1. These three writ petitions were referred to a Full Bench for hearing and disposal, in view of the importance of the questions concerning certain provisions of the Kerala Motor Vehicles Taxation Act, 1976 (Act 19 of 1976), hereinafter referred to as 'the Act'. The writ petition O. P. No, 2080 of 1980 was also heard along with these petitions, but it was felt that that case can be dealt with and disposed of separately, in view of the special factual features in that case. Accordingly, O- P, No. 2080 of 1980 is being disposed of by a separate Judgment.
2. Of the three petitions, two--O. P. Nos. 4987 and 4990 -- are by the same petitioner, Messrs. R.K.V. Motors and Timbers (P.) Ltd. O. P. No. 4290 has been filed by A. Chokkanathan. Before referring to the questions of law and dealing with them, the brief factual details at these cases may be adverted to.
3. In O. P, No. 4987 of 1976 the petitioner had been operating a 1949 model vehicle, which due to its obviously obsolescent condition, could not be operated towards the fag end of the year 1971. The vehicle was garaged on 28-9-1971. Tax due in respect of the vehicle had been paid up to 30-0-1971'. In the light of the intimation furnished about the non-user of the vehicle, the 1st respondent-Regional Transport Officer granted exemption from payment of tax for the periodfrom 1-10-1971 to 30-9-1975.
4. This exemption was granted under the provisions of the earlier enactment, Kerala Motor Vehicles Taxation Act, 1963, which was in force in the State till it was replaced by the Kerala Motor Vehicles Taxation Ordinance, 1975 (Ordinance 9 of 1975) promulgated by the Governor and was effective from 1-10-1'975. The Kerala Motor Vehicles Taxation Rules, 1975 were framed by the Government as per Notification No. 33942/ TC2/75/PW dated 29-9-1975 and published in the Kerala Gazette Extraordinary No. 572 bearing the date 29-9-1975. The notification which brought into force the rules, S.R.O. 881 of 1975, was published in the Kerala Gazette Extraordinary No. 573 of the same date, namely, 29-9-1975. The Ordinance was replaced by the Kerala Motor Vehicles Taxation Act, 1976 (Act 19 of 1976).
5. The petitioner contends -- and it is not contradicted on behalf of the Government -- that though the Gazette bore the date 29-9-1975, the Gazette was released to the public and was available to the citizens including those affected by it, only on 14-10-1975. According to the petitioner, the benefit of exemption from tax could be claimed by an operator by giving intimation to the appropriate authority in Form No. G within one week from the date of commencement of the period for which such exemption from payment of tax in respect of the vehicle was claimed due to non-use. The petitioner furnished such information under Ext. P1, within one week after the release of the Gazette containing the publication of the Rules. This intimation was returned by the 1st respondent, the reason for such return being stated in the counter-affidavit as the belated submission of the application for exemption. The plea of delay is put forward by the respondents on the basis that the Rules had come into force with effect from 1-10-1975 taking the position that the Rules were effective with effect from the date of the Gazette in which such Rules were published, even though the Gazette was released only later. It is stated in the counter-affidavit as follows:
'Even though the rules were not published on 29-9-1975 wide publicity was also given in the newspapers, in respect of the application of the rules. The allegation that the Rules were framed and made known only on 14-10-1975, is denied.'
(vide paragraph 9 of the counter-affidavit in O. P. No. 4987 of 1976). As stated earlier, though this general denial in respect of the actual date of release of the Gazette has been made in the counter-affidavit, it was submitted at the Bar by the learned Advocate-General that the actual date of release of the Gazette is not being disputed.
6. When his request for exemption was virtually declined, the petitioner took up the matter by a further petition Ext. P3 dated 22-3-1976, apparently when a demand notice claiming tax for the quarter ending 31-12-1975 was made against it. The fact that the vehicle which had no valid permit nor certificate of fitness for the period in question and that it had been off the road from 28-9-1971 and the further fact that the Regional Transport Authority itself had granted exemption for the period up to 30-9-l'975, had been emphasised in Ext. P3. The representation was, however, rejected by Ext. P4 dated 1-7-1976 on the ground of omission to furnish advance information relating to the non-user of the vehicle in accordance with Section 5 (1) of the Act- An appeal Ext. P5 was taken by the petitioner against the above order before the 2nd respondent who rejected it by Ext, P6 order dated 22-10-1976. This order too, rested on the ground for rejection of the claim for exemption on the omission to give advance intimation about the non-user of the vehicle within one week of the commencement of the period to which the tax related. A further representation Ext. P7 dated 8-10-1976 was filed before the 1st respondent reiterating the non-user of the vehicle ever since 28-9-1971, and non-liability of the petitioner for tax under the Act, emphasising the aspects that the vehicle had no permit from 8-1-1975 and had not been used on the road. Such representation ultimately turned out to be an exercise in futility. The subsequent attempt at recovery of the tax demanded, forced the petitioner to move this court for reliefs under Article 226 of the Constitution.
7. The facts in relation to O. P. No. 4990 of 1976 are similar, the only difference being the number of the vehicle and the route. The vehicle involved in KLT 1084 and the route, Paravoor-Pelode.
8. In O. P. No. 4290 of 1976 the petitioner is the registered owner of a goods vehicle bearing No. TNY 2106 and he had paid tax up to the quarter ending 30-9-1975. On 15-8-1975 the vehicle was seized by the police, pursuant to a complaint. A case under Section 395 of the Penal Code was registered and the vehicle was taken into custody. The vehicle was produced before the Second Class Judicial Magistrate, Pathanamthitta who entrusted the same with General Motors and Finance Ltd. (the hire purchase company). The petitioner has stated that he got release of the vehicle from the General Motors and Finance Ltd. on 1-12-1975 and it is alleged that he had taken the vehicle to Tamil Nadu and not used the vehicle subsequent to that date in the Kerala State. The petitioner intimated on 10-10-1975 that the vehicle was with the hirers and is not being put on road. Along with the intimation, the permit was also sent to the 1st respondent making it clear that he has surrendered the permit. In view of the seizure of the vehicle by the police, production thereof before the court and entrustment of the vehicle with the hirers by the court (the averments relating to which have not been contradicted), it is clear that the vehicle had not been used on roads in the State after seizure on 15-8-1975. The clear intimation of the intention of the petitioner not to use the vehicle within the State had been given admittedly on 10-10-1975. The facts have been clearly stated in Ext. P2 representation. Notwithstanding the intimation dated 10-10-1975 and clarification given by the petitioner by his letter dated 5-5-1976 which is marked as Ext. P2, tax was levied and demanded in respect of the vehicle for the quarters ending 31-3-1976, 30-6-1976 and 30-9-1976. The petitioner has thereupon approached this court for quashing Ext. P3 demand and for other incidental reliefs.
9. It will be evident from the facts stated above that there had not been any use of the vehicle on the roads in the State for the quarter ending 31-12-1975 and thereafter. The stand of the departmental authorities have been, however, that irrespective of such consideration, tax was exigible in respect of the vehicles for non-compliance with the Act and the Rules, which insist on an intimation being given in advance. Particular emphasis was made on the wording of the exemption section -- Section 5 -- where-under the operator was obliged to give previous intimation in writing about the intention not to use or keep for use the vehicle. In the present case, in respect of the quarter ending 31-12-1975 and commencing on 1-10-1975 admittedly there was no prior intimation. The respondents therefore contend that the claim of the writ petitioners is unjustified on merits.
