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PETITIONER: BHAIYALAL SHUKLA

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 31/12/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L. SHAH, J.C. MUDHOLKAR, J.R.

CITATION:  1962 AIR  981            1962 SCR  Supl. (2) 257  CITATOR INFO :  R          1963 SC 222  (27)  APL        1963 SC 853  (15)  R          1964 SC1179  (4)  R          1978 SC 747  (32)  F          1980 SC   1  (21,22,23,29)  E          1984 SC 121  (16)

ACT:      Sales Tax-C  p  and  Berar  Act  extended  to Vindhya Pradesh-Validity-C.P.  & Berar  Sales  Tax Act, 1947  (21 of  1947), as  extended to  Vindhya Pradesh-Part C  States (Laws)  Act,  1950,  s,  2- Government of  Part C  States Act (49 of 1951) ss. 21, 22-Part C State (Miscellaneous Laws) Repealing Act (66 of 1951)-Vindhya Pradesh Laws (Validating) Act (6  of 1952)  s. 7-Vindhya  Pradesh Sales  Tax Ordinance (2  of 1949)  Constitution of India Art. 14.

HEADNOTE:      The   appellant   was   doing   business   of construction  as  contractor  under  Public  Works Department in Vindhya Pradesh, now Madhya Pradesh. He challenged  the levy  of Sales  Tax on building materials supplied  by him for the year 1953-54 to 1958-59. The contention of the Petitioner was that the tax  was not  leviable in view of the decision of the  Supreme Court  in Gannon  Dunkerley’s case and Pandit  Banarsi Das’s  case.  The  respondents claimed that the tax was leviable because the case fell within the derision in Mithan Lal’s case. The Rajpramukh of  the United State of Vindhya Pradesh promulgated  the   Vindhya   Pradesh   sales   Tax Ordinance 2  of 1949.  On Vindhya Pradesh becoming Part C  State  of  India  the  said  ordinance  of Rajpramukh was  applied to  the whole  of it  with effect from  April 1,  1950, by notification No. 7 of March 28, 1951. Under s. 2 of the Part C States (Laws) Act,  1950, by  notification No.  S.R.O.  6

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dated December  29, 1950,  the Central Provinces & Berar Sales  Tax Act 1947, was extended to Vindhya Pradesh. The  notification also added s. 29 to the Madhya Pradesh Act so extended, by which ordinance 2 of  1949 was repealed. By reason of the decision of this  Court in  the Delhi  Laws  Act  case  the addition of s. 29 was unconstitutional. Parliament then  enacted  the  Part  C  States  (Misc.  Laws) Repealing Act (66 of 1951). By s. 2 of the Act the Vindhya Pradesh  Sales Tax  ordinance,  1949,  was deemed to  have been  repealed from  December  29, 1950. The  Vindhya Pradesh  Laws  (Validity)  Act, 1952, also  provided  and  declared  that  Central Provinces &  Berar Sales  Tax Act, 1947, which was extended to Vindhya Pradesh under s. 2 of the Part C States  Laws Act,  1950, has  been and  shall be deemed to  be in  force in  Vindhya  Pradesh  from April 1,  1951. The  said C.  P. & Berar Sales Tax Act defined  contract, goods,  sales etc,  and  by these definition the materials used or supplied by 258 a building  contractor in  the constructions  etc, were made  liable to  Sales Tax in accordance with the schedule rates. The question is, whether C. P. JUDGMENT: been extended  for the  first time  by the Vindhya Pradesh legislature  in 1952,  when it  passed the Vindhya Pradesh  Laws (Validating)  Act, 1952,  to the  exclusion  of  the  order  contained  in  the notification No.  S.R.O.  6  or  whether  the  Act continued to  be in  force in Vindhya Pradesh even before and all that the Vindhya Pradesh Act did as to remove any doubts about its validity.      The rival  contentions of  the appellant  and the respondents  are reduced  to  the  proposition that if  the State  Legislature of Vindhya Pradesh extended the  Central Province and Berar Sales Tax Act, the extended Act would suffer from disability pointed out in Gannon Dunkerley’s case, but if the said Act  was extended  by the  notification under Part C  States (Laws)  Act, 1950,  then it must be treated as incorporated in the Act and to have the authority of Parliament which, in relation to Part C States, had no limitation whatever. ^      Held, that  the extended  law in  the C. P. & Berar Sales  Tax Act,  1947, did not depend on the repeal of  the earlier  law for  its validity.  It would have been operative, even if the earlier law was not  repealed, but the earlier law was in fact repealed from  December 29,  1950, and no question of conflict  between the  new and the old law ever arose.      Held,  further,   that  the  Vindhya  Pradesh Amending Act made only verbal changes, but did not alter the structure of the tax. No doubt, that Act contained certain  provisions under which sales of building  materials   are  taxable,   and  if  the authority to tax the so-called sales emanated from a State  Legislature, then the law would fail. The law was  first extended  to the Vindhya Pradesh by the Central  Government acting under the authority of Parliament  legislating for  a  Part  C  State. Parliament and  the Central  Government  were  not subject to  the disabilities pointed out in Gannon

