Panduronga
Timblo Industries Vs. Union of India & Ors [1992] INSC 87 (13 March 1992)
Ahmadi,
A.M. (J) Ahmadi, A.M. (J) Ramaswamy, K.
CITATION:
1992 AIR 1194 1992 SCR (2) 210 1992 SCC (2) 635 JT 1992 (2) 277 1992 SCALE
(1)674
ACT:
Constitution
of India, 1950:
Schedule
VII, List II, Entry 58-Tax on 'Barge'- Competency of State Legislature to enact
Goa, Daman and Diu Barge Tax Act, 1973.
Goa Daman
and Diu Barge Tax Act, 1973/Goa, Daman and Diu Barge Tax
Rules, 1975:
Sections
2(1) and 3/Rules 6 and 7-Levy of tax on 'Barge'-Constitutional validity
of-Barge-Meaning of- Constitution of India, 1950: Schedule VII, List II, Entry
58-General Clauses Act, 1897 : Section 3(55) and 3(63).
Words
and Phrases-Word 'Barge'-Meaning of.
HEAD NOTE:
The
constitutional validity of the tax levied on barges, used or kept for use in
the Union Territory of Goa, Daman and Diu, under Section 3 of the Goa, Daman
and Diu Barges Tax Act, 1973 was challenged by the appellants, contending that
the word 'boat' could not include a mechanically propelled vessel, and since
the definition of a 'barge' in section 2(1) of the Act meant a mechanically
propelled water craft used or capable of being used as a means of transport of
minerals, it could not be termed as a boat to attract the legislative power
conferred by Entry 58 in List II of the VIIth Schedule and the legislation was
clearly incompetent; that from the definitions of 'ship' and 'vessel' in
Section 3(55) and 3 (63) respectively of the General Clauses Act, 1897, it was
clear that a 'boat' was not a 'ship' but a vessel exclusively propelled by
oars, and thus a boat was a small vessel not mechanically propelled, but
propelled exclusively by oars and Entry 58 in List II of the VII Schedule could
be invoked for levying a tax on such a vessel, and not a 'barge' which was a
mechanically propelled water craft; that the entire field in regard to
mechanically propelled vessels was covered by Entries 24,25 and 27 of List I
and Entries 31 and 32 of List III of the VIIthe Schedule and, therefore, the
scope of Entry 58 in List 211 II of the VIIthe Schedule was clearly confined to
vessels other than mechanically propelled vessels, like small boats, and,
therefore, the word 'boat' in Entry 58 in List II must receive a narrow meaning
and must be limited to a vessel exclusively propelled by oars.
On
behalf of the State, it was contended that the Legislature was competent to
enact the Act by virtue of the power conferred by Entry 58 in List II of the VIIth
Schedule to the Constitution of India, which permitted levy of 'taxes on
animals and boats', and since barges were boats, the Legislature was competent
to levy and collect the tax on barges.
Dismissing
the appeals this Court,
HELD
1.1 Boats of all descriptions can be taxed by the State Legislature by reason
of the power conferred by Entry 58 in List II of the VIIth Schedule to the
Constitution of India, 1950. [219H]
1.2 A
'barge' is a large flat-bottomed boat used for transporting heavy burdens on
canals and rivers, but is not generally an ocean-going vessel. It may or may
not be fitted with an engine depending on its calibration. It is essentially a
freight-boat chiefly meant for canal and river-navigation. Barges can be of
different siz and may be propelled by oars, sails or engines. They, however,
belong to the family of boats and not ships. Section 2(1) of the Act also
defines it as a water craft mechanically propelled and used or capable of being
used as a means of transport of minerals. Thus, the legislature has carved out
only mechanically propelled barges for tax purposes.