10. The scheme of the Act and the Rules had been analysed recently by one of us (George Vadakkel, J.) in a recent decision-- O. P. No. 1802 of 1980. As observed by our learned brother:
'The Act has been enacted by virtue of the provision in Entry 57 in list 2 in Schedule VII of the Constitution. The said entry enables the State Legislature to enact on 'tax on vehicles, whether mechanically propelled or not, suitable for use on roads, including tram-cars subject to the provisions of Entry 35 of List III'.'
11. As the wording in Section 5 and Rules 4 and 10 are relevant and material, it is better to preface the discussion of the questions by reading those sections. They are accordingly extracted below:
'Section 5. Exemption from tax: (1) In the case of a motor vehicle which is not intended to be used or kept for use during the first month or the first and second months of a quarter, or the whole of a quarter or year, as the case may be, the registered owner or the person having possession or control of such vehicle shall give previous intimation in writing to the Regional Transport Officer from whom the endorsement for tax has been obtained, that such vehicle would not be used for such period and thereupon, the registered owner or such other person shall not be deemed to have used or kept for use the vehicle for such period, and no tax shall be payable in respect of such vehicle for such period.
(2) Nothing in Sub-section (1) shall exempt a person from liability to pay tax in respect of a motor vehicle, if, on verification, it is found that the motor vehicle has been used during such period or any portion thereof.
(3) Notwithstanding anything contained in Sub-section (1), in an appeal under Section 23 or a revision under Section 24, the burden of proving that a motor vehicle has not been used during any period shall be on the registered owner or the person having possession or control of the motor vehicle, as the case may be.
'4. Payment of tax levied (Section 4 (1) : Tax levied in respect of every non-transport motor vehicle shall be paid in cash at the office specified in the certifi-eate of registration of the vehicle and tax in respect of every transport vehicle shall be paid by crossed demand draft payable at the local branch of the State Bank of Travancore or the State Bank of India or in any other manner specified in the certificate of registration of the vehicle. While making such payment in cash or otherwise, the certificate of registration along with the certificate of insurance referred to in Section 8, shall be produced before the Taxation Officer for the issue of tax licence and necessary endorsement regarding the details of tax paid and licence issued. Provided that the tax due to the State of Kerala in respect of public carrier goods vehicle covered by National Permit issued by competent authorities of other State/Union Territories in India in pursuance of Sub-section (11) of Section 63 of the Motor' Vehicles Act, 1939 (Central Act IV of 1939) shall be paid by crossed demand drafts drawn in favour of the Secretary, State Transport Authority, Kerala, Trivandrum and payable at Tri-vandrum from any one of the Nationalised Banks.
Rule. 10. Exemption from tax (Section 5 (1)) :
(1) The previous intimation referred to in Sub-section (1) of Section 5 shall be made to the Regional Transport Officer concerned in Form G or in writing with the particulars required therein so as to reach him within one week from the date of commencement of the period for which exemption from payment of tax in respect of the vehicle is claimed due to non-use.
(2) On receipt of the intimation, the Regional Transport Officer concerned shall certify, after such verification as may be deemed necessary, the non-use of the vehicle for the period for which tax is not payable, by making necessary endorsement in the certificate of registration of the vehicle,
Note; The previous intimation referred to in this rule shall be sent by registered post acknowledgment due or presented to the office of the Regional Transport Officer, in person and in the latter case, acknowledgment for its receipt, shall ba obtained.'
12. The charging section is Section 3. Thereunder the levy is on every motor vehicle used or kept for use in the State. The rates are to be specified in the schedule. The levy itself, as is evident from the opening words of that section--Section 3 is subject to the other provision of the Act. These other provisions will take in Section 5 dealing with exemption. If previous intimation in writing is given, no tax is payable in respect of such vehicle for such period. Under Section 3 (3), a registered owner of a motor vehicle is to be deemed to use or keep for use in the State such vehicle, except during the period for which no tax is payable on such motor vehicle under Sub-section (1) of Section 5. Thus, the very levy is excluded in respect of a period for which the exemption is granted under Section 5.
13. The enactment by Section 28 of the Act, confers on the Government, rule-making powers. Such powers take in among other things, the manner in which tax shall be paid and the total or partial exemption from liability to payment of tax in respect of the vehicle. It is by virtue of the power under this section, that Rules referred to above have been framed. Though the Act stipulates prior intimation in respect of a period to entitle an operator to exemption, the Rules have largely relaxed the rigour of the section. It will be evident that under Rule 10 (extracted earlier) it will be sufficient if intimation is given within a period of one week from the commencement of the quarter in respect of which exemption is claimed. The statutory rule-making authority having thus relaxed the otherwise stringent provision in the section, it would be sufficient for an operator to claim exemption from tax, if intimation is given after the commencement of the period in respect of which exemption relates, The outer limit for submission of such intimation is one week after the commencement of the period for which exemption is claimed. We hold, and we proceed on the basis, that any operator who gives intimation within a week of the commencement of the period in respect of which exemption is claimed will be entitled to such exemption, notwithstanding the Insistence on a prior intimation in terms of the section.
14. The interpretation of Section 5, however, presents certain difficulties due to the obscurity of the language in which it is couched. We shall presently demonstrate this strange phenomenon in the statutory provisions. The section provides that 'in the case of a motor vehicle which is not intended to be used or kept for use during the first month or the first and second months of a quarter, or the whole of a quarter or year, as the case may be the registered owner shall give previous intimation in writing'. Take, for illustration, the quarter commencing on the 1st of January of a year. II the operator does not intend to use or keep for use the vehicle for January, he is enabled to make an application for exemption. So is the case if the intended non-user relates to January and February. If the non-user relates to January, February and March, then also exemption is contemplated if other conditions are satisfied. However, if the non-user relates to February, or February and March, the exemption will not be available, as the period of non-user does not answer the description 'first month', or 'the first and second months of a quarter' or, the whole of a quarter or, year. This would be palpably arbitrary and unconstitutional, for there exists no reasonable basis for the obvious discrimination between the different periods of non-user and no rational nexus to the object of the enactment, namely, levy of tax on motor vehicles using the public roads and grant of exemption for periods of non-user. A serious threat to the constitutional validity of the section has, however, been averted by the concession made by the learned Advocate General (a concession which we note, has been rightly made, and we therefore record it for the sake of clarification relating to the constitutional issue) that any operator would be entitled to claim exemption even for the second month or the second and third months, though prima facie the wording of the section would not take in such cases for exemption. In that view of the matter it has become unnecessary to consider the question whether Section 5 results in an invidious discrimination or generates unconstitutional results. As stated earlier, we record the submission made by the learned Advocate General that an operator would be entitled to claim exemption in respect of any month or two months or quarter or year if he makes an application in that behalf and satisfies the requirements of the Act and Rules. The only contingency in which exemption cannot be claimed will be where the non-user of the vehicle is for a period less than one month in a quarter.