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Dunkerley’s case,  and the  matter was  covered by Mithan Lal’s case. Even if the notification S.R.O. No.  6  failed  to  repeal  ordinance  2  of  1949 Parliament by  its own  law effaced that ordinance in Vindhya  Pradesh from  December 29,  1950,  and enacted that  ordinance  shall  be  deemed  to  be repealed from  that day.  The ordinance  2 of 1949 did  not  continue  in  Vindhya  Pradesh  down  to January 8,  1953 because  by fiction the ordinance was repealed from December 29, 1950.      Held,  also,   that  the  laws  in  different portions of  new  State  of  Madhya  Pradesh  were enacted by different legislatures and under s. 119 of the States Reorganisation Act, all 259 laws in  force in  a state  were to continue until repealed   or    altered   by    the   appropriate Legislature.  The  different  sales  tax  laws  in different parts of Madhya Pradesh are valid on the ground  that   the  differentiation   arises  from historical    reasons,    and    a    geographical classification based  on historical reasons is not affected by Art. 14 of the Constitution.      State of  Madras v.  Gannon Dunkerley  &  Co. [1959] S.C.R.  379, Pandit  Banarsidas v. State of Madhya Pradesh,  [1959] S.C.R.  427, Mithan Lal v. State of  Delhi, [1959] S.C.R. 445 In re the Delhi Laws  Act,   1912,  [1951]   S.C.R.  747,   Gannon Dunkerley v. State of Madras, [1954] 1 S.C.R. 216, Behram Khurshed  Pesikaka v.  The State of Bombay, [1955] 1  S.C.R. 613,  Deepchand v. State of Uttar Pradesh,  [1959]   Supp.  2   S.C.R.  S,  John  M. Wilkerson v.  Charles A.  Rahrer, (1891) 140 U. S. 545, M.  K. Prithi  Rajji v. State of Rajasthan C. A. No.  327/56 decided  on 2-11-60  and  State  of Madhya Pradesh v. The Gwalior Sugar Co. Ltd. C. A. Nos. 98  and 99  of 1957  decided  on  30-11-1960, referred to.

&      ORIGINAL JURISDICTION:  Petitions Nos. 110 to 115 of 1960.      (Under Article  32  of  the  Constitution  of India for enforcement of Fundamental Rights)      A. V.  Viswanatha Sastri,  R. K.  Garg, D. P. Singh, S.  C. Aggarwal  and M.  K. Ramamurthi, for the Petitioner.      B. Sen,  B. K. B. Naidu and I. N. Shroff, for the Respondents.      1961. December  21. The Judgment of the Court was delivered by      HIDAYATULLAH, J.-These  six  petitions  under Art. 32 of the Constitution have been filed by one Bhaiyalal  Shukla,   who  was  doing  business  of construction of  buildings, roads, bridges etc. as contractor for the Public Works Department in Rewa Circle of  the former Vindhya Pradesh State, now a part of  the State  of Madhya  Pradesh.  By  these petitions, he  challenges the levy of sales tax on building  materials   supplied  by   him  in   the construction of  buildings, roads  and bridges for the years,  1953-54 to 1958-59. For the first year in question,  sales tax amounting to Rs. 1,840-5-0