Therefore,
the State Legislature was competent to tax it under Entry 58 of List II. [217
G-H, 218A-C]
1.3
According to the General Clauses Act a 'ship' includes a vessel of every
description used in navigation and not exclusively propelled by oars. A
'vessel', on the other hand, is a ship or a boat or any other description of
vessel used for navigation. Therefore, a vessel which is exclusively propelled
by oars would not fall within the definition of a ship but would be covered by th
wider definition of a vessel. From these two definitions it cannot be inferred
that a mechanically propelled vessel is not a boat for the simple reason that
the definition of vessel is wide enough to include a ship which is mechanically
propelled. Both the definitions are inclusive definitions and the definition of
vessel is wide enough to include boats of every description, both mechanically
propelled and those 212 propelled exclusively by oars. Further no distinction
can be drawn on the basis of the size of the vessel. Merely because the Act and
the Rules cover barges ranging from less than 100 tonnes to 350 tonnes and
above, it cannot be said that such large size vessels which are mechanically
propelled cannot be called boats. Since barges are used for transporting heavy
burdens on canals and rivers - inland waters - and for loading and unloading
ships which are anchored away as they can not enter shallow waters, they are
bound to be heavy vessels which can take the load. For that reason they do not
cease to be flat-bottomed boats and in ordinary parlance they cannot be
described as ships. [218D- E, G-H, 219A]
1.4 It
is well-settled that the legislative entries must be interpreted widely unless
the language of the entry or the context requires that it be given a narrow
meaning.
Neither
the language of Entry 58 in List II nor the context in which the word 'boats'
is used therein calls for confining its scope to boats exclusively propelled by
oars.
The
language of Entries 24,25 and 27 in List I and Entries 31 and 32 in List III do
not justify a narrow meaning to be given to the word 'boats' in Entry 58 of
List ii. These entries have nothing to do with the subject of levy of tax on
boats. [219D-E]
CIVIL
APPELLATE JURISDICTION : Civil Appeal No 1511 of 1980.
On
appeal by Certificate from the Judgment and Order dated 29.4.1980 of Judicial
Commissioner, Goa, Daman and Diu in Special Civil Application No.26
of 1976.
WITH Civil
Appeal No. 1973 & 2851 of 1980. S.K. Mehta, Aman Vachher, Dhruv Mehta (NP),
R.F. Nariman and Mrs. A. Verma for the Appellants.
Bed
Brat Barua, Ms A. Subhashini (NP) and Ashok Bhan for the Respondents.
The
Judgment of the Court was delivered by AHMAD, J. Is a barge a boat? The answer
to this question will determine the challenge to the constitutional validity of
the tax levied.
213 on
a barge under the Goa, Daman and Diu Barge Tax Act, 1973 (hereinafter called 'the Act').
It is contended that the State Legislature was competent to enact the Act by
virtue of the power conferred by Entry 58 in List II of the VIIth Schedule to
the Constitution of India which permits levy of 'taxes on animals and boats'.
If barges are not boats, the Act will lose the cover provided by the said entry
and will be rendered unconstitutional.
The
Act, as the Preamble shows, wa enacted to impose a tax on barges in the Union
Territory of Goa, Daman and Diu and for matters connected therewith and was brought into force with
effect from 1st March,
1971. 'Barge'
according to section 2(1) means every description of water craft mechanically
propelled and which is used or is capable of being used as means of transport
of minerals. Section 3 which is the charging section provides that there shall
be levied and collected on all barges use or kept for use in the Union
Territory, a tax at the rates fixed by the Government, by notification in the
Official Gazette, but not exceeding the maximum rates specified in the Schedule
to the Act reads as under:
SCHEDULE
(Section 3) ------------------------------------------------------------
Capacity of Barge Maximum annual rate per tonne
------------------------------------------------------------ Less than 100 tonnes
Rs. 3.50 100 tones and less than 200 tonnes Rs. 5.00 200 tonnes and less than
350 tones Rs. 6.00 350 tonnes and above Rs. 7.50
------------------------------------------------------------ Note: When tax is
not paid for the whole year at a time, but is paid for one or more quarters at
a time, the tax so payable for each quarter shall be an amount equal to one-
fourth of the annual tax plus ten per cent of that amount." Section 19
empowers the Government to make rules to carry out the purpose of the Act, In
exercise of the said power the Government by a notification framed rules called
the Goa, Daman and Diu Barge Tax Rules, 214 1975. Rule 6 lays down that every
owner or the person having possession or control of a barge in the Union Territory shall pay to the Government a tax at the rates specified in
the table below :
TABLE
------------------------------------------------------------ Capacity of Bar
Rate of tax payable per annum per tonne
------------------------------------------------------------ Less than 100 tonnes
Rs. 3.50 p.
