No 3130 of 1981
Under Article 32 of the Constitution of India
Soli J Sorabjee Harish N Salve KK Patel Ujwal Rana Rajiv Dutta and KK Mohan for the Petitioners
369 K Parasaran Attorney General B Datta Additional Solicitor General Kuldip Singh Additional Solicitor Gener al Ms A Subhashini CV Subba Rao Mrs Sushma Suri A Subba Rao AK Srivastava and PP Singh for the Respond ents
The Judgment of the Court was delivered by PATHAK CJ
By this writ petition under article 32 of the Constitution the petitioners seek relief against the imposi tion of customs duty at 150 per cent on their import of edible oils into India
The petitioners entered into a contract with foreign sellers for the supply of edible oils
The consignment of edible oils was sent by the ocean going vessel MV Kotta Ratu
The vessel approached Bombay and made its prior entry on 4 July 1981
It actually arrived and registered in the Port of Bombay on 11 July 1981
The petitioners say that the Port authorities at Bombay were unable to allot a berth to the vessel and as she was under heavy pressure from the parties whose goods she was carrying she left Bombay for Karachi for unloading other cargo intended for that port
It is alleged that the vessel set out on its return journey from Karachi and arrived in the Port of Bombay on 23 July 1981 and waited for a berth
On 4 August 1981 she was allowed to berth in Princess Docks C  Shed and the Customs Authorities made the final entry on that date
The petitioners point out that when the vessel made its original journey to Bombay and was waiting in the waters of the Port the petitioners presented the Bill of Entry to the Customs authorities on 9 July 1981 that the Bill of Entry was accepted by the Import Department and an order was passed by the Customs Officer on the Bill of Entry on 18 July 1981 directing the examination of the consignment
It is stated that the Customs authorities have imposed customs duty on the import of the edible oils effected by the petitioners at the rate of 150 per cent on the footing that the import was made on 31 July 1981 the date of Inward Entry
The case of the petitioners is that the rate of duty leviable on the import should be that ruling on 11 July 198 1 when the vessel actually arrived and registered in the Port of Bombay and that but for the fact that a berth was not available the vessel would have discharged its cargo at Bombay and would not have left that Port and proceeded to Karachi to return to Bombay towards the end of July 1981
Alternatively the case of the petitioners is that if it be found that the rate of customs duty attracted by the import effected by the petitioners is 150 per cent the levy is unconstitutional 370 and void as a violation of article 14 of the Constitution inasmuch as customs duty at 5 per cent only was levied on the State Trading Corporation on similar Imports of edible oils made by it as an importer
The petitioners have also challenged the validity of section 15 of the Customs Act 1961 under which the rate of duty and tariff valuation is deter mined
To resolve the issue between the parties it is necessary to ascertain the effective date with reference to which customs duty becomes payable on imports into India
Section 151 of the provides 1 The rate of duty and tariff valuation if any applicable to any imported goods shall be the rate and valuation in force  a in the case of goods entered for home consumption under section 46 on the date on which a bill of entry in respect of such goods is presented under that section b in the case of goods cleared from a warehouse under section 68 on the date on which the goods are actually removed from the warehouse c in the case of any other goods on the date of payment of duty Provided that if a bill of entry has been presented before the date of entry in wards of the vessel by which the goods are imported the bill of entry shall be deemed to have been presented on the date of such entry inwards
 The rate of duty and tariff valuation applicable to the imported goods is governed by cl
a of section 151
In the case of goods entered for home consumption under section 46 it is the date on which the Bill of Entry in respect of such goods is presented under that section
section 46 provides that the importer of any goods shall make entry thereof by pre senting to the proper officer a Bill of Entry for home consumption in the prescribed form and it is further pro vided that a Bill of Entry may be presented at any time after delivery of the Import Manifest or an Import report
The Bill of Entry may be presented even before the delivery of such Manifest if the vessel by which the goods have been 371 shipped for importation into India is expected to arrive within a week from the date of such presentation
