Full Judgment Text
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PETITIONER:
PANDURONGA TIMBLO INDUSTRIES ETC. ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT13/03/1992
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
RAMASWAMY, K.
CITATION:
1992 AIR 1194 1992 SCR (2) 210
1992 SCC (2) 635 JT 1992 (2) 277
1992 SCALE (1)674
ACT:
Constitution of India, 1950:
Schedule VII, List II, Entry 58-Tax on ’Barge’-
Competency of State Legislature to enact Goa, Daman and Diu
Barge Tax Act, 1973.
Goa Daman and Diu Barge Tax Act, 1973/Goa, Daman and
Diu Barge Tax Rules, 1975:
Sections 2(1) and 3/Rules 6 and 7-Levy of tax on
’Barge’-Constitutional validity of-Barge-Meaning of-
Constitution of India, 1950: Schedule VII, List II, Entry
58-General Clauses Act, 1897 : Section 3(55) and 3(63).
Words and Phrases-Word ’Barge’-Meaning of.
HEADNOTE:
The constitutional validity of the tax levied on
barges, used or kept for use in the Union Territory of Goa,
Daman and Diu, under Section 3 of the Goa, Daman and Diu
Barges Tax Act, 1973 was challenged by the appellants,
contending that the word ’boat’ could not include a
mechanically propelled vessel, and since the definition of a
’barge’ in section 2(1) of the Act meant a mechanically
propelled water craft used or capable of being used as a
means of transport of minerals, it could not be termed as a
boat to attract the legislative power conferred by Entry 58
in List II of the VIIth Schedule and the legislation was
clearly incompetent; that from the definitions of ’ship’ and
’vessel’ in Section 3(55) and 3 (63) respectively of the
General Clauses Act, 1897, it was clear that a ’boat’ was
not a ’ship’ but a vessel exclusively propelled by oars,
and thus a boat was a small vessel not mechanically
propelled, but propelled exclusively by oars and Entry 58 in
List II of the VII Schedule could be invoked for levying a
tax on such a vessel, and not a ’barge’ which was a
mechanically propelled water craft; that the entire field in
regard to mechanically propelled vessels was covered by
Entries 24,25 and 27 of List I and Entries 31 and 32 of List
III of the VIIthe Schedule and, therefore, the scope of
Entry 58 in List
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II of the VIIthe Schedule was clearly confined to vessels
other than mechanically propelled vessels, like small boats,
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and, therefore, the word ’boat’ in Entry 58 in List II must
receive a narrow meaning and must be limited to a vessel
exclusively propelled by oars.
On behalf of the State, it was contended that the
Legislature was competent to enact the Act by virtue of the
power conferred by Entry 58 in List II of the VIIth Schedule
to the Constitution of India, which permitted levy of ’taxes
on animals and boats’, and since barges were boats, the
Legislature was competent to levy and collect the tax on
barges.
Dismissing the appeals this Court,
HELD 1.1 Boats of all descriptions can be taxed by the
State Legislature by reason of the power conferred by Entry
58 in List II of the VIIth Schedule to the Constitution of
India, 1950. [219H]
1.2 A ’barge’ is a large flat-bottomed boat used for
transporting heavy burdens on canals and rivers, but is not
generally an ocean-going vessel. It may or may not be fitted
with an engine depending on its calibration. It is
essentially a freight-boat chiefly meant for canal and
river-navigation. Barges can be of different siz and may
be propelled by oars, sails or engines. They, however,
belong to the family of boats and not ships. Section 2(1)
of the Act also defines it as a water craft mechanically
propelled and used or capable of being used as a means of
transport of minerals. Thus, the legislature has carved out
only mechanically propelled barges for tax purposes.
