tion No 1521 Of 1987 Under Article 32 of the Constitution of India Anil Dev Singh GL Sanghi Serva Mitter Miss Vrinda Grover and TVSN Chari for the Petitioners
VS Desai AS Bhasme and AM Khanwilkar for the Respondents 
The Judgment of the Court was delivered by NATARAJAN J
Writ Petition No 1521 of 1987 has been filed under Article 32 of the Constitution of India to challenge the constitutional validity of Section 41 of the Bombay Sales Tax Act hereinafter referred to as the Act on the ground it confers arbitrary powers of exemption on the State Government so as to exempt all types of new units from the payment of purchase tax sales tax and central sales tax under the Package Scheme of Incentives 1979
PG NO 75 On notice being issued in the writ petitions the respondent State of Maharashtra has filed affidavit in reply and the petitioner has filed a rejoinder
In order to exempt in public interest any specified class of sales or purchases from payment of the whole or any part of the tax payable under the Act the State Government gave to itself powers of exemption under Section 41 of the Act
In exercise of its powers under Section 41 the Government had been issuing notifications so as to grant exemption in appropriate Gases from payment of sales tax or purchase tax or both as the case may be
One of such notifications issued by the Government under Entry 136 was for granting full tax exemption for the purchases of the inputs and the sales of finished goods of new units set up in the backward areas of the State
The Government also issued notification under Section 85 of the Central Sales Tax Act to the sales of finished goods of such units from payment of Central Sales Tax
These tax exemption benefits were accorded to the new industries by way of I incentives for development of industries in backward areas 2 promotion of the dispersion of industries all over the State 3 the industrialisation of backward areas and 4 for creating employment opportunities in the backward areas
By virtue of the exemption notifications issued by the Government in exercise of its powers under Section 41 the industries engaged in the production of edible as well as non edible oils set up in backward areas came to enjoy the benefit of exemption from paying purchase taxsales tax
Subsequently the Government came to realise that the sales tax exemption given under the Package Scheme of Incentives 1979 for a period ranging from 5 to 9 years without any limit had conferred far more benefits on some of the industries concerned than what the Government had in mind when the notifications granting tax exemptions were made and that the exemption facility was not only adversely affecting the Government s finances but was also placing the existing small scale units on a comparative disadvantage
The Government therefore passed a Resolution on July 5 1982 No IDL 70823559 IRD 8 to modify the Package Incentives Scheme and the benefits following therefrom in order to limit the benefit to 1 of the fixed capital investment of the small scale units
Since the Package Scheme of Incentives 1979 provided for giving notice of six months for any change or modification in the scheme the modified scheme dated 5th July 1982 was proposed to be brought into force in respect of small scale units with PG NO 76 effect from 10th January 1983
The Government however noticed that during the intervening period of notice a number of small scale units particularly the oil units tried to take advantage of the unlimited incentives to the disadvantage of the existing units and also caused loss to the public exchequer in respect of the revenue from sales tax
The small scale units also sought to take advantage of the decision of the Bombay High Court in Tapti Oil Industries and Anr
vs State of Maharashtra  Ors  1984 56 STC 193 by claiming benefit of tax exemption without any limit thereby causing a continuing loss to the revenue
The Government therefore considered it would not be expedient in the public interest to continue the concession and that suitable provision must immediately be made in the Act so as to limit the benefit of the exemption from payment of sales tax under the Package Incentive Schemes to the extent of 100 of the gross fixed capital investments of the eligible units as approved at the time of the grant of eligibility certificate or to such other lower ceiling of percentage that may have been provided for under the eligibility certificate issued to the small scale unit
Since both the Houses of the State Legislature were not in Session the Government passed Ordinance No 5 of 198 and inter alia introduced Section 41A which read as under 41A 1 Notwithstanding any things contained in this Act or in any judgment decree or order of any Court or T Tribunal to the contrary
on and after the date of commencement of the Bombay Sales Tax Amendment  Ordinance
1985 hereinafter in this section referred to as the commencement date   the cumulative quantum of benefit drawn or availed of by any registered dealer of an Eligible Unit in respect of payment of any tax by virtue of the exemption granted under the provisions of section 4 shall not exceed one hundred per cent of the gross fixed capital investment of the Eligible Unit as approved at the time of grant of Eligibility Certificate or such other lower ceilings of percentage if any as may be provided under the Eligibility Certificate issued in accordance with the provisions of any Package Scheme of Incentives