Section 47 empowers the proper officer on being satisfied that the goods entered for home consumption are not prohibited goods and that the importers had paid the import duty assessed thereon as well as charges in respect of the same to make an order permitting clearance of the goods for home consump tion
According to the petitioners the cargo of edible oil could not be unloaded in Bombay during the original entry of the ship into the Port for want of an available berth and it is for no fault of the petitioners that the vessel had to proceed to Karachi for unloading other cargo
Section 15 the petitioners contend is arbitrary and vague and there fore unconstitutional because it provides no definite stand ard or norm for determining the rate of duty and tariff valuation and does not take into account situation which are uncertain and beyond the control of an importer
The peti tioners contend that the rate of customs duty chargeable on the import of goods in India is the rate in force on the date when the vessel carrying the goods enters the territo rial waters of India
The petitioners point out that section 121 declares that customs duty will be levied at the rates in force on goods imported into India and the expres sion India  they urge is defined by section 227 as including the territorial waters of India 
In other words the petitioners contend that when the vessel entered the terri torial waters on 11 July 1981 the rate of customs duty at 125 per cent ruling on that date was the rate which was attracted to the import
In any event the petitioners contend the rate should not have been more than 425 per cent because that was the rate of customs duty ruling on 23 July 1981 when the vessel entered the port of Bombay
To preserve the validity of section 15 the petitioners urge we must read the expression the date of entry inwards in the proviso to section 151 as the date on which the vessel enters the territorial waters of India
Learned counsel for the petitioners says that if this interpretation cannot reasona bly be given to the provisions of section 151 then it becomes necessary to question the constitutional validity of section 15 on the ground that the terms of that section are vague and arbitrary and therefore no recourse can be had to section 151
Considerable reliance has been placed by the peti tioner on Shawney vs Ms Sylvania and Laxman Ltd 77 Bom
LR 380 in support of the submission that the taxable event occurs when the vessel enters the territorial waters of India and it is that date which should determine the rate at which import duty can be levied
It is desirable 372 we think to appreciate what was said in that case
The Bombay High Court held there that the date on which the vessel enters the territorial waters is the relevant date for determining whether the import of goods carried by it falls within the scope of the 
If the import of the goods is exempt from the operation of the Act on that date the learned Judges said the provisions of section 15 of the Act will not come into play and therefore the import will be free from duty
A distinction was made between a case where the import of goods stands exempted on the date when the vessel enters the territorial waters of India and a case where the import falls within the operation of the Act on that date but the duty is rated at nil or at a certain figure
The distinction was discussed by a Full Bench of the Bombay High Court in Apar Private Ltd and Others vs Union of India and others where Madhava Reddy CJ speaking for the Court observed If the goods were wholly exempt from basic customs duty leviable under the  when they entered the territorial waters of India no basic duty of customs would be leviable thereon even if such exemption were withdrawn under Section 251 of the before the goods are releasedfor home c o n s u m p t i o n      
        Only if the goods were chargeable to some basic customs duty under the  when they entered the territorial waters of India than the rates in force at the time when the bill of entry is presented or at the time when the goods are sought to be cleared for home con sumption as the case may be would be ap plicable and the basic duty would be quanti fied and demanded at those rates And in Jain Shudh Vanaspati Limited vs SR Patankar Asstt
Collector of Customs Bombay and Others the Bombay High Court proceeded on the basis that where the imported goods were totally exempt from payment of customs duty on the date when the vessel entered the terri torial waters of India the taxable event was not postponed to the date when the goods were cleared for human consump tion
In the present case