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has 260 already been  charged and paid. He seeks refund of this amount.  For the  remaining years  except the last two,  proceedings for  assessment  have  been completed, but the amounts have not been paid. For the remaining  two years,  proceedings are pending for assessment  of the tax. The respondents in the case are the State of Madhya Pradesh, which stands substituted for  the State of Vindhya Pradesh, and diverse officers connected with the assessment and levy of  the tax. The contention of the petitioner is that  the tax  is not  leviable in  view of the decisions of  this Court  in two cases reported in The State  of Madras  v. Gannon  Dunkerley and Co. (Madras) Ltd.(1)  and  Pandit  Banarsidas  v.  The State of  Madhya  Pradesh  (2).  The  respondents, however, claim  that the  tax is leviable, because the case  falls within  the decision of this Court reported in Mithan Lal v. The State of Delhi (3).      The  United  State  of  Vindhya  Pradesh  was formed by  the Rulers of the States in Baghelkhand and Bundhelkhand,  who  agreed  to  unite  into  a common State,  with the  Maharaja of  Rewa as  the Rajpramukh. By the Covenant which was entered into by them at that time, it was provided that until a Constitution for  the United  State would  vest in the Rajpramukh,  and he was authorised to make and promulgate  Ordinances  for  the  peace  and  good government  of   the  United  State  of  any  part thereof, and  any Ordinance  made by  him had  the force of  an Act  passed by the legislature of the United State.      The Rajpramukh,  in exercise  of  his  powers drawn from  the Covenant,  promulgated the Vindhya Pradesh Sales Tax Ordinance 2 of 1949 for the levy of a  tax on the sale of goods in Vindhya Pradesh. On the inauguration of the present Constitution of 261 India, Vindhya  Pradesh became, at first, a part B State but  later by the Constitution (Amendment of the First  and Fourth  Schedules) Order,  1950, it was transferred  from Part  B to  Part  C  of  the Constitution. The  ordinance of the Rajpramukh was applied to  the  whole  of  Vindhya  Pradesh  with effect from April 1, 1950 by Notification No. 7 of March 28,  1950 by the Chief Commissioner, Vindhya Pradesh, acting under s. 1(2) of the ordinance.      Parliament then  passed  the  Part  C  States (Laws) Act, 1950. Section 2 of that Act provided:           "Power to  extend enactments  to certain      Part C States:-The Central Government may, by      notification in  the Official  Gazette extend      to any  Part C  State...... or to any part of      such  State,   with  such   restrictions  and      modifications as it thinks fit, any enactment      which is  in force  in a  Part A State at the      date of the notification and provision may be      made in  any enactment  so extended  for  the      repeal  or  amendment  of  any  corresponding      law(other than  a Central  Act) which  is for      the time  being applicable  to  that  Part  C      State," In exercise  of the  power conferred  by the above section, the  Central Government  by  Notification

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No. S.R.O.  6 dated December 29, 1950, extended to the State of Vindhya Pradesh the Central Provinces and Berar  Sales Tax  Act, 1947 (21 of 1947) as in force for  the time  being in  the State of Madhya Pradesh,   subject    to   certain   modifications necessitated by the application of the Act to this new area.  By the same Notification, a new section was added to the Madhya Pradesh Act, which read as follows:           "29.  Repeal  and  Saving:  The  Vindhya      Pradesh Sales Tax Ordinance 2 of 1949 is here      by repealed, provided that........" and here  follow  certain  provisions  saving  the previous operation of the Ordinance. 262      On March  20, 1951,  the  Central  Government issued Notification  No. 52/ECON.  in exercise  of the powers  conferred by sub-s. (3) of s. 1 of the Central Provinces  and Berar  Sales Tax Act, 1947, as extended  to the  State of  Vindhya Pradesh  by Notification No.  S.R.O.  6,  ordering  that  from April 1,  1951 the  extended Act  would come  into force in  the State of Vindhya Pradesh. On May 23, 1951, this  Court rendered  its judgment  in In re the  Delhi  Laws  Act  1912(1).  It  was  held  by majority by  this Court  that s.  2 of  the Part C States (Laws)  Act, 1950  was intra  vires, except for the  concluding sentence,  "provision  may  be made in  any enactment  so extended for the repeal or amendment  of any corresponding law (other than a  Central  Act)  which  is  for  the  time  being applicable to  that Part  C State", inasmuch as it was ultra vires the Indian Parliament.      Parliament then passed the Government of Part C States  Act, 1951  (49 of  1951) on September 6, 1951. Under  that Act, Legislative Assemblies were set up,  and under  s.  21,  they  were  invested, subject to  certain limitations,  with  Powers  of legislation with  respect to  any of  the  matters enumerated in  the State List or in the Concurrent List. Section 22 of that Act provided:           "If any  provision of  a law made by the      Legislative Assembly  of a State is repugnant      to any provision of a law made by Parliament,      then  the  law  made  by  Parliament  whether      passed before  or after  the law  made by the      Legislative  Assembly  of  the  State,  shall      prevail and  the law  made by the Legislative      Assembly of the State shall, to the extent of      the repugnancy, be void.           Explanation: For  the purposes  of  this      section,  the   expression   ’law   made   by      Parliament’ shall  not include  any law which      provides 263      for the  extension to the State of any law in      force in  any other  part of the territory of      India." In view of the decision of this Court in the Delhi Laws Act  case(1) the Part C States (Miscellaneous Law) Repealing  Act, 1951 (66 of 1951) was enacted by Parliament on October 31, 1951. By s. 2 of that Act, laws  described in  Column 2  of its Schedule were repealed or were deemed to have been repealed with  effect  from  the  dates  specified  in  the

