Case: B. Shama Rao Vs. The Union Territory Of Pondicherry

made to the case of State of South Australia and another, etc. v. Commonwealth, 65, CLR 373. The principle laid down in these cases is not applicable to the case before us. In those cases, the law that came up for consideration was void because it had been made by the Legislature in excess of its legislative powers. In the present case the Principal Act was clearly within the competence of the Pondicherry Legislature and is being attacked as void only on the ground that it was defective inasmuch as it contained excessive delegation of its legislative powers by the Pondicherry Legislature to the Madras Legislature. There is nothing in the Constitution which prohibits the substitution of a defective law by a law which is not subject to any infirmity. 22. The second ground is that, in any case, it cannot be held that the whole of the Principal Act was void even when it was published on 30th June 1965 and was purported to be brought into force by the notification of the Pondicherry Government, dated 1st March 1966. Under the Principal Act, there was, no doubt, the general provision that the Madras Act was to be extended to Pondicherry as it stood immediately before the commencement of the Principal Act, but there were at least some provisions of the Madras Act which were to come into force in Pondicherry in the form laid down by the Pondicherry Legislature in the Principal Act itself, and any amendments made in those provisions by the Madras Legislature in the interregnum would have been totally ineffective. By S. 2 (1) (ix) of the Principal Act, for S. 30 of the Madras Act, an entirely new S. 30 was substituted. Similarly, a new First Schedule was substituted for the First Schedule contained in the Madras Act by S. 2 (l) (x) of the Principal Act. The result was that, even if the Madras Legislature had made any amendments in S. 30 and the First Schedule of the Madras Act, those amendments would not have been effective in Pondicherry, because, on the commencement of the Principal Act in Pondicherry, under the notification issued by the Pondicherry Government, S. 30 and the First Schedule of the Madras Act, as extended to Pondicherry, were to stand in the form laid down in the Principal Act itself and not either in the form in which they were originally contained in the Madras Act, or in the form in which they might have stood as a result of a subsequent amendment made by the Madras Legislature before the commencement of the Principal Act. Consequently, it must be held that at least the provisions contained in S. 2 (1) (ix) and S. 2 (l) (x) of the Principal Act did not contain any element of delegation of legislative power and must therefore, be held to have been valid from the very beginning. If at least these provisions of the Principal Act were valid, the whole of the Principal Act could not be treated as still-born and void ab initio. Some parts of that Act were validly in force when the Amending Act was passed in November 1966. If the Principal Act was, to some extent validly enforced, there could be no bar to the Pondicherry Legislature amending it retrospectively so as to validate those parts of the Principal Act which might have been invalid on the ground of excessive delegation of legislative power. The Amending Act, thus, effectively cured the defect in the Principal Act on the basis of which its validity was challenged on behalf of the petitioner before us. 23. Lastly, Mr. Desai challenged the validity of sub-s. (2) of S. 2 of the Principal Act as it now stands after the enforcement of the Amending Act on the ground that, even under this provision, there is delegation of legislative power to the Madras -Government which is totally unjustified. His submission was that under the amended sub-s. (2) of S. 2 of the Principal Act, the power to frame fresh Rules under the Madras Act as extended to Pondicherry is still vested in the Madras Government. This submission is based on the fact that the amended sub-s. (2) of S. 2 lays down that the Madras General Sales Tax Rules, 1959, were to remain in force until such time as Rules are framed under S. 53 of the "said Act". Reliance is placed on the expression "of the said Act", because the expression "said Act" under sub-s. (1) of S. 2 of the Principal Act is indicated as referring to the Madras General Sales Tax Act, 1959. We do not, however, think that this interpretation, sought to be placed by Mr. Desai is correct. When the amended sub-s. (2) of S. 2 of the Principal Act refers to the Madras Act by using the expression "said Act" at the end of that provision, it is clear that the reference is to the Madras General Sales Act, 1959 as extended to the territory of Pondicherry, and, under S. 2 (1) (ii), the reference in the Madras Act as extended to Pondicherry to "Government" has to be construed as a reference to the Administrator appointed by the President under Art. 239 of the Constitution of India for Pondicherry. The result is that under the amended provisions of the Principal Act, the Rules are to be framed by the Administrator of the Territory of Pondicherry and not by the Madras Government. No such defect, as urged by learned counsel, thus remains after the enforcement of the Amending Act. 24. The result is that we must hold, that the Principal Act as amended by the Amending Act now in force in the State of Pondicherry is validly in force and the proceedings that were taken against the petitioner, which were challenged by this petition, have been validated by S. 5 of the Amending Act and are no longer open to challenge. The petition fails and is dismissed with costs. ORDER 25.