KRISHNA RAO Vs. MUNICIPAL SALES TAX OFFICER

JUDGEMENT

(1.) This matter is before the Full Bench under the following order of reference made by one of us.

(2.) The only two questions arising for consideration are (1) whether under Entry 43, in the Concurrent List in Schedule 7 to the Constitution of India the legislative competence of Parliament is confined to claims which arises subsequent to the Constitution or whether it extends to claims that had already arisen before the Constitution of India was inaugurated and the second question is whether the absence of a provision saving the operation of the prior Act in Central Act XXXIII of 1950 which extended the operation of the Central Revenue Recovery Act I of 1890 to Part B States is fatal to the enforcement of claims that arose under the Cochin Revenue Recovery Act which was repealed.

(3.) On the first question the argument of learned counsel for the petitioner is that Entry 43 posits the existence of a State wherein a claim is to be enforced and of another State wherein the claim arose. The States in question are those contemplated in the Constitution. They came into existence only with the Constitution and therefore it is argued that no claim prior to the date of the Constitution could have been contemplated because the claims must relate to States whose origin was with the Constitution. We are unable to agree. It is true that a State should exist within the meaning of the Constitution for purposes of enforcement of a claim therein but there is nothing to indicate that the claim sought to be enforced must have arisen after any particular State came into existence within the meaning of the Constitution. The existence of the two States is necessary only at the time when the recovery of a claim is sought. Entry 43 relates to recovery, in a State of claims arising not in that State. The word 'arising' used in that Entry is in our view wide enough to comprise within its ambit claims that had already arisen as well as those thereafter to arise. The antithesis in the Entry is between the two places where the claim arose and where it is sought to be enforced. The reference is not to the time of the arising of the claim. If the entry be read 'arising before or after the Constitution' it is not contended that the language could have been inapt. The non existence of the extra words mentioned above which are not in the entry, in our view, makes no difference and the addition of those words would have been only an unnecessary encumbrance to the Entry. There is no reason why the legislative competence should have been restricted to future claims and should not have been extended to past ones. There would certainly have been claims which had to be recovered at the time of the Constitution and those claims may have to be recovered outside the territory wherein they arose. The Constitution afforded facility which did not exist before for enforcement of those claims. What was wanting was only a machinery for effecting the recovery and it is that machinery that is sought to be provided by Entry 43. In our judgment, Entry 43 authorised Parliament as also the States to legislate in respect of recovery of all claims, whether they accrued before the Constitution or they accrue after the Constitution.