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corresponding entry  in column 3 of that Schedule. In the  Schedule, the  Vindhya Pradesh  Sales  Tax Ordinance, 1949  (2 of  1949)  was  repealed  from December 29, 1950. The Vindhya Pradesh Legislative Assembly,  which  was  set  up,  then  passed  the Vindhya Pradesh  Laws (Validating) Act, 1952 (6 of 1952). By  that Act,  which was  to extend  to the whole of Vindhya Pradesh and to come into force on January 8,1953, it was provided as follows:           "2. For  the removal of all doubts it is      hereby    declared    that........    Central      Provinces and  Berar Sales  Tax Act,  1947 as      extended to  Vindhya Pradesh  under section 2      of the  Part C  States Laws  Act,  1950  (has      been) and  shall be  deemed to be in force in      Vindhya Pradesh from April 1, 1951.           7. Repeal and savings:-As from the dates      of  the   actual  enforcement   of  the  Acts      specified  in  section  2  of  this  Act  the      corresponding  laws   in  force   in  Vindhya      Pradesh immediately  before  the  said  dates      shall be deemed to have been repealed without      prejudice  to   anything  done   or  suffered      thereunder   or    any   right,    privilege,      obligation or  liability acquired, accrued or      incurred  thereunder   before  the  aforesaid      dates."      Section 2  of the Central Provinces and Berar Sales Tax Act, 1947, which was extended to 264 Vindhya Pradesh,  defined "contract"  to mean  any agreement  for   the  carrying  out  for  cash  or deferred payment  or other valuable consideration, the  construction,  fitting  out,  improvement  or repair of  any building,  road,  bridge  or  other immovable property, and further defined "goods" to mean  all   kinds  of   property   including   all materials, articles  and commodities,  whether  or not to  be used  in the construction, fitting out, improvement or  repair of  immovable property, and finally defined  "sale" as  including transfer  of property in  goods  made  in  the  course  of  the execution of a contract. By these definitions, the materials  used   or  supplied   by   a   building contractor  in   the  construction  of  buildings, roads, bridges, etc. were made liable to sales tax in accordance  with a  schedule of  rates to which reference seems unnecessary.      The legality  of these and similar provisions of law  purporting to impose sales tax on building materials in  State Acts came up for consideration before High  Courts in India, and two well-defined views were  expressed, one  holding that the power to disentangle  in a building contract the sale of materials from  the execution of works with a view to  taxing   such  a  sale,  was  not  beyond  the legislative power of the States acting under Entry 48, List II, Seventh Schedule of the Government of India Act,  1935, corresponding to Entry 54 of the like List  in the  Constitution. It  was  held  in those  cases  that  a  building  contract,  though entire, involved  labour  plus  materials  and  in respect  of   the  materials   there  was  a  sale involving transfer  of property for consideration, and that  the legislature had the power to frame a

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definition of  "sale" to  separate  the  two.  The other  view   was  that  building  contracts  were entire, and  that there  was no  sale of  goods as contemplated by  the Indian  Sale  of  Goods  Act, which was the sense in which the Entry was framed, a sense which had a well-recognised legal import. 265 This Court in Gannon Dunkerley’s case (1) approved the latter view, which is found in the decision of the Madras  High Court in sub nom Gannon Dunkerley v.  State   of  Madras(2),   and  disapproved  the contrary view. It was pointed out that though in a popular sense  there was  a sale of the materials, there  was   none  in   the  sense  in  which  the expression "sale  of goods"  is used in the Indian Sale of Goods Act, since there was no agreement to sell or  sale of  materials as  such, nor  did the property  pass  therein  as  movables.  In  Pandit Banarsi Das’s  case (3), which was a case from the State  of  Madhya  Pradesh  and  which  was  heard simultaneously, it  was held  that if  the parties entered into  distinct and separate contracts, one for transfer  of materials for money consideration and the  other, for  payment of  remuneration  for services or  works done,  then there  was  a  sale within the  meaning of  the Sale  of Goods Act and the levy  of  tax  was  valid;  but  that  if  the contract was  an entire  one, the levy was without competence. The  sections of the Central Provinces and Berar Sales Tax Act making such a division and taxing  the  so-called  sales  of  materials  were declared to  be beyond  the powers  of  the  State Legislature.      The petitioner  contends  that  the  impugned sections of  the Central Provinces and Berar Sales Tax Act,  as  applied  to  Vindhya  Pradesh,  fell within  these   two  rulings,  and  must  also  be declared ultra  vires the  Vindhya  Pradesh  State Legislature, when  the latter  enacted the Vindhya Pradesh Laws (Validating) Act, 1952.      As against this, the respondents contend that the Notification  S.R.O. No.  6, which added s. 29 repealing the  Vindhya Pradesh Sales Tax Ordinance 2 of  1949, the Part C States (Miscellaneous Laws) Repealing Act,  1951 and  the Vindhya Pradesh Laws (Validating) Act, 1952 all concurred in repealing 266 Ordinance 2  of 1949  from December  29, 1950, but left intact the operation of the Central Provinces and Berar  Sales Tax  Act as  extended to  Vindhya Pradesh by  S. R.  O. No.  6 of  1950. The Vindhya Pradesh Laws (Validating) Act, 1952 merely removed the doubts  by  stating  again  that  the  Central Provinces and  Berar Sales  Tax Act  had been  and "shall be deemed to be in force in Vindhya Pradesh from April  1, 1951",  but did  not re-enact  that Act. According  to the  respondents,  the  Central Provinces and  Berar Sales Tax Act was in force in Vindhya Pradesh  as a  result of  its extension by Notification S.  R. O.  6 and  Notification No. 52 (Econ), the  repeal of  Ordinance 2  of 1949 being achieved by the Part C States (Miscellaneous Laws) Repealing Act,  1951 from  December 29,  1950. The respondents,  therefore,   seek  to   uphold   the impugned provisions  on the basis of the ruling of

