No 1810 of 1971
Appeal by Special Leave from the Judgment and Order dated 131971 of the Orissa High Court in OJC No 1597 of 1968 AND CA No 1170 of 1972 Appeal by Special Leave from the Judgment and Order dated 831971 of the Orissa High Court in OJC No 316 of 1970 AND Civil Appeal No 1981 of 1972 Appeal by Special Leave from the Judgment and Order dated 283 1971 of the Orissa High Court in OJC No 1885 of 1968 AND Civil Appeal No 1982 of 1972
Appeal by Special Leave from the Judgment and Order dated 2861971 of the Orissa High Court in OJC No 153 of 1971 AND Civil Appeal No 1603  1604 of 1972 716 Appeal by Special Leave from the Judgment and Order dated 231971 of the Orissa High Court in OJC Nos 202 and 203 of 1969 AK Sen Bishamber Lal Khanna and Bishamber Lal for the appellants in CA No 181071
AK Sen CA No 4072 HR Gokhale CAs 1603 1604 Gobind Das CAs 1170 198 1982 SLPs and for the interven ers Bijoy Mohenty Mrs Sunanda Bhandare MS Narsimhan A K Mathur AK Sharma and Miss Malini Poduval for the appellants in CA Nos
1170 1981 1982 1603 1604 of 1972 and CA No 4072 and in the SLPs Nos 305 31072 and for the Interveners
G Rath Adv
During the pendency of the writ petitions filed by the appellants in the Orissa High Court the Orissa Legislature passed the Orissa Taxation on Goods carried by Roads or Inland Waterways Validation Act 18 of 1962 validating the Act of 1959
The High Court accepted the appellants  contention that the Act of 1959 was unconstitutional but it dismissed the Writ petitions on the ground that the appellants were not entitled to any relief as they had not challenged the Act of 1962 which had validated the Act of 1959
After the decision of the High Court
respondent No 2 the Tax Officer assessed tax in varying amounts for different quarters on the goods carried by the appellants by road
The appellants then filed fresh writ petitions under article 226 of the Constitution challeng ing the Act of 1962
Those petitions were dismissed by the High Court but in appeal the judgment of the High Court was set aside by this Court on August 10 1967
It was held by this Court that the Validating Act of 1962 did not cure the defect from which the Act of 1959 suffered and therefore respondents were not entitled to recover any tax from the appellants under the aforesaid Acts
On March 25 1968 the Orissa Legislature having ob tained the previous sanction of the President to the moving of the Bill passed the Orissa Taxation on Goods carried by Roads or Inland Waterways Act 8 of  1968 imposing the same levy which it had unsuccessfully attempted to levy under the Act of 1959 and to validate under the Act of 1962
Some of the appellants from whom the State Government had recovered taxes after the Act of 1962 was upheld by the High Court asked for refund thereof after that Act was declared unconstitutional by this Court
The refund having been refused by the Governments the appellants filed writ peti tions in the High Court 717 challenging the validity of the 1968 Act
The dismissal of those writ petitions has given rise to these appeals by special leave
There is no substance in any of the contentions raised on behalf of the appellants regarding the constitutionality of the Act of 1968
The bill which matured into the impugned Act was introduced by the Orissa Legislature after obtaining the previous sanction of the President under the Proviso to article 304 of the Constitution
As shown by the Preamble the Act was passed in order to provide for the level of tax on certain goods carried by roads or inland waterways in the State of Orissa and to validate certain taxes imposed on such goods
By section 1 3 the Act was to be deemed to have come into force on April 27 1959 being the date on which the Act of 1959 had come into force
Section 3 of the Act which contains the charging provision provides that there shall be levied a tax on goods of the description mentioned in the section and carried by means specified therein
Section 27 of the Act provides in so far as material that notwithstanding the expiry of the Act of 1959 and notwith standing anything contained in any judgment decree or order of any Court all assessments made all taxes imposed or realised any liability incurred or any action taken under the Act of 1959 shall be deemed to have been validly made imposed realised incurred or taken under the corresponding provisions of the Act of 1968
These provisions of the Act of 1968 show that what the State legislature did thereby was to enact with retrospective effect a fresh piece of taxing statute after complying with the constitutional mandate contained in the proviso to article 304 that no Bill for the purposes of clause b of the Article shall be introduced or moved in the Legislature of a State without the previous sanction of the President
