BHARAT PETROLEUM CORPORATION LTD v. STATE OF U P — 1997 DIGILAW 741 (ALL)

OM PRAKASH, J. This petition filed by the petitioner-a Govt. of India Undertaking owned and controlled by the Central Government through the Ministry of Petroleum and Natural Gases, Govt. of India and engaged in the business of manufacture, sale and distribution of motor spirit, diesel oil and other petroleum products all over the country including the State of U. P.- raises a short but an interest ing question. 2. Charging Section 3 of the U. P. Sales of Motor Spirit, Diesel Oil and Alcohol Taxation Act, 1939 (briefly, the Parent Act) states that the tax on retail sales of motor spirit and diesel oil shall be paid at such rate as may be notified not exceeding 9 paise in the case of motor spirit and 7 paise in the case of diesel oil per litter on such sales. The petitioner admittedly, a dealer is liable to pay tax on the sales of motor spirit and diesel oil. Section 3 of the Parent Act was so amended by Section 2 of the U. P. Sales of Motor Spirit, Diesel Oil and Alcohol Taxation (Amendment) Act, 1994 (hereinafter referred to as the Amending Act) as to sub stitute the words "fourteen percent" in clause (a) of Section 3 (1) for the words "ten percent" and the words "sixteen percent" in clause (b) of Section 3 (1) for the words "eight percent and from the date notified by the State Government for the purpose at the rate of twelve percent". The effect of the Amending Act was that the petitioner be came liable to pay tax at the enhanced rate. 3. It is not disputed that the petitioner had become liable to pay enhanced tax right from the date when the Amending Act be came operative. The assent of the Governor to the Amending Act was received on 22-4-1994 and that was published in the official gazette on 23-4-1994. The contention of the respondents is that the Amending Act had come into operation with effect from 23-4-1997, when the assent of the Governor was published in the official gazette and, there fore, the petitioner is liable to pay tax at the enhanced rate right from 23-4-1994. The contention of the respondents is that the Amending Act had come into operation with effect from 23-4-1997, when the assent of the Governor was published in the official gazette and, there fore, the petitioner is liable to pay tax at the enhanced rate right from 23-4-1994. The case of the petitioner is that though the Amending Act came to be published in the official gazette on 23-4-1994 but the gazette could not be made available either to the petitioner or to other dealers until 9th May, 1994 and, therefore, the liability of the petitioner to pay tax at the enhanced rate commenced only from 10-5-1994. So the dispute is confined only for the period from 23-4-1994 to 9th May, 1994. In para 12 of the writ petition, it is stated that publication of an Act is complete only when the gazette in which that was published, becomes avail able to the public and that the liability to pay enhanced tax would arise only when the gazette became available to the public. This is how the petitioner contended that it was liable to pay enhanced tax only with effect from 10-5-1994 and not from 23-4-1994. 4. In short, the submission of Sri Bharat Ji Agarwal, learned counsel for the petitioner before us is that the Amending Act may have been printed on 23-4-1994 but that can be said to have been published only when the gazette became available to the petitioner and other dealers and such date was 9th May, 1994 and not prior to that. So according to him the Amending Act can be said to have been published on 9th May, 1994 and, therefore, it is said that the petitioner is liable to pay enhanced tax only with effect from 10-5-1994. 5. Undoubtedly, the Amending Act is a post Constitutional law. Section 5 sub-sec tion (1) clause (b) of the U. P General Clauses Act, 1904 (for short, the Act of 1904) provides that where any United Provinces Act is not expressed to come into operation on a particular day, then in the case of an Uttar Pradesh Act made after the commencement of the Constitution, it shall come into operation on the day on which the assent thereto of the Governor or the Presi dent, as the case may require, is first publish ed in the officials gazette. The assent of the Governor to the Amending Act was received on 22-4-1994 and that came to be published in the official gazette on 23-4-1994 and, therefore, in view of Section 5 (1) (b), the Act can be said to have come into operation on 23-4-1994 itself. The question is that when the point of time of commencement of the Act is specified in the Act of 1904 whether it is open to the Court to resort to some other manner to deter mine the point of time of operation of the Amending Act. The Amending Act does not specify the date of its operation and, there fore, the point of time of its operation has to be determined under Section 5 (1) (b) of the Act of 1904 and in no other manner. Section 5 (1) (b) does not state that the Act shall come into operation on the date when the gazette in which the assent was first publish ed, became available to the public. Sri Bharat Ji Agarwal submits that the publica tion was complete only when the gazette became available to the petitioner and to other dealers and not before that. No case law has been shown by Sri Bharat Ji Agarwal to show that the publication of an Uttar Pradesh Act is not complete until the gazette in which the assent of the Governor was first published, was made available to the public. 