15. In the light of the above concession made by the learned Advocate-General, it will be evident that in respect of the months of November and December, 1975 the petitioners would be entitled to exemption, for obviously the intimation given on or before 11-10-1975 constitutes even prior and sufficient intimation about the non-user of the vehicle as regards the months of November and December, 1975. One question, however, survives for decision and that relates to the justification of the levy of tax even in respect of the month of October, 1975. If, as the Government contends that the rule was operative even on the date of the Gazette in which the Rules had been published, there is no intimation within a period of one week from the commencement of the quarter, namely, 1-10-1975. If, on the other hand, the Rules can be treated as having efficacy and effect only when the Gazette had been actually released to the public, then it is agreed that the intimation has been given within a week of the effective knowledge of the petitioner of the Rules, which among others include the manner in which application for exemption has to be made and the form in which such application has to be preferred. The question whether an operator is, therefore, bound to comply with the requirements of the Rules on the date on which the Gazette containing the same is, printed, will, therefore, arise for consideration, In other words, if the Gazette containing the Rules had been released only on 14-10-1975 and consequently the operator could have information about it only subsequently, the question is whether the Rules could be held to be effective from a date anterior to the date of release of the Gazette.
16. This direct question has been considered by a recent decision of the Andhra Pradesh High Court in G. Narayana Reddy v. State of Andhra Pradesh, (1975) 35 STC 319. A Division Bench of the Andhra Pradesh High Court consisting of Chinnappa Reddy and Madhava Reddy, JJ. held that notwithstanding the date of publication of the statutory notification under the Andhra Pradesh General Sales-tax Act, 1957 given as 1-12-1966, the amendment brought out thereunder could be effective only from 12-12-1966, the earliest point of time when the affected persons could actually receive the Gazette. The following extract from that decision, occurring in para 2 of page 320 explains the view taken by that court:
'On perusal of the registers, it is clear that Gazette No. 328-A bearing date 1st December, 1966, was printed and released to the public on 12th December, 1966. The notification was therefore effective at least from 12th December, 1966. The learned counsel would however urge that since the notification was not in fact published on the date which it bears, it was of no effect whatever and it was as if there was no notification at all, we are not prepared to agree with this submission. As we have said the notification is effective at least from 12th December, 1966, the date on which it was released to the public.'
17. The question as to the effective date of coming into force of a statutory rule or order had been the subject-matter of consideration by this court too. The following decisions have been rendered on the question: Gracy v. State of Kerala, 1972 Ker LT 141 : (1972 Lab 1C 1367) and Kochusara v. Gracy C.T., 1973 Ker LT 880, the former by one of us (Poti, J., as he then was) which was reversed by a Division Bench in appeal in the latter decision. It has been contended for the petitioners that this latter decision is opposed to principles and precedents and consequently requires reconsideration. We shall presently examine this important and larger contention.
18. It is desirable that the question is examined not in a narrow or pedantic manner but on wider and more enduring considerations. One such consideration is the background of a written constitution under which the State and its instrumentalities (which take in the Executive and the Legislature) have to function. And they have to function in tune with the basic constitutional mandates of which Arts. 14 and 19 are prominent by virtue of their glorious content. In a sense, the development of Indian administrative law has been to a large extent linked with a progressive interpretation of Article 14 of the 'Constitution as embodying the concept of 'fairness in action'. The march of law from A. K. Gopalan, AIR 1950 SC 27 to Maneka Gandhi, AIR 1978 SC 597, over a period of about 30 years (which period synchronises with that during which there was progress 'towards a comprehensive system of administrative law', in England too, and which Lord Diplock regarded as 'having been the greatest achievement of the English Courts in my judicial lifetime'--See IRC v. Federation of Self-Employed, (1981) 2 All ER 93 at 104) will be a revealing feature to any students of constitutional history and law. In a sense, the expositions contained in Maneka Gandhi's case and its further amplifications in R. D. Shetty's case, AIR 1979 SC 1628, and Ajay Hasia's case, AIR 1981 SC 487, mark 'the commanding heights of the law', as against the 'twilight area of maladministration'.
19. The following passage occurring at p. 624 in Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597, is the index-finger of approach of courts towards law and legal procedure:
'Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be 'right and just and fair' and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.'
20. If a citizen is aggrieved by a law, even if made by Parliament or legislature within its legislative competence, it is liable to be struck down, if it does not conform to the requirements of Article 14 of the Constitution. And the core of the query is : Is the law 'right and just and fair'? A substantial impairment of the existing rights by a retroactive law, may also, in given circumstances, be liable to a successful challenge on the ground of arbitrariness, unreasonableness and oppressiveness, though generally a sovereign legislature, as held in Jawaharmal v. State of Rajasthan, AIR 1966 SC 764, and other cases, has powers to give retrospective effect to a legislative enactment. If that he the position of a piece of legislative action made by the Parliament or the legislature itself, a subordinate legislation by a delegated authority cannot claim a greater privilege or a larger immunity from judicial scrutiny.
21. That a sovereign Parliament is on a superior plane than other subordinate legislative bodies, has been accepted many years back. Even colonial legislatures cannot claim the same status as a govereign Parliament like the House of Commons of the United Kingdom. It has been so held more than a century back in Kielley v. Carson, (1842) 4 Moo PCC 63; Doyle v. Falconer, (1-866) LR 1 PC 328 and Barton v. Taylor, (1866) 11 App Caa 197. The Judicial Committee of the Privy Council speaking through Lord Diplock, and delivering the majority judgment of the Board, in Rediffusion (Hong Kong) Ltd. v. Att. Gen. of Hong Kong, (1970) AC 1136, referred to the absence of jurisdiction of English courts to interfere in the conduct of proceedings of the fully sovereign Parliament of the United Kingdom, and the inapplicability of that principle to the colonial legislatures. Colonial legislatures and their members did not at common law enjoy all the privileges and immunities of the English lex et consue-tudo Parliamenti. The courts, it was held, 'have a preventive jurisdiction in relation to the unlawful conduct by a subordinate legislature, if there would be no remedy after the legislative process is complete'. We have referred to this aspect only to point out that a well-known distinction exists between a Parliamentary enactment and a subordinate legislation.
22. This vital distinction between the legislative exercise of a sovereign Parliament and the subordinate functioning of delegate of legislature had been noted by the Indian High Courts, soon after the advent of the Constitution. Even in respect of rule-making powers, the fact that a subordinate functionary or a delegate of legislative power could not make provisions with retrospective effect unless such a power is conferred expressly by the very parent statute, had been held by two decisions of 1956 in Modi Food Products Ltd. v. Commr. of Sales Tax, U. P., AIR 1956 All 35 and M. L Bagga v. C. Murhar Rao, AIR 1956 Hyd 35. The Allahabad High Court in the decision referred to above observed as follows (at p 39 of AIR 1956 All):--
'A legislature can certainly give retrospective effect to pieces of legislation passed by it but an executive Government exercising subordinate and delegated legislative powers, cannot make legislation retrospective in effect unless that power is expressly conferred.'
The same question was posed for decision before a Division Bench of the Hyderabad High Court referred to above. The High Court posed the important question. Whether a rule made by the subordinate statutory authority could be given retrospective effect? After referring to the decisions cited at the Bar the court (at p. 38 of AIR 1956 Hyd 35) observed:--
'But none of these cases touches the question whether a rule-making authority in the absence of any express power in that behalf in the parent enactment can frame rules with a retrospective operation.'
