Civil No 1410 of 1987
Under Article 32 of the Constitution of India
WITH Writ Petition Criminal No 528 of 1987
AND Writ Petition Civil No 1372 of 1987
JP Verghese Aby T Varkey and NN Sharma for the Petitioners
Altar Ahmed ASG
UN Bachawat RB Mishra Ms A Subhashini and Uma Nath Singh for the Respondents
The Judgment of the Court was delivered by SHARMA J
By these three petitions under Article 32 of the Constitution the petitioners who are foreign nationals have challenged the order dated 871987 whereby their prayer for further extension of the period of their stay in India was rejected and they were 153 asked to leave the country by the 3 1st July 1987
Mr Louis De Raedt petitioner in WP C No 1410 of 1987 came to India in 1937 on a Belgium passport with British visa and Mr BE Getter the petitioner in WP Crl No 528 of 1987 in 1948 on an American passport and both have been engaged in Christian missionary work
The petitioner in WP C No 1372 of 1987 Mrs SJ Getter is Mr BE Getter s wife
Mr Verghese the learned counsel who ap peared for the three petitioners referred to the facts in WP C No 1410 of 1987 and stated that the cases of the other two petitioners are similar and they are entitled to the same relief as Mr Louis De Raedt
According to his case Mr Louis De Raedt has been staying in India continuously since 1937 excepting on two occasions when he went to Belgium for short periods in 1966 and 1973
It has been contended that by virtue of the provi sions of Article 5c of the Constitution of India the petitioner became a citizen of this country on 26111949 and he cannot therefore be expelled on the assumption that he is a foreigner
Referring to the it was urged that power under Section 32c could not be exer cised because the Rules under the Act have not been framed so far
Alternatively it has been argued that the power to expel an alien also has to be exercised only in accordance with the principles of natural justice and a foreigner is also entitled to be heard before he is expelled
For all these reasons it is claimed that the impugned order dated 871987 being arbitrary should be quashed and the authori ties should be directed to permit the petitioners to stay on
It has been contended by Mr Verghese that after the independence of India appropriate orders were passed per mitting many foreign Christian missionaries to stay on permanently in the country but as in 1950 petitioner Mr Louis De Raedt was working in certain remote area of the Adivasi belt in Bihar he could not obtain the necessary order in this regard
Later however he had also filed applications for the purpose which have remained undisposed of till today
1985 an order was passed asking him to leave the country and he made a representation to the authorities on 209
1985 a true copy Whereof is Annexure I to the writ petition
On 131986 he filed another application for naturalisation a copy whereof has been marked as Annexure II
A copy of his third application dated 1531986 is Annexure III
The impugned order Annexure IV was passed in this background
The main ground urged by the learned counsel is based on 154 Article 5 of the Constitution which reads as follows 5
Citizenship at the commencement of the Constitution At the commencement of this Constitution every person who has his domicile in the territory of India and a who was born in the territory of India or b either of whose parents was born in the territory of India or c who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement shall be a citizen of India
 The argument is that since Mr Louis De Raedt was staying in this country since 1937 that is for a period of more than five years immediately preceding the commencement of the Constitution he must be held to have duly acquired Indian citizenship
One of the necessary conditions mentioned in Article 5 of the Constitution is that the person concerned must be having his domicile in the territory of India at the com mencement of the Constitution
The question is as to whether the petitioner fulfils this condition The facts stated by the petitioner himself do not leave any room for doubt that he did not have his domicile here
In his application dated 2091985 addressed to the Home Minister Government of Madhya Pradesh Bhopal Annexure I the petitioner stated that he had been staying in this country on the basis of residential permit renewed from time to time and when he had gone to Belgium No Objection to Return Certificate was issued without difficulty
He asserted that since he was working in education and social work for a long period he was more Indian than Belgium
Towards the end of his application he stated thus Therefore I plead for a cancellation of the above order on compassionate ground
I would request Your Honour to kindly allow me to stay in India till the end of my life by extending my residential permit
For this act of kindness I will be ever grate ful to emphasis added 155 In his application dated 13
1986 addressed to the Collec tor Surguja Madhya Pradesh which is Annexure II he mentioned the subject as request for naturalisation
In this application he referred to the provisions of Article 5 of the Constitution as a basis of his claim but concluded his prayer thus If however Government decides that I have LOST my citizenship sic would be grateful to be informed about it