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this Court  in Mithan  Lal’s case(1), where it was pointed out  that whatever  might be  said of  the State Legislatures operating under List II did not hold good  in the case of Parliament which derived its powers  in relation  to legislation  in Part C States, not  only from all the Lists but also from the residuary powers of taxation mentioned in Art. 248(2). It  was also  held that s. 2 of the Part C States (Laws)  Act, 1950 was not repugnant to Art. 248(2), that  the extended law became incorporated by reference  in the Part C States (Laws) Act, and that the  tax was  thus one  imposed by Parliament itself. The  respondents, therefore, contend that, as held  in Mithan  Lal’s case(1)  when parliament enacted the  Part C  States (Laws)  Act, 1950  and conferred  power  on  the  Central  Government  to extend any  Act of  a Part  A State  to any Part C State, that power of extension carried with it the plenary powers  of Parliament, and even though the law  so  extended  might  have  been  outside  the competence of  the State Legislature which enacted it, when extended under the 267 authority of  Parliament was  a valid piece of law in Part C State.      The rival  contentions may  be reduced to the proposition  that  if  the  State  Legislature  of Vindhya Pradesh extended the Central Provinces and Berar Sales  Tax Act,  then the extended Act would suffer from  the disability  pointed out in Gannon Dunkerley’s case (1), but if the Central Provinces and Berar  Act was  extended by  the  Notification under the  Part States  (Laws) Act,  1950, then it must be treated as incorporated in that Act and to have  the   authority  of   Parliament  which,  in relation to  Part C  States,  had  no  limitations whatever. We  have, therefore,  to see whether the Central Provinces  and Berar  Sales Tax  Act, 1947 can be  said to  have been  extended for the first time by  the Vindhya  Pradesh Legislature  in 1952 when  it   passed   the   Vindhya   Pradesh   Laws (Validating) Act,  1952 to  the exclusion  of  the order contained  in the  Notification No. S. R. O. 6, or  whether the Act continued to be in force in Vindhya Pradesh  even before,  and  all  that  the Vindhya Pradesh  Act did  was to remove any doubts about its validity.      The contention on behalf of the petitioner is that the  Notification dated December 29, 1950 was invalid in  its latter  part, as  decided by  this Court in the Delhi Laws Act case (2). That portion dealt with  the repeal of Ordinance 2 of 1949, and if the Notification was invalid in that part, then the Central  Provinces and  Berar Sales  Tax  Act, which was extended by the opening part, never came into force.  Mr. Viswanatha  Sastri contended that the notification  must be looked at compendiously, and that  it was  impossible  to  think  that  the Central Government would have extended the Central Provinces and  Berar Sales Tax Act, if the earlier Ordinance still continued to operate. He relied in this connection  upon  the  observations  of  this Court in Pesikaka’s case (3) to urge that the 268 Notification which  was beyond  the powers  of the