Thereafter the court proceeded to observe (at p. 38) as follows:--
'Rule-making power conferred upon any other body or authority is a form of delegated legislation.
* * *
We have given anxious thought to the 'question under discussion. The learned advocate for the petitioner has been unable to cite any authority to support his contention in regard to retrospectivity of the rule upon which he principally based his argument nor have we been able to lay our hand upon one which may help us in the decision of this revision.
In our opinion, the rule-making authority does not possess plenary power to give the subordinate delegated legislation retrospective operation unless and until that power is expressly conferred by the parent enactment.'
23. This court too, followed the same principles in the unreported decision in the Highland Produce Co. Ltd. v. The Commr., Alleppey Municipality (O. P. Nos. 196 to 202 of 1955 decided on 26-10-1956). Justice Varadaraja Iyengar held:
'The ordinary rule is that whatever may be the plentitude of powers of the legislature in this matter of retrospective legislation, the subordinate authority to whom the Legislature delegates the function of framing Regulations for carrying out the objects and policy of the statute, has but limited powers. One limitation is that it cannot legislate retrospectively unless the power is specifically reserved.'
24. These decisions are only illustrative of the very many cases which have taken that view. It is unnecessary to undertake a circular tour of judicial decisions on this aspect, for, the Supreme Court also has now made the position clear and beyond any possible doubt in the Income-tax Officer, Alleppey v. M. C. Ponnoose, AIR 1970 SC 385 and Ex-Major N. C. Singhal v. Director General, Armed Forces Medical Services, New Delhi, AIR 1972 SC 628. The Supreme Court decisions have been noted in a Full Bench decision of this court in T. C. Sreednaran Pilial v. State of Kerala, 1973 Ker LT 151 : (1973 Lab IC 722).
25. This difference between an act of legislature and a subordinate legislation, had been dealt with by Maxwell while discussing the retrospective effect of a legislative enactment. While it has been noted that an Act of Parliament can beeffective from the date on which the Act receives the Royal assent, the position in relation to statutory instruments was held to be different. This difference had been clearly brought out in the decision in Johnson v. Sargant & Sons, (1918) I KB 101. Maxwell refers to that case with the following observation:
'According to a decision of Bailhache J., statutory instruments do not come into operation the day on which they are made, but on the day on which they are first made available or known to the public or to the person whom it is sought to affect by them.'
See Maxwell on the Interpretation of Statutes, 12th Edition pp. 15 and 16. Bail-bache, J., in the decision aforesaid, adverted to the argument (given at page 102 of the report) of the defence counsel:
'The Order became effective only when it became known to the parties and the public, namely, on May 17. The suggested analogy between a statute and an order such as this is not sound. A publicity is given to a statute during its passage through Parliament which is entirely absent in the case of an Order.'
The reasoning of the judgment is contained in the following words occurring in page 103:
'While I agree that the rule is that a statute takes effect on the earliest moment of the day on which it is passed or on which it is declared to come into operation, there is about statutes a publicity even before they come into operation which is absent in the case of many Orders such as that with which we are now dealing; indeed, it certain Orders are to be effective at all, it is essential that they should not be known until they are actually published. In the absence of authority upon the point I am unable to hold that this Order came into operation before it was known......'
26. The necessity that the people affected by law should have sufficient knowledge of the law, had been accepted as a basic tenet and inextricable characteristic of law even by legal theoreticians and jurisprudentialists. The following opening passage in the article by Joseph Raz entitled The Rule of Law and Its Virtue', high-fights the points:
'F. A. Hayek has provided one of the clearest and most powerful formulations of the ideal of the rule of law: 'stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand --rules which make it possible to foresee; with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge'.'
See 1977 Law Quarterly Review, Volume 93, page 195.
27. Again the same idea is expressed while dealing with the principles derived from the basic ideals of the Rule of Law-One of the more important principles of the Rule of Law has been stated at page 198, in the following words:
'All laws should be prospective, open and clear. One cannot be guided by a retroactive law. It does not exist at the time of action. Sometimes it is then known for certain that a retroactive law will be enacted. When this happens retroactivity does not conflict with the rule of law (though it may be objected to on other grounds). The law must be open and dequately publicised. If it is to guide people they must be able to find out what it is.' (see pp. 198 and 199) Adequate publicity to those from whom law expects obedience thereto, has thus been held as a basic requirement of the law itself.
28. We do not wish to expatiate on the basis of the law to a greater extent than is necessary for the purpose of this case. It may, however, be desirable to bear in mind that law by its very accept-ed definition consists of 'the rules recognised and acted on by courts of justice' (see Salmond on Jurisprudence, eleventh edition, Chapter 2, note 17, page 41 under the title 'Definition of Law'). While discussing the concept of 'justice according to Law', Salmond states that 'justice demands that a man should not be punished except for breach of a knowable rule'. Again the author stated: 'Laws are in theory, as Hooker says, 'the voices of right reason' they are in theory the utterances of Justice speaking to men by the mouth of the State'. The necessity that a rule should be known, has again been emphasised by him when he statess 'It is often more important that a rule should be definite, certain, known, and permanent, than that it should be ideally just'. These observations also underline the obligation of a State to speak or to make known, a rule, so that it could answer the description of law.
29. Even in the realm of contractual obligations the concept of mistake of lawappears to have undergone substantial changes. Cheshire and Fifoot's Law of Contract, 10th and latest edition now available, contains the following passage at p. 582:
'In 1943, indeed, Groom-Johnson J. thought the proposition that 'a voluntary payment under mistake of law cannot be recovered' to be 'beyond argument at this period in our legal history'.'
It was in Sawyer and Vincent v. Windsor Brace Ltd., (1943) KB 32, that Croom-Johnson expressed the above view. The law is not static; 'the wind of change blows on it', as observed by Lord Denning. This is reflected in the fact that barely seventeen years later, the Privy Council in the decision Kiriri Cotton Co. Ltd- v. Dewani, (1960) AC 192, appears to have departed from what is termed as the categorical English juristic opinion. Cheshire and Fifoot refers to the above decision in the following words;
'The Judicial Committee of the Privy Council, however, held in 1960 that a plaintiff may recover money paid on a mistake of law provided that he is not In pari delicto with the defendant.'
The extent of the departure can well be appreciated when the well-known authority on the law of contract, had earlier summarised the position in the following words: 'Money paid under a mistake of law cannot in any case be recovered'. See Pollock on Contracts edited by Winfield, 13th edition, p. 378.
30. We may perhaps wind up the discussion on this aspect, by referring to some of the observations in the article 'Law as Institutional Fact' delivered by Neil MacCormick:
'There is no justification for complacency about our traditional techniques of expounding and elaborating and working with the law. We cannot rest content with a priori assumptions about the way laymen speak or think about the law. There seem to be good practical reasons for lawyers' use of institutions as organising concepts......... But we ought at least to give serious, though properly critical, attention to any alternative suggestions about the organisation and exposition of the law. There are two desiderate that the law should be readily comprehensible to and sensibly organised for those who work with it, and that it should also make as much sense as possible to the non-professionals whose lives are regulated by it. At present we have no way of knowing how far the second of these desiderate is or is not met.'