2 Where in the case of any registered dealer of an Eligible Unit the cumulative quantum of benefit availed of by him has exceeded the limit laid down in sub section I on the commencement date or exceeds such limit on any day PG NO 77 after the commencement date then the Eligibility Certificate shall cease to have any effect in relation to the exemption from payment of tax under this Act or under the  and the Certificate of Entitlement shall stand automatically cancelled on the commencement date or any such day as the case may be and such registered dealer shall not be entitled to claim any further benefit of exemption from payment of such tax under the Eligibility Certificate of the Certificate of Entitlement on or after the commencement date or any such day as the case may be and the dealer shall surrender the Certificate of Entitlement together with all the unused Form BC which have been attested by the Sales Tax authorities to the Commissioner forthwith and in any case within 15 days from the commencement date or any such day
3 Notwithstanding anything contained in subsections I and 2 no registered dealer of an Eligible Unit shall be entitled to claim any benefit of exemption from payment of any tax beyond the period covered by the Eligibility Certificate and the provisions of sub section 2 regarding surrender of the Certificate of Entitlement together with the unused Form BC shall mutatis mutandis apply to such registered dealer  The Ordinance came to be replaced by the Amendment Act 1985 under the Amending Act the Government made certain modifications and directed that the withdrawal of the tax exemption benefit will stand confined to the edible oil units only
Section 41A as introduced in the main Act by the Amending Act No XV of 1985 reads as follows 41A
Notwithstanding anything contained in this Act or in any judgment decree or order of any Court or Tribunal to the contrary on and after the date of commencement of the Bombay Sales Tax Amendment Act 1985 hereinafter in this section referred to as the commencement date the Eligibility Certificate granted to any Registered dealer of an Edible Oil unit in accordance with the provisions of any Package Scheme of Incentives shall cease to have any effect in relation to the exemption from payment of tax under this Act or under the  and the Certificate of Entitlement issued in favour of such PG NO 78 Registered dealer by the Commissioner under entry 136 of the Schedule to the notification issued under section 41 shall stand automatically cancelled on the commencement date and such Registered dealer shall not be entitled to claim any further benefit of exemption from payment of such tax under the Eligibility Certificate or the Certificate of Entitlement on and after the commencement date and he shall surrender the Certificate of Entitlement with all the unused Form BC which have been attested by the Sales Tax authorities to the Commissioner forthwith and in any case on or before the 31st day of August 1985 unless he has already surrendered the same earlier
 Section 8 of the Amendment Act which repealed Ordinance V of 1985 further provided as follows 82 It is hereby declared that notwithstanding anything contained in section 7 of the Bombay General Clauses Act 1904 on such repeal the following consequences shall ensue a The Eligibility Certificate and the Certificate of Entitlement issued to any Registered dealer of the Eligible Unit other than the Registered dealer of Edible Oil Unit shall not be deemed to have been cancelled and b Where the Certificate of Entitlement and the unused Form BC are surrendered by any Registered dealer of the Eligible Unit other than Registered dealer of Edible Oil Unit the same shall be restored to the Registered dealer who has surrendered the same c The Registered dealer of the Eligible Unit other than the Registered dealer of Edible Oil Unit shall be deemed to have been entitled to claim the same benefits of exemption of sales tax to which he was entitled before the commencement of the said Ordinance d Any Sales Tax on sale of finished goods recovered by any Registered dealer of the Eligible Unit other than the Registered dealer of Edible Oil Units during the period from the commencement of the said Ordinance till the publication of this Act in the Official Gazette shall be paid into PG NO 79 Government Treasury alongwith the return and the tax so paid shall stand forfeited to the State Government and thereupon the provisions of sub section 6 of Section 38 shall mutatis mutandis apply to the tax so forfeited Thus it may be seen that by reason of Act XV of 1985 the sales tax exemption facility originally granted under the Package Scheme of Incentives 1979 to all small scale units newly started stood withdrawn only in so far as edible oil units are concerned and not to small scale units engaged in producing non edible oils
By a trade circular No DED 14852591ADM 3 dated 15101986
it was clarified that an edible oil unit under the Act XV of 1985 would mean a unit engaged in i delinting decorticating or processing of groundnuts or other oilseeds  ii crushing of groundnuts or other oilseeds and manufacture of edible oil iii refining of edible oil or iv hydrogenation of edible oil
It was also clarified that the Act would not be applicable to units producing and selling non edible oils and that units manufacturing and selling washed cottonseed oil Soyabean raw oil Grade l and un refined sunflower cake oil would not fall under the category of units manufacturing edible oil and as such those units will be entitled to avail of the tax benefits even after 181985 provided that the eligibility certificate specifically made mention of the particular oil as the finished product produced and sold by the concerned eligible unit
