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Lakshmi Kant Jhunjhunwala, Partner in Firm Kamlapat Moti Lal Vs. State of Uttar Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Other Taxes
CourtAllahabad High Court
Decided On
Case NumberWrit No. 234 of 1962 connected with Writ Petn. No. 235 of 1962
Judge
Reported inAIR1965All420
ActsUttar Pradesh Sugarcane Cess (Validation) Act, 1961 - Sections 3; Uttar Pradesh Sugarcane Cess Act, 1956 - Sections 3; Constitution of India - Articles 245, 246, 248, 265, 269, 270 and 272; Central Act - Sections 3(1)
AppellantLakshmi Kant Jhunjhunwala, Partner in Firm Kamlapat Moti Lal
RespondentState of Uttar Pradesh and anr.
Appellant AdvocateB.K. Dhaon, Adv. (absent)
Respondent AdvocateStanding Counsel
DispositionPetitions allowed
Excerpt:
(i) civil - penalty - section 3 of u.p. sugarcane cess(validation) act, 1961 - order passed by cane commissioner for penalty for non payment of cess due - after the amendment of act in 1961 is not sustainable. (ii) limitation - article 245, 246, 265 and schedule 7 list 1 item 97 of constitution of india - parliament making a law that all cesses realized by state should be validly accomplished - law declared void by supreme court on the ground of incompetency of legislature. - - 4. the effect of the decision of the supreme court declaring the sugarcane cess act as ultra vires was that the state government stood to lose crores of rupees which it bad realised as cess under the act. the attack on the deprivation on this ground failed because of the declaration contained in the 1954 act.....desai, c.j.1. this and the connected petition have been laid before a full bench because the questions that are raised in them are of far-reaching consequences and a division bench decision of this court in fakirey lal ram bharosey lal v. state, writ petn. no. 2311 of 1981, d/- 2-11-1962 (all) may have to be reconsidered.2. in 1956 the legislature of uttar pradesh enacted the u. p. sugarcane cess act no. xxii of 1956. section 3 of it provided that the state government could impose a cess not exceeding a certain rate on she entry of sugarcane into the premises of a factory for use, consumption or sale therein. it was payable by the owner of the factory on prescribed dates. if an arrest of cess was not paid on the prescribed date it was to carry interest at 6% per annum from that date to.....
Judgment:

Desai, C.J.

1. This and the connected petition have been laid before a Full Bench because the questions that are raised in them are of far-reaching consequences and a Division Bench decision of this Court in Fakirey Lal Ram Bharosey Lal v. State, Writ Petn. No. 2311 of 1981, D/- 2-11-1962 (All) may have to be reconsidered.

2. In 1956 the legislature of Uttar Pradesh enacted the U. P. Sugarcane Cess Act No. XXII of 1956. Section 3 of it provided that the State Government could impose a cess not exceeding a certain rate on She entry of sugarcane into the premises of a factory for use, consumption or sale therein. It was payable by the owner of the factory on prescribed dates. If an arrest of cess was not paid on the prescribed date it was to carry interest at 6% per annum from that date to the date of payment When a person was in default in making payment of the cess the authority empowered to collect the cess could direct that in addition to the amount of the arrear and interest a sum not exceeding 10% thereon was recoverable from himby way of penalty. Any sum imposed as a penalty was to be recovered in the manner prescribed for the recovery of the arrear of cess. Section 3 came into force with retrospective effect on 26-1-1950.

In exercise of the powers conferred by Section 10 of the Act the State Government made rules known as the Sugarcane Cess Rules 1956. The Rules provided for appointment of assessing officers for assessing the cess, submission of returns showing the quantity of sugarcane entering the premises of the factory and the amount of cess due thereon to the assessing officer and for payment of the cess in the Government Treasury by a certain date every month. If the cess had not been correctly stated in the return the assessing officer was empowered to ascertain the correct amount and to require the owner to pay the balance. The Rules provided for collecting officers in addition to assessing officers, their duty was to impose a penalty for nonpayment of the cess and to give notice to the owner of a factory to deposit the arrears of cess with interest within a specified period.

3. Section 3 of the Sugarcane Cess Act was held by the Supreme Court on 13-12-1960 to be ultra vires the State Legislature on account of this kind of cess being beyond its legislative competence. It could not nave been enacted by the State Legislature under any entry of List II or List III of the Constitution of India.

4. The effect of the decision of the Supreme Court declaring the Sugarcane Cess Act as ultra vires was that the State Government stood to lose crores of rupees which it bad realised as cess under the Act. It seems that at its persuasion Parliament passed the U. P. Sugarcane Cess (Validation) Act, No. IV of 1961. It came into force on 3-2-61. Section 2 of it defined 'cess' to mean the cess payable under the U. P. Sugarcane Cess Act and to include any sum recoverable by way of interest or penalty. Section 3 is as follows :

'(1) Notwithstanding any judgment, decree or order of any court, all cesses imposed, assessed or collected or purporting to have been imposed, assessed or collected under any State Act during the period beginning with the 28th day of January 1950, and ending on 3rd day of February, 1961, shall be deemed to have been validly imposed, assessed or collected in accordance with law, as if the provisions of the State Acts and all notifications, orders and rules issued or made thereunder, in so far as such provisions relate to the imposition, assessment and collection of such cess had been included in and formed part of this section and this section had been in force at all material times when such cess was imposed, assessed or collected;'

This was the main provision.

5. The petitioner is a partner in the firm Messrs. Kamlapat Moti Lal, which owns two sugar mills, one at Bhatni and the other at Masodha. He had not deposited the cess due under the U. P. Sugarcane Cess Act (hereinafter referred to as ''the State Act') for the season 1960-61 in respect of either of the mills. On 14-2-62 the Cane Commissioner served upon him two notices one in respect of each mill, calling upon him to show cause why a penalty on the arrear of the cess and interest be not imposed upon him. The petitioner in his reply dated 14-2-1962 mentioned the difficulties on account of which he could not pay the arrear of cess and contended that no penalty could be imposed upon him under the State Act. On 21-4-1962 the Cane Commissioner passed two orders, one imposing a penalty of Rs. 53,401.90 nP. and charging interest of Rs. 15,792.20 nP. for the period 2-2-1961 to 15-7-1962 on the arrear of cess for the Masodha Mills and the other imposing a penalty of Rs. 68,068.08 N. p. and charging interest of Rs. 25,890.87 N. p. for the period 2-2-1961 to 15-7-1962 on the arrear of cess for the Bhatni Mills. Thereupon the petitioner filed these petitions challenging the Cane Commissioner's orders dated 21-4-1962. The main grounds advanced in support of the petitions are mat Parliament has not enacted any Act to recover the cess, that it could not validate the State Act which was null and void from the very beginning, that Section 3 of the State Act infringed the freedom guaranteed under Article 19(1)(f) and (g) of the Constitution and that no order imposing penalty or charging interest could be made even under Section 3 ofthe U. P. Sugarcane Cess (Validation) Act to be hereinafter referred to as 'the Central Act'.

6. The petitions are opposed on behalf of the State of Uttar Pradesh and the Cane Commissioner. Since, the petitioner attacked the validity of the Central Act notices of the petitions were served upon the Attorney General of India but he has not put in appearance.

7. Every arrear of cess not paid on the prescribed date was to carry interest at 6% per annum from that date to the date of payment. Under Section 3 of the State Act, the interest started running automatically and no order charging interest by an assessing authority or collecting authority was required at all. Therefore, it cannot be said that the Cane Commissioner passed an order on 21-4-1962 charging interest; he only stated the fact that the interest had accrued on the arrears of the cess and was to be paid. Sri B. K. Dhabn did not press his case as regards interest.

