S MUBARIK SHAH NAQASHBANDI Vs. INCOME TAX OFFICER, SALARY CIRCLE

JUDGEMENT

(1.) THIS is a petition for a writ of Mandamus or prohibition restraining the respondent from realizing income -tax dues from the petitioner. The petitioner seeks to challenge the constitutionality and applicability of the Indian Income -tax Act as applied to Jammu and Kashmir on various grounds. The petitioner has also challenged the validity and the enforceability of Art. 370 of the Constitution of India because it was under this Article that the Union List was applied and ultimately the Income -tax Act of 1922 was applied by Parliament to the State by the Taxation Laws (Extension to Jammu and Kashmir) Act, 1954. The petition appears to be crowded with extracts from the speeches of various political leaders from time to time and contains some political aspects of the matter. The case was argued by the petitioner in person but at our suggestion he was good enough to confine his argument to the legal aspects of the questions involved in this case and he argued the case with great industry and ingenuity.

(2.) BEFORE enumerating the submissions made by the petitioner, it will be necessary to give a short historical background of the development of the constitutional laws in the State. Like other independent States, Jammu and Kashmir was also an independent State under its Ruler, Maharaja Hari Singh at the time the Indian Independence Act was passed creating the dominions of India and Pakistan. This Act was passed on 18 -7 -1947 and cls. (b) and (c) of S. 7 of the Act are the specific provisions regarding the Indian States. These two provisions provide that the suzerainty of His Majesty over the States had lapsed and with it all the treaties and agreements in force at the date of the passing of the Act. The relevant portion of this provision may be quoted thus: - "The suzerainty of His Majesty over the Indian States Lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all functions exercisable by His Majesty existing at the date towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise; (c) there lapse also any treaties or agreements in force at the date of the passing of this Act between His Majesty and persons having authority in the tribal areas, any obligations of His Majesty existing at that date to any such persons or with respect to the tribal areas, and all powers, rights, authority or jurisdiction exercisable at that date by His Majesty in or relation to the tribal areas by treaty, grant, usage, sufferance or otherwise." With the creation of the dominion of India the Law which was to be the constitution for the time being in force was the Government of India Act, 1935, as amended by the India (Provisional Constitution) Order, 1947, which amended certain provisions of the Government of India Act, 1935. In the present case we are concerned with S. 6 of the order which substituted the original S. 6 of the Government of India Act. S. 6 of the Act provided for an Indian State to accede to one of the two dominions after executing an Instrument of Accession which would contain the terms and conditions of accession and the matters over which the dominion would have jurisdiction. S. 6 also provided for the acceptance of the Instrument of Accession by the Governor General. This Order was passed on 14 -8 -1947. A few months after the passing of this Order tribal raiders sponsored by Pakistan attacked the State resulting in serious chaos and confusion as a result of which the Maharaja was compelled to make an offer of accession to the Governor General of India. The offer of accession was made on 26 -10 -1947 along with an Instrument of Accession which was accepted by the Governor General of India on 27 -10 -1947. Under the Instrument of Accession the Ruler had surrendered control of only three subjects to the Dominion of India, namely, external affairs, communications and defence. It will be necessary, in order to understand the argument of the petitioner, to quote the Instrument of Accession signed by the Maharaja in extenso: - "Whereas the Indian Independence Act 1947 provides that as from the fifteenth day of August 1947 there shall be set up an independent Dominion known as India, and that the Government of India Act, 1935 shall, with such omissions, additions, adaptations and modifications as the Governor General may by order specify, be applicable to the Dominion of India: And whereas the Government of India Act, 1935 as so adapted by the Governor General provides that as Indian State may accede to the Dominion of India by an Instrument of accession executed by the Ruler thereof; Now, therefore, I Shriman...............Shri Hari Singh Ji.......Ruler of Jammu and Kashmir State in the exercise of my sovereignty in and over my said State do hereby execute this my Instrument of Accession and 1. I hereby declare that I accede to the Dominion of India with the intent that the Governor General of India, the Dominion legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of this my Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State of Jammu and Kashmir (hereinafter referred to as the State) such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India, on the 15th day of August 1947, (which Act as so in force in hereinafter referred to as the Act). 2. I hereby assume the obligation of ensuring that due effect is given to the provisions of the Act within this State so far as they are applicable therein by virtue of this my Instrument of Accession.

(3.) I accept the matters specified in the Schedule hereto as the matters with respect to which the Dominion Legislature may make laws for this State.