So that I can apply under one of the naturalisation Act
Sic He reiterated his stand in Annexure III dated 153
The entire relevant official records were available with the learned counsel for the respondents during the hearing of the case which indicated that the impugned order Annexure IV was passed on the basis of another application of the petitioner filed earlier on 251
Photostat copies of the said application were filed and kept on the records of the case
It was stated therein that the autho rised period for his stay in India was going to expire on 33 1980
It contained a prayer for the extension of the period of stay by one year
The petitioner mentioned the reason for extension of this stay thus to do further social work as a missionary
The purpose of his visit to India was also similarly mentioned to do social work as a missionary
There was no indication whatsoever in the said application that he intended to stay in this country on a permanent basis
The period for which the extension was asked for being one year only indicated that by 1980 he had not decided to reside here permanently
Mr Verghese has contended that the fact that the petitioner has been staying in this country since 1937 and visited Belgium only twice is sufficient by itself to estab lish his case of domicile in India
It was argued that the petitioner s case cannot be rejected merely for the reason that he has been holding a foreign passport
Reliance was placed on Mohd Ayub Khan vs Commissioner of Police Madras and Another and Kedar Pandey vs Narain Bikram Sah  Reference was also made to Union of India vs Ghaus Mohammed   and it was argued that a proceeding ought to have been started against the petitioner under Section 9 of the where he should have been allowed to defend
The learned counsel submitted that even a foreigner who comes on the strength of a foreign passport in case of his overstaying has to be heard before he can be thrown out and this has been denied to the petitioners
156 8
Lastly Mr Verghese contended that in no event the Superintendent of Police who signed the impugned order ie Annexure IV is authorised to direct deportation of the petitioner
There is no force in the argument of Mr Verghese thai for the sole reason that the petitioner has been stay ing in this country for more than a decade before the com mencement of the Constitution he must be deemed to have acquired his domicile in this country and consequently the Indian citizenship
Although it is impossible to lay down an absolute definition of domicile as was stated in Central Bank of India vs Ram Narain  it is fully established that an intention to reside for ever in a coun try where one has taken up his residence is an essential constituent element for the existence of domicile in that country
Domicile has been described in Halsbury s Laws of England 4th edition Volume 8 Paragraph 42 1 as the legal relationship between individual and a territory with a distinctive legal system which invokes that system as his personal law
Every person must have a personal law and accordingly every one must have a domicile
He receives at birth a domicile of origin which remains his domicile wherever he goes unless and until he acquires a new domi cile
The new domicile acquired subsequently is generally called a domicile of choice
The domicile of origin is received by operation of law at birth and for acquisition of a domicile of choice one of the necessary conditions is the intention to remain there permanently
The domicile of origin is retained and cannot be divested until the acquisi tion of the domicile of choice
By merely leaving his coun try even permanently one will not in the eye of law lose his domicile until he acquires a new one
This aspect was discussed in Central Bank of India vs Ram Narain supra where it was pointed out that if a person leaves the country of his origin with undoubted intention of never returning to it again nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country
The position was summed in Halsbury thus He may have his home in one country but be deemed to be domiciled in another Thus the proposition that the domicile of origin is retained until the acquisition of a domicile of choice is well estab lished and does not admit of any exception
For the acquisition of a domicile of choice it must he shown that the person concerned had a certain state of mind the animus manendi
If he claims that he acquired a new domicile at a particular time he must prove that he had formed the inten tion of making his permanent home in the country of resi dence and of continuing to reside there permanently
Resi dence alone unaccompanied by this state of mind is insuf ficient
Coming to the facts of the present cases the ques tion which has to be answered is whether at the commencement of the Constitution of India the petitioners had an inten tion of staying here permanently
The burden to prove such an intention lies on them
Far from establishing the case which is now pressed before us the available materials on the record leave no room for doubt that the petitioners did not have such intention
At best it can be said that they were incertain about their permanent home
