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2004 DIGILAW 84 (SC)

MOTOR INDUSTRIES CO. LTD. v. DY. COMMISSIONER OF COMMERCIAL TAXES

2004-01-20

H.K.SEMA, S.N.VARIAVA

body2004
ORDER 1. This appeal is against the order of the Karnataka High Court dated 28-8-1997. 2. Briefly stated, the facts are: The Karnataka Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1979 was amended on 1-5-1992 by Ordinance 2 of 9 1992. This Ordinance substituted a Schedule to this Act. Tax was now levied on certain goods which were earlier not being taxed. On 13-7-1992, when the Legislative Assembly assembled, the Bill was introduced but was not passed. 3. Article 213(2)(a) of the Constitution reads as follows: "213. (2) An ordinance promulgated under this article shall have the same force and effect as an Act of the legislature of the State assented to by h the Governor, but every such ordinance- (a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and" 4. The Ordinance therefore ceased to operate on the expiration of six weeks from the date on which the assembly assembled. Before this period was over, a notification was issued on 30-7-1992 and a corrigendum was issued on 19-8-1992. 5. On 28-8-1992, Ordinance 10 of 1992 was promulgated. This Ordinance provided that it would be deemed to have come into force with effect from 1-5-1992. Section 5(2) of the Ordinance reads as follows: "(2) Notwithstanding such repeal anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Ordinance." 6. On 5-1-1993 the Bill was passed by the assembly and on 18-2-1993 it was sent to the President for his assent. The President, however, gave his assent only on 6-9-1994. The Act, being Act 3 of 1995, was published in the Official Gazette on 23-3-1995. The Act provides that it shall be deemed to have come into force with effect from 1-5-1992. Section 5(2) of the Act reads as follows: "5. The President, however, gave his assent only on 6-9-1994. The Act, being Act 3 of 1995, was published in the Official Gazette on 23-3-1995. The Act provides that it shall be deemed to have come into force with effect from 1-5-1992. Section 5(2) of the Act reads as follows: "5. (2) Notwithstanding such repeal anything done or any action taken under the principal Act as amended by the said Ordinance shall be deemed to have been done or taken under the principal Act as amended by this Act." 7. The appellants filed a writ petition challenging the levy of tax between the period from 11-2-1993 till the publication of the Act on 23-3-1995. They claimed that both Ordinance 2 of 1992 and Ordinance 10 of 1992 had lapsed by virtue of Article 213(2) and that therefore there was no law in existence during this period which authorised levy of such tax. The writ petition was dismissed by the Single Judge. The appeal has been dismissed by the impugned judgment. 8. It has been contended that by virtue of Article 213(2) of the Constitution, the Ordinance had lapsed and that as the Ordinance had lapsed, there was no power to levy taxes. It was urged that Section 5(2) of the Act only saves actions taken pursuant to the aforementioned Ordinances but does not validate the abovementioned two Ordinances. It was submitted that if the Ordinances had themselves lapsed, the action taken pursuant thereto could not have been saved. It was submitted that in spite of the provisions of Section 5(2), the levy would be unauthorised. In support of the submission that there could be no saving, reliance was placed upon the case of Trust Mai Lachhmi Sialkoti Bradri v. Chairman, Amritsar Improvement Trust1• In this case a scheme for development of an area had been framed. In pursuance of that scheme the property concerned was sought to be acquired. The proposed acquisition was challenged on the ground that the power to frame the scheme a was only in respect of a "damaged area". One of the questions before the Court was whether a notification issued under the Punjab Damaged Areas Act, 1947 could accrue for the benefit of the scheme. The Punjab Damaged Areas Act, 1947 ceased to operate in 1949. Subsequently the Punjab Damaged Areas Act of 1949 had been enacted. One of the questions before the Court was whether a notification issued under the Punjab Damaged Areas Act, 1947 could accrue for the benefit of the scheme. The Punjab Damaged Areas Act, 1947 ceased to operate in 1949. Subsequently the Punjab Damaged Areas Act of 1949 had been enacted. Section 22 of the Punjab General Clauses Act saved any action taken pursuant to any Act which was b repealed or re-enacted. This Court held that Section 22 did not save the notification because the Punjab Damaged Areas Act, 1947 had neither been repealed nor been enacted. This Court, however, was careful enough to observe that even temporary enactments could be repealed and/or re-enacted and if there was a repeal or re-enactment then the provision of Section 22 would apply. Thus, even though on facts this Court had held that there was no repeal or re-enactment, it was clarified that if there was an express provision then the earlier action could be saved. 9. Even otherwise, in our view, the argument cannot be sustained for the simple reason that Karnataka Act 3 of 1995 has been given a retrospective effect from 1-5-1992. Therefore, the position is as if this Act was always in d existence from 1-5-1992. Section 5(2) is merely clarificatory in nature and saves all acts taken under the earlier Ordinances by providing that they are deemed to have been done or taken under this Act. It is not disputed that the legislature could mandate retrospectively. This position is otherwise well settled by authorities of this Court in the cases of West Ramnad Electric Distribution Co. Ltd. v. State of Madras2, M.K. Venkatachalam v. Bombay Dyeing and Mfg. Co. Ltd.3 and Krishna Chandra Gangopadhyaya v. Union of India4. In view of the fact that this Act has been given retrospective effect, the entire submission that the Ordinances had lapsed is of no consequence. Whatever taxes have been levied are now deemed to have been levied under this Act as it is in force from 1-5-1992. 10. We, therefore, see no infirmity in the impugned judgment. The appeal f stands dismissed. There will be no order as to costs.