Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘the MMDR Act’),- Chapter VII of the Rajasthan Finance Act, - Rajasthan Environment and Health Cess Rules, 2008 - levy of cess on mineral right - the High Court has declared the notification dated 23.1.2009 amending the earlier notification dated 25.2.2008 w.e.f. 1.4.2008 with regard to imposition of cess on Rock Phosphate at the rate of Rs.500/- per tonne is ultra vires because the notification issued by the Government could only be prospectively effective and cannot have retrospective operation. - the High court on this score is absolutely flawless - Apex court concur with the same. - the appeals, being devoid of merit, stand dismissed. =
The respondent preferred DB Civil Writ Petition No. 4357 of 2009
before the High Court of Judicature for Rajasthan at Jodhpur
challenging the constitutional validity of Chapter VII of the Rajasthan Finance Act, 2008 (for brevity ‘the Act’) which provides for levy of cess on mineral rights.
The respondent was granted a mining
lease for extraction on major minerals.
As per the amendment brought
in the year 2008 it was required to pay the environment and health
cess imposed under Section 16 of the Act.
The State Government, in
exercise of the powers conferred by Section 19 of the Act, framed a
set of rules called Rajasthan Environment and Health Cess Rules, 2008
(for short “the Rules”). Rule 13 of the Rules provides for the head
under which the cess collected under Section 16 of the Act is to be
credited.
Rule 14 of the Rules provides for the allocation of the
funds for implementation of environment and health projects in mining
areas in various parts of the State.
Questioning the constitutional
validity of the impost under the Act it was contended before the High Court that the State Legislature had no competence to impose environment and health cess on major minerals as the field is occupied by the provisions contained in the Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘the MMDR Act’), which is an enactment by the Parliament. =
In
the present batch of cases, the controversy is different as the High
Court has declared the notification dated 23.1.2009 amending the
earlier notification dated 25.2.2008 w.e.f. 1.4.2008 with regard to
imposition of cess on Rock Phosphate at the rate of Rs.500/- per tonne
is ultra vires because the notification issued by the Government
ccould only be prospectively effective and cannot have retrospective
operation. The said opinion has been expressed on the foundation that
legislature has not conferred the power on the Executive to issue such
a notification. Regard being had to the said controversy, our
advertence in this batch of appeals shall be a restricted one, namely,
to scrutinize whether the view expressed by the High Court declaring
the notification to the effect that it cannot have retrospective
effect is valid and justified or warrants any interference. =
Therefore, the notification as far as it covers the period
prior to the date of publication of the notification in the official Gazette is really a transgression of the statutory postulate.
Thus analysed, we find that the view expressed by the High court on this score is absolutely flawless and we concur with the same.
We may
reiterate for the sake of clarity that we have not adverted to the
defensibility of the analysis from other spectrums which are founded
on the principles set forth in Kesoram’s case as the matter has been
referred to a larger Bench and the lis in these appeals fundamentally
pertain to the retrospective applicability of the notification issued
by the State Government as regards the rate of cess on the major
mineral, i.e. Rock Phosphate.
46. Resultantly, the appeals, being devoid of merit, stand dismissed.
Ordinarily, we would have imposed costs regard being had to the change
of stance by the appellant from time to time but recognizing the
anxiety on behalf of the State, we restrain from doing so.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 8283 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Basant Agrotech (India) Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 8288 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Solaris Chemtech Industries Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 8291 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Madhyabharat Phosphate P. Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 10815 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Liberty Phosphate Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 10816 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Asian Fertilizer Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14654 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Poly Chemical Industries & Anr. ...Respondents
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14655 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Madhya Bharat Agro Products Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14656 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Khaitan Chemicals & Fertilisers Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14657 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Bhilai Eng. Corp. Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14658 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Indian Potash Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14659 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Nirma Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14660 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Arawali Phosphate Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14662 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. T.J. Agro Fertilisers P. Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14663 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Indra Organic Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14664 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Shiva Fertilisers Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14665 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. R.C. Fertilisers P. Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14667 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Indian Phosphate Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14666 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Gajraj Fertilisers P. Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14668 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Manglam Phosphates Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 16252 of 2012)
State of Rajasthan and others ... Appellants
Versus
Dharamsi Morarji Chemical Co. Ltd. ...Respondent
J U D G M E N T
Dipak Misra, J.