there is no dispute that on the date when the vessel first entered the territorial waters of India by July 198 1 the rate of customs duty was 125 on the import of the goods in question and thereafter when the vessel returned from Karachi and entered the 373 territorial waters of India the rate of duty was 425
We express no opinion on the soundness of the view taken by the Bombay High Court in the cases mentioned above it is sufficient to point out that on the facts they afford no assistance to the petitioners
The rate of duty and tariff valuation has to be deter mined in accordance with section 151 of the 
Under section 151a the rate and valuation is the rate and valua tion in force on the date on which the Bill of Entry is presented under section 46
According to the proviso however if the Bill of Entry has been presented before the entry in wards of the vessel by which the goods are imported the Bill of Entry shall be deemed to have been presented on the date of such entry inwards
In the present case the Bill of Entry was presented on 9 July 1981
What is the date of entry inwards of the vessel We may refer to the detailed procedure in this matter set forth in the counteraffidavit of Shri RS Siddhu then under Secretary to the Government of India
Before the arrival of the vessel the Master of the vessel or his Agent informs the Port authorities and the Customs authorities of the probable date of arrival of the vessel
This information is technically known as presenta tion of the Import General Manifest
In this Manifest the Master intimates the details with regard to the cargo car ried by the vessel
In the instant case the Manifest was conveyed by the Steamer Agent on 6 July 1981 by his letter No IM394811116
Admittedly this intimation or presenta tion of the Manifest on 6 July 1981 was prior to the arriv al of the vessel
The presentation of the Manifest can be effected either before the arrival of the vessel or after its arrival in the usual course
In the forwarding letter dated 6 July 1981 mentioned above the Shipping Agent informed the authorities that the ship would be arriving at Bombay 12 July 1981
According to the normal procedure if the intimation or presentation of the Manifest is made on the arrival of the vessel it is accompanied by an applica tion for Entry Inward within 24 hours of arrival
In the instant case since the vessel was to arrive later there was no application accompanying the letter dated 6 July 1981
The vessel arrived on 11 July 1981
On receipt of the Manifest a prior entry is made in the Register which is called the Register of InwardOutward Entry of vessels
Upon the recording of the prior entry a rotation number is given and conveyed to the Shipping Agent or the Master of the vessel
In the instant case the prior entry or rota tion number allotted was 743PE
The Customs authorities display daily on receipt of the Import General 374 Manifests the details of the vessels on a notice board for the information of importers
On noticing the arrival or expected arrival of the vessel from the Import General Manifest the importer or his clearing agent files his Bill of Entry
In this case the Bill of Entry was filed on 9 July 1981
An entry with regard to presentation of the Bill of Entry is made in the Import General Manifest against the entry with regard to the consignment belonging to the im porter
The procedure thereafter is as follows
A vessel on arrival in the territorial waters has to await the allotment of a berth by the Port Trust
The Port Trust authorities on receipt of information about the arrival of a ship allot a berth if it is available for the discharge of the cargo
In the instant case since no berth was available the vessel left for Karachi to dis charge the cargo meant for that Port
The vessel arrived at Bombay on 23 July 1981
Before its arrival the Steamer Agent had presented a supplementary Manifest on 18 July 1981 under cover of his letter No IM39481 1223
The prior entry made earlier in the Register of Inward Entry remained the same and the rotation number also continued to remain the same
Against the rotation No 743 in column No 3 of the Register of Inward Entry the date of the arrival of the vessel was indicated as 23 July 1981 and in column No 2 the date of Inward Entry was mentioned as 31 July 1981
On 30 July 1981 the Master of the vessel had made a decla ration certifying that the vessel could discharge its cargo on 31 July 1981 and it is on this basis that the Customs authorities granted the Entry Inward to the vessel for the purposes of discharging its cargo
It is urged on behalf of the petitioners that the import of the goods must be deemed to have taken place on 11 July 1981 when the ship originally arrived in Bombay Port and registered itself