8. The Cane Commissioner acting as the collecting officer certainly passed orders on 21-4-1962 imposing penalties upon the petitioner for non-payment of the cesses due in respect of the two mills. He could not do so under the State Act for the simple reason that it was ultra vires as held by the Supreme Court. They could not be imposed under the Central Act also, which simply validated all cesses imposed, assessed or collected under the State Act. It validated past acts and did not authorise any future act or order. If the penalties had been imposed before 3-2-1961, by virtue of S, 3 of the Central Act they would have been deemed to have been validly imposed. Cess certainly means any sum recoverable as penalty, but for the penalties to be valid they must have been imposed before 3-2-1961. Section 3 deals with the past and not at all with the future and, therefore, no order imposing the penalties could have been passed after 3-2-1961. The orders of the Cane Commissioner imposing the penalties are, therefore, void and must be quashed.

9. The Central Act simply validates the imposition, assessment and collection of cesses under theState Acts during period 26-1-1950 to 3-2-1991. It does not achieve anything more. It is styled as 'CessValidation Act' and its object as given in the preamble is 'to validate the imposition and collectionof cesses on sugarcane under certain Acts of UttarPradesh'. It is entirely declaratory and in no sense executory. There is just one operative provision andit is that cesses imposed, etc., under the State Actsshall be deemed to have been validly imposed etc.This is nothing but a declaration. The imposition, etc., of the cesses under the State Acts was invalid and is now declared to be valid.

10. When it is intended to render an act done under the authority of an invalid statute immune from attack on the ground of the invalidity there aretwo courses open; one is to remove the cause of the invalidity with retrospective effect so that the statute becomes valid with retrospective effect and the otheris to enact or re-enact the statute free from the cause of the invalidity and with retrospective effect. Thefirst course is evidently possible only when the cause of the invalidity is removable, that is, it is within the power of the legislature, which intends to render the act immune from attack, to remove it. Now it is not within the power of a legislature to remove a cause of invalidity arising out of a constitutional provision; even Parliament is incompetent to remove the cause of invalidity. One such cause is the inherent or constitutional incompetence of the legislature to pass the statute.

The Constitution has limited the powers of Parliament and State Legislatures through a number of provisions such as those contained in Articles 13, 22(2), 246, 286, etc. Article 246 lays down in respect of what matters laws can be made by Parliament or by a State Legislature; a State Legislature has no power whatsoever to make laws with respect to matters enumerated in the Union List. !t has exclusive power to make laws with respect to matters enumerated in the State List and it and Parliament have concurrent powers to make laws with respect to matters enumerated in the concurrent List. Other provisions in the Constitution imposing limitations upon a State Legislature's powers are on its powers with respect to the matters enumerated in the State List and the Concurrent list. It has powers to make laws with respect to these matters but the power is not absolute it is subject to these provisions, if a State Legislature enacts a law with respect to a matter not enumerated in the State List or the concurrent list or to a matter enumarated in the Union List it is invalid ab initio. The invalidity arises out of its incompetence and this cause of the invalidity is not removable unless the Constitution itself is amended. Not only can it not be removed by itself but also it cannot be removed by Parliament. The cause in its very nature is irremovable. Parliament is as much bound by the provisions of Article 246 (and other provisions of the Constitution) as the State Legislature and cannot authorise or permit it to infringe them. It cannot permit or authorise it to make a Taw with respect to a mutter enumerated in the Union List or not enumerated in the Stale or concurrent List.

11. This distinction between invalidity of a statute arising out of the incompetence of the Legislature and invalidity arising out of its offending against other constitutional restriction was emphasised by Venkatarama Aiyar, J. speaking for the Court in Sundararamier & Co. M. P. v. State of Andhra Pradesh, : [1958]1SCR1422 etc. He laid down at p. 1469 (of SCR) (at p. 489 of AIR).

'......... the preponderance of authority is infavour of the view that while a law on a matter not within the competence of the Legislature is a nullity, a law on a topic within its competence but repugnant to the constitutional prohibitions is only unenforceable ...... If a law is on a field not, within thedomain of the Legislature, it is absolutely null and void, and a subsequent cession of that held to the Legislature will not have the effect of breathing life into what was a stillborn piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the Legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment.'

He referred to Willoughby on the Constitution of United States, Vol. J, at p. 11. This decision is a clear authority that invalidity arising out of the matter not being within the competence of the Legislature cannot be removed at all and if something done under it has to be made effective it can be made effective only by re-enactment with retrospective effect.

12. Section 3 of the Central Act does not reenact the provisions contained in the State Act. It simply lays down a legal fiction without authorising the imposition etc. of the cesses. A bare legal fictionwithout enactment or re-enactment of the provisionsis ineffective to remove the cause of the invalidity of the State Act.

13. I find it impossible to read Section 3 as reproducing or incorporating the provisions of the State Act in respect of imposition, etc of cesses. It does not at all purport to provide for the imposition, etc. of cesses. A vaid taxing Act confers authority upon certain persons to impose, assess or collect the tax and they by virtue of this authority proceed to impose, assess or collect the tax. Section 3 (1) contains not a word about authorising any person to impose, assess or collect cesses and deals only with the cesses already imposed, assessed or collected. Without conferring authority upon any person to impose, assess or collect them it lays down that they shall be deemed to have been validly imposed, etc. Cesses imposed, assessed or collected by persons not authorised by a statute are invalidly imposed, assessed or collected and Section 3 (1) still purports to make them valid.

Article 285 'of the Constitution forbids the levy or collection of tax except by authority of law. Even if authority of law need not exist before a tax is levied or collected and may be supplied after the levy or collection it must evidently exist before the levy or collection is impugned. The provision of Article 265 cannot be circumvented simply by declaring the unauthorised levy or collection as valid; the only way of removing the cause of invalidity of an act of taxing is by supplying the authority of law. Declaring an invalid taxing act as valid cannot amount to supplying the authority for taxing. The purpose of supplying authority with retrospective effect cannot be served simply by creating a legal fiction. Even a legal fiction is not supplied here. The words 'as if the provisions of the State Acts .... hadbeen included in and formed part of this section' used in Section 3 of the Central Act do not amount to incorporation therein of the provisions of the State Acts. On the contrary they emphasise that the provisions of the State Act have not been incorporated in Section 3. What they mean is that though they have not been incorporated in Section 3 the effect would be what it would have been if they had been incorporated. They simply describe or explain the words 'validly imposed etc.' Whatever legal fiction is resorted to by Parliament it is in laying down that all cesses imposed, etc. under the State Acts shall be deemed to have been validly imposed, etc. They were not validly imposed, etc, but by legal fiction they are to be treated as validly imposed etc. No legal fiction is involved in the words 'as if the provisions of the State Acts ...... had been included in and formed part of thissection.' Section 3 does not lay down that 'the provisions of the State Acts ...... shall be deemed tohave been included in and formed part of this section' and consequently it is not open to us to treat them as if they were included in Section 3. Parliament could not in contravention of Article 265 declare the imposition, etc. of the cesses valid without furnishing authority of law for the imposition. By the clause beginning with the words 'as if' it has not supplied the authority of law but has only qualified the validity fastened to it. It has not added to the authority behind the act of imposing etc.

14. Under Entry 97 of the Union List Parliament has power to make laws with respect to 'any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.' Entry of sugarcane into the premises of a factory is certainly a matter and imposition etc. of sugarcane cess may besaid to be a tax and neither of them is enumerated or mentioned in List II or List III. So Parliament was competent to make laws with respect to either of them. But the law contained in Section 3 (1) cannot be said to be such a law.

15. The argument that the words 'any other matter' should be interpreted ejusdem generis with the matters enumerated in List I, i. e. to mean a, subject matter or topic of legislation and that validating or ratifying an act done under a void Act can hardly be said to be such a matter even if the void Act was in respect of a subject matter or topic is an attractive argument but that must be rejected on the authority of United Provinces v. Mt. Atiqa Begum , relied upon by the Supreme Court in West Ramnad Electric Distribution Co. Ltd. v. State of Madras : [1963]2SCR747 . Gwyer, C. J., stated at p. 26:

'It is true that 'validation of executive orders' or any entry even remotely analogous to it is not to be found in any of the three Lists; but I am clear that legislation for that purpose must necessarily be regarded as subsidiary or ancillary to the power of legislating on the particular subjects in respect of which the executive orders may have been issued.'