Leave granted in all the Special Leave Petitions.
2. Regard being had to the commonality of issue involved and the
similitude of controversy pyramided in all these appeals, preferred by
special leave, they were heard together and are disposed of by a
singular order. For the sake of convenience, the facts in Civil
Appeal arising from Special Leave Petition (Civil) No. 8283 of 2012
are adumbrated herein.
3. The respondent preferred DB Civil Writ Petition No. 4357 of 2009
before the High Court of Judicature for Rajasthan at Jodhpur
challenging the constitutional validity of Chapter VII of the Rajasthan Finance Act, 2008 (for brevity ‘the Act’) which provides for levy of cess on mineral rights.
The respondent was granted a mining
lease for extraction on major minerals.
As per the amendment brought
in the year 2008 it was required to pay the environment and health
cess imposed under Section 16 of the Act.
The State Government, in
exercise of the powers conferred by Section 19 of the Act, framed a
set of rules called Rajasthan Environment and Health Cess Rules, 2008
(for short “the Rules”). Rule 13 of the Rules provides for the head
under which the cess collected under Section 16 of the Act is to be
credited.
Rule 14 of the Rules provides for the allocation of the
funds for implementation of environment and health projects in mining
areas in various parts of the State.
Questioning the constitutional
validity of the impost under the Act it was contended before the High Court that the State Legislature had no competence to impose environment and health cess on major minerals as the field is occupied by the provisions contained in the Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘the MMDR Act’), which is an enactment by the Parliament.
It was urged that the imposition of such
cess is not a fee but a tax which is covered by the MMDR Act
whereunder the power to levy tax on the mineral rights in respect of
major minerals is vested in the Parliament.
It was further put forth
that the Parliament, in exercise of the powers conferred on it by
Entries 54 and 55 of List-I of the Seventh Schedule to the
Constitution of India, has enacted the MMDR Act and the Rules framed
thereunder and under the said Act, the power vests from all spectrums
in the Central Government in respect of major minerals and, therefore,
the State Legislature could not have enacted such law for imposing
such cess on major minerals.
It was contended that the cess in
question is a nature of fee and the levy of fee on major minerals is
governed by the provisions contained in the MMDR Act and the Rules
framed thereunder and hence, the State Legislature does not have
competence to impose such cess.
4. Apart from the aforesaid contentions, certain other submissions were
advanced and reliance was placed on India Cement Ltd. and others v.
State of Tamil Nadu and others[1] wherein it has been held that the
royalty was a tax.
Be it noted, keeping in view the principle stated
in India Cement Ltd.’s case, (a seven-Judge Bench decision) a three-
Judge Bench in Orissa Cement Ltd. v. State of Orissa[2], held that the
decision of levy of cess impugned therein was unconstitutional.
5. On behalf of the State reliance was placed on the Constitution Bench
decision in State of W.B. v. Kesoram Industries Ltd. and Others[3].
In the said case the State of West Bengal was aggrieved by the
judgment rendered by the High Court of Calcutta wherein it was held
that the levy of cess on coal bearing land was similar to the one
which had been struck down in India Cement Ltd. (supra) and Orissa
Cement Ltd. (supra) and on that foundation it was ruled that the State
Legislature had no competence to levy such cess.
The majority in the
Constitution Bench referred to the Entries 52, 54, 96 and 97 of the
Union List (List-I) and Entries 23, 49, 50 and 56 of the State List
(List-II) of the Seventh Schedule, adverted to issues pertaining to
tax legislation and dwelled upon how the nature of tax levied is
different from the measure of tax and culled out number of principles
two of which are reproduced below:
“(6) “Land”, the term as occurring in Entry 49 of List II, has a wide
connotation. Land remains land though it may be subjected to
different user. The nature of user of the land would not enable a
piece of land being taken out of the meaning of land itself.