6. In Mis. Haji Lal Mohd. Bin Works, Allahabad v. The State of U. P. & Others, AIR 1973 SC 2226 , the question arose as to when U. P. Act No. 3 of 1964 came into force. This Act received the assent of the President on 25-1-1964, but that was published in the official gazette on 1-2-1964. Reiterating Section 5 (1) (b), the Court held that where any Uttar Pradesh Act is not expressed to come into force on a particular day, then in the case of an Uttar Pradesh Act made after the commencement of the Constitution, it shall come into operation on the day on which the assent thereto of the Governor is first published in the official gazette. The conclusion of the Court, therefore, was that the publication was complete when the Act was published in the U. P. Gazette on 1-2-1964. The conclusion of the Court, therefore, was that the publication was complete when the Act was published in the U. P. Gazette on 1-2-1964. It was not hinted by the Court that to complete the publication of the Act, two conditions, namely, (i) that the Act has been published in the official gazette; and (ii) that the gazette is made available to the public, are to be concomitantly established. 7. Once an Act is published in the offi cial gazette the access of the public to the gazette will be presumed, unless otherwise proved. The object of the publication in the gazette is not merely to give the informa tion to the public. The official gazette is an official document. It is to be published under the authority of the government. Pub lication of an Act in the gazette is the official confirmation of the making of such an Act. The version as printed in the gazette is final. If the mode of publication is prescribed and if that mode is complied with then the publi cation is complete without doing anything further. When mode of publication in offi cial gazette is prescribed then that is man datory and the Court will take judicial notice of what is published therein. 8. In M/s. Pankaj Jain Agencies v. Union of India and others, (1994) 5 Supreme Court Cases 198; the petitioner assailed the vires of the notification dated 13-2-1996 of the Central Government, issued in exercise of powers under Section 25 (1) of the Customs Act, 1962 amending the earlier notification dated 17-3-1985. These notifications re lated to rates of customs duty on the imports of parts of Ball and Roller Bearings. The dispute in regard to the two consignments relevant in that case was whether higher rates indicated by the impugned notifica tion were attracted. The petitioners con tention was that the higher rates of duties indicated in the impugned notification, could not be applied to the said two consign ments as the impugned notification could not be held to be duly promulgated or brought into force on the day the import had occurred. Also it was urged for the petitioner that until the notification was available in Bombay, the statutory rule would not become operative. Also it was urged for the petitioner that until the notification was available in Bombay, the statutory rule would not become operative. Observing that indisputably the mode of publication prescribed by Section 25 (c) was complied with, the Court rejected the contention of the petitioner and held: (Para 18 p. 206) "we, therefore, see no substance in the con tention that notwithstanding the publication in the official Gazette there was yet a failure to make the law known and that, therefore, the notification did not acquire the elements of operative ness and enforceability. . . . . . " The dictum in the case of M/s. Pankaj Jain (supra) clearly indicates that when mode of publication in the official gazette is prescribed and an Act is published in official gazette in compliance with that mode, then the publication is complete the moment the Act is published in the official gazette. To make the gazette available to the public is not a concomitant condition to complete the publication, the date of which is the starting point of operation of the Act. 9. In B. K. Srinivasan v. Stale of Kar-nataka, ( AIR 1987 SC 1059 ), the Court pointed out the difference in the publica tion of parliamentary legislation and the delegated/subordinate legislation in the fol lowing words: "we know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than gover nance by parliamentary legislation. But unlike parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subor dinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. " (Emphasis by the Court) In Srinivasans case (supra), the Court further held: "where the parent statute is silent, but the subordinate legislation itself prescribes the man ner of publication, such a mode of publication may be sufficient, if reasonable. It will then take effect from the date of such publication or promulgation. " (Emphasis by the Court) In Srinivasans case (supra), the Court further held: "where the parent statute is silent, but the subordinate legislation itself prescribes the man ner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publica tion or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the official Gazette or some other reasonable mode of publication. From the above reproduced material, it is plain that so far as the publication of the legislation introduced by the State Legisla ture, is