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TMI Blog1959 (12) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... ch year; and (b) the tax shall be calculated at the following rates: Rate of Tax. (1) In the case of every dealer whose total turnover is ₹ 7,500 and above, but not exceeding ₹ 10,000 ₹ 25/- per annum. (2) In the case of every dealer whose total turnover exceeds ₹ 10,000 but does not exceed ₹ 25,000 The rate specified in Item (1) on the turnover not exceeding ₹ 10.000 and two pies in the rupee on the turnover exceeding ₹ 10.000. (3) In the case of every Dealer whose total turnover exceeds ₹ 25,000 The rate specified in Item (2) on the turnover not exceeding ₹ 25,000 and three pies in the rupee on the turnover exceeding ₹ 25,000. Provided that if and to the extent to which such turnover relates to article of rood and drink sold in a hotel, boarding house, restaurant or canteen, the tax shall be calculated at the following rates: -- (1) In the case of every dealer whose total turnover is ₹ 7,500 and above, but not exceeding ₹ 10.000 ₹ 73 per annum. (2) In the case of every dealer whose total turnover exceeds ₹ 10,000 but does not exceed ₹ 36,000 The rate s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the general rates specified in Clause (b). 3. The main question, therefore, which has to he decided in this petition is whether or not a provision in a Statute which is unconstitutional, offending the fundamental rights guaranteed to the citizens, is non-existent or is merely unenforceable. Mr. T. Krishna Rao, as already mentioned, relied on the two Supreme Court decisions in support of his contention that such a provision becomes unenforceable and not non-est. On the other hand the learned Government Pleader appearing for the State relied on a subsequent decision of the Supreme Court reported in Deep Chand v. State of U. P., , wherein, according to the learned Government Pleader, the majority of the Judges took a. different view. I have, therefore, to find out what is the view of the Supreme Court on this point whether there is a conflict between the earlier view expressed in the decisions on which Mr. Krishna Rao relies and the later view on which the learned Government Pleader relies and if so, which of the said two views is binding on this Court. 4. In the case reported in (S) , their Lordships of the Supreme Court inter alia, held that if a law which was existing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may thus be summed Up: Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the Constitutional bar is removed and there is no need for a fresh legislation to give effect thereto. 5. Mr. T. Krishna Rao strongly relied On these two decisions of the Supreme Court, and particularly on the observations made therein to which I have just now referred. In the later decision of the Supreme Court in , on which the learned Government Pleader relied, the majority of the Judges expressed the view that there is a clear distinction between the two clauses of Article 13. According to their Lordships under Clause (1) a pre-Constitution law subsists except to the extent of its inconsistency with the provisions of Part III; whereas no post Constitution law can be made contravening the provisions of Part III and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support from the observations of Suhba Rao, I., who delivered the majority judgment in. His Lordship did not expressly dissent from the view expressed by S. R. Das, J., who delivered the judgment of the Court, in the case reported in (S). but held that those observations relate to a pre-Constitution law. This seems to be clear from the following observations of Subba Rao, J., in the said case: A pre-Constitution law, stating in the words of Das, J., as he then was, exists notwithstanding that it does not exist with respect to the future exercise of the fundamental rights. That principle has been extended in this decision by the doctrine of eclipse. Xxxxx It was not a ease of want of legislative power at the time the Act was passed, but one where in the case of a valid law supervening circumstance cast a cloud. 7. This is the way in which the majority of the Judges of the Supreme Court in interpreted the said earlier decision of the Supreme Court in (S) and in my opinion we are bound by that interpretation. 8. But the same thing cannot be said with regard to the other decision of the Supreme Court . In that case the section with which their Lordships were con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is a conflict between the views expressed in (S) and in. 9. The next question, which we have to determine is which of these two views is hinding on us. Mr. T. Krishna Rao urged before us that the view expressed by the majority of the Judges in the case cannot he said to he the view expressed by the Court. He contended that the actual decision in that case did not proceed on that view and it was therefore merely obiter dicta. Mr. T. Krishna Rao contended that no doubt the law declared by the Supreme Court, by virtue of Article 141 of the Constitution, shall be binding on all Courts within the territory of India, but the view expressed by the majority of the judges on this point in the said case cannot be said to be the law declared by the Supreme Court, firstly because the said view was not necessary to be expressed for the purpose of deciding the said case and secondly because, the remaining two Judges reserved their opinion on this point and did not express any view. Mr. T. Krishna Rao urged that if all the Judges had expressed their views on that point then it could have been contended that the view expressed by the majority was the law declared by the Supreme Court. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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