Different uses to which the land is subjected or is capable of being
subjected provide the basis for classifying land into different
identifiable groups for the purpose of taxation. The nature of user
of one piece of land would enable that piece of land being classified
separately from another piece of land which is being subjected to
another kind of user, though the two pieces of land are identically
situated except for the difference in nature of user. The tax would
remain a tax on land and would not become a tax on the nature of its
user.
(7) To be a tax on land, the levy must have some direct and definite
relationship with the land. So long as the tax is a tax on land by
bearing such relationship with the land, it is open for the
legislature for the purpose of levying tax to adopt any one of the
well known modes of determining the value of the land such as annual
or capital value of the land or its productivity. The methodology
adopted, having an indirect relationship with the land, would not
alter the nature of the tax as being one on land.”
6. Elaborating on the said principles, the Constitution Bench adverted to
the concept of regulation and, in that context, culled out the
principle to the effect that the primary object and the essential
purpose of legislation must be distinguished from its ultimate or
incidental results or consequences for determining the character of
the levy. A levy essentially in the nature of a tax and within the
power of the State Legislature cannot be annulled as unconstitutional
merely because it may have an effect on the price of the commodity. A
State legislation, which makes provisions for levying a cess, whether
by way of tax to augment the revenue resources of the State or by way
of fee to render services as quid pro quo but without any intention of
regulating and controlling the subject of the levy, cannot be said to
have encroached upon the field of “regulation and control” belonging
to the Central Government by reason of the incidence of levy being
permissible to be passed on to the buyer or consumer, and thereby
affecting the price of the commodity or goods. Thereafter, it
observed as follows: -
“A tax or fee levied by the State with the object or augmenting its
finances and in reasonable limits does not ipso facto trench upon
regulation, development or control of the subject. It is different if
the tax or fee sought to be levied by the State can itself be called
regulatory, the primary purpose whereof is to regulate or control and
augmentation of revenue or rendering service is only secondary or
incidental.”
7. After so stating the Constitution Bench ruled that taxes on lands and
buildings in Entry 49 of List II cannot be levied by the Union. Taxes
on mineral rights, a subject in Entry 50 of List II, can also not be
levied by the Union though as stated in Entry 50 itself the Union may
impose limitations on the power of the State and such limitations, if
any, imposed by Parliament by law relating to mineral development to
that extent shall circumscribe the States’ power to legislate. Power
to tax mineral rights is with the States; the power to lay down
limitations on exercise of such power, in the interest of regulation,
development or control, as the case may be, is with the Union and that
is the result achieved by homogeneous reading of Entry 50 of List II
and Entries 52 and 54 in List I. So long as a tax or fee on mineral
rights remains in pith and substance a tax for augmenting the revenue
resources of the State or a fee for rendering services by the State
and it does not impinge upon regulation of mines and mineral
development or upon control of industry by the Central Government, it
is not unconstitutional.
8. Thereafter, the Court adverted to individual cases, namely, coal
matters, tea matters, brick earth matters, mining and mineral matters
and then addressed itself to the purpose behind the MMRD Act and,
eventually, came to hold as follows:-
“147. Royalty is not a tax. The impugned cess by no stretch of
imagination can be called a tax on tax. The impugned levy also does
not have the effect of increasing the royalty. Simply because the
royalty is levied by reference to the quantity of the minerals
produced and the impugned cess too is quantified by taking into
consideration the same quantity of the mineral produced, the latter
does not become royalty. The former is the rent of the land on which
the mine is situated or the price of the privilege of winning the
minerals from the land parted with by the Government in favour of the
mining lessee. The cess is a levy on mineral rights with impact on the
land and quantified by reference to the quantum of minerals produced.
The distinction, though fine, yet exists and is perceptible.”