concerned that will be complete when that is published in the official gazette, which mode is prescribed for publication. There may be some scope of debate about the publication of the delegated/subor dinate legislation which unlike parliamen tary legislation is not publicly made. 10. In view of the above legal position, we hold that the Amending Act became operative on 23-4-1994 when assent of the Governor thereto was published and the petitioner became liable to pay tax at the enhanced rate right from that date. The plea of the petitioner that the gazette in which the Amending Act was published, could not be made available until 9-5-1994 and, there fore, the publication of the Act. was not complete till then, cannot be accepted. Liability to pay tax at the enhanced rate will arise immediately upon the operation of the Act and not upon making the gazette avail able to the public. There is no violation of the principles of natural justice, inasmuch as the law does not afford any opportunity to the petitioner to file any objection against. the gazette in which the assent of the Gover nor was published and therefore, the availability of the gazette for determination of the point of time of operation of the Amending Act and commencement of the liability is not germane. 11. the gazette in which the assent of the Gover nor was published and therefore, the availability of the gazette for determination of the point of time of operation of the Amending Act and commencement of the liability is not germane. 11. In support of its contention that the publication is complete only when the gazette in which publication was made, is made available to the public, the petitioner relied on : (1) a judgment of a Division Bench of this Court in Padam Chand Shar-ma v. State of U. P. & Others; 1992 UPTC 817; (2) of the case of U. S. Awasthi and another v. Union of India & others ; 1975 UPTC 444; and (3) the case of All India Reporter Ltd. & another v. Competent Authority, Inspecting Assistant Commissioner of Income Tax & Others, (1986) 162 ITR 697. These authorities do not relate to the publication of an U. P. Act in the official gazette, but they relate to the publication of the statutory notices under Section 269-D (1) of the In come Tax Act and the publication of notice under Rule 6 of the U. P. State Road Transport Services (Development) Rules, 1974. The position of the publication of these notices is not analogous to the publi cation of the assent of the Governor received in regard to an Act of the State of U. P. in the official gazette. So far as the publication of the assent of Governor in the official gazette is concerned, that is com plete, the moment that is published in the official gazette and the Act for which the assent of the Governor is received, becomes operative right from the date the assent of the Governor is first published in the offi cial gazette. 12. Assuming but not accepting that publication is complete when the gazette is made available to the public, the question is whether the petitioner has succeeded in es tablishing that the gazette was not made available to the public till 9-5-1994. In para 5 of the writ petition, it is stated that the Govt. gazette was not available up to 7-5-1994 even to the Excise Department and that for the first time, the U. P. Govt. sent a copy of the gazette dated 23-4-1994 along with a radiogram dated 7-5-1994 to the Dis trict Excise Officer, Lucknow. In para 5 of the writ petition, it is stated that the Govt. gazette was not available up to 7-5-1994 even to the Excise Department and that for the first time, the U. P. Govt. sent a copy of the gazette dated 23-4-1994 along with a radiogram dated 7-5-1994 to the Dis trict Excise Officer, Lucknow. In para 9 of the rejoinder- affidavit, it is stated that the petitioner applied to the Director, Printing & Stationery, Govt. Press, Allahabad for supply of a copy of the gazette dated 23-4- 1994, but the authority vide marginal endorsement dated 30-6-1994 made on the petitioners application dated 30-6-94, noted that the gazette was not made avail able by the Aish Bag Press, Lucknow for sale. From the marginal endorsement, it cannot be said that the gazette was not at all available. There is no pleading that the fazette was not available throughout the state of Uttar Pradesh. From the marginal endorsement made on the petitioners ap plication, it is clear that the gazette was printed by Aish Bag Press, Lucknow. There is no evidence on the record that copy of the gazette was not available even there. The situation that obtained on 30-6-1994, is wholly immaterial, because admittedly the gazette became available on 9-5-1994. The gazette might not be available with the Director, Printing & Stationery, Govt. Press, Allahabad on 30-6-1994, when the application was made, but that does not establish that the gazette was not at all avail able elsewhere also within the State. Thus except producing tenuous evidence, the petitioner miserably failed to establish that the gazette was not at all available within the State till 9th May, 1994. 13. For the reasons, we do not see any substance in the submission of Sri Bharat Ji Agarwal and hold that the petitioner is li able to pay tax at the enhanced rate under the Amending Act right from 23-4- 1994. 14. The petition, therefore, fails and is dismissed. Interim order, if any is vacated. Petition dismissed. .