16. Section 3 (1) cannot be said to be a law regarding tax. A law regarding tax which a Parliament can make in exercise of the power conferred by Entry No. 97 is a law for taxing for its own benefit. Section 3 (1) deals with moneys which did not go to the Union and went to the State of Uttar Pradesh. It is inherent in the very idea of taxing power of an authority that the authority itself reaps the benefit of the taxation; compelling a person to pay money to another person for his benefit is not taxing him but depriving him of his property. All revenues received by the Union Government must form part of one consolidated fund known as 'the consolidated fund of India' and similarly all revenues received by the Government of a State must form part of one consolidated fund called 'the consolidated fund of the State.' Article 269 enumerates the duties and taxes which are to be levied and collected by the Union Government but are to be assigned by it to the States in a certain manner, These duties and taxes are levied and collected by the Union Government and not by the State Governments. Taxes on income other than agricultural income are to be levied and collected by the Union Government and to be distributed between the Union and the States in a certain manner, vide Article 270. Similarly Article 272 requires the Union duties of excise to be levied and collected by the Union Government and provided for payment to the States of money out of the consolidated fund of India if Parliament by law so provides. Parliament's making the law that all cesses realised by the State of Uttar Pradesh shall be deemed to have been validly realised is against these provisions of the Constitution which do not contemplate such taxing law.

17. The Central Act in effect is a validating Act. It validates or ratifies the illegal imposition, etc., of the cesses by the State of Uttar Pradesh. The State imposed etc., the cesses under the authority alleged to have been conferred by the State Act; really it was no authority because the State Act was inherently incompetent. It was not for Parliament to ratify the illegal act done by the State of Uttar Pradesh for the simple reason that it did not purport to have been done under an authority of Parliament. Parliament could ratify, if at all, an act done under an authority purporting to have been conferred by it but not an act clone under an authority purporting to have been conferred by a State Legislature.

18. Parliament's validating an act done in exercise of a power purporting to have been conferred by aninvalid State Act is not the same thing as enacting the provisions of the State Act. In Gunn v. Barry, (1872) 15 Wall. 810=21 Law Ed 212 Swayne J-, said :

'Congress cannot, by authorization or ratification, give the slightest effect to a State law or constitution in conflict with the Constitution of the United States. That instrument is above and beyond the power of Congress and States, and is alike obligatory upon both.'

It is said in 'Legislative, Executive and Judicial Powers in Australia ' by Dr. W. Anstey Wynes at p. 167 that

'the Commonwealth Parliament could not, of course, reverse a decision of the High Court, but could pass a declaratory Act prescribing a rule of conduct for the future' 'to attempt the former would be a clear invasion of the judicial sphere.'

What Parliament seeks to do under Section 3 of the Central Act is to reverse the Supreme Court decision that the State Act was ultra vires the State Legislature with retrospective effect. In the King v. Kidman, (1915) 20 CL R 425, Griffith C. J., pointed out at pp. 432 and 433 that

'in the case, of a Legislature of plenary power, such as that of the United Kingdom, no question of the validity of such a law can arise'

and that

'the Legislative power of the Commonwealth Parliament is not plenary in the sense that its ambit includes any enactment on any subject whatever.'

The legislative power of our Parliament is similar to that of the Commonwealth Parliament; it is confined to certain selected matters even though one of them is a residuary matter. The learned Chief Justice observed that a law operating merely as an ex post facto law was not within the power conferred upon the Commonwealth Parliament of Australia by certain provision relied upon, though

'laws validating retrospectively acts of the Executive Government which at the time when they were done were not authorised by law but were necessary under the rule salus populi suprema lex would be within the power' (435).

The imposition etc., of sugarcane cesses by the State Government could not be said to be necessaryunder the said rule and, therefore, a law validating retrospectively the imposition, etc., would not bewithin the power of Parliament. Parliament has no power to override the provisions of the Constitution and declaring an act done under an unconstitutionalAct as valid is indirectly overriding its provisions. Further, power in one legislature to validate something done under the authority of an invalid Act enacted by another legislature is foreign to the federal structure envisaged by our Constitution.

19. Sri J.S. Trivedi relied upon : [1963]2SCR747 (Supra). The Madras Legislature passed an Act in 1949 for the acquisition of undertakings supplying electricity even though it was not competent to legislate in respect of the matter. In exercise of the powers conferred by it the State Government took possession of an electricity undertaking. Subsequently, the State List was amended and a State Legislature became competent to legislate in respect of the matter and the Madras Legislature passed another Act in 1954 incorporating the main provisions of the 1949 Act and purporting to validate action taken under it. The Supreme Court upheld the validity of the 1954 Act and of the action taken by the State Government under the 1949 Act.

M/S West Ramnad Electric Distribution Co. Ltd. was deprived of the undertaking after the cominginto force of the Constitution and in exercise of the powers conferred by the 1949 Act and it challenged the deprivation on the ground that no authority of law required for it by Article 31(1) of the Constitution existed at the time when it took effect. The attack on the deprivation on this ground failed because of the declaration contained in the 1954 Act to the effect that the deprivation was valid. The Supreme Court observed at. p. 1760 that

'Article 31(1) ..... merely says 'by authority of law', and so, if a subsequent law passed by the Legislature is retrospective in its operation, it would satisfy the requirement of Article 31(1) and would validate the impugned notification.'

It was not argued before the Supreme Court that the 1954 Act merely declared the action taken under the 1949 Act as valid and did not furnish the authority of law required for it and that the State Legislature could re-enact the provisions of the 1949 Act and could do so with retrospective effect but could not merely declare the action taken under it valid.

At first sight it would appear that the instant case is parallel to the case of the Company but there are two facts which clearly distinguish it. One is that the impugned Act in the instant case is a taxing Act and the other is that it is an Act passed by Parliament whereas the void Act was passed by a State Legislature. The question whether Parliament in exercise of its taxing power can enact that a tax levied by a State is valid did not arise before, and was not answered by the Supreme Court. This question did not arise before the Supreme Court because not only was the Act impugned before it not a taxing Act but also because it was the same Legislature that had passed the void Act and the impugned Act.

One more distinguishing feature between the two cases is that the language in Section 3 (1) of the Central Act is materially different from the language employed in the 1954 Act impugned before the Supreme Court the former employs the legal fiction that the cesses shall be deemed to have been validly imposed, etc. whereas the tatter did not enact any legal fiction and simply declared that the action taken under the void 1949 Act was validly taken. The question whether the Legislature's power to declare as valid an act done under a prior void Act includes the powers to enact a legal fiction that the act was deemed to have been validly done was not discussed by the Supreme Court. The act done in the instant case under the void State Act was invalid according to the Constitution and no Legislature governed by it had power to lay down that it must be deemed to be valid. Parliament could not enact a legal fiction in the teeth of the provisions of the Constitution. It could not enact that a provision of the Constitution was deemed to be non-existent any more than that an act infringing it shall be deemed not to infringe it.

20. The Act impugned in the case of Sundararamier & Co., : [1958]1SCR1422 (supra) was Sales Tax Laws Validation Act No. 7 of 1956 passed by Parliament and laying down that no State law imposing a tax on an inter-State sale of goods during a certain past period shall be deemed to be invalid and all such taxes levied, etc. shall be deemed always to have been validly levied. Under Article 286(2) of the Constitution no State Legislature could impose a tax on inter-State sale of goods except in so far as Parliament might by law otherwise provide: so Parliament had power to enact a law permitting a State to impose sales tax on inter-State sales. The Supreme Court held that the impugned Act was passed by Parliament in exercise of this power and was therefore, valid. It was held to remove a prior State Sales Tax Act from the ban imposed by.

Article 286(2) on a State's imposing sales tax on interstate sales.

