Case: Lachmi Narain Etc. Etc Vs. Union Of India & Ors


Decision:
1[ds]We are not inclined to permit the appellants to add to the list of impugned Notifications, now in section appeal. In their writ petitions, the appellants did not challenge the validity of the Notification datedThey never raised this point before the learned Single Judge. Of course, before the appellate Bench, an argument was addressed on this point, but it does not appear to have been pressed. The Bench noted:"In the present appeal, the Bengal Act as extended by SRO 615, dated the 28th April 1951, did not suffer from any infirmity. It is conceded by the learned Counsel for the respondent that the Central Government at the time it extended e the Bengal Act, was competent to introduce such modification and restrictions as it thought fit."The certificate under Art. 13 3 of the Constitution was neither sought, nor granted on any ground touching the validity of the Notification, datedIn the face of all this, it is now too late for the appellants to commit a volte face. Accordingly, we decline to entertain this new ground ofproceeding further, it will be proper to say a few words in regard to the argument that the power conferred by s. 2 of the Laws Act is a power of conditional legislation and not a power of delegated legislation. In our opinion, no useful purpose will be served to pursue this line of argument because the distinction propounded between the two categories of legislative powers makes no difference, in principle. In either case, the person to whom the power is entrusted can do nothing beyond the limits which circumscribe the power; he has touse the words of Lordthe general scope of the affirmative words which give the power" and without violating any "express conditions or restrictions by which that power is limited". There is no magic in a name. Whether you call it the power of "conditional legislation" as Privy Council called it in Burahs case (supra) or ancillary legislation as the Federal Court termed it in Choitram v. Commissioner ofBihar or subsidiary legislation as Kania C.J. styled, it or whether you camouflage it under the veiling name of administrative ors Professor Cushman and other authorities have donefor bringing into operation and effect an enactment, the fact remains that it has a content, howsoever small and restricted of the law making power itself. There is ample authority in support of the proposition that the power to extend and carry into operation an enactment with necessary modification s and adaptations is in truth and reality in the nature of a power of delegated legislation. In Re: Delhi Laws Act (supra) S.R. Das J. said that on strict analysis it was "nothing but a delegation of a fractional legislative power". Anglin J. in Grays case regarded this what is called conditional legislation as "a very common instance of limited delegation. More or less to the same effect is the view taken by Evatt J. of Australia in Dignams case. Prof. Kennedy (vide his treatise  Constitution of Canada, 2nd Edn. p. 463), is also of opinion that conditional legislation is "a form of delegation".We do not want to multiply authorities nor wish to carry this academic discussion to a final conclusion because it is no t necessary for solution of the problem in hand.In the instant case, the precise question with which we are faced is whetherthe purported substitution of the words "such previous notice as is considers reasonable" for the words "not less than three months notice" in s. 6(2) by the impugned notification dated 7th December, 1957, was in excess of the power of modification conferred on the Central Government by s. 2 of the Lawsquestion has to be answered in the light of the principles enunciated by this Court in Re: Delhi Laws Act relating to the nature and scope of thisis nothing in the opinion of this Court rendered in Re: Delhi Laws Act (supra) to support Mr. B. Sens contention that the power given by s. 2 could be validly exercised within one year after thefixing this period of notice in mandatory terms, the legislature had, it seems taken into consideration several factors. According to the scheme of the Bengal Act, the tax is quantified and assessed on the quarterly turnover. The period of not less than three months notice conforms to that scheme and is intended to ensure that imposition of a new burden or exemption from tax causes least dislocation and inconvenience to the dealer in collecting the tax for the Government, keeping accounts and filing a proper return, and to the Revenue in assessing and collecting the same. Another object of this provision is that the public at large and the purchasers on whom the incidence of the tax really falls, should have adequate notice of taxable items. The third object seems to be that the dealers and others likely to be affected by an amendment of the Second Schedule may get sufficient time and opportunity for making representations, objections or suggestions in respect of the intended amendment. The dealers have also been ensured adequate time to arrange their sales adjust their affairs and to get themselves registered or get their licenses amended and brought in accord with the new imposition or exemption.Taking into consideration all these matters, the legislature has in its judgment solemnly incorporated in the statute, fixed the period of the requisite notice as "not less than three months" and willed this obligation to be absolute. The span of notice was thus the essence of the legislative mandate. The necessity of notice and the span of notice both are integral to the scheme of the provision. Thecannot therefore be split up into essential andcomponents, the whole of it being mandatory. The rule in Raza Buland Sugar Co.s case (supra) has therefore no application.Thus section 6(2) embodies a determination of legislative policy and its formulation as an absolute rule of conduct which could be diluted, changed or amended only by the legislature in the exercise of its essential legislative function which could not, as held in Re: Delhi Laws Act (supra) and Rajnarainsinghs case (supra) be delegated to the Government.For these reasons we are of opinion that the learned single Judge of the High Court was right in holding that the impugned notification was outside the authority of the Central Government as a delegate under s. 2 of the Laws Act.Before proceeding further, we may mention here in passing that the point for decision in Benarsi Das Bhanots case (supra) relied on by the Division Bench of the High Court, was different from the one before us. There, the constitutional validity of s. 6(2) of the Central Provinces and Berar Sales Tax Act, 1947, was questioned on the ground of excessive delegation. In the instant case the validity of s. 6(2) of the Bengal Act, as such is not being impeached.There is yet another facet of the matter. By the impugned notification, the Central Government did not directly seek to amend s. 6(2). Perhaps it was not sure of its competence to do so more than 6 1/2 