The reliance of the appellants on the judgment of this Court in Jawaharmal vs State of Rajasthan1 is wholly misconceived
In that case section 4 of the impugned Act of 1964 in truth and substance provided that the failure to comply with the constitutional mandate of Presidential sanction shall not invalidate the Finance Acts of 1961 and 1962
It was held by this Court that it was not competent to the legislature to pass an Act providing that an earlier Act shall be deemed to be valid even though it did not company with the requirements of the Constitution
In the instant case the State Legislature passed an independent enactment in 1968 after complying with the constitutional requirement but it gave to that enactment retrospetive effect from the date that the 1959 Act had come into force and it created a legal fiction which was permissible for it to do that all actions taken under the Act of 1959 shall be deemed to have been taken under the Act or 1968
Mr Gobind Das appearing on behalf of some of the appellants raised points commonly associated with high constitutional concepts but lacking in substance
He urged that the Act of 1968 is a piece of colourable legislation that it constitutes a flagrant encroachment on 1  718 the functions of the judiciary and that since the Act has no operation in futuro and operates only on the dead past it is void as lacking in legislative competence
Learned counsel also employed the not unfamiliar phrase that the Act is a fraud on the Constitution
Happily all  of these attacks in so far as they at all require an answercan be met effectively in a brief compass
In Khyerbari Tea Co Ltd vs State of Assam1 it was held by this Court that article 304b of the Constitution does not require that laws passed under it must always be prospective
Nor was it correct to say that once the State Legislature passes an Act without recourse to that Article and that Act is struck down the Legislature cannot re enact that Act under that article and give it retrospective effect
The Court fur ther held in Khyerbari supra that the mere fact that a validating taking statute has
retrospective operation does not change the character of the tax  nor can it justify the Act being branded as a colourable piece of legislation in any sense
We may only add that since it is well settled that the power to legislate carries with it the power to legislate retrospectively as much as prospectively the circumstance that an enactment operates entirely in the past and has no prospective life cannot effect the competence of the legislature to pass the enactment if it fails within the list on which that competence can operate
As regards the power to pass a validating Act that power is essen tially subsidiary to the legislative competence to pass a law under an appropriate entry of the relevant list
Thus the impugned enactment is a valid exercise of legislative power and is in no sense a fraud on the Constitution
As regards the alleged encroachment by the legislature on fields judicial the argument overlooks that the Act of 1968 does not like the Act under consideration in Jawahar mal2 declare that an invalid Act shall be deemed to be valid
It cures the constitutional vice from which the Act of 1959 suffered by obtaining the requisite sanction of the President and thus armed it imposes a new tax though with retrospective effect
Imposition of taxes or valida tion of action taken under void laws is not the function of the judiciary and therefore by taking these steps the legislature cannot be accused of trespassing on the preserve of the judiciary
Courts have to be vigilant to ensure that the nice balance of power so thoughtfully conceived by our Constitution is not allowed to be upset but the concern for safeguarding the judicial power does not justify conjur ing up trespasses for invalidating laws
There is a large volume of authority showing that if the vice from which an enactment suffers is cured by due compliance with the legal or constitutional requirements the legislature has the  competence to validate the enactment and such validation does not constitute an encroachment on the functions of the judiciary
The validity of a validating taxing law depends upon whether the legislature possesses the compe tence over the subject matter of the law whether  in making the validation it has removed the defect from which the earlier enactment suffered and whether it has made due and adequate provision in the validating law for a valid imposi tion of the tax  See for example Prithvi Cotton Mills vs Broach Borough Municipality3 1  2  3 19701 SCR 388 719 Tirath Ram Rajindra Nath vs State of UP1 Government of Andhra Pradesh vs Hindustan Machine Tools Ltd2
The passage from Cooley s ConstitutiOnal Limitations  Ed 1927 Vol