31. The necessity for adequate publicity of the Rules to be known to those from whom law expected obedience, had been clearly noted by the decisions of our Supreme Court, soon after the advent of the Constitution. We need therefore only refer to those decisions and formulate, what, according to us, are the correct principles which emerge from the decisions of the Supreme Court on this aspect. We shall presently deal with this.
32. The Supreme Court in Harla T. State of Rajasthan, AIR 1951 SC 4S7 speaking through Bose, J. (who had been held in such high esteem and whose celebrated judgments had elicited appreciation from and recognition of English Judges by having been quoted with approval in England, as is seen, for example, in R. v. Brixton Prison (Governor), (1963) 2 QB 243, which paid tributes to the judgment of Bose, J. in Muller v. Superintendent, Presidency Jail, Calcutta, 1955 Inter LR 497 spoke clearly and forcefully in the following terms (at p. 468):
'In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence, The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential.'
Referring to the decision in Johnson v. Sargant, (1918) 1 KB 101, the differencein the making of Parliamentary enactment and subordinate statutory instruements was detailed in the following words:
'Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be.'
And in para 12, it was observed:
'Nor is the principle peculiar to England. It was applied to France by the Code Nepoleon, the first Article of which states that the laws are executory 'by virtue of the promulgation thereof and that they shall come into effect 'from the moment at which their promulgation can have been known'. So also it has been applied in India in, for instance, matters arising under Rule 119, Defence of India Rules. See, for example. Emperor Crown v. Manghumal Tekumal, ILR (1944) Kar 107: (AIR 1944 Sind 142), Shakoor v. Emperor, ILR (1944) Nag 150: (AIR 1944 Nag 40) and Babulal v. King Emperor, ILR (1945) Nag 762: (AIR 1945 Nag 218). It is true, none of these cases is analogous to the one before us but they are only particular applications of a deeper rule which is founded on natural justice.'
33. The necessity for such a requirement of adequate publication was again insisted upon in a decision which went to the Supreme Court from the State of Kerala. The absence of adequate publication led to the invalidation of an excise levy in that case. The Supreme Court held in that case as follows (at pp. 299, 300 of AIR 1958 SC) :
'The rules, which included Rule 7 under which the licences in question had been issued have been published in Cochin Sarkar Gazette and those rules have the force of law and have to be read as part of the Act and can only be varied, suspended or annulled in like manner, i.e., by a rule or notification similarly published. It is conceded that the endorsement at the foot of the Ext. (1), which is said to be a statutory order made under Section 17 and which obviously varied the provisions of Rule 7 by enhancing the fee on licences by adding a 20% commission to the fee already paid was not published in the Cochin Sarkar Gazette. It follows, therefore, that even if the endorsement could be regarded as a rule or notification prescribing the levy of duty, not having been published in the manner aforesaid the same cannot be regarded as a valid order having the force of law and, therefore, the impost cannot be said to be supported by authority of any law.'
And later it was further observed:
'The fact of the matter is that the impost was nothing but an executive order, if an order it was, which had no authority of law to support it and was, therefore, an illegal imposition. As explained by this Court in Mohammad Ya-sin v. Town Area Committee, Jalalbad, 1952 SCR 572 : (AIR 1952 SC 115) (A) and again in Bengal Immunity Co. Ltd. v. State of Bihar, (1'955) 2 SCR 603 at p. 681: ( (S) AIR 1955 SC 661 at p. 693) (B) an impost not authorised by law cannot possibly be regarded as a reasonable restriction and must, therefore, always infringe the right of the respondent to carry on his business which is guaranteed to him by Article 19(1)(g) of the Constitution.'
See State of Kerala v. P. J. Joseph, AIR 1958 SC 296 (at p. 300).
34. These two decisions had been the subject-matter of consideration in the sixties by the Supreme Court in the decision in Bangalore Woollen, Cotton and Silk Mills Co. Ltd., Bangalore v. Corporation of the City of Bangalore, AIR 1962 SC 562. A resolution by the Bangalore Corporation levying Octroi duty on cotton and wool was challenged in that action on the ground that failure to notify the final resolution of the imposition of the tax in the Government Gazette was fatal to the levy. The Supreme Court in para 4 noted that the resolution was published in newspapers and was also communicated to those affected by it and thus it was well-known to those directly concerned with it. The Supreme Court therefore observed that a failure to publish it in the Government Gazette did not affect the merits of its imposition.
The action of the Corporation in levying the duty was salvaged on the basis of, and only on the basis of Section 38 (1) of the City of Bangalore Municipal Corpo-ration Act (69 of 1949) which contained a saving provision in the following terms (at p. 563):
'No act done, or proceeding taken under this Act shall be questioned merely on the ground -
(b) of any defect or Irregularity in such act or proceeding, not affecting the merits of the case.'
It was in the above background and having regard to the provision of Section 38 (1), which, according to the Supreme Court, was unambiguous and clear, that the levy was upheld, observing that mere failure to notify the final resolution of the imposition of the tax in the Government Gazette is not fatal to the legality of the imposition.
35. The question was considered again in the decision of the Supreme Court in State of Maharashtra V. Mayer Hans George, AIR 1965 SC 722. It is necessary to bear in mind that in that case, a notification under the Foreign Exchange 'Regulation Act, 1947 had been published by the Government in the Gazette. and the notification purported to have effect only from the date of publication in the Gazette. There was no contention in that case that the publication was not in a mode not contemplated by the statute. The contention was that a person, a German national by birth and stated to be a sailor by profession, apprehended in the act of smuggling at the instance of an international gang of gold smugglers -- ignorant about the restrictive notification (which made his act an offence) he being out of India at the time the notification was published in the Gazette in India, was not guilty for the reasons, (i) he lacked the mens rea and (ii) the notification, which was only a subordinate legislation, 'could be deemed to be in force not from the date of its issue or publication in the Gazette but only when it was brought to the notice of persons who would be affected by it.....' The fact that there hadbeen publication of the relevant statutory notification had been emphasised as a distinguishing feature of that case in the following words (at p. 741) ;
'But in the case on hand, the notification by the Reserve Bank varying the scope of the exemption, was admittedly 'published' in the Official Gazette -- the usual mode of publication in India, and it was so published long before the respondent landed in Bombay, The question, therefore, is not whether it was published or not, for in truth it was published, but whether it is necessary that the publication should be proved to have been brought to the knowledge of the accused.'
And again it was observed (at p. 743) :
'Taking the present case, the question would immediately arise, is it to be made known in India or throughout the world, for, the argument on behalf of the respondent was that when the respondent left Geneva on November 27 he was not aware of the change in the content of the exemption granted by the Reserve Bank. In a sense the knowledge of the existence or content of a law by an individual would not always be relevant, save on the question of the sentence to be imposed for its violation. It is obvious that for an Indian law to operate and be effective in the territory where it operates viz., the territory of India it is not necessary that it should either b& published or be made known outside the country'
The Supreme Court repelled the pleas. Rajagopala Ayyangar, J. speaking for himself and Mudholkar, J. observed as follows (at p. 740) :
'In our opinion, the very object and purpose of the Act and its effectiveness as an instrument for the prevention of smuggling would be entirely frustrated if a condition were to be read into Section 8 (1) or Section 23 (1-A) of the Act qualifying the plain words of the enactment, that the accused should be proved to have knowledge that he was contravening the law before he could be held to have contravened the provision.'