Therefore, the State Legislature was competent to tax it
under Entry 58 of List II. [217 G-H, 218A-C]
1.3 According to the General Clauses Act a ’ship’
includes a vessel of every description used in navigation
and not exclusively propelled by oars. A ’vessel’, on the
other hand, is a ship or a boat or any other description of
vessel used for navigation. Therefore, a vessel which is
exclusively propelled by oars would not fall within the
definition of a ship but would be covered by th wider
definition of a vessel. From these two definitions it
cannot be inferred that a mechanically propelled vessel is
not a boat for the simple reason that the definition of
vessel is wide enough to include a ship which is
mechanically propelled. Both the definitions are inclusive
definitions and the definition of vessel is wide enough to
include boats of every description, both mechanically
propelled and those
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propelled exclusively by oars. Further no distinction can
be drawn on the basis of the size of the vessel. Merely
because the Act and the Rules cover barges ranging from less
than 100 tonnes to 350 tonnes and above, it cannot be said
that such large size vessels which are mechanically
propelled cannot be called boats. Since barges are used for
transporting heavy burdens on canals and rivers - inland
waters - and for loading and unloading ships which are
anchored away as they can not enter shallow waters, they are
bound to be heavy vessels which can take the load. For that
reason they do not cease to be flat-bottomed boats and in
ordinary parlance they cannot be described as ships. [218D-
E, G-H, 219A]
1.4 It is well-settled that the legislative entries
must be interpreted widely unless the language of the entry
or the context requires that it be given a narrow meaning.
Neither the language of Entry 58 in List II nor the context
in which the word ’boats’ is used therein calls for
confining its scope to boats exclusively propelled by oars.
The language of Entries 24,25 and 27 in List I and Entries
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31 and 32 in List III do not justify a narrow meaning to be
given to the word ’boats’ in Entry 58 of List ii. These
entries have nothing to do with the subject of levy of tax
on boats. [219D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No 1511 of
1980.
On appeal by Certificate from the Judgment and Order
dated 29.4.1980 of Judicial Commissioner, Goa, Daman and Diu
in Special Civil Application No.26 of 1976.
WITH
Civil Appeal No. 1973 & 2851 of 1980.
S.K. Mehta, Aman Vachher, Dhruv Mehta (NP),
R.F. Nariman and Mrs. A. Verma for the Appellants.
Bed Brat Barua, Ms A. Subhashini (NP) and
Ashok Bhan for the Respondents.
The Judgment of the Court was delivered by
AHMAD, J. Is a barge a boat? The answer to this
question will determine the challenge to the constitutional
validity of the tax levied.
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on a barge under the Goa, Daman and Diu Barge Tax Act, 1973
(hereinafter called ’the Act’). It is contended that the
State Legislature was competent to enact the Act by virtue
of the power conferred by Entry 58 in List II of the VIIth
Schedule to the Constitution of India which permits levy of
’taxes on animals and boats’. If barges are not boats, the
Act will lose the cover provided by the said entry and will
be rendered unconstitutional.
The Act, as the Preamble shows, wa enacted to impose a
tax on barges in the Union Territory of Goa, Daman and Diu
and for matters connected therewith and was brought into
force with effect from 1st March, 1971. ’Barge’ according
to section 2(1) means every description of water craft
mechanically propelled and which is used or is capable of
being used as means of transport of minerals. Section 3
which is the charging section provides that there shall be
levied and collected on all barges use or kept for use in
the Union Territory, a tax at the rates fixed by the
Government, by notification in the Official Gazette, but not
exceeding the maximum rates specified in the Schedule to the
Act reads as under:
SCHEDULE
(Section 3)
------------------------------------------------------------
Capacity of Barge Maximum annual
rate per tonne
------------------------------------------------------------
Less than 100 tonnes Rs. 3.50
100 tones and less than 200 tonnes Rs. 5.00
200 tonnes and less than 350 tones Rs. 6.00
350 tonnes and above Rs. 7.50
------------------------------------------------------------
Note: When tax is not paid for the whole year at a time, but
is paid for one or more quarters at a time, the tax so
payable for each quarter shall be an amount equal to one-
fourth of the annual tax plus ten per cent of that
amount."