During the rele vant period very significant and vital political and social changes were taking place in this country and those who were able to make up their mind to adopt this country as their own took appropriate legal steps
So far the three petitioners are concerned they preferred to stay on on the basis of their passports issued by other countries and obtained from time to time permission of the Indian authorities for their further stay for specific periods
None of the applications filed by the petitioners in this connection even remotely suggests that they had formed any intention of permanently residing here
None of the cases relied upon on behalf of the petitioners is of any help to them
The case of Mohd Ayub Khan was one where the appellant had made an application to the Central Government under Section 92 of the Indian for the determination of his citizen ship
Section 91 says that if any citizen of India ac quired the citizenship of another country between 261 1950 and the commencement of the  he ceased to be a citizen of India and sub section 2 directs that if any question arises as to whether when or how any person has acquired the citizenship of another country he shall be determined by the prescribed authority
Mohd Ayub Khan was a citizen of this country at the commencement of the constitution of India and was asked to leave the country for the reason that he had obtained a Pakistani Passport
The question which thus arose in that case was entirely differ ent
The case of Kedar Pandey vs Narain Bikram Sah supra does not help the petitioners at all
On a consideration of the entire facts and circumstances this Court concluded that the requisite animus manendi as has been proved in the finding of the High Court is correct
The Respondent Narain Bikram Sah who claimed to have acquired Indian citizenship had extensive properties at large number of different places in India and had pro 158 duced many judgments showing that he was earlier involved in litigations relating to title going upto the High Courts in India and some time the Privy Council stage
He was born at Banaras and his marriage with a girl from Himachal Pradesh also took place at Banaras and his children were born and brought up in India
Besides his other activities supporting his case he also produced his Indian passport
In the cases before us the learned counsel could not point out a single piece of evidence or circumstance which can support the petitioners  case and on the other hand they have chosen to remain here on foreign passports with permission of Indian authorities to stay on the basis of the said passports
Their claim as pressed must therefore be rejected
The next point taken on behalf of the petitioners that the foreigners also enjoy some fundamental right under the Constitution of this country is also of not much help to them
The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country as mentioned in Article 191e which is applicable only to the citizens of this country
It was held by the Constitution Bench in Hans Muller of Nurenburg vs Superintendent Presidency Jail Calcutta and Ors  that the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in the Constitution lettering this discretion
It was pointed out that the legal position on this aspect is not uniform in all the countries but so far the law which operates in India is concerned the Executive Government has unrestricted right to expel a foreigner
So far the right to be heard is concerned there cannot be any hard and fast rule about the manner in which a person concerned has to be given an opportunity to place his case and it is not claimed that if the authority concerned had served a notice before passing the impugned order the petitioners could have produced some relevant material in support of their claim of acquisition of citizenship which they failed to do in the absence of a notice
The last point that the impugned order Annexure IV passed
by the Superintendent of Police who was not autho rised to so is also devoid of any merit
The order was not passed by the Superintendent of Police the decision was of the Central Government which was being executed by the Superintendent as is clear from the order itself
For the reasons mentioned above we do not find any merit in the petitions which are accordingly dismissed but without costs
GN Petitions dismissed


Summary:
The Uttar Pradesh Sales of Motor Spirit Diesel Oil and Alcohol Taxation Amendment Act 1976 amended sub section 1 of section 3 of the United Provinces Sales of Motor Spirit Diesel Oil and Alcohol Taxation Act 1939 purporting to levy purchase tax on industrial alcohol which was chal lenged in a writ application before the High Court by the respondents
The respondents contended before the High Court that the State Legislature was incompetent to levy tax with reference to Entry 54 of List II in respect of industrial alcohol in so far as that article was the subject of regulation by the Central Government in exercise of its power under section 18G of the Industries Development and Regulation Act 1951 that the price of that article was regulated by the relevant Price Control Orders made by the Central Government under the IDR Act and any levy of sales tax or purchase tax by the State by recourse to Entry 54 of List II would come into direct conflict with the law made by Parliament and the control exercised by the Central Government under that law in regard to an industry falling under Entry 52 of List I read with Entry 33 of List III