The trade circular stated that the clarification was being given after obtaining the opinion of the concerned department of the Government of India about what constitute edible oil and non edible oils
Notwithstanding the Amended Sections and the trade circular the petitioners who are engaged in producing washed cottonseed oil tried to contend before the authorities that washed cottonseed oil would also fall in the category of edible oil and that several technical authorities have given their opinion to that effect and as such the extension of PG NO 80 sales tax exemption facility to units engaged in the production of non edible oils was against law and was not only depriving the government of its legitimate revenue but was also detrimentally affecting the interests of the old units which were engaged in producing washed cottonseed oil etc
These contentions were not accepted by the State Government with the result that the withdrawal of the tax exemption provision remained confined only to the units engaged in producing edible oils and not to units engaged in producing non edible oils
Aggrieved by this position the petitioners have come forward with this petition under Article 32 of the Constitution
Two contentions were advanced by the learned counsel for the petitioner to assail Section 41 of the Act
It is apposite to mention here that in his petition the petitioner has not impugned the validity of Section 41A which disentitles only the units producing edible oil from having the continued benefit of tax exemption
This factor by itself weakens in the attack of the petitioner on the constitutional validity of Section 41
Leaving aside this aspect of the matter we will now consider the specific grounds on which Section 41 is assailed
In the first place it is stated that while the government realised
at the time of passing the Ordinance that the lax exemption scheme granted in favour of all the newly started eligible units had conferred tax benefits transcending by far the limits of assistance contemplated by the government and that the tax exemption benefits were adversely affecting the public exchequer as well as the old units and had therefore made Section 41A introduced by the Ordinance applicable to all eligible units which had been given the benefit of tax exemption
the revised Section 41A introduced by Act XV of 1985 had restricted the withdrawal provision only to the units engaged in producing edible oil and has allowed the other eligible units to continued to have the unfair advantage of tax exemption benefit
The second argument was that washed cottonseed oil is also an item of edible oil although it required some processing for making it fit for human consumption and therefore the new units which were engaged in producing washed cotton seed oil should also be classified as units producing edible oils so that those new units should also pay purchase tax and sales tax in the same manner the petitioner was paying
By way of extension to the second contention it was pointed Out that while the old units had to pay purchase tax sales tax turn over tax etc
totaling Rs1650 per metricton the new units producing the same washed cottonseed oil got away scot free without paying any tax and they stood placed in a very advantageous position
PG NO 81 On an examination of the contentions we find that neither of them has any merit
Section 41 has been in the statute book eversince the Act was enacted
It has been provided in order to enable the State Government to grant exemption from payment of purchase tax and sales tax of any specified class of sales or purchases if such grant of exemption was felt justified
It is open to the Government to give the benefit of tax exemption either to the full extent or to a partial extent The Section itself states that the power of exemption is being conferred on the government in order to enable it to act in public interest
It is not therefore as if power
has been given to the government to act in an arbitrary manner or for conferring largess on any section of manufacturers or traders
In exercise of its powers under Section 41 the government has been granting exemption by means of several notifications in favour of various trades and industries as and when the circumstances warranted the granting of exemption in public interest
It can therefore be safely taken that Section 41 has with stood the test of time and has enabled the government to promote public interest by granting tax exemption benefit whenever needed
One of the contentions advanced by the petitioner s counsel was that while the power of exemption can be granted on any specified class of sales or purchases from payment of tax the government was not entitled to grant exemption only in favour of new units set up in backward areas from the payment of purchase tax sales tax and central sales tax
In other words the argument was that if the Government wanted to grant exemption in favour of such units then the government should have granted the benefit of tax exemption to all the units in backward area which were engaged in the production of he same type of goods as the new units were engaged in
We are unable to accept this contention because the exemption granted in favour of the of the new units has a sound economic and public policy underling it