The rate of customs duty prevailing on that date was 125 per cent and that learned counsel contends should be the rate applicable to the edible oil consignment under section 15 of the Act
The circumstance that the vessel was unable to secure a berth in the Port of Bombay compelled it to proceed to Karachi to discharge the cargo pertaining to that Port and but for the non avail ability of the berth she would not have undertaken that voyage but would have continued in Bombay and discharged the edible oil consignment there
The customs duty which could have been levied then would have been 125 per cent
It is pointed out that the vessel was unable to do so for no fault of the petitioners and a reasonable construction must be given to section 15 taking 375 into account the particular circumstances of the case so that the vessel must be deemed to have made the Entry Inwards on 11 July 1981
We do not find it possible to accept this submission
The provisions of section 15 are clear in themselves
The date on which a Bill of Entry is presented under section 46 is in the case of goods entered for home con sumption the date relevant for determining the rate of duty and tariff valuation
Where the Bill of Entry is presented before the date of Entry Inwards of the vessel the Bill of Entry is deemed to have been presented on the date of such Entry Inwards
In Ms Omega Insulated Cable Co India Limited vs The Collector of Customs Madras Writ Appeal No 537 of 1969 decided by the Hon ble Kailasam and Paul JJ
on 9 July 1975 the Madras High Court addressed itself to the question whether the words in section 151a of the Act viz date of entry inwards of the vessel by which the goods are imported mean the actual entry of the vessel inwards or the date of entry in the register kept by the department permitting the entry inwards of the vessel The learned Judges examined the corresponding provisions of the earlier statute and after comparing the provisions of section 15 with those of section 16 of the  and the amendments made from time to time held that the date of entry inward for the purpose of section 151a and the proviso thereto is the date when the entry is made in the Customs register
We have considered the matter carefully and given due heed to the submissions of learned counsel for the petition ers rounded inter alia on the provisions of the Sea Cus toms Act and the amendment made in section 16 of the and we are of opinion that the view taken by the Madras High Court in Ms Omega Insulated Cable Co Ltd supra repre sents the correct view
The amendment made in section 16 of the Act appears to have been made by way of clarification and in our opinion does not detract from the conclusion that the date of entry inwards of the vessel is the date re corded as such in the Customs register
In the present case the date of inwards entry is mentioned as 31 July 19811n the absence of anything else we may take it that the entry was recorded on the date itself
Accordingly the rate of import duty and the tariff valuation shall be that in force on 31 July 1981
The contention of the petitioners that the rate of import duty and tariff valuation will be that ruling on 11 July 1981 cannot be sustained and is rejected
As to the question whether section 15 of the is ultra vires on the ground that arbitrary discretion has been conferred on the 376 customs authorities in the matter of determining the date of inward entry it seems to us that having regard to the procedure detailed above there is no scope for the submis sion that the provision is invalid
An entire series of consecutive acts makes up the procedure and it is reasona ble to presume that each step in the series is completed on time
In that view of the matter the challenge to the validity of section 15 must fail
It is true that an amendment has been made in section 16 in the case of the export of goods and the rate of duty and tariff valuation applicable to export goods are now specifically referable to the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation and it is appar ent that no such amendment has been made in the provisions of section 15
The omission it seems to us is of no consequence when the procedure outlined above is being followed regular ly and consistently
There is nothing before us to show that in following the procedure the Customs authorities act arbitrarily
Accordingly we are of opinion that the claim made by the petitioners must be rejected
Finally there remains the contention of the petitioners that the differential treatment meted out to the petitioners by the imposition of a rate of 150 per cent constitutes a violation of Article 14 of the Constitution on the ground that the rate applied to corresponding imports by the State Trading Corporation is 5 per cent only