years after the extension of Bengal Act to Delhi. It therefore chose to amend s. 6(2) indirectly through the amendment of its earlier notification datedwhich was only a vehicle or instrument meant for extension of the Bengal Act to Delhi. On such extension, the notification had exhausted its purpose and had spent its force. It had lost its utility al together as an instrument for modification of the Bengal Act. Therefore, the issue of the impugned notification which purported to amend s. 6(2) through the medium of a "dead" notification, was an exercise in futility. In any case, an amendment which was not directly permissible could not be indirectly smuggled in through thenow turn to the main ground on which the judgment of the appellate Bench of the High Court rests. The question is, was the invalidity from which the impugned notification, datedsuffered cured by the Amendment Act of 1959 ? The Bench seems to think that by passing this Amendment Act, Parliament had put its seal of approval on the Bengal Act as it stood extended and amended by the Notifications of 1957 and 1957.We find no basis for this surmise. This Amendment Act leaves s. 6(2) untouched; it does not even indirectly, refer to the impugned notification or the amendment purportedly made by it in s. 6(2). Nor does itor validate what was sought to be achieved by the impugned Notification. No indication of referential incorporation or validation of the impugned notification or the amendment sought to be made by it, is available either in the preamble or in any other provision of the AmendmentKrishna Chandra v. Union of India, (1) relied upon by the learned Counsel for the Respondents, the central issue for consideration was, whether R. 20(2) framed by the Bihar Government under s. 15 of the Mines and Minerals (Regulation and Development) Act, 1957 and the second proviso to s. 10(2) of the Bihar Land Reforms Act, 1950 were constitutionally valid. By the combined operation of these statutory provisions, the petitioners therein were called upon to pay certain rent and royalties in respect of mining operations. Those demands were challenged in Baijnath Kedia v. State of Bihar(2) wherein this Court held that the Bihar legislature had no jurisdiction to enact the second proviso to s. 10(2) of the Bihar Act because s. 15 of the Central Act, read with s. 2 thereof, had appropriated the whole field relating to mining minerals for Parliamentary legislation. The upshot of that decision was, that the action taken by the Bihar Government in modifying the terms and conditions of the leases which were in existence anterior to the Rules and the levy sought to be made on the strength of the amended Bihar Act and Rule, were unsustainable. Thereupon the State persuaded Parliament to enact the Validation Act of 1969 with a view to remove thewhich resulted in the decision in Kedias caseposition in the instant case is entirely different. Here, Parliament despite its presumed awareness of the impugned Notification, has said nothing in the Amending Act of 1959, indicating that it (Parliament) has by longhand or shorthand method incorporated,or validated the impugned notification or the amendment sought to be made thereby, while passing the Amendment Act, 1959. The appellate Bench was therefore in error in holding that Parliament had validated orreferentially with retrospective effect what was sought to be done by the impugned notification, when it passed the Amending Act, 1959.The High Court has tried with the aid of this Courts decision in Venkatrao v. State of Bombay (supra) to spell out the proposition that mere amendment of an Act by a competent legislature, amounts toof the parent Act. We find nothing in this Courts decision in Venkatraos case which warrants the enunciation of such a sweeping rule. All that was decided in Venkatraos case was that the assent given by the President to the Amending Act would be deemed to be an assent accorded to the parent Act, also. The decision in Venkatraos case therefore does not advance the case of Shri B. Sen.Shri B. Sens alternative argument that the notifications whereby the exemptions from tax have been withdrawn in regard to Durries, pure silk, country liquor etc. a re not assailable because those exemptions were earlier granted without giving three months notice, is manifestly unsustainable. Firstly, so far as fruits, fresh and dried (item 8), Pepper, tamarind and chillies (item 11), Turmeric (item 14), ghee (item 16), and knitting wool, (item 21A) are concerned, they were exempted goods in the Schedule of the Bengal Act, as modified and extended by the Notification, datedto Delhi. No question of giving notice for granting these exemptions therefore arose. Secondly, the validity of the notifications whereby exemptions were granted to pure silk, liquor etc. after the extension of the Bengal Act to Delhi is not in issue. This plea was not set up by the Respondents in their affidavits. Whether or not notice for the requisite period was given before issuing the exemption notifications, was a question of fact depending on evidence. Thirdly, to allow the Respondents to take their stand on such a plea would be violative of the fundamental principle of natural justice, according to which, a party cannot be allowed to take advantage of its own lapse or wrong. The statute has imposed a peremptory duty on the Government to issue notice of not less than three months, of its intention to amend the Second Schedule. It therefore cannot be allowed to urge that since it had disobeyed this mandate on an earlier occasion when it granted the exemptions it can withdraw the exemptions in the same unlawful mode. Two wrongs never make a right.Nor could the Respondents derive any authority or validity from s. 21 of the General Clauses Act, for the notifications withdrawing the exemptions. The source from which the power to amend the Second Schedule, comes is s. 6(2) of the Bengal Act and not s. 21 of the General Clauses Act. Section 21, as pointed out by this Court in Gopichand v. Delhi Administration(1) embodies only a rule of construction and the nature and extent of its application must be governed by the relevant statute which confers the power to issue the notification. The power therefore had to be exercised within the limits circumscribed by s. 6(2) and for the purpose for which it was conferred.For all the foregoing reasons, we are of opinion that the impugned notification, datedpurporting to substitute the words "such previous notice as it considers reasonable" for the words "not less than three months notice" in s. 6(2) of the Bengal Act is beyond the powers of the Central Government, conferred on it by s. 2 of the Laws Act. In consequence, the notification dated6 andin so far as they withdrew the exemptions from tax in the case of Durries, pure silk, country liquor, kirayana articles etc. were withdrawn without complying with the mandatory requirement of not less than three months notice enjoined by s. 6(2) of the Bengal Act, are also invalid and ineffective.