The policy has been set out by he government in he counter affidavit filed b it in WP No 1527of 1987 in the following manner
I submit that these benefits are in accordance with the policy of the Government to give Sales Tax incentives to he new Units in backward a areas in order to achieve dispersion of industries industrialisation of back wad areas as also of he purposes of creating employment opportunities in he backward areas and as such exemption is granted in he large public interest in order to enable the new units o successfully compete with the older
Units in he initial yeas of production in order to occasion sufficient foothold PG NO 82 in an established industry
I further submit that this classification is reasonable in all respects and is not at all arbitrary as established Units have several advantages over new Units in as much as the overhead assets are less and hence no fundamental right is infringed in any manner of the old Units 
 It cannot therefore be contended that the old units should also have been granted the same benefit as new units since both the units are engaged in the manufacture of the same type of products
Infact such a policy if followed by the government would not only fail to provide incentive to the new industries but would also place the new units at a comparative disadvantage in being made to face stiff competition with older units which have been established at lesser cost and which have stabilised themselves in the field by successfully running the units for a number of years
The words in Section 41 exempt any specified class of sales or purchases could well be construed as applying to the grant of exemption to the new units because the sales and purchases effected by new entrants would constitute a specified class by themselves in contra distinction with the class of sales and purchases effected by the older and seasoned units
In so far as the second contention is concerned viz that washed cottonseed oil would also fall in the category of edible oils inspite of the fact that it has to be processed still further for being made fit for human consumption
we find that the contention is not a tenable one
The petitioner had contended before the government that washed cottonseed oil is also one type of edible oil but the government have rejected this contention stating that since washed cottonseed oil cannot be made use of without further processing for direct human consumption it would not fall in the category of edible oil
This position is not controverted by the petitioners and therefore as long as the washed cottonseed oil that is produced is sold without further processing it will not constitute edible oil
The government therefore
are well within their powers in refusing to accept the petitioner s contention that washed cottonseed oil is also edible oil and therefore all the new units which are engaged in the manufacture of washed cottonseed oil should also be rendered ineligible from enjoying the benefit of tax exemption as has been done in the case of units producing edible oil
Yet another contention of the petitioner s counsel was that the term oil  would include edible as well as non PG NO 83 edible oil and therefore there was no reason or justification for the government to have removed the benefit of tax exemption to units manufacturing edible oil alone and allow the continuance of the benefit of tax exemption to new units producing non edible oil
Even this contention is devoid of substance because even though edible and non edible oils may fall under the general heading of Oils  they undoubtedly constitute two seperate groups which are capable of distinct classification on intelligible basis
Lastly coming to the argument that new units engaged in producing non edible oil derive a huge benefit by way of tax exemption while the older units stand penalised and getting crushed out of existence the government have examined the matter fully and found that the new units engaged in the production of edible oil alone have derived undue advantage by reason of the tax exemption and that the other eligible units engaged in the manufacture of other products including non edible oils have not derived benefit to such an extent as to justify revocation of the tax exemption benefit
This assessment exercise falls purely within the domain of the Executive and it is not for the Court to see whether other edible units also derive huge benefits and as such government ought to have revoked the tax exemption benefit in their cases as well
As already stated the classification between units engaged in producing edible oils and non edible oils is on an intelligible and sustainable basis and as such the Court cannot hold that the government should treat both kinds of units alike and direct the withdrawal of the tax exemption benefit in the case of non edible oil producing units also
For all these reasons we hold that Section 41 of the Bombay Sales Tax Act is not violative of Articles 14 19 and 21 of the Constitution as alleged by the petitioner in WP No 1521 of 1987
In the result WP No 1521 of 1987 will stand dismissed
There will he no order as to costs
RSS Petition dismissed


Summary:
The appellant who was an elector in the Shivaji Nagar Assembly Constituency in Pune intended to contest the bye election to fill a seat in the Maharashtra Legislative Assembly from the Jaoli Assembly Constituency in Satara district