The question that essentially arose before the Supreme Court was whether if was a law permitted by Article 286(2) or not. What was required by Article 288(2) was not an authority of law as in the instant case but a mere Parliamentary statute allowing a State to impose tax on inter-State sales. The impugned Act in the instant case purports to have been passed by Parliament under another authority. What was required by Entry No. 97 of List I is quite different from what was required by Article 288(2). Sales tax on inter-State sales was imposed and levied under Section 22 of a State Act and it was contended on behalf of Sundararamier & Co., 1958 SCR 1422 : (AIR 1958 S C 488} that the power conferred by Article 288(2) did not extend to authorising what was unconstitutional. The Madras Act would have been unconstitutional only if the impugned Validation Act had not been taken to be an Act permitted by Article 286(2). The argument that Parliament could not validate what was unconstitutional was repelled by the Supreme Court on the simple ground that it begged the question--that the so-called unconstitutionality of the imposition of the sales tax itself depended upon whether the impugned Act was one covered by Article 286(2). No such reply is possible to the argument in the instant case because the validity of the State Act did not depend upon any authority from Parliament.

Another argument advanced on behalf of the Company was that'a statute which is unconstitutional is a nullity and must be treated as non est and that the impugned Act could not infuse life into it' (489) it was rejected by the Supreme Court because the Madras Act was'only a piece of conditional legislation, imposing tax on inter-State sales when Parliament should enact a law lifting the ban, and if such legislation is competent, then no question of unconstitutionally of the section when it was enacted could arise' (489) and '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' (491).

The State Act impugned in the instant case was not a conditional legislation like the Madras Act but was wholly unconstitutional and re-enactment (if its provisions was the only remedy.

21. The essential facts in Azimunnissa v. Deputy Custodian Evacuee Properties AIR 1981 S C 385 were these: The Governor-General promulgated Administration of Evacuee Property Ordinance No. 12 of 1949, which was ultra vires him because of the absence of a public notification by him as required by Section 104 of the Government of India Act of 1935. Under the Ordinance evacuee property was to vest in the Custodian. Thereafter the Government of India Act was amended and the matter 'Evacuees' was added in the Concurrent List. Later the Governor-General promulgated another Ordinance No. 27 of 1949 repealing Ordinance No. 12 authorising the Custodian to declare a property to be evacuee property and providing that any property declared to be evacuee property was to vest in him. It contained Section 8 (2) to the effect that where any property had vested as a evacuee property in a custodian under Ordinance No. 12 it would be deemed to be evacuee property declared as such and to have vested in theCustodian. It was replaced by Act No. 51 of 1950. which reproduced its provisions and contained S. S (2-A) to the effect that all property which purported Under it to have vested as evacuee property would notwithstanding any defect in, or the invalidity of Ordinance No. 27 be deemed to have validly vested in him as if the provisions of the Ordinance had been enacted by Parliament and the property would be deemed to have been evacuee property declared as such within the meaning of the Act.

It was contended on behalf of the evacuees that Ordinance No. 12 was invalid because the Governor-General had no power to promulgate it and that Sub-section (2-A) of Section 8 of the Act had the effect of saving: any vesting which purported to have taken place under Ordinance No. 27 but did not purport to cure any invalidity due to constitutional incompetence. The Supreme Court repelled this contention and held that the effect of Sub-section (2A) of Section 8 was to validate the vesting as evacuee property because it applied to property which purported to have vested under Ordinance No. 27 and the invalid Ordinance No. 12. Ordinance No. 27 did not suffer from any defect and any property that had vested under Ordinance No. 12 was deemed to be evacuee property declared under it and to have vested in the Custodian. Any property that had vested under a prior invalid Ordinance No. 1 of 1949 was deemed to nave vested under Ordinance No. 12. The Supreme Court expressly refused to decide whether the provision in S. S (2) of Ordinance No. 27 and of the Act was sufficient to validate the vesting or not because of the above-mentioned effect of Sub-section (2A) of Section 8 of the Act.

The ratio decidendi of the decision was that property required to be vested under any invalid law was property purporting to have vested and that 'law repealed by the Act comprehended not only Ordinance No. 27 expressly repealed by it but also Ordinance No. 12 which was repealed by Ordinance No. 27. The property purported to vest initially under Ordinance No. 1 of 1949 ; in the eye of law it did not vest because the Ordinance was ultra vires the Governor. The Supreme Court held that the property was governed by Ordinance No. 12, though it applied only to that evacuee property which had vested under 'any corresponding law in force' in Uttar Pradesh on 22nd August 1949. The whole attack on the vesting by the evacuee was warded off by the Supreme Court by relying upon the word 'purports' in Sub-section (2A) of Section 8 of the Act. The only effect of the word 'purport' in a provision is to bring within its scope what otherwise would not come. Under Sub-section (2) of the Act any property that had vested as evacuee property under the Ordinance repealed by it was to be deemed to be evacuee property. If the Ordinance was invalid it could not be said that any property had vested under it as it was invalid it had no existence in the eye of law and no consequence such as that of vesting arose out of its provisions. So if only Section 8 (2) had stood there and Ordinance No. 27 had been invalid it could not be said that any property had vested under it and was, therefore, to be deemed to be evacuee property declared as such under the Act and it became necessary to enact Sub-section (2-A) to bring within the scope of the Act property which 'purported' to have vested under the invalid Ordinance.

Now by virtue of sub-s, (2A) even if the Ordinance was invalid any property required by it to be vested was to be deemed to have validly vested. Actually Ordinance No. 27 was nut invalid at all and 1 would have thought that Sub-section (2A) did not add anything material to Sub-section (2). The only law repealed by the Act was Ordinance No. 27 and neither Ordinance No. 12 which had already been repealed by Ordinance No. 27 nor Ordinance No. 1 which was yet to expire. Sub-section (2A)was meant to wipe off the effect of the invalidity of the law repealed by the Act e. g. of the invalidity of Ordinance No. 27 only. The questions that arose in the case are different from the questions that arise in the instant case and no assistance can be had from the decision given in it.

22. The validity of the impugned Act was upheld by a Bench of this Court in Faqiray Lal Ram Bharosay Lal, Writ Petition No. 2311 of 1961, D/- 2-11-1962, (All), (Supra), B. Dayal and J. N. Takru JJ. interpreted Section 3 (1) as incorporating with retrospective effect all provisions of the State Act. They did not explain how the provisions of the State Act were incorporated in the Central Act. They observed ;

'The Central legislature therefore having unlimited powers of legislation could pass the Validation Act for any purpose it thought fit. There is no provision in the Constitution limiting the powers of the Central Legislature.'

Parliament has not plenary power of legislation ; its power is restricted by the provisions of the Constitution. Its power is restricted not only as regards subject matters but also as regards the contents or the policy even when legislating in respect of a matter within its competence. Not only the meaning of 'tax' but also the constitutional provisions already referred to show that Parliament's taxing power is to be exercised only for augmenting the consolidation funds of India. The learned Judges observed with reference to these provisions of the Constitution that :

'Only those amounts are directed to form part of the consolidation funds of India, which are actually received by the Central Government.'

but taxation by Parliament means that the money is to be received by the Central Government. With great respect to the learned Judges I find myself unable to endorse the view expressed by them.

23. Sri Dhaon gave up the arguments that Central Act is a piece of colourable legislation and that it infringes Article 14 of the Constitution.

24. The petition should be allowed and the orders passed by the Cane Commissioner on 21-4-1162 should be quashed in both the petitions.

R.A. Misra, J.

25. I agree.

N.U. Beg, J.

26. I have read the judgment prepared by my Lord the Chief Justice in Writ Petitions Nos. 234 and 235 of 1962. I agree with him in the form of relief 'proposed to be given in these cases. As however, I feel some difficulty in agreeing with the line of reasoning adopted in his judgment on certain points, I am writing a separate judgment.