100 tonnes
and less than 200 tonnes Rs. 5.00 p.
200 tonnes
and less than 350 tonnes Rs. 6.00 p.
350 tonnes
and above Rs. 7.50 p.
------------------------------------------------------------
The rates which have been specified are the same specified in the Schedule to
the Act. For the purpose of levy of tax under rule 7, the Taxation Authority
may require the barge to be calibrated i.e. identify the carrying capacity with
reference to its structural strength, reserve buoyancy and safe working height
above water level. Rule 8 lays down the mode of payment. Rule 9 provides for
the issue of tax licence and Tax Token and rule 10 provides for levy of penalty
for failure to pay the tax. Rule 11 empowers the seizure and detention of any
barge with respect to which the tax is due under the Act, until the tax due in
respect of the barge is paid. Provision is also made for refund of tax in
certain circumstances. It will thus be seen from the relevant provisions of the
Act and the Rules that the State Government has levied a tax on all barges used
or kept for use in the Union Territory of Goa, Daman and Diu. The Government contends that since
barges are boats, the State Legislature was competent to levy and collect a tax
on barges under entry 58 in List II of the VIIth Schedule to the Constitution.
Counsel
for the appellants contended that the word 'boat' cannot include a mechanically
propelled vessel and since the definition of a 'barge' in section 2(1) of the
Act means a mechanically propelled water craft used or capable of being used as
a means of transport of minerals, it cannot be termed as a boat to attract the
legislative power conferred by Entry 58 in List II of the VIIth Schedule and
hence the impugned legislation is clearly incompetent.
Reference
was also made to the definition of 'ship' and 'vessel' in sections 3(55) and
3(63) of the General Clauses Act to butteress the submission that a boat cannot
include a mechanically propelled vessel.
215 We
may reproduce the said two definitions at this state:
"3(55)
- 'Ship' shall include every description of vessel used in navigation not
exclusively propelled by oars".
"3(63)
- "Vessel" shall include any ship or any other description of vessel
used in navigation." It was submitted that the position of the word 'boat'
immediately next to the word 'vessel' in the definition in section 3(63) is
clearly indicative of the fact that 'ship' and 'boat' convey two different
meanings since the definition of 'ship' does not include vessel exclusively
propelled by oars. from these two definition it was contended that a 'boat' is
not a 'ship' but is a vessel exclusively propelled by oars. Thus according to
the learned counsel for the appellants a boat is a small vessel not
mechanically propelled but propelled exclusively by oars and Entry 58 in List
II of the VIIth Schedule can be invoked for levying a tax on such a vessel and
not on a 'barge' which, as the definition in section 2(1) of the Act conveys,
is a mechanically propelled water craft. This was the first limb of counsel's
submission. The second limb of his submission was based on the scope and ambit
of Entries 24,25, and 27 of List I and Entries 31 and 32 of List III of the VIIth
Schedule. Counsel submitted that the entire field in regard to mechanically
propelled vessels was covered by these entries and, therefore, the scope of
Entry 58 in List II of the VIIth Schedule was clearly confined to vessels other
than mechanically propelled vessels like small boats. Therefore, counsel
submitted that the word 'boat' in Entry 58 in List II must receive a narrow
meaning and must be limited to a vessel exclusively propelled by oars. In order
to appreciate this contention based on the various entries in List I and List
III above, it may be appropriate to read those entries at this stage:
"List
I Entry 24 - Shipping and navigation on inland waterways, declared by Parliament
by law to be national waterways, as regards mechanically propelled vessels; the
rule of the road on such waterways.