The observations of Subba Rao, J- in the minority judgment may also be usefully extracted in this connection (at p. 732) :
'Even so it is contended that the notification dated November 8, 1982, is law and that the maxim 'ignorance of law is no defence' applies to the breach of the said law. To state it differently, the argument is that even the mental condition of knowledge on the part of a person is imported into the notification; the said knowledge is imputed to him by the force of the said maxim. Assuming that the notification dated Nov. 8, 1962. is a delegated legislation, I find it difficult to invoke that maxim as the statute empowering the Reserve Bank of India to give the permission, or the rules made thereunder do not prescribe the mode of publication of the notification. Indeed asimilar question arose before the Privy Council in 1963 AC 160 and a similar argument was advanced before it; but the Board rejected it. I have already, dealt with this decision in another context. There the Minister under the powers conferred on him by Section 9 of the Immigration Ordinance, 1952, issued an order prohibiting the appellant therein from entering Singapore. He was prosecuted for disobeying that order. Section 9, in the case of an order directed to a single individual, contained no provision for publishing the order or for otherwise bringing it to the knowledge of the person named. The Crown invoked the precept that ignorance of the law was no excuse. In rejecting the contention of the Crown, Lord Evershed, speaking for the Board, observed at p. 171 thus 3'Their Lordships are unable to accept the contention. In their Lordships' pinion, even if the making of the order by the Minister be regarded as an exercise of the legislative as distinct from the executive or administrative function (as they do not concede), the maxim cannot apply to such a case as the present where it appears that there is in the State of Singapore no provision, corresponding, for example, to that contained in Section 3 (2) of the English Statutory Instruments Act of 1946, for the publication in any form of an order of the kind made in the present case or any other provision designed to enable a man by appropriate inquiry to find out what 'the law' is'.
36. The impact of these decisions had been considered by the Andhra Pradesh High Court by Chinnappa Reddy, J. (as his Lordship then was of the Andhra Pradesh High Court) in R. Narayana Reddy v. State of A. P., (1969) 1 Andh WR 77, and on a consideration of the relevant principles emerging from the decisions referred to, it was observed as follows (at p. 1370 of 1972 Lab IC) :--
'Though, generally introduced unobtrusively and seldom attended by the flourish of bugles, delegated or subordinate legislation is all pervasive and there is hardly any field of activity where governance by delegated legislative powers is not as important, if not more important, than governance by Parliamentary legislation. One has only to go through any issue of the Official Gazette to realise how much we are governed by subordinate legislation. It is then not just to those that are governed that they should be informed of the law that governsthem? Justice Vivian Bose called this a principle of natural justice, though, I have no doubt, that the learned Judge did not mean to add to the two great principles of natural justice. Nemo judex in causa sua and audi alteram partem-What the learned Judge meant was that the principle that there can be no law that is not published or promulgated is as true a principle of justice and fair play as any principle of natural justice. Judges in India are brought to administer law according to the principle of justice, equity and good conscience'-
After referring to Harla's case (AIR 1951 SC 467) and quoting from that judgment the passage referred to earlier herein, Chinnappa Reddy, J. proceeded to observe (at p. 1370 of 1972 Lab IC) :
'I most respectfully agree that the Idea that a person may be governed by a law that cannot be known by him because it is not published or promulgated is revolting to judicial conscience and civilised thought. It has with it a strong odour of totalitarianism and of the Gestapo. It is repugnant to the Principles of Justice, Freedom, Equality and Fraternity, cherished by all lovers of Democracy and enshrined in our Constitution.'
With respect, we wholly endorse the view and share the sentiments.
37. The decisions in Harla's case, AIR 1951 SC 467 and R. Narayana Reddy's case, (1969) 1 Andh WR 77, were also considered and discussed in detail, by one of us (Justice Poti) when his Lordship rendered the decision in Gracy v. State of Kerala, 1972 Ker LT 141 : (1972 Lab IC 1367). The principle which distinguishes an enactment of the sovereign legislation from a subordinate legislation was elaborated there in the following words (at p. 1369) :
'Statutes passed by the legislature and law made by authorities to whom power of legislation is delegated by statutes call for compliance by those to whom they are directed and therefore it is necessary that there should be publicity in regard to such laws so as to bind those whom they govern. Legislations by way of statutes are 'often accompanied by a fanfare of publicity'. During the process of its motion through the legislative anvil there is publicity for the measure. The matter is debated in the legislature and discussed in the press and sometimes in the platforms. But this is not the case with subordinate legislation which often issues from the Secretariat of the Government or other offices. The citizen towhom it is directed is not expected to have notice of it automatically so as to call for his obedience to it unless it is accompanied by such publicity as would normally bring it to his notice. It is open to the statute under which such subordinate legislation is made to prescribe the mode in which publication is to be made. In the absence of any such direction in the parent statute such subordinate legislation would become operative only on publication in one or other modes which is being normally resorted to. The publication in the gazette is the usual mode in which such legislation is notified to the public and under ordinary circumstances that should be taken to be the proper or the normal course.'
38. As stated earlier, this decision had been overruled by a Division Bench in Kochusara v. Gracy C. T., 1973 Ker LT 880. The Division Bench took the view that Poti, J. and Chinnappa Reddy, J. erred in applying the dictum of the Supreme Court in Harla's case, AIR 1951 SC 467, and that the principles laid down by the Supreme Court in State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722, was authority for the position that as regards a statutory notification, the date of issue would be an effective date, though the publication of the notification happened to be later. The Division Bench summarised the legal position as follows:
'The result again is that, in a case like this, the mere making of the subordinate legislation is sufficient to give validity to it : publication is not necessary for bringing it into force or giving it validity.'
Harla's case was distinguished in the following words :
'We may also point out that the facts in Harla's case, AIR 1951 SC 467, were different, the Jaipur Opium Act could not have been said to have been made; there was only a resolution by the Council of Ministers. And we may also add that this case does not appear to have been considered in Mayer Hans George's case, AIR 1965 SC 722'.
39. Reliance was also placed by the Division Bench on the comments made by Alien in relation to the decision in Johnson v. Sargant, (1918) 1 KB 101 as referred to in the 1965 edition of 'Law and Orders'.
40. With respect, we feel that the approach of the Division Bench on this question had not been correct. It may benoticed that the decision in Mayer Hans George's case, AIR 1965 SC 722, did not hold that the view of Bailhache, J. in Johnson v. Sargant, (1918) 1 KB 101 was erroneous. The following observation of Prof. C.K. Allen on which the Supreme Court found great force, but in respect of which there was no necessity for any final decision, in that case reads as follows (at p. 742):
'On the face of it, it would seem reasonable that legislation of any kind should not be binding until it has somehow been 'made known' to the public, but that is not the rule of law and if it were, the automatic cogency of a statute which has received the royal assent would be seriously and most inconveniently impaired'
41. That the requirement of the legislation being known to the public is observed by the learned author as 'not the rule of law'. The extracts from the article of Joseph Raz and Nayak, do not share the view of Professor Allen on this facet of rule of law.