Section 19 empowers the Government to make rules to
carry out the purpose of the Act, In exercise of the said
power the Government by a notification framed rules called
the Goa, Daman and Diu Barge Tax Rules,
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1975. Rule 6 lays down that every owner or the person
having possession or control of a barge in the Union
Territory shall pay to the Government a tax at the rates
specified in the table below :
TABLE
------------------------------------------------------------
Capacity of Bar Rate of tax payable per
annum per tonne
------------------------------------------------------------
Less than 100 tonnes Rs. 3.50 p.
100 tonnes and less than 200 tonnes Rs. 5.00 p.
200 tonnes and less than 350 tonnes Rs. 6.00 p.
350 tonnes and above Rs. 7.50 p.
------------------------------------------------------------
The rates which have been specified are the same
specified in the Schedule to the Act. For the purpose of
levy of tax under rule 7, the Taxation Authority may require
the barge to be calibrated i.e. identify the carrying
capacity with reference to its structural strength, reserve
buoyancy and safe working height above water level. Rule 8
lays down the mode of payment. Rule 9 provides for the issue
of tax licence and Tax Token and rule 10 provides for levy
of penalty for failure to pay the tax. Rule 11 empowers the
seizure and detention of any barge with respect to which the
tax is due under the Act, until the tax due in respect of
the barge is paid. Provision is also made for refund of tax
in certain circumstances. It will thus be seen from the
relevant provisions of the Act and the Rules that the State
Government has levied a tax on all barges used or kept for
use in the Union Territory of Goa, Daman and Diu. The
Government contends that since barges are boats, the State
Legislature was competent to levy and collect a tax on
barges under entry 58 in List II of the VIIth Schedule to
the Constitution.
Counsel for the appellants contended that the word
’boat’ cannot include a mechanically propelled vessel and
since the definition of a ’barge’ in section 2(1) of the Act
means a mechanically propelled water craft used or capable
of being used as a means of transport of minerals, it cannot
be termed as a boat to attract the legislative power
conferred by Entry 58 in List II of the VIIth Schedule and
hence the impugned legislation is clearly incompetent.
Reference was also made to the definition of ’ship’ and
’vessel’ in sections 3(55) and 3(63) of the General Clauses
Act to butteress the submission that a boat cannot include a
mechanically propelled vessel.
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We may reproduce the said two definitions at this state:
"3(55) - ’Ship’ shall include every description of
vessel used in navigation not exclusively propelled
by oars".
"3(63) - "Vessel" shall include any ship or any
other description of vessel used in navigation."
It was submitted that the position of the word ’boat’
immediately next to the word ’vessel’ in the definition in
section 3(63) is clearly indicative of the fact that ’ship’
and ’boat’ convey two different meanings since the
definition of ’ship’ does not include vessel exclusively
propelled by oars. from these two definition it was
contended that a ’boat’ is not a ’ship’ but is a vessel
exclusively propelled by oars. Thus according to the
learned counsel for the appellants a boat is a small vessel
not mechanically propelled but propelled exclusively by oars
and Entry 58 in List II of the VIIth Schedule can be invoked
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for levying a tax on such a vessel and not on a ’barge’
which, as the definition in section 2(1) of the Act conveys,
is a mechanically propelled water craft. This was the first
limb of counsel’s submission. The second limb of his
submission was based on the scope and ambit of Entries
24,25, and 27 of List I and Entries 31 and 32 of List III
of the VIIth Schedule. Counsel submitted that the entire
field in regard to mechanically propelled vessels was
covered by these entries and, therefore, the scope of Entry
58 in List II of the VIIth Schedule was clearly confined to
vessels other than mechanically propelled vessels like small
boats. Therefore, counsel submitted that the word ’boat’ in
Entry 58 in List II must receive a narrow meaning and must
be limited to a vessel exclusively propelled by oars. In
order to appreciate this contention based on the various
entries in List I and List III above, it may be appropriate
to read those entries at this stage:
"List I
Entry 24 - Shipping and navigation on inland
waterways, declared by Parliament by law to be
national waterways, as regards mechanically
propelled vessels; the rule of the road on such
waterways.
Entry 25- Maritime, shipping and navigation,
including shipping and navigation on tidal waters;
provision of education and
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training for the mercantile marine and regulation
of such education and training provided by State
and other agencies.
