganisation) Act, 1961, cl. 12B
Asst. Year 1995-96, 1996-97
P.G. Agarwal, J.
Civil Rule No. 6159 of 1996
9th January, 2002
Counsel Appeared
N. Dutta, K.P. Pathak & N. Sailo, for the Petitioner : G.K. Joshi & U. Bhuyan, for the Respondents
JUDGMENT
P.G. AGARWAL, J. :
In this application under Art. 226 of the Constitution, the petitioner has challenged the applicability of the WT Act, 1957 (for short, “the Act”), on the Mizos residing within the State of Mizoram.
2. The petitioner was served with two notices dt. 1st Oct., 1996, to submit his returns for the years 1995-96 and 1996-97 under s. 14(2) of the Act. The petitioner is a Mizo residing in the State of Mizoram and in the present application, the challenge to the applicability of the Act is on the following counts : (1) In order to apply the provisions of any Central Act to the State of Mizoram, there must be a notification to that effect by the President of India and in the absence of such notification, the said Central Act is not applicable to the local inhabitants of Mizoram. (2) In view of the provisions of the IT Act exempting the people belonging to scheduled tribe category and living in the scheduled tribe area from payment of income-tax under the IT Act, the provisions of the WT Act cannot be made applicable to the petitioner who belongs to a scheduled tribe and residing in Mizoram. (3) The Act was enacted in the year 1957 but it was not applied or introduced in the State of Mizoram till 1996 and as the said Act was not used for 40 long years in view of the doctrine of Desuetude, the Act should not be made applicable without proper notification.
3. Heard Mr. K. P. Pathak, learned counsel for the petitioner, and Mr. G. K. Joshi and Mr. U. Bhuyan, learned counsel for the respondents.
4. The erstwhile Lushai Hills was annexed to British India in the year 1872 and thereafter the Scheduled District Act, 1874, was passed and the said Act remained in force till the Government of India Act, 1935, came into force when it was repealed by Order of 1937. Considering the provisions of the Scheduled District Act, 1874, Lushai Hills Scheduled District was formed and thereafter the Lushai Hills District was brought under the provisions of the Assam Frontier Tracts Regulation, 1880. Subsequently, w.e.f. 1st April, 1912, the Lushai Hills District was taken under the authority and management of the Governor General of India. Thereafter as per the Government of India Act, 1915, Lushai Hills was declared a backward tract. The Government of India Act, 1935, was enacted on 2nd Aug., 1935, and under the provisions of the said Act, Lushai Hills was included as excluded area and certain safeguards were provided under the said Act. Sec. 92 of the Government of India Act provided that no Act of the Federal legislature or of the Provincial legislature shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs. Lushai Hills became a District Council Area under the Sixth Schedule and there is no dispute that the said Lushai Hills subsequently became a Union Territory and ultimately a full-fledged State under the Union of India.
5. The question that arises for consideration is whether after the enactment of the Indian Constitution what is the requirement under the law for making a Central law applicable to the State of Mizoram.
6. The submission of the writ petitioner may be summed up as follows : “It has been held in a catena of decisions that the District Council (Sixth Schedule Areas) is a State within a State. If we refer to the Constituent Assembly’s Sub-Committee’s Report (excerpts already submitted), we find that it is because of the unique nature in the matter of geographical locations, customs and usage, etc., that these areas have been given special status under Sch. 5 and Sch. 6 of the Constitution. The Fifth and Sixth Schedules and the provisions thereof are very much integral parts of the Constitution of India, and the special procedure prescribed therein for the administration of these areas has to be strictly followed. Therefore, whenever an Act is enacted by Parliament as applicable in the whole of India, in the interest of protection of the interest of the aboriginal people permanently residing within the Fifth and Sixth Schedule areas, the President has been given the power to extend or not to extend the applicability of a Central Act to these areas. However, while exercising this power, he will act according to the aid and advice of the Council of Ministers.”
7. The respondent on the other hand, submits : “That the situation for not applying the existing laws to a particular area or to apply such laws with exceptions to a particular area will arise only when such laws are already in application. If the laws are not in application at all, necessity or urgency of not applying such laws inconsideration of the exigencies of circumstances cannot arise. Constitutional provisions have to be read together and not in isolation. Para. 12B (a, b, c) of the Sixth Schedule is to be read in its entirety together with para. 3 of the Sixth Schedule. Combined reading of the aforesaid provisions with Art. 371G of the Constitution will make the position very clear.”