I p 183 that a legislative act is a pre determination of what the law shall be for the regulation of all future cases falling under its provisions does not bear upon the power of the legislature to pass laws which are exclusively retrospective
Mr Gobind Das s reliance on that passage cannot therefore further his contention
Mr Gokhale who appears on behalf of some of the appel lants attempted to challenge the Act of 1968 on the ground of unreasonableness but he did not pursue that argument
But he made another point which requires some attention
The appellants or some of them did not challenge the orders of assessment passed against them as the Acts of 1959 and 1962 were held unconstitutional
Counsel s apprehen sion is that any appeal filed hereafter for challenging the assesSment made under the earlier Acts would be barred by limitation and the appellants would be deprived of their statutory right to question the correctness of the assess ment
This apprehension is unfounded because the 2nd proviso tO section 12 of the Act of 1968 empowers the appropriate authority to admit an appeal after the period of limitation is over if it is satisfied that the dealer had sufficient cause for not preferring the appeal within the said period
Sub section 3 confers on the Commissioner the power of revision and sub section 4 of section 12 confers the power of review subject to the rules made under the Act
We have no doubt that if any appeal challenging
an order of assessment is filed beyond the period of limitation and the authority is satisfied that the appeal could not be filed within limitation for the reason that the Acts of 1959 and 1962 were held to be unconstitutional the delay in filing the appeal would be condoned
We are equally confident that if any appeal filed for challenging an order of assessment was withdrawn or not pursued for the reason that the two Acts were held unconstitutional the authority concerned would pass appropriate orders reviving the appeal
We are happy to note the assurance of the learned Advocate General of the State of Orissa that the State will not oppose in such cases the condonation of delay or the revival of appeals
For these reasons we dismiss the appeals but there will be no order as to costs
The Special Leave Petitions which were kept pending to await the decision of these appeals are hereby dismissed
We may take this opportunity to dwell upon the incon venience resulting from the enactment of article 144A which was introduced by the 42nd Amendment to the Constitution
That article reads thus Special provisions as to disposal of ques tions relating to Constitutional validity of laws
1 1975 Supp SCR 394
720 144A 1 The minimum number of Judges of the Supreme Court who shall sit for the purpose of determining any question as to the Constitu tional validity of any central law or State law shall be seven
2 A Central law or a State law shall not be declared to be constitutionally invalid by the Supreme Court unless a majority of not less than two thirds of the Judges sitting for the purposes of determining the question as to the constitutional validity of such law hold it to be constitutionally invalid The points raised in these appeals undoubtedly involve the determination of questions as to the constitutional validity of a State law but they are so utterly devoid of substance that Mr Asoke Sen and Mr Gokhale who appear for the appel lants could say nothing in support of their contentions beyond barely stating them
Were it not for the valiant though vain attempt of Mr Gobind Das to pursue his points the appeals would have taken lesser time to dispose of than for a Court of seven to assemble
Article 133a of the Constitution defines law to include any Ordinance Order bye law rule regulation notification etc
having the force of law with the result that seven judges of this Court may have to sit for determining any and every question is to the constitutional validity of even orders and notifica tions issued by the Government which have the force of law
A Court which has large arrears to contend with has now to undertake an unnecessary burden by seven of its members assembling to decide all sorts of constitutional questions no matter what their weight or worth
It is hoped that article 144A will engage he prompt attention of the Parliament so that it may be general consensus be so amended as to leave to the Court itself the duty to decide how large a Bench should decide any particular case
SR Appeals dismissed


Summary:
The Orissa Taxation On goods carried by Roads or Inland Waterways Act 7 of 1959 and the Orissa Taxation On Goods carried by Road or Inland Waterways Validation Act 18 of 1962 were struck down by this Court on 10 8 1967 as invalid and it was held that the respondents were not entitled to recover any tax from the appellants under the aforesaid Acts