Entry
25- Maritime, shipping and navigation, including shipping and navigation on
tidal waters;
provision
of education and 216 training for the mercantile marine and regulation of such
education and training provided by State and other agencies.
Entry
27 - Ports declared by or under law made by Parliament or existing law to be
major ports, including their delimitation, and the constitution and powers of
port authorities therein.
List
III Entry 31 - Ports other than those declared by or under law made by
Parliament or existing law to be major ports.
Entry
32 - Shipping and navigation on inland waterways as regards mechanically
propelled vessels, and the rule of the road on such waterways, and the carriage
of passengers and goods on inland waterways subject to the provisions of List I
with respect to national waterways." Now before we proceed to answer the
contentions urged by the learned counsel for the appellants. It may be advantag
to notice the dictionary meanings of the words 'barge', 'boat', 'ship' and
'vessel' used in the aforementioned legal provisions.
"ODHAM'S
ENGLISH DICTIONARY Barge : a large flat-bottomed boat for transporting heavy
burdens on canals or rivers; a large flat-bottomed boat used in loading and
unloading ships; a boat for the use of the chief officers of a man-of-war; a
large richly decorated boat of state propelled by oars and used on ceremonial
occasions:
a
college house-boat.
Boat :
a long symmetrically shaped hollow vessel or receptacle that floats upon water,
is propelled either by oars, the action of wind on sails, or by mechanical
means, and which is used as a means of transport.
Ship :
a large ocean-going vessel.
Vessel
: a ship 217 OXFORD ENGLISH DICTIONARY Barge : a
flat-bottomed freight-boat chiefly for canal and river navigation, either with
or without sails; a rowing boat; esp. a ferry-boat.
Boat :
a small open vessel in which to traverse the surface of water, usually
propelled by oars, though sometimes by a sail.
Ship :
a large sea-going vessel (opposed to a boat);
Vessel
: any structure designed to float upon and traverse the water for the carriage
of persons or goods; a craft or ship or any kind, now usually one larger than a
rowing-boat and often restricted to sea-going craft or those plying upon the
larger rivers or lakes.
BLACK'S
LAW DICTIONARY Barge : name originally applied to a small sailing vessel but
after wards came into general use for a flat-bottomed boat used for carrying
goods on inland waterways. Barges are usually towed or fitted with some kind of
engine.
Boat :
a small open vessel, or water craft, usually moved by oars or rowing.
Ship :
a vessel of any kind employed in navigation.
In a
more restricted and more technical sense, a three-masted vessel navigated with
sails.
Vessel
: a ship, brig, sloop or other craft used in navigation. The word in its
broadest sense is more comprehensive than 'ship'. Any structure which is made
to float upon the water, for purposes of commerce or war, whether impelled by
wind, steam, or oars." It is clear from aforementioned meanings that a
'barge' is a large flat-bottomed boat used for transporting heavy burdens on
canals and rivers but is not generally a ocean- going vessel. It may or may not
be fitted with an engine depending on its calibration. All the three aforequoted
dictionaries have described it as a flat-bottomed boat used for carrying goods
or minerals on inland waterways. It is essentially a freight-boat chiefly meant
for canal and river-navigation. Barges can be of different 218 sizes and may be
propelled by oars, sails or engines. They, however, belong to the family of
boats and not ships. The learned Judicial Commissioner has rightly concluded
that a 'barger' is a flat-bottomed freight boat used on rivers and canals and
propelled by oars, sails or engines. Section 2(1) of the Act also defines it as
a water craft mechanically propelled and used or capable of being used as a
means of transport of minerals. Thus the legislature has carved out only
mechanically propelled barges for tax purposes. It would, therefore, seem that
the State Legislature was competent to tax it under entry 58 of List II.
True
it is that the dictionaries have described a 'boat' as a small open vessel
usually propelled by oars, though sometimes by sail also. According to the
General Clauses Act a 'ship' shall include a vessel of every description used
in navigation and not exclusively propelled by oars. A vessel on the other hand
is a ship or a boat or any other description of vessel used for navigation.
Therefore,
a vessel which is exclusively propelled by oars would not fall within the
definition of a ship but would be covered by the wider definition of a vessel.