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is manifest that the Assembly refused to perform its legislative function entrusted under the Act constituting it. It may be that a mere refusal may not amount to abdication if the legislature instead of going through the full formality of legislation applies its mind to an existing statute enacted by another legislature for another jurisdiction, adopts such an Act and enacts to extend it to the territory under its jurisdiction. In doing so, it may perhaps be said that it has laid down a policy to extend such an Act and directs the executive to apply and implement such an Act. But when it not only adopts such an Act but also provides that the Act applicable to its territory shall be the Act amended in future by the other legislature, there is nothing for it to predicate what the amended Act would be. Such a case would be clearly one of non-application of mind and one of refusal to discharge the function entrusted to it by the Instrument constituting it. It is difficult to see how such a case is not one of abdication or effacement in favour of another legislature at least in regard to that particular matter10. In the present case it is clear that the Pondicherry legislature not only adopted the Madras Act as it stood at the date when it passed the Principal Act but also enacted that if the Madras legislature were to amend its Act prior to the date when the Pondicherry Government would issue its notification it would be the amended Act which would apply. The legislature at that stage could not anticipate that the Madras Act would not be amended nor could it predicate what amendment or amendments would be carried out or whether they would be of a sweeping character or whether they would be suitable in Pondicherry. In point of fact the Madras Act was amended and by reason of S. 2 (1) read with S. 1 (2) of the Principal Act it was the amended Act which was brought into operation in Pondicherry. The result was that the Pondicherry legislature accepted the amended Act though it was not and could not be aware what the provision of the amended Act would be. There was in these circumstances a total surrender in the matter of sales tax legislation by the Pondicherry Assembly in favour of the Madras legislature and for that reason we must agree with Mr. Desai that the Act was void or as is often said still-bornBut the core of a taxing statute is in the charging section and the provisions levying such a tax and defining persons who are liable to pay such tax. If that core disappears the remaining provisions have no efficacy. In our view, Act X of 1965 was for, reasons aforesaid void and still-bornIf that was what the legislature intended to do it would have either repealed the Principal Act or even without repealing it on the footing that it was void enacted the Amendment Act as an independent legislation extending the Madras Act retrospectively as from April 1, 1966. The Amendment Act, as is clear from its long title was passed to amend the Principal Act. That can only be on the footing that it was a valid Act and still on the statute book. Under S. 2 what the legislature purports to do is to amend S. 1 (2) of the Principal Act by substituting the words "It shall come into force on the 1st day of April 1966" in place of the words "It shall come into force on such date as the Government may by notification in the Official Gazette appoint". The only result is that instead of the Principal Act having been brought into force under the said notification, it is deemed to have come into force on April 1, 1966. This is done by a deeming provision as if the new clause was there from the beginning when the Act was passed. That being so, it is as if the Pondicherry legislature had extended the Madras Act together with such amendments which might be made into that Act upto April 1, 1966. Since the Amendment Act was thus passed on the footing that there was in existence a valid Act, viz., the said Principal Act, it is impossible to conceive that it was or intended to be an independent legislation extending thereunder the Madras Act. The Amendment Act was and was intended to be an amendment of the Principal Act and it would be stretching the language of the Amendment Act to a breaking point to construe it as an independent legislation whereby the Madras Act was retrospectively brought into operation as from April 1, 1966. That being so, and on the view that the Principal Act was still-born, the attempt to revive that which was void ab initio was frustrated and such an Act could have no efficacyIn our opinion it is not at all necessary for us to enter into this controversy in the present case, because of our view that, even if it he held that the Principal Act was bad for excessive delegation of powers when it was enacted and published, the subsequent Amending Act passed by the Pondicherry Legislature had the effect of bringing into force in Pondicherry a valid Act, under which proceedings sought to be taken against the petitioner were fully justified. We proceed to give our reasons for this viewWhen the amended sub-s. (2) of S. 2 of the Principal Act refers to the Madras Act by using the expression "said Act" at the end of that provision, it is clear that the reference is to the Madras General Sales Act, 1959 as extended to the territory of Pondicherry, and, under S. 2 (1) (ii), the reference in the Madras Act as extended to Pondicherry to "Government" has to be construed as a reference to the Administrator appointed by the President under Art. 239 of the Constitution of India for Pondicherry. The result is that under the amended provisions of the Principal Act, the Rules are to be framed by the Administrator of the Territory of Pondicherry and not by the Madras Government. No such defect, as urged by learned counsel, thus remains after the enforcement of the Amending Act.