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Central Government  in its  latter  part  must  be regarded as  a nullity,  and contended that if the invalid   portion    of   the   Notification   was fundamental to  the operation  of the  valid, then the valid  portion also  must equally fail because it could  not have  been intended that two laws on the same  topic were  to operate simultaneously in Vindhya Pradesh.  According to  him, the extension of the  Central Provinces  and Berar Act could not and would not have been made, if the Ordinance had not been  first repealed.  Section  29  which  was added,  though   composed  of   two  parts,   was, according to him, really a part of a single scheme and the  repeal of the Ordinance and the extension of the Central Provinces and Berar Act could stand or fall  together, and  since  the  Ordinance  was never validly repealed, it continued to operate in Vindhya Pradesh  till its  repeal on  October  31, 1951, by  the Part  C States  (Miscellaneous Laws) Repealing Act,  1951, and when the Act repealed it from December  29, 1950, the effect was that there was no  sales tax  law  in  operation  in  Vindhya Pradesh, because  the Part C States (Miscellaneous Laws) Repealing Act, 1951, did not enact or extend any law  on the  subject of  sales tax  in  or  to Vindhya  Pradesh.   According  to  him,  till  the enactment of the Vindhya Pradesh Laws (Validating) Act 6 of 1952 on January, 8, 1953 there was no law imposing sales tax in Vindhya Pradesh, and the law was  then  made  by  the  Legislature  of  Vindhya Pradesh by  extending the  Central  Provinces  and Berar  Sales  Tax  Act  from  April  1,  1951.  He therefore, contended  that since the powers of the Vindhya Pradesh  Legislature did  not include  the power of imposing sales tax on building materials, this Act of the Vindhya Pradesh Legislature, if it sought to  impose sales tax on building materials, fell within  the ruling in Gannon Dunkerley’s case (1) and  must be declared as of no effect. He also referred to Act 9 of 1953 269 passed by  the Vindhya  Pradesh State Legislature, by which  the Act  was further amended, and stated that  the  extended  Act,  as  amended,  owed  its existence neither to Parliament nor to the Central Government acting  under the  Part C States (Laws) Act but  to the  Vindhya Pradesh Laws (Validating) Act, 1952  (6 to  1952) and  the  Vindhya  Pradesh Amendment Act, 1953 (9 of 1953).      There is  a fundamental  fallacy involved  in this   reasoning.    We   are    considering   the applicability of  the Central  Provinces and Berar Sales Tax  Act as extended to Vindhya Pradesh. The Vindhya Pradesh  Amending  Act  made  only  verbal changes, but  did not  alter the  structure of the tax.  No   doubt,  that   Act,  contained  certain provisions under which sales of building materials are taxable,  and if  the authority to tax the so- called sales  emanated from  a State  Legislature, then the  law would fail. But we have to remember, in  this   connection,  that  the  law  was  first extended  to   Vindhya  Pradesh   by  the  Central Government   acting   under   the   authority   of Parliament  legislating   for  a   Part  C  State. Parliament and  the Central  Government  were  not

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subject to  the disabilities pointed out in Gannon Dunkerley’s case  (1), and  the matter was covered by the decision of this Court in Mithan Lal’s case (2). Even  if the  Notification, S.  R. O.  No. 6, failed to  repeal ordinance  2 of 1949, Parliament by its  own law  effaced that Ordinance in Vindhya Pradesh from  December 29,  1950, and enacted that the Ordinance  shall be deemed to be repealed from that day.  After the  passing of the Repealing Act by parliament,  it is  impossible  to  argue  that Ordinance 2  of 1949  continued in Vindhya Pradesh down to  January 8,  1953, because  by fiction the Ordinance was  repealed from  December  29,  1950. Parliamentary legislation,  therefore, came to the rescue, so to speak, of the Notification by making room for  the extension  of the  Central Provinces and 270 Berar Act  by repealing  Ordinance 2 of 1949 which the Notification  proprio  vigore  was  unable  to achieve  as  laid  down  in  the  Delhi  Laws  Act case(1).   The   Notification   of   the   Central Government (S.  R. O.  No. 6)  and Act 66 of 1951, therefore concurred  in removing  the Ordinance on December 29,  1950 and  in extending  the  Central Provinces and  Berar Sales Tax Act in its place on the same date.      Mr. Viswanatha Sastri argued, on the strength of ruling  of this  Court in Deepchand v. State of Uttar Pradesh  (2) that the validity of a law must be judged  as on  the date on which it was passed, and if  the law was invalid on that date, then the law must  be deemed  not to  have existed  at all, unless it was later re-enacted. The passage relied upon is as follows:           "The validity  of a  statute  is  to  be      tested  by  the  constitutional  power  of  a      legislature at  the time  of its enactment by      that legislature  and, if  thus tested, it is      beyond  the  legislative  power,  it  is  not      rendered valid without re-enactment if later,      by constitutional  amendment,  the  necessary      legislative  power   is  granted.   An  after      acquired power  cannot,  ex  proprio  vigore,      validate a  statute void  when enacted."  (p.      24). This argument  would be  applicable if  we were to consider that  Notification No.  S.  R.  O.  6  in isolation, and  the question was one of validation of that  Notification. The  Notification is  being questioned, because  it sought to repeal Ordinance 2 of  1949, which  it could  not do. But, today we are not  in a  position to say that Ordinance 2 of 1949  continued   in  Vindhya   Pradesh,   because Parliament by  the Part  C  States  (Miscellaneous Laws) Repealing  Act, 1951  has enacted  that  the said  ordinance   must  be  deemed  to  have  been repealed from  December 29,  1950. Indeed,  in the ruling 271 of this  Court at the same page are cited passages from Willoughby  on  Constitution  of  the  United States (2nd  Edn.) Vol.  1, p.  10  based  on  the decision in John M. Wilkerson v. Charles A. Rahrer (1) to  the  effect  that  if  the  cause  of  the