42. Referring to the decision of Bailhache, J. Professor Allen has observed: 'The decision has always been regarded as very doubtful, but it never came under review by a higher court.'
43. It must, however, be noted that in support of his observations, the author has not referred to any textual statements or decided cases other than the decision in Jones v. Robson, (1901) 1 QB 673. The reliance on Jones v. Robson does not appear to be quite justified. As Professor Allen himself admits, Jone's case is not on all fours as regards the principle enunciated by Bailhache, J. The question which arose in Jone's case was whether the Coal Mines Order which contained a prohibition on the use of detonators in mines in the contingencies mentioned therein, satisfied the requirement of Section 6 of the Coal Mines Regulation Act, 1896 which enabled the Secretary of State to make such an order. The relevant portion of that section reads:
'A Secretary of State on being satisfied that any explosive is or is likely to become dangerous, may, by order, of which notice shall be given in such manner as he may direct, prohibit the use thereof in any mine, or in any class of mines, either absolutely or subject to conditions.....' (emphasissupplied)
The Question which arose for decision was whether notice of the Order had been given by the Secretary of the State. The contention in that case as is evident from the arguments summarised at page 678 of the report was : 'The notice to be given under Section 6 by the Secretary of State is essentially an official act, and there is a presumption that such an act was in fact done. The provision as to notice is directory only, and is not a condition precedent : Le Feuvre v. Miller, (1857) 8 E & B 321.' It was not a case where the Coal Mines Order had not been published by the Government. The following passage occurring at page 676 of the report will make the position dear :
'The justices were of opinion as to contention 1, that the Government printers' copy was in itself sufficient evidence of the alleged order of July 24, 1899, having been made by a Secretary of State, and of a direction by him as to the manner in which notice should be given of the making of such order, and that the sending of the order by the agent of the colliery to the appellant was also sufficient evidence of such notice having been given within the meaning of Section 6 of the Coal Mines Regulation Act, 1896.'
It is thus evident that a statutory order had been printed by the Queen's printer. Such publication of the Order by the Queen's printer was contended as sufficient notice of the making of the Order. Even personal service of the Order on the affected person was established in that case, for a copy of the statutory order had been sent by the agent of the colliery to the manager of the colliery who was prosecuted in that case. It was in the above background that Bruce, J. observed :
'I think that the directions contained in the section about notice are directory only; that the order comes into force when it is made by the Secretary of State, and although power is given to him to give notice of the order and to direct how notice shall be given of the order, yet that is not essential to the order coming into operation, but is merely directory, and the fact that no notice is given does not prevent the order having effect.'
We, therefore feel that Jones v. Rob-son, (1901) 1 QB 673, does not justify the criticism of Bailhache's, J. decision, for in Jones' case the order had been print-ed by the Queen's printer and factually a copy of such order had been served on the affected person, while in the case before Bailhache, J. the question was whether before the publication of a statutory instrument, it could become known and consequently could take effect until it became known.
44. In this connection, with utmost respect to the learned author, we remind ourselves of what has been said recently by an equally eminent author and a sitting Judge of English Court, Megarry, J, in Cordell v. Second Clanfield Properties Ltd., (1'969) 2 Ch 9 at p. 16- Said the learned Judge :
'It seems to me that words in a book written or subscribed to by an author who is or becomes a Judge have the same value as words written by any other reputable author, neither more nor less. The process of authorship is entirely different from that of judicial decision. The author, no doubt, has the benefit of a broad and comprehensive survey of his chosen subject as a whole, together with a lengthy period of gestation, and intermittent opportunities for reconsideration. But he is exposed to the peril of yielding to preconceptions, and he lacks the advantage of that impact and sharpening of focus which the detailed facts of a particular case bring to the Judge. Above all, he has to form his ideas without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case. Argued law is tough law. This is as true today as it was in 1409 when Hankford, J. said :
'Home ne scaveroit de quel metal un campane fuit, si ceo ne fuit bien batu, quasi diceret, le ley per bon disputacion serra bien conus'. (Y. B. 11 Hen. 4, Mich., fo. 37).'
45. The observations of Bailhache, J. had commenced themselves for acceptance by the Supreme Court of India in Harla's case, AIR 1951 SC 467. According to us, it contains a more reasonable and rational view as regards the operation of, and coming into effect of, a rule, which acts on, and affects, the rights of the citizens. That interpretation is more in accordance with the democratic functioning of the limits of the State and with the constitutional scheme of making and implementing laws, as correctly observed by one of us (Poti, J.) and Chin-nappa Reddy, J. It may be remembered in this connection that while English enactments are beyond the doctrine of ultra vires the position is different in other systems with written constitution and its concomitant importation of the doctrineof ultra vires. As Allen himself remarks at p. 446 of 'Law in the Making' by Sir Carleton Kemp Allen, 7th edition :
'It goes without saying that we do not recognize the distinction, which exists in countries like France and the United States, between 'organic' or 'constitutional' and 'ordinary' laws; nor can any English statute be unconstitutional in the legal sense -- the courts have not the power, as they have in the United States, to refuse to apply it on the ground of unconstitutionality.'
46. It is doubtful whether the proposition that a subordinate legislation by a delegated authority would be binding on, and can affect the rights of a citizen, even without there being any reasonable means for the citizens to know about its issue or existence (let alone the contents), would pass muster when tested on the principles of reasonableness and absence -of arbitrariness encapsulated in Arts. 14 and 19 of the Constitution. We need not, however, proceed to make a pronouncement on this aspect, as, in our view, the drcisions of the Supreme Court fully support the views of one of us (Poti, J.) and Chinnappa Reddy, J. in the decisions referred to above.
47. The Supreme Court, it must be noted, has not held that the view in Johnson v. Sargant and Sons, (1918) 1 KB 101, was incorrect. Therefore, the Division Bench was not justified in virtually assuming that Bailhache's case had been disapproved by the Supreme Court. The assumption and the approach of the Division Bench on this'aspect is discernible from the underlining given by it on the following sentence in the judgment of Ayyangar, J. in State of Maharashtra v. Mayer Hans George, AIR 1965 SC 722 (at p. 743) :
'Even if, therefore, the view enunciated by Bailhache, J. is taken to be cor-rect it would be apparent that the test to find out effective publication would be publication in India, not outside India so as to bring it to the notice of everyone who intends to pass through India,
It may also be noted that the decision of the Supreme Court in Harla's case, AIR 1951 SC 467, and that in Joseph's case, AIR 1958 SC 296. had not been referred to in the judgment in State of Maharashtra v. Mayer Hans George, AIR1965 SC 722. with great respect we are, therefore, of the view that the Division Bench was not right in relying on the observations of Ayyangar, J. in departing from a rule which is clearly enunciated in Harla's case and in Joseph's case. The reasoning of Ayyangar, J. in Mayer Hans George's case, AIR 1965 SC 722, does not support the wide proposition laid down by the Division Bench when it held (at p. 884 of 1973 Ker LT) :
'Subordinate legislation will take effect from the date on which it is made and the absence of publication will not invalidate it.'
We cannot agree with the finding of the Division Bench that the decision in Mayer Hans George's case, AIR 1965 SC 722, was authority for the proposition 'that the subordinate legislation comes into force on the date on which it is made.'