65 Relying upon the decision of a Constitution Bench of this Court in Synthetics and Chemicals Ltd  Others vs State of UP  Others  the respondents further contended that in so far as industrial alcohol was concerned the State was incompetent to levy sales tax by reason of the operation of the Ethyl Alcohol Price Control Orders made by the Central Government under section 18G of the IDR Act
The appellants Opposite parties contended that the decision of this Court in  did not deal with the question of levy of tax failing under Entry 54 of List 1I and that the power of the State to levy taxes on the sale or purchase of goods was not the subject of consideration in that decision
The High Court allowing the writ petition and declaring the UP Act 8 of 1976 to be null and void held that the levy of purchase tax on industrial alcohol was during the operation of the PriCe Control Orders of the Central Govern ment beyond the legislative competence of the State against which the State filed the present Appeal
The appellant submitted that the reference to sales tax in the judgment of this Court in   which the High Court in the present case thought was binding upon it was accidental and per incurium and did not arise from the judgment that the levy of sales tax was not in question at any stage of the arguments nor was the question considered as it was not in issue that the Court gave no reason what ever for abruptly stating that sales tax was not leviable by the State by reason of the Ethyl Alcohol Price Control Orders
The respondents contended that the prices strictly controlled by the Central Government in exercise of its power under the IDR Act that the State Law cannot be al lowed to disturb such prices that any attempt to raise the prices despite the strict control exercised by the Central Government by means of statutory orders was an invalid exercise of power
On the question whether or not the power of the State to levy tax on the sale or purchase of goods falling under Entry 54 of List 1I will comprehend industrial alcohol allowing the appeal of the State this Court HELD Per T Kochu Thommen  RM Sahai JJ
66 101
The High Court was clearly in error in striking down the impugned provision in sub section 1 of section 3 of the United Provinces Sales of Motor Spirit Diesel Oil and Alcohol Taxation Act 1939 as amended by the UP Act 8 of 1976 undoubtedly fails within the legislative competence of the State being referrable to Entry 54 of List 11
91A 102
The decision of this Court in Synthetics  is not an authority for the proposition canvassed by the assessee
This Court has not and could not have in tended to say that the Price Control Orders made by the Central Government under the IDR Act imposed a fetter on the legislative power of the State under Entry 54 of List II to levy taxes on the sale or purchase of goods
The reference to sales tax in paragraph 86 of that judgment was merely accidental or per incuriam and has therefore no effect on the impugned levy
So far ds industrial alcohol was con cerned the State was incompetent to levy sales tax by reason of the operation of the Ethyl Alcohol Price Control Orders made by the Central Government in exercise of its power under section 18G of the IDR Act
91A C 73E F Per T Kochu Thommen J 201
This Court in Synthetics  Chemicals Ltd  Others vs State of UP  Others  was concerned with only one question and that was whether the States could levy excise duty or vend fee or transport fee and the like by recourse to Entries 51 or 8 in List 11 in respect of industrial alcohol and it did not deal with the taxing power of the State under 54 of List II although there is a refer ence to sales tax
The State may charge excise duty on potable alcohol and sales tax under Entry 52 of List II
Entry 52 of List II is mentioned in connection with Excise duty and sales tax but neither of them fails under Entry 52
Reference to Entry 51 of List 11 ought to have been made if it was excise duty that the Court had in mind
Entry 54 of List 11 would have been referred to and not Entry 52 if the Court had in mind sales tax
On the other hand Entry 52 had any application to the fees or charges in question
80B F The abrupt observation of this Court in  was without a preceding discussion and inconsistent with the reasoning adopted by this Court in earlier decisions from which no dissent was expressed on the point
80G H 202
The question in the instant case is whether or not the 67 impugned legislation fails in pith and substance within Entry 54 of List 11 and not whether the industry Producing goods the sale of which is leviable to tax under the im pugned legislation is controlled within the ambit of Entry 52 of List I was not considered in  87H 88B Synthetics and Chemicals Ltd  Others vs State of UP State of Uttar Pradesh  Others vs Ms Synthetics  Chemcials Ltd  Others   overruled in   Referred to
Per RM Sahai J Concurring 203
A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141
Uniformity and consistency are core of judicial discipline
But that which escapes in the judgment without any occasion is not ratio decedendi
93B C 204
Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent
Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law
93D E 205
Law declared is not that can be culled out but that which is stated as law to be accepted and applied
A conclusion without reference to relevant provision of law is weaker than even casual observation
93E F 206
In absence of any discussion or any argument the order was founded on a mistake of fact and therefore it could not be held to be law declared
94B C 207
The conclusion of law by the Constitution Bench in  that no sales or purchase tax could be levied on industrial alcohol with utmost respect fell in both the exceptions namely rule of sub silention and being in per incurium to the binding authority of the precedents
94C D 68 Young vs Bistol Aeroplane Ltd 1944 I KB 718 Jaisri Sahu vs Rajdewan Dubey  Lancaster Motor Company London Ltd vs Bremith Ltd 1941 IKB 675 Municipal Corporation of Delhi vs Gurnam Kaur  and Shama Rao vs State of Pondicherry AIR 1967 SC 1680 Referred to
Per T Kochu Thommen
The power of regulation and control is separate and distinct from the power of taxation
Legislative exer cise of regulation or control referrable to Entry 52 of List I or Entry 8 of List 11 is distinct and different from a taxing power attributable to Entry 54 of List I or Entry 92A or 92B of List I The power to levy taxes on sale or pur chase or consignment is referrable to these Entries and subject to the other provisions of the Constitution the taxing power of the State is not cut down by the general legislative control vested in Parliament and referrable to the general topics of legislation
86G 87H 302
Any exercise of power by the State which trans gresses upon the power of Parliament or of the Central Government as its delegate is to the extent of such trans gression null and void
85C 303
None of the entries in the Concurrent List deals with tax but general subjects of legislation
No conflict can therefore arise between the taxing powers of the Union and the States
Parliament has the power to legislate in respect of a controlled  industry failing under Entry 52 of List I and both Parliament and the States have the power to legislate in respect of the trade and commerce in and the production supply and distribution of the products of a controlled  industry Entry 33 of List Ill
These are not taxing entries and do not therefore relate to taxes but powers of regulation and control
The power to control industry being thus vested in Parliament Entry 52 of List I and the legislative power in respect of trade and com merce in such industry being concurrently vested in the Union and the States Entry 33 of List III any exercise of control by the State must be subject to the legislative power of Parliament
84H 85C 304
The taxing power of the State on a matter falling within its competence under Entry 54 of List II namely sale or purchase of goods other than newspapers is sub ject to the taxing power of Parliament under Entry 92A of List I and other provisions of the Constitution plenary and unlimited and untrammelled by the supervisory or regulatory power of Parliament under Entry 52 of List I read with its 69 concurrent power under Entry 33 of List III
This is the crucial distinction between the wide taxing power of the State under Entry 54 of List II and its conditional or restricted taxing power for example over mineral rights mentioned in Entry 50 of that List
82E G 305
Similarly the power of the State in respect of potable alcohol as distinguished from industrial alcohol falling under Entry 8 of List II is significantly unfet tered unlike for example mines and mineral development over which the regulatory power of the State is specifically stated to be subject to the regulatory power of Parliament see Entry 23 of List II read with Entry 54 of List I
The legislative competence of the State in respect of mines and minerals was held to be denuded to the extent that the field was covered by section 9 of the Central Act namely Mines and Minerals Regulations and Development Act 1957
82G 83A 306
Unlike mines and minerals alcohol stands on a different footing and is dealt with differently dependent on whether it is potable or not
What is significant is that legislation failing in pith and substance under Entry 8 or Entry 51 of List 1I in relation to alcoholic liquor for human consumption as distinguished from industrial alcohol whether for the purpose of levying vend fee or transport fee or excise duty strictly confined to such articles is not subject to challenge on the ground of legislative incompe tence or repugnancy by reason of the power vested in Parlia ment under Entry 52 or Entry 84 of List I or Entry 33 of List III
Incompetence or repugnancy arises only when the impact of the legislation falls not incidentally but substantially on industrial alcohol so as to transgress on a field occupied by Parliament
83A C 307
The matters concerning intoxicating liquors are included within the legislative competence of the States
In respect of any such matter the States are competent to levy fees Entry 66 of List II