9. At this juncture, it is apt to note that the decision in Kesoram
Industries Ltd. (supra) has been referred for consideration by a
larger Bench in Mineral Area Development Authority and others v. Steel
Authority of India and others[4]. It may be profitably stated that a
three-Judge Bench has referred the matter to a Bench of nine Judges by
framing eleven questions of law. A direct reference to a nine-Judge
Bench has been explained in the following terms:-
“...we may clarify that normally the Bench of five learned Judges in
case of doubt has to invite the attention of the Chief Justice and
request for the matter being placed for hearing before a Bench of
larger coram than the Bench whose decision has come up for
consideration (see Central Board of Dawoodi Bohra Community v. State
of Maharashtra[5]). However, in the present case, since prima facie
there appears to be some conflict between the decision of this Court
in State of W.B. v. Kesoram Industries Ltd (supra) which decision has
been delivered by a Bench of five Judges of this Court and the
decision delivered by a seven-Judge Bench of this Court in India
Cement Ltd. v. State of T.N. (supra), reference to the Bench of nine
Judges is requested.”
10. It is the admitted position that certain matters arising out of the
said decision are awaiting for answer of reference in the case of
Mineral Area Development Authority (supra) by the larger Bench.
In
the present batch of cases, the controversy is different as the High
Court has declared the notification dated 23.1.2009 amending the
earlier notification dated 25.2.2008 w.e.f. 1.4.2008 with regard to
imposition of cess on Rock Phosphate at the rate of Rs.500/- per tonne
is ultra vires because the notification issued by the Government
ccould only be prospectively effective and cannot have retrospective
operation. The said opinion has been expressed on the foundation that
legislature has not conferred the power on the Executive to issue such
a notification. Regard being had to the said controversy, our
advertence in this batch of appeals shall be a restricted one, namely,
to scrutinize whether the view expressed by the High Court declaring
the notification to the effect that it cannot have retrospective
effect is valid and justified or warrants any interference.
11. We have heard Dr. Manish Singhvi, learned counsel for the appellants
and Ms. Shweta Garg, learned counsel for the respondents.
12. Before we appreciate the controversy that has travelled to this Court,
we think it necessary to state the fundamental principles that serve
as guidance to understand the fiscal legislations and the duty of the
Court while dwelling upon the interpretation of taxing statutes.
13. In A.V. Fernandez v. The State of Kerala[6], Bhagwati, J. referred to
a passage from Partington v. The Attorney General[7] which is as
follows: -
“As I understand the principle of all fiscal legislation it is this :
if the person sought to be taxed, comes within the letter of the law
he must be taxed however great the hardship may appear to the judicial
mind to be. On the other hand, if the Crown, seeking to recover the
tax, cannot bring the subject within the letter of the law, the
subject is free, however apparently within the spirit of the law the
case might otherwise appear to be.”
14. The said passage, as has been stated in the said pronouncement, was
quoted with approval by the Privy Council in
Bank of Chettinad v. Income-tax Commr.[8] and the Privy Council had registered its protest
against the suggestion that in revenue cases “the substance of the
matter” may be regarded as distinguished from the strict legal
position. Proceeding further the learned Judge stated that:
“It is no doubt true that in construing fiscal statutes and in
determining the liability of a subject to tax one must have regard to
the strict letter of the law and not merely to the spirit of the
statute or the substance of the law. If the Revenue satisfies the
Court that the case falls strictly within the provision of the law,
the subject can be taxed. If, on the other hand, the case is not
covered within the four corners of the provisions of the taxing
statute, no tax can be imposed by inference or by analogy or by trying
to probe into the intentions of the legislature and by considering
what was the substance of the matter.”
[Emphasis added]
15. In Commissioner of Salex-tax, U.P. v. Modi Sugar Mills Ltd.[9], Shah,
J., speaking for the majority in the Constitution Bench, has observed
thus: -
“In interpreting a taxing statute, equitable considerations are
entirely out of place. Nor can taxing statutes be interpreted on any
presumptions or assumptions. The Court must look squarely at the
words of the statute and interpret them. It must interpret a taxing
statute in the light of what is clearly expressed : if cannot imply
anything which is not expressed; it cannot import provisions in the
statutes so as to supply any assumed deficiency.”