He applied to the Electoral Registration Officer of the Shivaji Nagar Assembly constituency for a certified copy of the relevant entry in the electoral roll containing his name specifically mentioning that he required it for the purpose of producing it before the Returning Officer of Jaoli constituency under section 335 of the Representation of the People Act 1951 to enable him to file his nomination paper
In the Shivaji Nagar assembly constituency a basic roll of electors had been prepared prior to 3111984
The name of the appellant was entered at Sl
No 16 of a supplement which was published on 3111984
Two more supplements were issued subsequently
The basic roll and the supplements together constituted one integrated electoral roll which was published again on 2911985
The certified copy which was furnished to the appellant on 811986 ie one day before the date on which he filed his nomination paper was a copy made from the said integrated roll
The Returning Officer of Jaoli constituency noted that in the certified copy produced the latest date of publication was given as 3111984
The Returning Officer told the appellant that since there were revisions subsequent to 3111984 he had to produce another certified copy of the latest electoral roll at the time of secrutiny ie 11 O Clock on 1111986
The appellant rushed back to Pune and obtained another certified copy showing the latest PG NO 1063 PG NO 1064 date of publication as 2911985 but reached the office of the Returning Officer of Jaoli constituency at about 1 PM on 1111986
In the meantime the Returning Officer had already passed an order rejecting the nomination paper of the appellant on the ground of non compliance with the provisions of sub section 5 of section 33 and sub section 7 of section 36 of the 1951 Act
The appellant requested review of the order but the Returning Officer declined stating that he had no power of review
The High Court dismissed the appellant s election petition holding 1 that the appellant had not complied with section 335 of the 1951 Act as the certified copy produced by him was not a certified copy of the electoral roll in force at the time of election 2 the certified copy produced on 1111986 had been produced after the order of rejection of the appellant s nomination paper had been passed and 3 the Returning Officer had no power to review
Allowing the appeal it was HELD 1 There is no prescription requiring the certified copy to state the several dates on which the basic roll or the supplement from which the copy is prepared had been published
1076F 2 The Returning Officer had acted on his own information in rejecting the nomination paper of the appellant namely that there was a revision in 1985 and that the certified copy which had been produced was from an electoral roll which had become defunct
If that was so he should have secured the necessary material from the concerned Electoral Registration Officer and placed it before the appellant before rejecting his nomination paper
1077D E 3 Unless the certified copy produced before the Returning Officer itself on the face of it showed that the electoral roll from which a certified copy had been prepared had been substituted by another electoral roll the Returning Officer was not justified in not treating the production of the certified copy prepared on 811986 as sufficient compliance under section 335 of the 1951 Act particularly having regard to the close proximity between the date of preparation and the date of the production of the certified copy
1077F H 4 Under the proviso to section 365 of the 1951 Act it is provided that in case an objection is raised by the Returning Officer or is made by any other person the candidate concerned may be allowed time to rebut it not PG NO 1065 later than the next day but one following the date fixed for scrutiny and the Returning Officer shall record his decision on the date to which the proceedings had been adjourned
The Returning Officer did not choose to wait even for a few hours on 1111986 to give a chance to the appellant to make his plea that what had been produced along with the nomination paper was a certified copy which could be acted upon or to produce another certified copy which in fact he did produce at 1 PM on 1111986 before the Returning Officer even before the final list of candidates who had filed valid nomination papers was published
1077B D 5 Both the first certified copy and the second certified copy were copies of the same original
Sub section 7 of section 36 of the 1951 Act lays down a rule of evidence
It says that a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency unless it is proved that he is subject to a disqualification mentioned in section 16 of the 1950 Act
1078B C 6 It is no doubt true that the electoral right is a statutory right and a person who wishes to contest an election should comply with the law applicable to elections strictly
But in the instant case there is no default at all on the part of the appellant
He had actually produced before the Returning Officer a certified copy which he had obtained within less than 24 hours from the Electoral Registration Officer of the constituency where he was residing and that he had not done anything to mislead the Returning Officer
1077E F 7 The certified copy produced alongwith the nomination paper satisfied the requirement of section 335 of 1951 Act
1078D 8 The appellant who was an innocent person had been denied the right to contest the election unreasonably
The rejection of the nomination paper of the appellant was improper
It follows that the election of the 1st respondent should be declared void in view of the provisions contained in section 1001c of the 1951 Act
1078E F