Entry 51 of List II relating to excise duty on alcoholic liquors for human consumption clearly refers to liquor for human consumption the same meaning has been judicially ascribed in  to intoxicating liquors  in Entry 8 of the same List the legislative competence of the State in respect of intoxi cating liquors  referred to in Entries 8 and 66 of List II as a subject of legislation and fee respectively and the power of the State to levy excise duty on alcoholic liquors for human consumption falling under Entry 51 of the same List must necessarily be confined to potable alcohol and cannot include industrial alcohol or medicinal and toilet preparations containing alcohol see Entry 84 of List I
70 Any transgression by the State on industrial alcohol will be invalid for want  of power by reason of the limitation of Entries 8 and 51 of List II being confined to potable alcohol and consequent transgression on areas covered by Entries 52 and 84 of List I respectively relating to de clared industry and excise duty on industrial alcohol and medicinal and toilet preparations containing alcohol and also for repugnancy arising from a clash with the centrally occupied field failing under Entry 33 of List III
85E 85H 86D 308
The power to tax under Entry 54 of List II being a specific power it cannot be cut down or in any manner lettered by the general power of control exercised by Par liament by legislation on a matter failing under Entry 52 of List I relating to an industry the control of which by the Union is declared by Parliament by law to be expedient in the public interest read with Entry 33 of List III dealing with trade anti commerce in and the production supply and distribution of the products of any such con trolled industry and imported goods of the same kind as such products and other articles mentioned in Entry 33
89F H 309
The impugned provision of the Uttar Pradesh Sales of Motor Spirit Diesel Oil and Alcohol Taxation Amendment Act 1976 levying tax at the point of first purchase of alcohol in the State is undoubtedly an impost failing in pith and substance under Entry 54 of List II
In the absence of any fetter on the legislative power and in the absence of any valid challenge against the provision as a colourable piece of legislation the impugned legislative enactment  remains unimpeachable
89H 90B 310
The control exercised by the Central Government by virtue of section 18G of the IDR Act is in a field farremoved from the taxing power of the State under Entry 54 of List II
So long as the impugned legislation fails in pith and substance within the taxing field of the State the control of the Central Government in exercise of its power under the IDR Act in respect of a controlled industry fail ing under Entry 52 of List cannot in any manner prevent the State from imposing taxes on the sale or purchase of goods which are the products of such industry and which are referrable to Entry 33 of List III
The taxing power of the State under Entry 54 of List II cannot be cut down by the general legislative power of control of the Centre
90B D 311
The levy of fee whether called vend fee or trans port fee or duty or charge whether levied by Rules purport edly made under the Excise Act or the Prohibition Act or any other statute otherwise than as 71 a proper levy falling in pith and substance under a taxing Entry was not valid to the extent that it lacked quid pro quo and applied to industrial alcohol
Any such fee or charge can he justified as a mode of control falling in pith and substance under Entry 8 read with Entry 66 of List II only to the extent that it remains within the bounds of the concerned subject matter namely intoxicating liquors  which must necessarily exclude industrial alcohol
90D F 312
Taxes on sale or purchase are not governed by the Price Control Orders made under the IDR Act the purpose of which is to prevent the seller from pricing his goods beyond the limit prescribed by the Orders
That is a fetter on the free play of demand and supply
When supply is scarce the prices are bound to rise and it is that vice which is con trolled by fixing the maximum price
But that does not in any manner curtail the power of the State to levy taxes on the sale or purchase of goods
It is no doubt true that the consumer of the article must in addition to the price pay purchase tax due in respect of them
But that is by reason of a valid levy which is within the constitutional power of every State and is dehors the price though often referra ble to it
90F H State of Bombay  Anr
vs FN Balsara   India Cement Ltd  Ors
vs State of Tamil Nadu  Ors
 I MPV Sundararamier  Co vs The State of Andhra Pradesh  Anr  at 1479 Ms RMDC Mysore Private Limited vs The State of Mysore  Ganga Sugar Corporation Ltd vs State of Uttar Pradesh  Others   Ch
Tika Ramji  Others etc
vs The State of Uttar Pradesh  Ors   Kannan Devan Hills Produce Company
Ltd vs The State of Kerala  Another  and Hoechst Pharmaceuticals Ltd  Anr
vs The State of Bihar  Others
   referred to
 Per
RM Sahai J Concurring 313
Power to tax is a sovereign power
In federal system of governance it is exercised by distribution of power between the Union and the State Both are supreme in their sphere
That is brought out Clearly by Article 2461 and Article 2463 of the Constitution
The legislative field for levying tax by Union is set out in Entries 82 to 92 in List I and State in Entries 45to 63 in List II of the VIlth Schedule
There is no overlapping
Fields are clearly demarcated
Limitations and restrictions are also mentioned