From these two definitions it cannot be inferred that a mechanically propelled
vessel is not a boat for the simple reason that the definition of vessel is
wide enough to include a ship which is mechanically propelled. Both the
definitions are inclusive definitions and the definition of vessels is wide
enough to include boats of every description, both mechanically propelled and
those propelled exclusively by oars. There is no warrant for the argument that
because the word 'ship' and the word 'boat' are placed side by side, the latter
refers to only boats exclusively propelled by oars and not boats fitted with
engines. To place such an interpretation would lead to the absurd situation of
a small boat propelled by said being called a ship. It would mean that a boat
exclusively propelled by oars would cease to be a boat the moment it is fitted
with a sail. The definition of vessel, in our view, is wide enough to cover
both boats propelled exclusively by oars as well as boats fitted with engines.
Nor can any distinction be drawn on the basis of the size of the vessel. Merely
because the Act and the Rules cover barges ranging from less than 100 tonnes to
350 tonnes and above, it cannot be said that such large sized vessels which are
mechanically propelled cannot be calld boats. The definition of a 'barge' in
the dictionaries aforementioned clearly show that barges are flat-bottomed
boats meant for carrying goods on inland waters and are usually fitted with
engines. Since hey are used for transporting heavy burdens on canals and rivers
- inland waters - and loading and unloading ships which are anchored away as
they cannot enter shallow 219 waters, they (barges) are bound to be heavy
vessels which can take the load. For that reason they do not cease to be flat-
bottomed boats and in ordinary parlance they cannot be described as ships. We
are, therefore not impressed by the submission that Entry 58 in List II must be
confined to boats which are exclusively propelled by oars. We think the learned
Judicial Commissioner was perfectly justified in rejecting the submission and
we respectfully agree with his of reasoning.
This
very submission was sought to be supported with reference to the entries in
List I and List III set out hereinabove. Now it must be remembered at the out
set that Entry 58 in List II deals with taxes on boats and we see no warrant to
limit the same to boats propelled exclusively be oars. It is settled law that
legislative entries must be interpreted widely unless the language of the entry
or the context requires that it be given a narrow meaning. Neither the language
of Entry 58 in List II nor the context in which the word 'boats' is used
therein calls for confining its scope to boats exclusively propelled by oars.
We also do not think that the language of Entries 24, 25 and 27 in List I and
Entries 31 and 32 in List III would justify a narrow meaning to be given to the
word 'boats' in the Entry 58 of List II. The entries relied upon have nothing
to do with the subject of levy of tax on boats. Entry 24 in List I deals with
the subject of shipping and navigation on inland waterways declared to be
national waterways, the rule of the road as such waterways and Entry 25 in List
I deals with maritime shipping and navigation. The use of the expression
'mechanically propelled vessels' in Entry 24 cannot restrict the ambit of Entry
58 in List II to vessels exclusively propelled by oars. On the contrary it
restricts the scope of Entry 24 itself and confines its application to
mechanically propelled vessels. Both the Entries 24 and 25 of List I and Entry
32 in List III concern shipping and navigation and have nothing to do with the
question of levy of tax on boats. Entry 27 in List I deals with Ports and so
does Entry 31 In List III and it is difficult to appreciate how it can
legitimately be contended that these entries cut down the scope of Entry 58 in
List II. The entries from List I and III relied upon operate in their own
fields and do not entrench upon the subject covered by Entry 58 in List II. The
learned Judicial Commissioner was, therefore, right in concluding that boats of
all description can be taxed by the State Legislature by reason of the power
conferred by Entry 58 in List II of the VIIthe Schedule.
For
the above reasons we are satisfied that the view taken by the 220 learned
Judicial Commissioner is correct and does not call for interference. Therefore,
these appeals on certificate issued under Article 133(1) of the Constitution
must fail.
We,
therefore, dismiss them but having regard to the facts and circumstances of the
case of each matter we think it would be advisable to direct each party to bear
its own costs.
N.P.V.
Appeals dismissed.
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