This point has already been considered by us and the contention has been rejected in our judgment in M Jhangir Bhatusha etc
vs Union of India  Ors etc
  pronounced today
The Writ Petition is dismissed with costs
RNJ Petition dismissed


Summary:
A common question of law having arisen in this group of cases for determination by this Court they were heard together
Lands of Respondents in Civil Appeal Nos
2839 40 of 1989 were acquired under the Land Acquisition Act
The Collector made the award for compensation on March 30 1963 and on a reference being made under Section 18 of the Act the Additional District Judge enhanced the compensation by his order dated June 10 1968
The Respondents appealed to the High Court seeking further enhancement
During the pendency of the appeal Land Acquisition Amendment Bill 1982 was introduced on April 30 1982 and became an Act on Sept 24 1984
The High Court disposed of the appeal on Dec 4 1984 and apart from raising the quantum of compensa tion also awarded a solatium at 30 per cent in terms of the Amendment Act 1984
The State appealed to this Court
The matter initially came up before a Division Bench on September 23 1985
The Bench had before it two decisions of this Court wherein divergent views were expressed
The two decisions were In K Kamalajammanniavaru s dead by Lrs
vs Special Land 317 Acquisition Officer This Court composed oftwo Judges took the view that award of 30 per cent solatium under the amended Section 232 by the High Court or the Supreme Court were applicable only where the award appealed against was made by the Col lector or the Court between April 30 1982 and Sept 24 1984
In the second decision Bhag Singh  Ors vs Union Territory of Chandigarh   this Court comprised of three Judges took a contrary view and ruled that even if an award was made by the Collector or the Court on or before April 1982 and an appeal against such award was pending before the High Court or this Court on 3041982 or was filed subsequent to that date the provisions of amended Section 232 and 28 of the Land Acquisition Act would be applicable as the appeal was a continuation of the reference made under Section 18 and as such the appellate Court must apply the amended provision on the date of the decision of the appeal
In this way the decision in Kamalajammanniava ru s case was overruled by this Court in Bhag Singh s case and the Court approved another decision of Division Bench comprised of three Judges in Mohinder Singh s case which merely directed payment of enhanced solatium and interest without giving any reasons
In view of the conflicting decisions on the point of two Judges Bench before whom these cases come up for considera tion referred to this Larger Bench the question whether under the Amended Section 232 the claimants were entitled to solatium at 30 per cent of the market value irrespective of the dates on which the land acquisition proceedings were initiated or on the dates on which the award had been passed
Overruling the preliminary objection as to the maintain ability of the reference of matters to a larger Bench this Court disposing of the reference and directing that the appeals be now listed for hearing on merits HELD Solatium is awarded under sub section 2 of Section 23 of the Land Acquisition Act
Before the Amendment Act was enacted the Sub section provided for solatium at 15 per cent of the market value
By the change introduced by the Amendment Act the amount has been raised to 30 per cent of the market value
Sub section 2 of Section 30 of the Amendment Act specifies the category of cases to which the amended rate of solatium is attracted
322D 318 What Parliament intends to say is that the benefit of Section 302 will be available to an award by the Collector or the Court made between 30th April 1982 and 24th September 1984 or to an appellate order of the High Court or of the Supreme Court which arises out of an award of the Collector or the Court made between the two said dates
The word or  is used with reference to the stage at which the proceeding rests at the time when the benefit under Section 302 is sought to be extended
If the proceeding has terminated with the award of the Collector or of the Court made between the aforesaid two dates the benefit of Section 302 will be applied to such award made between the aforesaid two dates
If the proceeding has passed to the stage of appeal before the High Court or the Supreme Court it is at that stage when the benefit of Section 302 will be applied
But in every case the award of the Collector or of the Court must have been made between April 30 1982 and September 24 1984
339D G A pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges and in order that such decision be bind ing it is not necessary that it should be a decision ren dered by the full Court or a Constitution Bench of the Court