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unconstitutionality is  removed then  the law does not need  to be re-enacted. The facts of this case are entirely  different from  those in Deepchand’s case (2).  The extended  law did not depend on the repeal of  the earlier  law for  its validity.  It would have been operative, even if the earlier law was not  repealed; but  the earlier  law  was,  in fact, repealed  from  December,  29,1950,  and  no question of  conflict between  the new and the old law  ever   arose.  Parliament  by  repealing  the ordinance rendered  the ineffective portion of the Notification  a  mere  surplusage.  The  necessary result thus  was that  its operative part survived and the Central Provinces and Berar Sales Tax Act, 1947 was  validly extended to Vindhya Pradesh, and was valid  law as  laid down  in Mithanlal’s  case (3). It  did not  suffer from  the defects pointed out by  the this  Court in Gannon Dunkerley’s case (4), as  it was  not enacted  or extended  by  the State Legislature.      It remains  to consider  the last argument on this point,  and it  is that the Central Provinces and Berar Sales Tax Act was re-extended to Vindhya Pradesh by  Act 6  of  1952,  and  thus  owed  its existence to  a law  made by  a State  Legislature which was incompetent to enact a law that building materials in  a works  contract, which was entire, were liable  to sales tax. The preamble of the Act shows that it was enacted to remove certain doubts which were  entertained as to whether the extended Sales Tax  Act became  operative only from October 31, 1951  when Act  66 of 1951 was passed, or from an earlier  date, viz.,  April 1, 1951, from which date it was brought into force in 272 Vindhya Pradesh  by Notification  No. 52  (Econ.), dated March  20, 1951. To remove these doubts, the Vindhya  Pradesh   Laws  (Validating)  Act,  1952, enacted with the assent of the President, declared by  s.   2  (already   quoted)  that  the  Central Provinces and  Berar Sales  Tax Act  had been  and "shall be deemed to be in force in Vindhya Pradesh from April  1, 1951."  This  declaration  did  not extend prorio  vigore the  Central  Provinces  and Berar Sales  Tax Act,  but only  declared that  it must be  deemed to  be validly in force from April 1, 1951.  Section 7,  on which  much reliance  has been placed, may be quoted again:           "Repeal and  savings:-As from  the dates      of  the   actual  enforcement   of  the  Acts      specified  in  Section  2  of  this  Act  the      corresponding  laws   in  force   in  Vindhya      Pradesh immediately  before  the  said  dates      shall be deemed to have been repealed without      prejudice  to   anything  done   or  suffered      thereunder   or    any   right,    privilege,      obligation or  liability acquired, accrued or      incurred  thereunder   before  the  aforesaid      dates" It is  said that,  if the  two sections  are  read together they  mean that the Central Provinces and Berar Sales  Tax Act  was  freshly  extended  from April 1,  1951 by  the Vindhya Pradesh Act and any law made  by any  authority  earlier  was  freshly repealed to  make room  for  the  extension.  This

