AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 1092
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....A. No. 12222/2016 (arising out of SLP(C) No. 8705/2015), C.A. No.12223/2016 (arising out of SLP(C) No. 9004/2015), C.A. No.12224/2016 (arising out of SLP(C) No. 9104/2015), C.A. No.12225/2016 (arising out of SLP(C) No.37142/2016 arising out of SLP.(C)...CC No. 4938/2015), C.A. No.12226/2016 (arising out of SLP(C) No.9233/2015), C.A. No.12227/2016 (arising out of SLP(C) No.8698/2015), C.A. No.12228/2016 (arising out of SLP(C) No.9620/2015), C.A. No. 12229/2016 (arising out of SLP(C) No.10288/2015), C.A. No. 12230/2016 (arising out of SLP(C) No. 9827/2015), C.A. No.12231/2016 (arising out of SLP(C) No. 9994/2015), C.A. No.12232/2016 (arising out of SLP(C) No.11479/2015), C.A. No.12233/2016 (arising out of SLP(C) No. 15175/2015), C.A. No.12234/2016 (arising out of SLP(C) No. 28473/2015), C.A. No.12235/2016 (arising out of SLP(C) No. 1457/2016), C.A. No. 12236/2016 (arising out of SLP(C) No. 12563/2016), C.A. No. 5348/2015, W.P.(C) No.216/2015, W.P.(C) No.611/2015, W.P.(C) No.577/2015, T.C.(C) No.108/2015, T.C.(C) No. 128/2015, T.C.(C) No. 129/2015, T.C.(C) No. 130/2015 and T.C.(C) No. 131/2015 JUDGMENT Ranjan Gogoi, J. Delay condoned. Leave granted in all the special leave petition....
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.... it may be convenient to take up the Gujarat cases in the first instance. The answer to the issues arising therein would, in any way, effectively decide the issues arising in the Bombay cases also as well as in the transferred cases and the writ petitions filed under Article 32 of the Constitution. 6. The relevant provisions of the Gujarat Act defining the expressions "building", "land" and "mobile tower" are as follows: "Section 2(5) "building" includes a house, out-house, stable, shed, hut and other enclosure or structure whether of masonry, bricks, wood, mud, metal or any other material whatever whether used as a human dwelling or otherwise, and also includes verandahs, fixed platforms, plinths, doorsteps, walls including compound walls and fencing and the like. xxx xxx xxx xxx xxx Section 2(30) "land" includes land which is being built upon or is built upon or covered with water, benefits to arise out of land, things attached to the earth or permanently fastened to anything attached to the earth and rights created by legislative enactment over any street. xxx xxx xxx xxx xxx Section 2(34AA) "Mobile tower" means a temporary or permanent structure, equipment or ins....
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....49. Taxes on lands and buildings." 13. The High Court thought it proper to accept the said contention and on that basis to hold that levy of tax on mobile towers under the Gujarat Act is ultra vires the Constitution except insofar as the Cabin that houses the BTS system is concerned. 14. Two significant aspects connected to the issues arising may be taken note of at the outset. The meaning of any Legislative Entry e.g. "Taxes on lands and buildings" (Entry 49 of List II) should not be understood by reference to the definition of the very same expressions appearing in a statute traceable to the particular Legislative Entry. In the present case, though the Gujarat Act defines the expressions "land" and "building", as rightly held by the High Court, it would be self defeating to understand the meaning and scope of Entry 49 of List II by reference to the definition clauses in the Gujarat Act. Definitions contained in the statute may at times be broad and expansive; beyond the natural meaning of the words or may even contain deeming provisions. Though the wide meaning that may be ascribed to a particular expression by the definition in a statute will have to be given effect to, if th....
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.... The spirit of the Constitution, the constitutional goals; and the constitutional philosophy must guide the broad and liberal interpretation of a Legislative Entry. [State of West Bengal vs. Kesoram Industries Ltd. (2004) 10 SCC 201 Para 31] (v) The dictionary meaning and the common parlance test can also be adopted. [Trutuf Safety Glass Industries vs. Commissioner of Sales Tax, U.P. (2007) 7 SCC 242 Para 13] (vi) Words and expressions in a constitutional provision or Legislative Entry should not be given an unnatural meaning. [India Cement vs. State of Tamil Nadu (1990) 1 SCC 12 Para 18] (vii) If a general word is used in a constitutional Entry, it must be construed as to extend all ancillary and subsidiary matters that can be reasonably included. [Jagannath Baksh Singh vs. State of U.P. AIR 1962 SC 1563 Para 10; Elel Hotels & Investments Ltd. & Ors. vs. U.O.I. (1989) 3 SCC 698 Para 14.] The abovesaid principles which are firmly entrenched as principles of Constitutional interpretation must be borne in mind while proceeding further in the case. 17. In re. The Bill to amend Section 20 of the Sea Customs Act, 1878 and Section 3 of the Central Excise and Salt Act, 1944 1964 (....