48. The two sentences in which the decision of the Supreme Court in Harla's case (AIR 1951 SC 467) was considered and sought to be distinguished by the Division Bench, read (at p. 885 of 1973 Ker LT 880) :
'We may also point out that the facts in Harla's case, AIR 1951 SC 467 were different : the Jaipur Opium Act could not have been said to have been made : there was only a resolution by the Council of Ministers. And we may also add that this case does not appear to have been considered in Mayer Hans George's case, AIR 1965 SC 722.'
We do not think that the reasoning in Harla's case about the basic requirement of adequate publicity of any legislative action, could be distinguished on such tenuous grounds,
49. In Jaipur, it was conceded that the Ruler had full powers of legislation When in 1922, the then Maharaja died, leaving behind him a minor as successor, the Crown representative appointed a Council of Ministers to look after the Government and administration. Such a Council of Ministers had powers of legislation as well. By a resolution, the Council of Ministers purported to enact the Jaipur Opium Act. The Supreme Court posed the question arising for decision and answered it in the following words:
'.....the only question is whetherthe mere passing of the Resolution without promulgation or publication in the Gazette, or other means to make the Act known to the public, was sufficient tomake it law. We are of opinion that it was not.'
The decision of the Supreme Court in Harla's case (AIR 1951 SC 467} cannot therefore be distinguished on the assumption (an erroneous one) that a resolution of Council of Ministers coutd not do duty for a legislative act. The resolution of Council of Ministers had legislative efficacy provided there was adequate publicity and in a mode known to law.
50. According to us, the attempt at distinguishing the decision, or whittling down its effect, by reference to the circumstance that that decision had not been brought to the notice of the Supreme Court when it rendered the decision in State of Maharashtra v. Mayer Bans George, AIR 1965 SC 722, is also not a correct approach. The decision had been noted by the Supreme Court in the decision in Bangalore Woollen, Cotton and Silk Mills Co. Ltd., Bangalore v. Corporation of the City of Bangalore, AIR 1962 SC 562. It was perhaps unnecessary to refer to Harla's decision in Mayer Hans George's case, as there was publication of the notification in the Gazette.
51. The fact that Harla's (AIR 1951 SC 467) decision had not been brought to the notice of the Supreme Court while deciding Mayer Hans George's case, AIR 1'965 SC 722, only indicates the possibility that the tentative views expressed by Rajagopala Ayyan-gar, J. would not have been so expressed if only the strong logic and powerful reasoning underlining Harla's case had been brought to the notice of the court.
52. In the light of the aforesaid discussion, we are clearly of the view that the decision in Kochusara v. Gracy C. T., 1973 Ker LT 880, to the extent it holds that mere making of a subordinate legislation is sufficient to give validity to it: publication is not neccessary for bringing it into force or giving validity', is wrongly decided. The views expressed by one of us (Poti, J.) in Gracy v. State of Kerala, 1972 Ker LT 141 : (1972 Lab IC 1367), and by Chinnappa Reddy, J. in R Narayana Reddy v. State of A. P., (1969) 1 Andh WR 77, represent the correct position in law. We overrule the decision of the Division Bench in Kochu-sara's case 1973 Ker LT 880.
53. Before parting with the case, we may also note that Section 28 of the Act, which confers rule-making powers on the Government, provides that such rules are to be made by notification in the Gazette. And as stated earlier, the Gazette containing the notification relating to the Rules in question had been released only on 14-10-1975.
54. In the light of our foregoing discussion, the applications for exemption are to be treated as within time. Consequently, the demand for vehicles tax for those periods is unjustified.
55. In the result, we allow original petitions Nos. 4987, 4990 and 4290 of 1976 and quash Exts. P4 and P6 in both writ petitions to the extent they direct payment of vehicles tax for the period 1-10-1975 to 31-12-1975 in respect of the vehicle No. KLT 1081 in O. P. No. 4987 of 1'976 and vehicle No. KLT 1084 in 0. P. No. 4990 of 1976, and quash the notice Ext. P-1 and the demand Ext. P-3 in O.P. No. 4290 of 1976 to the extent they direct payment of vehicles tax in respect of vehicle No. TNY 2106 for the period 1-10-1975 to 31-12-1975.
56. The writ petitions are allowed in the manner indicated hereinabove and with the declaration contained in paragraphs 13 and 14 above. We direct the parties to bear their costs in these writ petitions.
George Vadakkel, J.
57. I agree that the three writ petitions are to be allowed in the manner stated in paragraph 55 of the judgment of my learned brother Sukumaran, J. However, I would rest my decision on the principles stated by me in Cherian Thomas v. Regional Transport Officer, O. P. No. 1802 of 1980 (Reported in AIR 1982 Ker 152) referred to earlier in the judgment. In the Cherian Thomas case I have taken the view that Section 5 (1) of the Act has to be construed as a provision substantial compliance of which is sufficient and that is what is required, and when Section 3 (3) is attracted to a particular case and the presumption arises thereunder, the registered owner or the person having possession or control over the vehicle can establish that the motor vehicle in question was not used nor intended to be used nor kept for use on public roads of the State and that therefore, the same is entitled for the exemption under Section 5 (1) of the Act. In view of the concession made by the learned Advocate General that despite the language employed in Section 5 (1) exemption can be claimed and granted for all, or, any one or two ofthe three months of a quarter the bur-den of proof that is on him who seeks exemption is lessened in that he can discharge such onus of proof in relation to and in respect of any one, or two or all of the three months of a quarter; also the difficulty of the Department to verify the data and facts relied on in support of the claim for exemption is less,
58. Since under Section 28 of the Act, the rule-making power is defined, viz., rules are to be made by justification in the Gazette, I am at one with my learned brother, in holding that the Kerala Motor Vehicles Taxation Rules, 1975 came into force only on 14-10-1975 when the copies of the Gazette in which the Rules were printed were released to the public, for then alone was there notification of the Rules. However, this or the concession made by the learned Advocate General to which I adverted in the preceding paragraph will not mitigate the rigour of Section 5 (1) of the Act requiring 'previous intimation in writing' -- intimation before the period for which exemption is sought for begins to run -- if the said requirement is held to be of a mandatory character. As already said I am of the view that it is not so. In that view and in the above said situation arising in this case, namely, no solution to the question as to whether exemption can be claimed for October 1975 on the ground that the Rules came into force only on 14-10-1975 can be found merely by examining as to when the said Rules came into force, I refrain myself from expressing any opinion on the larger question mooted; when does a legislation framed by a delegate of the legislator by virtue of power conferred on him to make such legislation come into force,-- when it is framed?; when it is published? when the fac-tum of such legislation is notified? which may be done even without publication of the Rules in the official Gazette; or only when the same, generally speaking, reaches the hands of those for whom it is intended. The answer to this may, perhaps, depend upon the scrutiny of the scope of the power conferred, on the subordinate legislator by the principal legislator to make subordinate legislation including the power to bring the same Into force, and the method and manner prescribed by principal statute in that behalf. I also do not express any opinion on the correctness or otherwise of the Kochusara case, 1973 Ker LT 880 as in the view that I have expressed above,that question does not fall for examination in these cases.