27. In 1936 the U. P. Legislature enacted the U. P. Sugarcane Cess Act (U. P. Act No. XXII of 1956). The Supreme Court by a majority judgment delivered on the L3th of December, 1980, held the U. P. Sugarcane Cess Act, 1956, ultra vires and beyond the competence of the State Legislature. The effect of the decision of the Supreme Court was to invalidate the levy and collection of cesses on sugarcane by the U. P. Government under that Act. The total cess collected by the U. P. Government on sugarcane since 1950 ran to about forty five crores of rupees. It was, therefore, realised that unless the cess levied and collected under the impugned Act was validated, the U. P. Government would nave to refund the entire amount of cess so levied and collected. As there was no entry in the State or Concurrent List which authorised the State Government to validate these past levies and collections, it became necessary to promulgate the U. P. Sugarcane Cess (Validation) Ordinance of 1961 (1 of 1961) on the 31st of January,1961. This ordinance validated the cesses imposed, assessed or collected by the Government of Uttar Pradesh during the period from the 26th January, 1950 to the date of the commencement of the Ordinance. This Ordinance was brought into force with effect from the 3rd February, 1961 by notification in the Official Gazette. Subsequently this Ordinance was replaced by the U. P. Sugarcane Cess (Validation) Act, 1961 (No. IV of 1961) hereinafter called the Validation Act. This Validation Act was published in the Gazette of India (Extraordinary) Part II, Section 1 dated March 22, 1961. The purpose of this Act was to validate the imposition and collection of cesses on sugarcane under certain State Acts of Uttar Pradesh. The expression ''State Act' was defined in Section 2 (b) of the Validation Act as meaning

(i) The United Provinces Sugar Factories Control Act, 1938;

(ii) The U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953; and

(iii) The U. P. Sugarcane Cess Act, 1956.

Under Section 2 (a) of the said Act the term 'cess' means,

'the cess payable under any State Act and includes any sums recoverable under any such Act, by way of interest or penalty;'

The main section of the Validation Act, however, is Section 3 and the relevant portion of Section 3 runs as follows :--

'3. (1) Notwithstanding any judgment, decree or order of any court, all cesses imposed, assessed or collected or purporting to have been imposed, assessed or collected under any State Act before the 3rd day of February, 1961, shall be deemed to have been validly imposed, assessed or collected in accordance with law, as if the provisions of the State Acts and of all notifications, orders and rules issued or made thereunder, in so far as such provisions relate to the imposition, assessment and collection of suck cess had been included in and formed part of this section and this section had been in force at all material times when such cess was imposed, assessed or collected. .......

(2)................'

28. The petitioner in the two writ petitions Sri Lakshmi Kant Jhunjhunwala is a partner in the firm Messrs. Kamlapat Moti Lal which owns two sugar mills, one at Moti Nagar, district Faizabad and the other at Bhatni, district Deoria, Writ Petition No. 234 of 1962 relates to the Moti Nagar Sugar Mills and Writ Petition No. 235 of 1962 relates to the Bhatni Sugar Mills.

29. On the 14th of February, 1962, the petitioner received a notice from the Cane Commissioner, U. P., Lucknow, respondent No 2 requiring him to show cause why penalty under the U. P. Sugarcane Cess Act, 1956 be not imposed on him for failure to deposit the cess levied under the said Act for the season 1960-61 and interest thereon. A copy of the said notice is filed as Annexure 1 in both the writ petitions. The petitioner having failed to show sufficient cause, respondent No. 2 passed two orders on the 21st of April, 1962, one imposing a penalty of Rs. 53,401.90 nP. and charging interest of Rupees 15,792-20 nP for the period 2nd February, 1961 to 15th July, 1962, on the arrears of cess for the Moti Nagar Mills and the other imposing a penalty of Rs. 68,068. 08 nP and charging interest of Rs. 25,890. 67 np, for the period 2-2-61 to 15-7-62 on the arrears of cess for the Bhatni Mills. Thereafter the petitioner filed the two present writ petitions challenging the two aforesaid orders dated 21st April, 1982, and praying for the issue of a writ in the nature of mandamus torespondent No. 1 the State of Uttar Pradesh and respondent No. 2 tine Cane Commissioner, U. P., Lucknow directing them not to levy or collect the cess, interest or penalty imposed upon the petitioner in respect of the mills in question.

30. At the very outset the learned counsel for the petitioner assailed the validity of the Validation Act. The learned Counsel did not argue that there can be no retrospective validation of an invalid legislation in any case. His contention before us was that there is a difference between invalidity of a statute arising out of inherent incompetence of the legislature and invalidity resulting from a breach of a Constitutional restriction or prohibition. He argued that retrospective validation of laws was permissible only in the latter case but not in the former case. On the other hand, this enunciation of law was controverted by the learned Counsel for the State. The question does not appear to he free from difficulty.

31. The sheet anchor of the arguments of the petitioner's learned counsel on this point-was the case of : [1958]1SCR1422 . Strong reliance in this regard was placed by the learned Counsel for the petitioner on the following observations of Venkatarama Aiyar.J. at page 489 :

'This question has been the subject of consideration in numerous decisions in the American Courts, and the preponderance of authority is in favour of the view that while a law on a matter not within the competence of the Legislature is a nullity a law on a topic within its competence but repugnant to the Constitutional prohibitions is only unenforceable ......

If a law is on a field not within the domain of the Legislature, it is absolutely null and void, and a subsequent cession of that field to the Legislature will not have the effect of breathing life into what was a still born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the Legislature but its provisions disregard Constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions when once they are removed, the law will become effective without re-enactment.'

The learned Counsel appearing on behalf of the opposite parties in reply contended that the facts of Sundararamier'-s case AIR 1958 S C 488 indicate that the question with which we are faced in the present case did not arise for consideration at all in that case. In Sundararamier's case, AIR 195S S C 468 it was contended that under Entry No. 54 of List II the State had no power to tax an inter-state sale and that the said power was possessed exclusively by the Parliament under Entry No. 42 of List I, and therefore it was not competent to Parliament to validate a law purporting to have been made by a State Legislature imposing a tax on inter-state sale. Since the Court held that Entry No. 42 of List I did not include the power to impose a tax on inter-state sale, and that the State Legislature had that power under Entry 54 of List II, if only the Parliament lifted the ban imposed by Article 286(2), the question of the Parliament having validated an ultra vires legislation by the State Legislature did not arise at all in that case. It was competent for the Parliament to remove the ban imposed by Article 286(2), and a specific power in that behalf was conferred on the Parliament under the said provision of law. The learned Counsel for the opposite parties argued that the above expression of opinion was not, therefore, meant to be an authoritative pronouncement of the law on the subject by their Lordships of the Supreme Court, particularly because the observations contained in a number of subsequent cases of the Supreme Court support the contention advanced on behalf of the respondent. The cases relied on by him were:--

: [1963]2SCR747 .

(2) Jadab Singh v. Himachal Pradesh Administration, : [1960]3SCR755 .

: [1961]2SCR91 .

(4) Khyerbari Tea Co. Ltd. v. State of Assam,. : [1964]5SCR975 , and

(5) Fakirey Lal Ram Bharosey Lal v. State of U. P., Civil Misc. Writ No. 2311 of 1960, D/- 2-11-1962 (All). These cases may now be taken up for discussion.

32. Particular reliance in support of his contention was placed by the learned Counsel for the respondents on Case No : [1963]2SCR747 (Supra). The facts of this case were that the Madras Electricity Supply Undertakings (Acquisition) Act (XLIII of 1949) was declared ultra vires by the Supreme Court by its decision reported in Rajahmundry Electric Supply Corporation v. State of Andhra, : [1954]1SCR779 . This decision was based on the ground that the Act was beyond the competence of the Madras Legislature. Thereafter another Act, viz., the Madras Electricity Supply Undertakings (Acquisition) Act (XXIX of 1954) was passed for the purpose of validating actions taken under the earlier Act. The material and operative provisions of the latter Act were made to have a retrospective effect. In this case Gajendragadkar J. (as he then was) made the following significant observations-

'As has been pointed out by the majority decision in Deep Chand v. State of U. P. : AIR1959SC648 , the infirmity proceeding from lack of legislative competence as well as the infirmity proceeding from the contravention of fundamental rights lead to the same result and that is that the offending legislation is void and non est. That being so, if the legislature can validate actions taken under one class of void legislation, there is no reason why it cannot exercise its legislative power to validate actions taken under the other class of void legislation. We are, therefore not prepared to accept Mr. Nambiar's contention that where the contravention of fundamental right is concerned, the legislature cannot pass a law retrospectively validating actions taken under a law which was void because it contravened fundamental rights.'