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....ust be ironed out by the Courts and only on a failure to do so the provisions of Article 246 will apply. Insofar as the common List i.e. List III is concerned, any repugnancy in law making by the Union and State Legislatures is dealt with by Article 254 which gives primacy to the Parliamentary law over the State law subject to the provisions of clause (2) of Article 254 of the Constitution which again is subject to a proviso which may indicate some amount of Parliamentary supremacy. 20. The fields of taxation on which the Union Parliament and State legislatures are competent to enact legislations to meet the constitutional mandate under Article 265 of the Constitution are clearly indicated in the respective Lists. While there can be no encroachment either way, it is possible that in a given situation though there may be some similarity between the taxes levied by a Central and a State enactment, both can co-exist having regard to the subject of the levy. A tax on income derived from land and a tax on the land itself wherein the income or earning therefrom forms the basis of the rates of the levy of tax is one such example. The above has been illustrated only to answer the argument....
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....r set. e. Six poles of 6 to 9 meters length each made of hollow steel galvanized pipes. A mobile tower is constructed either on vacant land or on the terrace of existing buildings on the basis of agreements with the owners of such properties. 23. To answer the question as to whether such mobile towers can come within the fold of 'land and building' appearing in Entry 49 List II of the Seventh Schedule it will be useful to take notice of the meanings of the two expressions as appearing in the leading judicial and English dictionaries. A comprehensive list of the different meanings expressed in different works so far as the two expressions 'land' and 'building' are concerned are set out below. LAND Stroud's Judicial Dictionary (Fifth Edition) defines that 'land', or 'lands', not only means the surface of the ground, but also everything (except gold or silver mines) on or over or under it, for Cujus est solum ejus est usque ad coelum et ad inferos (Co. Litt. 4 a; Touch. 91; 2 Bl. Com. 18; Lord Coke calls the earth "the suburbs of heaven"). Black's Law Dictionary (Seventh Edition) defines that 'land' means an immovable and indestructible three-dimensional area consisting ....
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....nufacture, religion, business, education and the like. A 'building' is also a structure or edifice enclosing a space within its walls and usually, but not necessarily, covered with a roof. P. Ramanatha Aiyar's Law Lexicon (Second Edition) observes that 'building' is a house, out-house, garage or any other structure which cannot be erected without the ground on which it is to stand; the expression 'building' includes, the fabric of which it is composed, the ground upon which its walls stand and the ground within those walls. (per D.G. Gouse & Co. v. State of Kerala, AIR 1980 SC 271 [Kerala Building Tax Act (1975) S. 2(3)]) DICTIONARY MEANING OF LAND AND BUILDING 'Building' is something with a roof and walls, such as a house or factory. (Collins Dictionary of the English Language, First Edition, 1979) 'Land' refers to the solid part of the surface of the earth, as distinct from seas, lakes, etc. (Collins Dictionary of the English Language, First Edition, 1979) All other English dictionaries convey a more or less similar meaning, namely, as understood in common parlance - an enclosed space used for human use and dwelling. 24. A cardinal principle of interpretation....
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....a direct line between the surface and the centre of the earth by the common law belongs to the owner of the surface (not merely the surface, but all the land down to the centre of the earth and up to the heavens) and hence the word "land" which is nomen generalissimum, includes, not only the face of the earth, but everything under it or over it." 26. In Goodricke Group Ltd. and Others vs. State of W.B. and Others (1995) 1 Supp SCC 707 cess imposed on green tea (leaves) by weight was held to be a tax on land and not on the produce. In an earlier decision in Ajoy Kumar Mukherjee vs. Local Board of Barpeta AIR1965 SC 1561 a levy on holding a market was held to be essentially a levy on land and, therefore, authorized by Entry 49 List II though the levy was imposed only on the days when the market was held. This Court, in Ajoy Kumar Mukherjee (supra) had inter alia held that, "It follows therefore, that the use to which the land is put can be taken into account in imposing a tax on it within the meaning of entry 49 of List II, for the annual value of land which can certainly be taken into account in imposing a tax for the purpose of this entry would necessarily depend upon the use t....
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....not an antique to be taken down, dusted, admired and put back on the shelf, but rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between conflicting interests. It is, therefore, intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. It is here that a judge is called upon to perform a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonise the law with the prevailing concepts and values and make it an effective instrument for delivering justice. The discussions that had preceded on the financial relations between the Union and the States would suggest a constitutional scheme wherein the federating States of the Indian Union are not destined to remain financially weak despite a situation where the Union undoubtedly has the upper hand by an allocation of the more lucrative subjects of taxation under the Seventh Schedule. Constitutionality of the Guj....