Entry 27 - Ports declared by or under law made by
Parliament or existing law to be major ports,
including their delimitation, and the constitution
and powers of port authorities therein.
List III
Entry 31 - Ports other than those declared by or
under law made by Parliament or existing law to be
major ports.
Entry 32 - Shipping and navigation on inland
waterways as regards mechanically propelled
vessels, and the rule of the road on such
waterways, and the carriage of passengers and goods
on inland waterways subject to the provisions of
List I with respect to national waterways."
Now before we proceed to answer the contentions urged
by the learned counsel for the appellants. It may be
advantag to notice the dictionary meanings of the words
’barge’, ’boat’, ’ship’ and ’vessel’ used in the
aforementioned legal provisions.
"ODHAM’S ENGLISH DICTIONARY
Barge : a large flat-bottomed boat for
transporting heavy burdens on canals or rivers; a
large flat-bottomed boat used in loading and
unloading ships; a boat for the use of the chief
officers of a man-of-war; a large richly decorated
boat of state propelled by oars and used on
ceremonial occasions:
a college house-boat.
Boat : a long symmetrically shaped hollow vessel or
receptacle that floats upon water, is propelled
either by oars, the action of wind on sails, or by
mechanical means, and which is used as a means of
transport.
Ship : a large ocean-going vessel.
Vessel : a ship
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217
OXFORD ENGLISH DICTIONARY
Barge : a flat-bottomed freight-boat chiefly for
canal and river navigation, either with or without
sails; a rowing boat; esp. a ferry-boat.
Boat : a small open vessel in which to traverse the
surface of water, usually propelled by oars, though
sometimes by a sail.
Ship : a large sea-going vessel (opposed to a
boat);
Vessel : any structure designed to float upon and
traverse the water for the carriage of persons or
goods; a craft or ship or any kind, now usually one
larger than a rowing-boat and often restricted to
sea-going craft or those plying upon the larger
rivers or lakes.
BLACK’S LAW DICTIONARY
Barge : name originally applied to a small sailing
vessel but after wards came into general use for a
flat-bottomed boat used for carrying goods on
inland waterways. Barges are usually towed or
fitted with some kind of engine.
Boat : a small open vessel, or water craft, usually
moved by oars or rowing.
Ship : a vessel of any kind employed in navigation.
In a more restricted and more technical sense, a
three-masted vessel navigated with sails.
Vessel : a ship, brig, sloop or other craft used in
navigation. The word in its broadest sense is more
comprehensive than ’ship’. Any structure which is
made to float upon the water, for purposes of
commerce or war, whether impelled by wind, steam,
or oars."
It is clear from aforementioned meanings that a ’barge’
is a large flat-bottomed boat used for transporting heavy
burdens on canals and rivers but is not generally a ocean-
going vessel. It may or may not be fitted with an engine
depending on its calibration. All the three aforequoted
dictionaries have described it as a flat-bottomed boat used
for carrying goods or minerals on inland waterways. It is
essentially a freight-boat chiefly meant for canal and
river-navigation. Barges can be of different
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sizes and may be propelled by oars, sails or engines. They,
however, belong to the family of boats and not ships. The
learned Judicial Commissioner has rightly concluded that a
’barger’ is a flat-bottomed freight boat used on rivers and
canals and propelled by oars, sails or engines. Section
2(1) of the Act also defines it as a water craft
mechanically propelled and used or capable of being used as
a means of transport of minerals. Thus the legislature has
carved out only mechanically propelled barges for tax
purposes. It would, therefore, seem that the State
Legislature was competent to tax it under entry 58 of List
II.
True it is that the dictionaries have described a
’boat’ as a small open vessel usually propelled by oars,
though sometimes by sail also. According to the General
Clauses Act a ’ship’ shall include a vessel of every
description used in navigation and not exclusively propelled
by oars. A vessel on the other hand is a ship or a boat or
any other description of vessel used for navigation.