For the purpose of imparting certainty and endowing due authority decisions of this Court in the future should be rendered by Division Benches of at least three Judges unless for compelling reasons that is not conveniently possible
337C D The Land Acquisition Bill 1982 was introduced in the House of the People on 30th April 1982 and upon enactment the Land Acquisition Act 1984 commenced operation with effect from 24th Sept 1984
Section 15 of the Amendment Act amended Section 232 of the parent Act and substituted the words 30 per cent in place of the words 15 per cent
Parliament intended that the benefit of the enhanced solati um should be made available albeit to a limited degree even in respect of acquisition proceedings taken before the date
It sought to effectuate that intention by enacting Section 302 in the Amendment Act
337G H 338A There can be no doubt that the benefit of the enhanced solatium is intended by Section 302 in respect of an award made by the Collector between 30th April 1982 and 24th September 1984
Likewise the benefit of the enhanced solati um is extended by Section 302 to the case of an award made by the Court between April 30 1982 and September 24 1984 even though it be upon reference from an award made before April 30 1982
338E 319 One of the functions of the Superior Judiciary in India is to examine the competence and validity of legislation both in point of legislative competence as well as its consistency with the Fundamental Rights
In this regard the Courts in India possess a power not known to the English Courts
323G H Exp
Canon Selwyn and Cheney vs Conn  referred to
The range of judicial review recognised in the Superior Judiciary of India is perhaps the widest and the most exten sive known to the world of law
The power extends to examin ing the validity of even an amendment to the Constitution for now it has been repeatedly held that no Constitutional amendment can be sustained which violates the basic struc ture of the Constitution
324B His Holiness Kesavananda Bharti Sripadagalavaru vs State of Kerala  Smt
Indira Nehru Gandhi vs Shri Raj Narain  Minerva Mills Ltd and others vs Union of India and others 1980 2 SCC 591 SP Sampath Kumar etc
vs Union of India and Ors
  The Court overruled the statement of the law laid down in the cases of State of Punjab vs Mohinder Singh  Anr
and Bhag Singh and Others vs Union Territory of Chandigarh and preferred the interpretation of Section 302 of the Amend ment Act rendered in K Kamalajammanniavaru dead by Lrs
vs Special Land Acquisition Officer
Oliver Wendell Holmes The Common Law p 5 Oliver Wendell Homes Common Carriers and the Common Law 1943 9 Curr
LT 387 388 Julius Stone Legal Systems  Law yers Reasoning p 58 59 Roscoe Pound An Introduction to the Philosophy of Law p 19 The Judge as Law Maker pp
Myers vs Director of Public Prosecutions LR 1965 AC 1001  1021 The Bengal Immunity Company Limited vs The State of Bihar and Others  Street Tramways vs London County Council   Radcliffe vs Ribble Motor Services Ltd  245 Dr Alan Paterson s Law Lords 1982 pp
156 157 Jones vs Secretary of State for Social Services 1972 AC at 966 Ross Smith vs Ross Smith  303 Indyka vs Indyka 1969 I AC 33 69 Construction by Jones at 966 Steadman vs Steadman  542 DPP vs Myers 1965 AC 1001 320 1022 Cassell vs Broome1972 AC 1027 1086 Haughton vs Smith 1975 AC 476500 Knullerv
DPP 1973 AC 435455 Conway vs Rimmer   938 Tramways case   State of Washington vs Dawson  Co   David Burnel vs Coronado Oil  Gas Company    Compare National Bank vs Whitney   26 LEd
443 444 Compensation to Civil Servants  AIR  87 Attorney General of Ontario vs The Canada Temperance Federation LR 78 IA 10 Phanindra Chandra Neogy vs The King   State of Bombay vs The United Motors India Ltd   Maganlal Chhagganlal P Ltd vs Municipal Corporation of Greater Bombay  Ors   Lt
Col Khajoor Singh vs The Union of India  Anr   Keshav Mills Compa ny vs Commissioner of Income Tax   921 Sajjan Singh vs State of Rajasthan   947948 Girdhari Lal Gupta vs
DH Mill   Pillani Investment Corporation Ltd vs
ITO A  Ward Calcutta  Ant   Ganga Sugar Company vs State of Uttar Pradesh   782 Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra  TV Vatheeswaran vs The State of Tamii Nadu  Sher Singh  Ors
vs State of Punjab   Triveniben vs State of Gujarat AIR 1989 SC 142 John Martin vs The State of West Bengal   Haradhan Saha vs State of West Bengal   Bhut Nath Mate vs State of West Bengal   Mattulal vs Radhe Lal   Acharaya Maharajshri Narandraprasadji Anandprasadji Maharaj etc
vs The State of Gujarat  Ors   Union of India  Ors
vs Godfrey Philips India Ltd   Jit Ram vs State of Haryana   Motilal
Padampat Sugar Mills vs State of U P