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argument, in our opinion, is erroneous.      To begin  with, the  powers  of  the  Vindhya Pradesh Legislature were circumscribed by s. 22 of the Government  of part C States Act, 1951, quoted earlier. Under  that section,  the powers  of  the State Legislatures  did not  extend to making laws repugnant to  any  law  made  by  Parliament.  The Explanation defines  the expression  "law made  by Parliament", and excludes a law which provides for the extension to the State of any law in force 273 in any  other part  of the territory of India. The Vindhya  Pradesh  Legislature,  however,  did  not repeal either s. 2 of the Part C States (Laws) Act or the  Notification, and all that the Legislature did was to add its own authority by a declaration, to the laws earlier extended. The law was extended first by Notification S.R.O. No. 6 on December 29, 1950, but  it  was  brought  into  force  only  by Notification No.  52 (Econ.)  dated March 20, 1950 from April 1, 1951. The Notification, S. R. O. No. 6 had  substituted for  sub-s.(3) of  s. 1  of the Central Provinces  and Berar  Sales Tax  Act,  the following:           "(3) It  shall come  into force  on such      date  as  may  be  notified  by  the  Central      Government in the Official Gazette." Till the Notification No. 52 (Econ.) was made, the Act was  extended but  was not in force in Vindhya Pradesh.  There   is  a   difference  between  the extension of  a law  subject to  its being brought into force  latter and  its coming into force on a later date.  Section 7  of Act  6 of 1952 repealed only the  laws in force prior to the date on which the Central  Provinces and Berar Sales Tax Act was brought into force. It speaks of "laws in force in Vindhya Pradesh immediately before April 1, 1951", and the  law which was in force immediately before that date  was not the Central Provinces and Berar Sales Tax  Act which  had not  been  brought  into force, but might be Ordinance 2 of 1949, if it had not been successfully repealed earlier. The former Act was extended on December 29, 1950, but was not brought into  force till  April 1,  1951, and  the section speaks  of "laws  in force".  The section, therefore, refers  to Ordinance  2 of  1949, which would be  in force  immediately  before  April  1, 1951, if not successfully repealed, but not to the Central Provinces  and Berar  Sales Tax  Act which was only  extended before  that date  but had  not been brought  into force.  In other words, s. 7 of the Act does no more than replea 274 from  April   1,  1951   (if  repeal  was  at  all necessary) Ordinance  2 of  1949, which  might  be supposed to have continued as law till October 31, 1951, when  it was  repealed by Act 66 of 1951. In point of  fact and  also in  law,  it  was  really repealed  from   December  29,   1950  under   the Repealing Act  66 of 1951. The Vindhya Pradesh Act 6 of  1952 cannot,  therefore,  be  said  to  have enacted  for  the  first  time  that  the  Central Provinces and  Berar Sales Tax Act shall come into force from  April 1,  1951 in  Vindhya Pradesh. It only declared  what was  a legal fact even without

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this declaration.  Nor did  the Central  Provinces and Berar Sales Tax Act owe its existence to Act 6 of 1952.  Act 6  of 1952  only declared  what  the result of  the earlier  laws was,  and  added  the authority of  the Vindhya  Pradesh Legislature  to remove doubts  and to save the law from any attack on the  ground  that  the  wrong  Legislature  had repealed the  Ordinance or  extended  the  Central Provinces and Berar Sales Tax Act. In our opinion, this argument cannot be accepted.      One further argument was advanced to which we have not  referred so  far, and  which may  now be noticed. It  is that  after the  reorganisation of the States,  Madhya Pradesh  has as  many as  four Sales Tax  Acts. It  is contended  that  a  person belonging to  the area  of  the  former  State  of Madhya Pradesh  is not  liable  to  sales  tax  on building materials  in a  works contract under the Central Provinces  and Berar Sales Tax Act because of the  decision in  Pandit Banarsi Das’s case(1), but another person living in the area forming part of the  former Vindhya  Pradesh is liable to sales tax under  the same  Act, as  extended to  Vindhya Pradesh. This, it is said, is patently contrary to the spirit  of the equal protection clause in Art. 14.      The laws  in different  portions of  the  new State of  Madhya Pradesh were enacted by different Legislatures, and  under  s.  119  of  the  States Reorganisation 275 Act, all  laws in  force  are  to  continue  until repealed   or    altered   by    the   appropriate Legislature. We  have already  held that  the sale tax law  in Vindhya  Pradesh was  validly enacted, and it  brought its  validity with it under s. 119 of the States Reorganisation Act, when it became a part of  the State  of Madhya Pradesh. Thereafter, the different  laws in  different parts  of Madhya Pradesh can  be sustained  on the  ground that the differentiation arises  from  historical  reasons, and  a   geographical  classification   based   on historical reasons  has been  upheld by this Court in M. K. Prithi Rajji v. The State of Rajasthan(1) and again  in The  State of  Madhya Pradesh v. The Gwalior Sugar  Co. Ltd.(2).  The  latter  case  is important, because  the sugarcane  cess levied  in the former  Gwalior State  but not  in the rest of Madhya Bharat  of which  it  formed  a  part,  was challenged on  the same  ground as  here, but  was upheld as  not affected by Art. 14. We, therefore, reject this argument.      In the  result, the  Writ Petitions fail, and are dismissed;  but in  the circumstances  of  the case we make no order about costs.                                Petitions dismissed 276