Therefore, a vessel which is exclusively propelled by oars
would not fall within the definition of a ship but would be
covered by the wider definition of a vessel. From these two
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definitions it cannot be inferred that a mechanically
propelled vessel is not a boat for the simple reason that
the definition of vessel is wide enough to include a ship
which is mechanically propelled. Both the definitions are
inclusive definitions and the definition of vessels is wide
enough to include boats of every description, both
mechanically propelled and those propelled exclusively by
oars. There is no warrant for the argument that because the
word ’ship’ and the word ’boat’ are placed side by side, the
latter refers to only boats exclusively propelled by oars
and not boats fitted with engines. To place such an
interpretation would lead to the absurd situation of a small
boat propelled by said being called a ship. It would mean
that a boat exclusively propelled by oars would cease to be
a boat the moment it is fitted with a sail. The definition
of vessel, in our view, is wide enough to cover both boats
propelled exclusively by oars as well as boats fitted with
engines. Nor can any distinction be drawn on the basis of
the size of the vessel. Merely because the Act and the
Rules cover barges ranging from less than 100 tonnes to 350
tonnes and above, it cannot be said that such large sized
vessels which are mechanically propelled cannot be calld
boats. The definition of a ’barge’ in the dictionaries
aforementioned clearly show that barges are flat-bottomed
boats meant for carrying goods on inland waters and are
usually fitted with engines. Since hey are used for
transporting heavy burdens on canals and rivers - inland
waters - and loading and unloading ships which are anchored
away as they cannot enter shallow
219
waters, they (barges) are bound to be heavy vessels which
can take the load. For that reason they do not cease to be
flat- bottomed boats and in ordinary parlance they cannot be
described as ships. We are, therefore not impressed by the
submission that Entry 58 in List II must be confined to
boats which are exclusively propelled by oars. We think the
learned Judicial Commissioner was perfectly justified in
rejecting the submission and we respectfully agree with his
of reasoning.
This very submission was sought to be supported with
reference to the entries in List I and List III set out
hereinabove. Now it must be remembered at the out set that
Entry 58 in List II deals with taxes on boats and we see no
warrant to limit the same to boats propelled exclusively be
oars. It is settled law that legislative entries must be
interpreted widely unless the language of the entry or the
context requires that it be given a narrow meaning. Neither
the language of Entry 58 in List II nor the context in which
the word ’boats’ is used therein calls for confining its
scope to boats exclusively propelled by oars. We also do
not think that the language of Entries 24, 25 and 27 in
List I and Entries 31 and 32 in List III would justify a
narrow meaning to be given to the word ’boats’ in the Entry
58 of List II. The entries relied upon have nothing to do
with the subject of levy of tax on boats. Entry 24 in List
I deals with the subject of shipping and navigation on
inland waterways declared to be national waterways, the rule
of the road as such waterways and Entry 25 in List I deals
with maritime shipping and navigation. The use of the
expression ’mechanically propelled vessels’ in Entry 24
cannot restrict the ambit of Entry 58 in List II to vessels
exclusively propelled by oars. On the contrary it restricts
the scope of Entry 24 itself and confines its application to
mechanically propelled vessels. Both the Entries 24 and 25
of List I and Entry 32 in List III concern shipping and
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navigation and have nothing to do with the question of levy
of tax on boats. Entry 27 in List I deals with Ports and so
does Entry 31 In List III and it is difficult to appreciate
how it can legitimately be contended that these entries cut
down the scope of Entry 58 in List II. The entries from
List I and III relied upon operate in their own fields and
do not entrench upon the subject covered by Entry 58 in List
II. The learned Judicial Commissioner was, therefore, right
in concluding that boats of all description can be taxed by
the State Legislature by reason of the power conferred by
Entry 58 in List II of the VIIthe Schedule.
For the above reasons we are satisfied that the view
taken by the
220
learned Judicial Commissioner is correct and does not call
for interference. Therefore, these appeals on certificate
issued under Article 133(1) of the Constitution must fail.
We, therefore, dismiss them but having regard to the facts
and circumstances of the case of each matter we think it
would be advisable to direct each party to bear its own
costs.
N.P.V. Appeals dismissed.
221