The argument advanced in the above case was a different one, but what is important to note is that their Lordships were of opinion that there is no difference between the infirmity arising out of legislative incompetence and that arising out of constitutional restriction in the matter of retrospective validation of invalid laws. Dealing with Section 24 of the impugned Act which purported to validate invalid actions the learned Judge observed as follows :

'The fact that Section 24 does not use the usual phraseology that the notifications issued under the earlier Act shall be deemed to have been issued under the Act, does not alter the position that the second part of the section has and is intended to have the same effect.'

It would appear that in this case Section 24 did not contain the word 'deemed'. In spite of it, the Court thought that the same effect was produced as a result of Section 24 being read as a whole. The present case is a stronger one because Section 3 of the impugned Act expressly uses the expression 'shall be deemed to have been validly imposed, assessed or collected in accordance with law'. In the present case, therefore, the fiction created by the deeming clause flows directly; from the express use of the word 'deemed' and is not an inferential or indirect deduction from other words.

33. This case also provides an answer to another, argument advanced on behalf of the petitioner to the effect that the power of validation extends only toinvalid laws and not be invalid actions. Referring toSection 24 it is observed :

'It is a saving and a validating provision and it clearly intends to validate actions taken under the relevant provisions of the earlier Act which was invalid from the start.'

Later on, while discussing the retrospective effect of Section 24 of the Act in question their Lordships observed as follows :

'If the Act is retrospective in operation and Section 24 has been enacted for the purpose of retrospectively validating actions taken under the provisions of the earlier Act, it must follow by the very retroslive operation of the relevant provisions that at the time when the impugned notification was issued, these provisions were in existence. That is the plain and obvious effect of the retrospective operation of the statute. Therefore, in considering whether Article 31(1) has been complied with or not, we must assume that before the notification was issued, the relevant provisions of the Act were in existence and so Article 3(11) must be held to have been complied with in that sense.'

On behalf on the petitioner this case was sought to be distinguished on the ground that in this case the infirmity was made up not by the Parliament but by the Legislature of the State which had enacted the invalid law. I find it difficult to accept this contention. The crucial question that arises before us is whether it is possible for the legislature to cure the defect arising out of the inherent incompetence to enact a law which is invalid on the ground of the absence of a relevant entry in that regard. Once it is held that the defect arising out of the inherent incompetence stands on the same footing as that arising out of constitutional prohibition in the matter of retrospective validation of invalid laws, the foundation for the argument on behalf of the petitioner disappears.

34. On behalf of the petitioner it was further argued that in the Madras case the Act impugned was not a taxing Act whereas in the present case the Act impugned is a taxing Act. It appears to me that so far as the power of legislature to enact retrospective laws is concerned, no distinction is made in the Constitution between taxing Acts and Acts relating to matters other than taxation.

35. In this connection, it is also argued on behalf of the petitioner that it is beyond the competence of the Parliament to enact a law validating tax levied for the benefit of the State, because under the Constitution the Parliament's power to enact laws is restricted to taxation for the benefit of the Union and not for the benefit of the State. This argument, again, appears to me to be a misconceived one. If any such restriction of prohibition is deducible from the provisions of the Constitution, then the law so enacted will be bad not on the ground of inherent incompetency of the Parliament owing to the absence of an entry in that regard, but on the ground that there is a Constitutional prohibition or restriction to enactment of law in that respect.

36. I may, however, mention that on merits also I am not convinced that, under the Constitution, taxing power of the Parliament is restricted to the imposition of taxes for its own benefit. Reliance on behalf of the petitioner was placed on Articles 266, 269, 270 and 272 of the Constitution. Article 266, merely lays down how the moneys received by the Government of India and the Governments of States have to be dealt with. Article 269 enumerates duties and taxes assignable by the Government of India to the States. Article 270 lays down the method of distribution of taxes on income other than agricultural income between the Union and the States. Article 272 deals with the method of distribution of certain exciseduties between the Union and the States. None o the above provisions appears to contain any express or implied prohibition of the nature contended for on behalf of the petitioner.

The relevant entry in the present case is entry No. 97 of List I and the relevant provisions of the Constitution Articles 245, 246 and 248, The entries in the list merely demarcate fields for the exercise of the power of legislation. The actual scope and extent of the power of legislation is to be found in the main Articles of the Constitution itself. The entries in the list have to be given a large and liberal construction. It is also a general principle that a legislature which is competent to enact law on an enumerated subject has plenary powers to enact law in that regard including the power to give retrospective effect to such legislation, unless there is anything in the Constitution which restricts this power. The power of Parliament to make laws on residual matters under Article 248 is as plenary as its power with respect to enumerated subjects. Hence the Parliament has full power to make laws with retrospective effect in regard to residuary matters as well. The importation of such a restriction docs not appear to be warranted from any of the afore-mentioned provisions of the Constitution.

37. The following statement of law contained inBasil's Commentary on the 'Constitution of India',Volume Four, (4tii Edition) at pages 108 and 109 isrelevant in this connection :

'Where a legislature has legislative power with respect to a subject under an Entry in the Legislative Lists, it has plenary power to exercise that power, including the power to give retrospective power to such legislation unless fettered by any limitation imposed by the Constitution--J. K. jute Mills v. State of U, P. : [1962]2SCR1 .

'The only Constitutional limitation upon the power of retrospective legislation, under our Constitution, is that imposed by Article 20(1), namely, that it cannot make retrospective penal laws.

'Taxing laws are no exception to this competence of the Legislatures created by the Constitution.'

38. In this connection, learned Counsel appearing on behalf of the petitioner also relied on the provisions of Article 265. Article 265 states as follows :

'No tax shall be levied or collected except by authority of law.'

The learned Counsel argued that the impugned Act was against the authority of law. This argument appears; to beg the question. The question as to whether the Parliament had authority to enact the impugned legislation is itself a matter to be determined by the Court in the present case. If the Validating Act is held to be valid then the cesses would be deemed to be collected by the authority of law.

39. The next case to which reference may be made on the question of competence is : [1960]3SCR755 . This case arose after the mergor of the State of Himachal Pradesh with that of Bilaspur. As a result of the merger of the two States a new State with a new Legislative Assembly was constituted. This new Legislature passed the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act. The validity of this Act was challenged before the Supreme Court on the ground, inter alia, that the constitution of the new Legislative Assembly was invalid because of the omission to issue a notification under Section 74 of the Representation of the People Act, 1951. The Supreme Court upheld this contention in the case of Vinod Kumar v. State of Himachal Pradesh, : AIR1959SC223 holding that the State Act was entirely void by reason of its not being passed by a duly constituted Legislature. In other words, it held thatthe Legislature as constituted was wholly incompetent to enact the said Act.

To remedy this defect the President issued an Ordinance which was followed by the Himachal Pradesh Legislative Assembly (Constitution and Proceedings) Validation Act, 1958. By this Act the Parliament validated the constitution of the new Legislative Assembly notwithstanding the defect pointed out by the Supreme Court and further validation of any Bill passed by that Assembly. The validity of this Validation Act of 1958 having been challenged in Jalab Singh's case, the Supreme Court held that the topic relating to the constitution of a Legislature for a Part C State was a matter not included in either List II or List III, but was a residuary matter fulling under Article 248 and Entry 97 of List I. Hence it was competent for the Parliament to remove the invalidity of the constitution of the new Legislative Assembly and also to validate the Acts passed by such infirm Legislative Assembly. This case appears to have an important bearing on the question at issue before us. The net result of the above decision is that it is open to the Parliament to pass a law validating an enactment by the Legislature of a State, although such Legislature was totally incompetent to pass the impugned law, and was, in fact, inherently incapable of passing any law whatsoever. This case would, therefore, lend strong support to the contention advanced on behalf of the respondents.

40. In the third case, viz. AIR 1961 S C 385 the property in dispute was taken possession of by the Custodian under the U. P. Administration of Evacuee Property Ordinance, 1949 (U. P. Ordinance No. 1 of 1949) which was promulgated on June 24, 1949. The validity of this Ordinance was successfully challenged by the petitioner in the Allahabad High Court in the case of Azizun Nisa v. Asst. Custodian, : AIR1957All561 . As stated in the judgment of the Supreme Court:

'the ground for the challenge was that there was no entry in the lists in the Seventh Schedule of the Constitution Act, 1935, dealing with evacuee property and there was no public notification by the Governor General as required by Section 104 of the Constitution Act, 1955.'