8. At this stage we may refer to cl. 12B of the North-Eastern Areas (Reorganisation) Act, 1971, which reads as follows : “12B. Application of Acts of Parliament and other Acts to autonomous districts and autonomous regions in the Union Territory of Mizoram,—Notwithstanding anything in this Constitution, the President may with respect to any Act of Parliament and the Administrator may with respect to any other Act, by notification, direct that it shall not apply to an autonomous district or an autonomous region in the Union Territory of Mizoram or shall apply to such district or region or any part thereof subject to such exceptions or modifications as he may specify in the notification and any such direction may be given so as to have retrospective effect.”
9. Learned counsel for the writ petitioner submits that the word “may” appearing above should be construed as “shall” casting a duty to issue notification as if any other interpretation is given to the word “may” the very object of providing the above protection will be lost. In support of the above submission, learned counsel has placed reliance on the decisions of the apex Court in the cases of : (1) Keshav Chandra Joshi vs. Union of India AIR 1991 SC 284; (2) Madan Mohan vs. Krishnan Kumar Sood (1994) Suppl (1) SCC 437; and (3) Dinkar Anna Patil vs. State of Maharashtra (1999) 1 SCC 354. In all the above decisions, the apex Court interpreted the meaning of the word “may” in the context of the relevant provisions and held that the word “may” must be construed in the above context to mean “shall”, the relevant portion of which reads as follows : “It is, however, a well recognised canon of construction, as Lord Cairns said in Julius vs. Bishop of Oxford, that ‘where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised.’ And Lord Blackburn said : The enabling words are construed as compulsory where the object of the power is to effectuate a legal right.” In the above referred decision, the apex Court had the occasion to consider the meaning of the word “may” in the context of the requirement of consultation of one authority with another authority. In the present context, the President of India has been given the power to make notification directing that a particular provision of the Act shall not apply to a particular region or it will be applied subject to certain exceptions or modification. Hence, this is an enabling provision under the Act only and I find that no duty was cast for issuance of notification to apply the provisions of an Act when the Act has been enacted by Parliament with the stipulation that it shall apply to the whole of India. Moreover, we find that Art. 371G of the Constitution provided for certain protection to the people of Mizoram in respect of certain Acts of Parliament and special provisions had been made that certain Acts will not apply to the State of Mizoram unless the legislative assembly of the State by a resolution so directs. Art. 371G of the Constitution reads as follows : “371G. Special provisions with respect to the State of Mizoram.— Notwithstanding anything in this Constitution,— (a) no Act of Parliament in respect of— (i) religious or social practices of the Mizos, (ii) Mizo customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Mizo customary law, (iv) ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of the State of Mizoram by a resolution so decides : Provided that nothing in this clause shall apply to any Central Act in force in the Union Territory of Mizoram immediately before the commencement of the Constitution (Fifty-third Amendment) Act, 1986 ; (b) the Legislative Assembly of the State of Mizoram shall consist of not less than forty members.”
Hence, on a conjoint reading of the various provisions of the Constitution of India, I find that there is no requirement of law that in order to apply a Central Act to the State of Mizoram, any specific notification in the matter is required to be issued by the President of India unless the matter is covered under Art. 371G of the Constitution. Sec. 1(2) of the Act clearly states that it extends to the whole of India. As regards the applicability of the doctrine of Desuetude the apex Court in the case of Municipal Corporation for City of Pune vs. Bharat Forge Co. Ltd. (1995) 3 SCC 434, held that the above doctrine is applicable in India. The respondents, however, have challenged the submission of the petitioner that the provisions of the WT Act were not applied or acted upon in the State of Mizoram. It is submitted that the said Act is in application in the said State. As regards the last submission of the writ petitioner I find no force. Under s. 10(26) of the IT Act, 1961, income accruable to a scheduled tribe person residing in an area specified under the Sixth Schedule to the Constitution is exempted from income-tax. There is no identical provision under the WT Act. Moreover, because a particular income is exempted from the purview of the IT Act, the wealth accrued out of such income cannot be deemed to be exempted under the WT Act. A number of other incomes including the rent payable to certain categories of persons is exempted from the purview of taxation. Hence, if the said excluded income is invested for accruing wealth, it cannot be said that the wealth shall stand exempted from the purview of the WT Act. In view of the above, the writ petition stands dismissed. The interim order, if any, stands vacated.
[Citation : 256 ITR 180]