On March 26 1968 the Orissa Taxation On Goods carried by Roads or Inland Waterways Act 8 of 1968 was passed after obtaining the previous sanction of the Presi dent under article 304 of the Constitution to the moving of the Bill imposing the same levy which it had unsuccessfully at tempted to levy under the Actor 1959 and to validate under the Act Of 1962
By section 13 of the 1968 Act the Act was to be deemed to have come into force on April 27 1959 being the date on which the Act of 1959 had come into force
Section 27 of the Act provides that notwithstanding the expiry of the Act of 1959 and notwithstanding anything contained in any judgment decree or order of any court all assessments made all taxes imposed or realised any liabili ty incurred or any action taken under the Act of 1959 shall be deemed 10 have been validly made imposed incurred or taken under the corresponding provisions of the Act 1968
The claims of some of the appellants who had asked for refund of the tax collected under the Act of 1962 which was held unconstitutional having been refused by the Govern ment they filed writ petitions in the Orissa High Court challenging the validity of the 1968 Act
The High Court dismissed the writ petitions
In appeal to this Court by special leave the Court HELD 1 The impugned enactment is a valid exercise of legislative power and is in no sense a fraud on the Consti tution
Since it is well established that the power to legislate carries with it the power to legislate retrospec tively as much as prospectively the circumstance that an enactment operates entirely in the past and has no prospec tive life cannot affect the competence of the Legislature to pass the enactment if it falls within the list on which that competence can operate
As regards the power to pass a validating Act that power is essentially subsidiary to the legislative competence to pass a law under an appropriate entry of the relevant list
718 B E Khyerbari Tea Co Ltd vs State of Assam 1964 5 SCR 975 applied
2 In the instant case the State Legislature passed an independent enactment in 1968 after complying with the constitutional requirements
but it gave to that enactment retrospective effect from the date that the 1959 Act had come into force and it created a legal fiction which was permissible for it do that all actions taken under the Act of 1959 shall be deemed to have been taken under the Act of 1968
717 FG Jawaharmal vs State of Rajasthan   not applicable
3 If the vice from which an enactment suffers is cured by due compliance with the legal or constitutional require ment the Legislature has 715 competence to validate the enactment and such validation does not constitute an encroachment on the functions of the judiciary
The validity of a validating taxing law depends upon whether the legislature possesses the competence over the subject matter of the law whether in making the valida tion it has removed the defect from which the earlier enact ment suffered and whether it has made due and adequate provision in the validating law for a valid imposition of the tax
718 G H Prithvi Cotton Mills vs Broach Borough Municipality  Tirath Ram Rajindra Nath vs State of UPAIR and Government of Andhra Pradesh vs Hindustan Machine Tools Ltd 1975 Supp
SCR 394 referred to
4 If any appeal challenging an order of assessment is filed beyond the period of limitation and the authority is satisfied that the appeal could not be filed within limita tion for the reason that the Acts of 1959 and 1962 were held to be unconstitutional the delay in filing
the appeal can be condoned under the second proviso to section 12 of the Act of 1968
If any appeal filed for challenging the order of assessment was withdrawn or not pursued for the reason that the two Acts were held unconstitutional the authority concerned can pass appropriate orders reviving the appeal719 D F Observation It is hoped that article 144A introduced by the 42nd Amendment will engage the prompt attention of the Parliament so that it may by so that it may by general con sensus be so amended as to general consensus be so amended as to leave to the court itself the duty to decide how large a Bench should decide any particular case
A court which has large arrears to contend with has now to undertake an unnecessary burden by 7 of its members assembling to decide all sorts of constitutional questions no matter what their weight or worth
Since article 133 a of the Constitution defines law to include any Ordinance Order bye law rule regu lation
notification etc
having the force of law seven Judges of this Court may have to sit for determining any and every question as to the constitutional validity of even orders and notifications issued by the Government which have the force of law
This will inevitably cause great inconvenience and undue delay in disposal of cases
720 C D