In this case also, therefore, the law authorising the Custodian to take possession of the property was held to be void by the High Court on the ground of incompetency to promulgate the law in that regard because of the lack of relevant entry in the list.

On June 13, 1949, the Governor General promulgated the Administration of Evacuee Property (Chief Commissioners' Provinces) Ordinance XII of 1949 and it was extended to U.P. on August 23, 1949, by Ordinance XX of 1949 after a resolution was passed by the U. P. Legislature under Section 103 of the Constitution Act. Section 5 (2) of the former provided for the vesting of all properties which had vested in any person exercising the powers of a Custodian under any corresponding law in force in that province in the Custodian. Section 5 (2) of Ordinance XII of 1949 further provided that all properties in a province which had vested in any person exercising the powers of a Custodian under any corresponding law in force in that province shall be deemed to have vested in the Custodian appointed in the province under the said Ordinance. But this Ordinance, viz. Ordinance No. XX of 1949 suffered from the same constitutional defect as U. P. Ordinance No. 1 of 1949. In other words both the provincial as well as the Central Ordinances suffered from the defect of constitutional incompetence resulting from the absence of an entry in that regard. On August 25, 1949, item 31-B relating to evacuees was for the first time added to the concurrent list by the Government of India Act (Third Amendment Act) of 1949 and thus Constitutional vacuum was filled up. On October 18, 1949 the Governor General promulgated the Administration of Evacuee Property Ordinance (XXVII of 1949). It repealed Ordinance XII of 1949. Section 8 (2) of this Ordinance contained a deeming clause which provided :--

'Where immediately before the commencement of this Ordinance any evacuee property in a Province had vested in any person exercising the powers of a custodian under any law repealed hereby, the evacuee property shall, on the commencement, of the Ordinance, be deemed to have vested in the Custodian appointed or deemed to have been appointed' for the Province under this Ordinance, and shall continue to so vest.'

The result was that any vesting under Ordinance XII of 1949 was deemed to be under Ordinance XXVII of 1949 as if the latter had been in force on the date of vesting. By Section 4 of the Administration of Evacuee Property (Amendment) Ordinance IV of 1950, Section 8 of Ordinance XXVII of 1949 was substituted by a revised Section 8. Under Sub-section (2) of the revised section the effect as to vesting was that it was deemed to be under the said Ordinance. On April 18, 1951, the Administration of Evacuee Property Act, 1950 (XXXI of 1950) was passed by the Parliament. It repealed Ordinance XXVII of 1949. The provisions regarding vesting in this Act are the same as in the amended Section 8 of Ordinance XXVII. Therefore the consequence of Section 8 (2) was that the property vested under Ordinance XXVII was deemed to be vested under the corresponding provision of the Act.

On February 27, 1960, the Act was amended by the Administration of Evacuee Property (Amendment) Act I of 1960. Sub-section 2-A was added to Section 8. Sub-section 2-A provided that all property which under any law repealed thereby purported to have vested as evacuee property in any person exercising the powers of Custodian in any State shall,

'notwithstanding any defect in or the invalidity of such law or any judgment, decree, order of any Court, be deemed for all purposes to have validly vested in that person, as if the provisions of such law had been enacted by Parliament and such property shall, on the commencement of this Act be deemed to have been evacuee property declared as such within the meaning of this Act and accordingly, any order made or other action taken by the Custodian or any other authority in relation to such property shall be deemed to have been validly and lawfully made or taken.'

On the above facts the contention of the learned Counsel for the petitioner as reproduced in the judgment of the Supreme Court was as follows :--

'The argument raised on behalf of the petitioner was that U. P. Ordinance 1 of 1949, Central Ordinance XII of 1949 and Central Ordinance XX of 1949 were invalid as the legislative competence of the Governor and of the Governor-General in regard to evacuee and evacuee property matters was wanting and all that sub-section 2-A of Section 8 added by Act I of 1960 did was to save any vesting which purported to have taken place under Ordinance XXVII but it did not purport to cure any invalidity due to constitutional incompetence and that the law made without constitutional authority could not be validated- Reference was made to Saghir Ahmad v. State of U. P. : [1955]1SCR707 where at page 728 (of SCR) : (at p. 739 of AIR) the following statement from Cooley's Constitutional Limitations Volume 1 page 384 (note) :-- 'A statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted was held to be sound law. Reference was also madeto : [1958]1SCR1422 where a distinction was drawn between the unconstitutionally due to incompetency of the Legislature and disregard of constitutional prohibitions.'

Dealing with the above argument their Lordships observed as follows :--

'The word 'purport' has many shades of meaning. It means fictitious, what appears on the face of the instrument; the apparent and not the legal import and therefore any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable; Dicker v. Angerstein (1876) 3 Ch. D. 600 at p. 603. Purporting is therefore indicative of what appears on the face of it or is apparent even though in law it may not be so. This means that at the time when the Act purported to vest the property in dispute in the Custodian, even though the power was not exercisable, Section 8 (2-A) by giving a retrospective effect to Section 8 (2) of the Act mates the vesting as if it was vesting under Section 8 (2) of the Act and therefore the attack on the ground of invalidity cannot be sustained.'

Subsequently referring to Ordinance XXVII of 1949 which was a valid piece of legislation it was observed as follows :--:

'By Section 8 (2) of that Ordinance the vesting under the previous Ordinance was deemed to be under that Ordinance as if it was in force on the date of the vesting. Ordinance XXVII of 1949 was repealed by the Act which contained provisions as to vesting in Section 8 (2) which was similarly worded as the corresponding provision of the Ordinance and therefore by a fiction of law the original vesting was to be treated as if the Act was in force when the first vesting took place.'

The conclusions arrived at by their Lordships are summarised as follows :--

'Thus retrospective effect is given to the Act to validate

(1) what purports to be vested;

(2) removes all defects or invalidity in the vesting or fictional vesting under Section 8 (2) of Ordinance XXVII of 1949 or Section 8 (2) of the Act which repealed the Ordinance;

(3) makes the decrees and judgments to the contrary of any court in regard to the vesting ineffective;

(4) makes the property evacuee property by its deeming effect; and

(5) validates all orders passed by the Custodian in regard to the property.

Because of the retrospective effect given to the Act and the validating effect of Act 1 of 1960 Saghir Ahmad's Case : [1955]1SCR707 would have no application.'

The observations made in the above case would go to support the contentions advanced on behalf of the respondents.

41. Reference may now be made to the fourth case, viz. : [1964]5SCR975 . In this case it was held that it is open to the Legislature to pass Acts validating invalid taxation with retrospective effect. It was further held that entries in the three lists in the Seventh Schedule which confer Legislative competence on the respective Legislature to deal with the topics covered by them must receive the widest possible interpretation; and so it would be unreasonable to read in the Entry any limitation. It was also held that when a power is conferred on the Legislature to levy a tax, that power itself must be widely construed. It was further held that even though thesubsequent Act had been passed for the purpose of validating the illegal recoveries made and assessment orders passed under an earlier invalid Act the same cannot be struck down on that ground as a colourable piece of legislation.

42. Finally reference may be made to the judgment of a Division Bench of this Court consisting of B. Dayal and Takru, JJ. in Fakirey Lal Ram Bharosey Lal v. State of U. P., Civil Misc. Writ No. 2311 of 1960, D/- 2-11-1962 (All). In this and the connected writ petitions the validity of the Sugarcane Cess (Validation) Act, 1961 (No. IV of 1961) was challenged in this Court. While dealing with the ambit and validity of Section 3 of the said Act the learned Judges observed as follows :--

'Thus the Central Government by this enactment incorporated all the relevant state acts, notifications and rules and orders in connection with the imposition etc. of this cess into Section 3 of this Act. Learned Counsel for the petitioner contended that this Sugarcane Cess Validation Act is ineffective to achieve the purpose because the U. P. Sugarcane Cess Act, 1956 was from the very inception an invalid Act, having been passed by the Legislature which had no authority to pass it, Therefore it was as if non-existent and thing which was non-existent cannot be validated. To my mind this argument is wholly misconceived. By the Validation Act the Central Government has said that the imposition made under U. P. Act would be valid but has so to say incorporated all the provisions, rules and notifications etc. in Section 3 of the U. P. Sugarcane Validation Act and has given retrospective effect to it. Thus it has really re-enacted aft these provisions and has given retrospective effect to this enactment. To such a re-enactment this argument is wholly inapplicable. Learned Counsel quoted several cases for the proposition that the Act which was stillborn could not be revived. There is no doubt about that proposition and it is not necessary to burden this judgment with all those rulings. Suffice it to say that in this case the Central Government Legislature has re-enacted the law.'

