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TMI Blog1959 (11) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there could be no levy of estate duty on the value of the agricultural lands, and that he was entitled to a rebate of estate duty on the value thereof from out of the duty fixed for the value of the entire estate. This claim was made on the basis of certain facts which may now be referred to. The Estate Duty Act, 1953, which for the sake of brevity will hereafter be referred to as the Act came into force on 15-10-1953. The Act levied a duty on the value of the property constituting the estate of a deceased person. 2. A distinction was, however, made in the Act between agricultural land and other property. In the computation of the value of the estate for the levy of the duty, the value of the agricultural lands situate within a State could be included only if that State was mentioned in the schedule I to the Act. Under the provisions of the Act as enacted, Madras was not one of the States mentioned in the first Schedule; the result was that under the provisions of the Act in its original form, there could be no levy of estate duty on the value of agricultural lands situate in that State. 3. But the Constitution and the Act provided for the States which had not been includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in the Official Gazette, add to the names of any other States to the first Schedule in respect whereof resolutions have been passed by the Legislature of those States adopting this Act under clause (1) of At. 252 of the Constitution in respect of estate duty on agricultural lands situate in those States, and on the issue of any such notification the States so added shall be deemed to be States specified in the first Schedule within the meaning of sub-sec. (1). 7. The power to legislate for the purpose of levying the estate duty is given under the Constitution to the Union and State legislatures with reference to the subjects which are within their respective legislative competence. Art. 366(9) of the Constitution defines estate duty thus: 'estate duty' means a duty to be assessed on or by reference to the principal value, ascertained in accordance with such rules as may be prescribed by or under laws made by Parliament or the Legislature of a State relating to the duty, of all property passing upon death or deemed, under the provisions of the said laws, so to pass: Item 87 of list I of the 7th Schedule to the Constitution runs: estate duty in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies be amended or repealed by an Act of the legislature of that State. 11. In considering Art. 252 Mahajan J. stated in [1951]2SCR747 : Art. 252 is a somewhat peculiar provision. Under it Parliament can legislate for two or more States with their consent. This is a form of exercise of legislative power by Parliament as a delegate of the State as by its consent alone Parliament gets the power of legislation. 12. The Article envisages the enactment of uniform State legislation upon subjects over which the States have exclusive powers in relation thereto. Such uniformity would be very necessary when in regard to a particular subject like Estate Duty both the Parliament and the States have powers to legislate over distinct portions of an estate. Thus, notwithstanding the provisions of Art. 246, Art. 252 would render it possible for the Parliament in certain circumstances to make laws in regard to subjects exclusively within the legislative competence of State. To entitle the parliament to so legislate the legislatures of more than one State should be of opinion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to or subtraction therefrom. The retrospective operation consequent on the adoption of a Central Act would therefore depend on two factors: (1) the provisions of Art. 252 and (2) the provisions of the Central Act which had been adopted. 17. On the terms of Art. 252, the Central Act, if adopted by a State legislature could, at the earliest, operate only from the date of the resolution of the State legislature. The language employed is consistent only with a prospective operation of the statute. That apart, there being no constitutional power in the Parliament to legislate with respect to a subject, exclusively within legislative competence of a State legislature, it must be held that the statute could operate only after such power is acquired by means of the resolution of the concerned State legislature. In Zamorin of Calicut v. Estate Duty Controller, [1957]32ITR1(Mad) , a Bench of this Court, to which one of us was a party, held that no estate duty would be leviable on agricultural lands in the Madras State, the owner of which died prior to the date of the resolution of the State legislature, that is, on 2-4-1955. 18. Art. 252 of the Constitution is an enabling one; while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue rule, according to the learned counsel, is that the adoption of a Central Act by a State legislature should be held to be declaratory of the law of the State, which would mean that the Central Act would apply to the adopting State as from the date it came into force. 22. The learned counsel contended that that principle was recognised by S. 5(2) of the Act which created a fiction, and emphasising the fact that but for the fiction the Act would operate from 15-10-953. That fiction could have no effect in the operation of the Act from the date of the Resolution which is permissible under the Constitution. He relied in this connection upon a passage in Statute law by Craies, at page 364, namely. 23. Where a statute is passed for the purpose of supplying an obvious omission in a former statute, or, as Parke, J. said in R. v. Dursley, (1832) 3 B Ad. 465 to explain 'a former statute, the subsequent statute has relation back to the time when the prior Act was passed. Thus, in Attorney General v. Pougett, (1816) 2 Price 381, it appeared that by 53 Geo. 3 C. 33, a duty was imposed upon hides of 9 s. 4 d. but the Act omitted to state that it was to be 9 s. 4 d. per cwt. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a subject brought within its provisions as a result of an amendment thereto. The rule of construction in such a case is stated in Crawford's Statutory Construction, 1940, at page 597, Art. 295: As with statutes generally, an amendment will have no retrospective operation, unless its forms clearly indicate a different intention. There is also a presumption that amendments are effective prospectively. Consequently, rights acquired under a statute before its amendment are not affected, unless the amending statute, expressly or by necessary implication so provides. But if the legislative intent requires it, retrospective operation must be given to the amendment. 27. In Article 306, at page 622, it is stated: Amendatory statutes are subject to the general principles discussed elsewhere herein relative to retroactive operation. Like original statutes, they will not be given retroactive construction, unless the language clearly makes such construction necessary. In other words, the amendment will usually take effect only from the date of its enactment and will have no application to prior transactions, in the absence of an expressed intent or an intent clearly implied to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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