The learned Judges then referred to the case of : [1963]2SCR747 and after quoting extensively from the judgment of the said case observed as follows :

'Since all the rules and notifications have become a part of the Central Act, the imposition now is by the Central legislation and cannot be challenged on the ground of want of authority.'

It may also be mentioned that in the same case it was also argued before the Bench that the power of the Central Legislature to impose taxes is confined to purposes of central expenditure only. In other words, the Parliament could only enact law levying taxes for its own benefit- This argument was repelled by the learned Judges in the following passage :--

'The Central Legislature therefore having unlimited powers of legislation could pass the Validation Act for any purpose it thought fit. There is no provision in the Constitution limiting the powers of the Central Legislature to impose tax only for the purpose of Central expenditure. The learned Counsel referred to the provisions of the Constitution which provided that every amount received by the Central Government shall form part of the consolidated funds of India and argued that since this amount did not form part of the consolidated funds of India, therefore, the law could not be passed by the Central Legislature. Learned Counsel completely ignored that only those amounts are directed to form part of the consolidated funds of India, which are actually received by the Central Government. There is no provision saying that any amount which is imposed or realised under the authority of the Central Government will form part of consolidated funds of India.'

43. Learned Counsel for the petitioner in this connection also argued that as the amount was collected through the State Government and was not deposited in the consolidated funds of India the levy was invalid. The question, however, in the present case is whether the legislation imposing the levy was passed by an authority competent to legislate. If the legislation itself was a competent one it cannot he challenged as invalid simply on the ground that the amount collected was not spent or deposited in a particular manner. The two rights appear to be distinct and separate.

44. Reliance on behalf of the petitioner was also placed on the case of (1872) 21 Law Ed. 212 in which Swayne, J. observed at p. 215 as follows:

'Congress cannot by authorization or ratification, give the slightest effect to a state law or constitution in conflict with the Constitution of the United States. That 'instrument is above and beyond the power of Congress and the States, and is alike obligatory upon both. A State can no more impair on existing contract by a constitutional provision, than by a legislative Act; both are within the prohibition of the National Constitution.'

This case related to a statute passed by a State increasing the amount of property which was exempt from execution. Such a statute was held to be void because there is a guarantee of contractual rights in Section 10 Article 1 of the Constitution of the United States which declares :

'No State shall pass any law impairing the obligation of contracts.'

The State law was in that case held to be bad because it directly contravened an express prohibition in the Constitution. In the present case there is no express prohibition in the Constitution negativing the competency of the Parliament to validate with retrospective effect laws bad on the ground of legislative incompetence. The following passage from Basu's Commentary on the Constitution of India Volume Four, 1963 Edition, p. 109 is relevant in this connection.

'It is to be noted in the present context that there is in our Constitution, no guarantee of contractual rights as exists in Article 1, Section 10 (1) of the Constitution of United States. So, there is no direct bar against our Legislatures (Vide Entry 7 of the list III, 7th Schedule) making any retrospective legistation, 'impairing existing contractual rights and obligations, e.g. as to rate of interest, remedies for breach of contract and so on. It follows that the legislative competence of the Legislatures in India is not fettered by the terms of any grant or contract made by the Government.'

The argument of the learned counsel for the petitioner in the present case rests not on constitutional prohibition but on legislative incompetence. This case, therefore, is of no avail to him.

45. Another argument advanced on behalf of the petitioner was that the Supreme Court had already declared Section 3 of the U. P. Sugarcane Cess Act (U. P. Act No. XXII of 1956) to be ultra vires and the effect of the Validation Act by the Parliament was in substance to reverse the decision o{ the Supreme Court. The enactment of the Validation Act therefore, not an exercise of legislative power but of judicial power. This argument also does not appeal to me. There is a difference between the Legislature discharging decrees already passed by Courts or enacting that pending leases may be decided in a particular manner without amending the law, and the Legislature amending the law for the purpose of rectifying the defects disclosed by the judgments of Courts declaring such laws to be 'invalid or defective in any particular. In the present lease the Legislature has amended the law with retrospective effect. This is clearly not an exercise of judicial power but an exercise of legislative power. The, purpose was not to reverse the judgment of the Supreme Court but, on the other hand, the purpose was to give effect to the judgment of the Supreme Court by remedying the defect pointed out therein. A similar argument was advanced before the Supreme Court in State of Orissa v. Bhupendra Kumar Bose : [1980]3SCR1034 and was rejected. Following this Supreme Court case it was held in the Division Bench case of Firm Dayalal Meghji & Co. v. State of Madhya Pradesh, : AIR1962MP342 that the Legislature is competent to put an end to finality of a decision of Court by an enactment and such an act does not, amount to the exercise of judicial power. Reference in this connection may also be made to Mt. Jadao Bahujj v. Municipal Committee, Khandwa, AIR 1961 S C 1486, Piare Dusadh v. Emperor, , Bhaskar Narayan Deshmukh v. Modh Alimullakhan AIR 1953 Nag 40. Tadao Bahu Ji v. Municipal Committee Khandwa, (S) AIR 1956 Nag 167 and Gulabrao Keshavrao v. Pandurang Bhanji Dhomne. : AIR1957Bom266 which were relied on in the said case. Another case of the Madhya Pradesh High Court which may be relevant in this connection is Mohanlal Ilargovindas v. State of M. P. : AIR1962MP245 col. I the law on the point is stated as follows :

'In our opinion the true position is that when the Legislature, without amending the law, directs, contrary to the law in force, that pending cases shall be disposed of in a particular manner, or that cases decided in one way shall be deemed to have been decided in another way, that would be an exercise of judicial power. But the enactment of a retrospective law or the passing of a Validation Act, which incidentally puts an end to the finality of a decision of a Court or re-opens a past controversy cannot be regarded as an exercise of judicial power.'

Reference in this connection may also be made to Rai Ramkrishna v. State of Bihar, AIR 1965 S C 1667, : [1979]3SCR1217 and P. Sarvaiah v. W. Narsing Rao, (S) AIR 1955 Hyd 257.

46. The above discussion of law would indicate that the weight of authority appears to be against the contention of the learned counsel for the petitioner that there is a difference between the infirmity arising out of legislative incompetence and that arising of Constitutional prohibition in the matter of retrospective validation of invalid laws. Further, it is also difficult to accept the contention of the learned Counsel for the petitioner that the Validation Act is bad on other grounds advanced by him. I would, therefore, prefer not to rest my judgment in the present case on the ground that the Validation Act itself is ultra vires.

47. I am, however, inclined to agree with the contention that the two orders passed by the second respondent on the 21st of April, 1962, imposing penalties on the petitioner and making him liable for interest are not sustainable even under the Validation Act. The Validation Act is merely declaratory and not executory. It validated past acts, i.e. acts done prior to the 3rd of February, 1961. It, however, did not authorise any future acts or passing of any orders after the 3rd of February, 1961, imposing further penalties on persons liable or ordering them to pay interest or imposing any further liability on them in any manner. The orders in question having been passed after the 3rd of February. 1961, cannot, therefore, be substained under the Validation Act and both the writ petitions should be allowed in so far as they seek to quash the orders of the second respondent dated the 21st of April, 1962. I would, therefore, direct the issue of a writ of mandamus restraining therespondents from taking any steps to enforce, execute or give effect to the orders of the second respondent dated the 21st of April 1962.


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