16. In Commissioner of Income-tax, Madras v. Kasturi and Sons Ltd.[10], a
two-Judge Bench has approvingly quoted a passage from the book
“Principles of Statutory Interpretation” by Justice G.P. Singh, Sixth
Edition 1966, which is as follows: -
“The well established rule in the familiar words of LORD WENSLEYDALE,
reaffirmed by LORD HALSBURY and LORD SIMONDS, means : “The subject is
not to be taxed without clear words for that purpose; and also that
every Act of Parliament must be read according to the natural
construction of its words”. In a classic passage LORD CAIRNS stated
that the principle thus: “If the person sought to be taxed comes
within the letter of the law he must be taxed, however great the
hardship may appear to the judicial mind to be. On the other hand, if
the Crown seeking to recover the tax, cannot bring the subject within
the letter of the law, the subject is free, however apparently within
the spirit of law the case might otherwise appear to be. In other
words, if there be admissible in any statute, what is called an
equitable, construction, certainly, such a construction is not
admissible in a taxing statute where you can simply adhere to the
words of the statute.” VISCOUNT SIMON quoted with approval a passage
from Rowlatt, J. expressing the principle in the following words :
“In a taxing Act one has to look merely at what is clearly said.
There is no room for any intendment. There is no equity about a tax.
There is no presumption as to tax. Nothing is to be read in, nothing
is to be implied. One can only look fairly at the language used.”
Relying upon this passage Lord Upjohn said : “Fiscal measures are not
built upon any theory of taxation”.”[11]
17. In Commissioner of Wealth Tax, Gujarat-III, Ahmedabad v. Ellis Bridge
Gymkhana[12], it has been observed thus: -
“The rule of construction of a charging section is that before taxing
any person, it must be shown that he falls within the ambit of the
charging section by clear words used in the section. No one can be
taxed by implication. A charging section has to be construed
strictly. If a person has not been brought within the ambit of the
charging section by clear words, he cannot be taxed at all.”
18. Keeping in mind the aforesaid primal principles and the kernel of
fiscal legislation, we shall now proceed to deal with principal source
of power under the Act and then test whether the amended notification,
a retrospective one, has been issued in consonance with the said
power. In this context, it is imperative to refer to Section 16 of
the Act which delegates authority to the State Government to issue a
notification to levy and collect the cess in issue in such manner as
may be prescribed. The said provision reads as follows:-
“16. Levy and collection of cess on mineral rights. – Subject to any
limitation imposed by Parliament by law relating to mineral
development, there shall be levied and collected, in such manner as
may be prescribed, an environment and health cess on mineral rights in
respect of such minerals and at such rates, not exceeding rupees five
hundred each tonne of mineral dispatched, as may be notified by the
State Government from time to time.”
19. In exercise of power contained in Section 16 of the Act the Finance
Department issued a notification on 25.2.2008. The said notification
stipulated that the rate of environment and health cess on mineral
rights and the minerals in respect of which cess shall be levied. The
rate as stipulated in the said notification in respect of minerals,
namely, (i) Cement Grade Limestone, (ii) Gypsum, (iii) Rock Phosphate,
(iv) Wollastone and (v) M.R. Cess on Lead and Zinc was Rs.5/-, Rs.5/-,
Rs.35/-, Rs.40/- and Rs.80/- per tonne respectively.
20. While the said notification was in vogue, the State Government brought
a notification dated 23.1.2009 amending the notification dated
25.2.2008 with effect from 1.4.2008. The said amendment reads as
follows: -
“In the said notification the existing S. No. 3 and entries thereto
shall be substituted by the following namely: -
|3. |M.R. Cess on Rock Phosphate |500/-” |
21. From the aforesaid notification, it is vivid that the first
notification was issued on 25.2.2008 in exercise of power under
Section 16 of the Act for imposing a levy at a particular rate on
certain major minerals. By bringing the amendment on 23.1.2009 the
rate of tax in respect of Rock Phosphate was increased to Rs.500/- per
tonne with retrospective effect.
22. There is no dispute over the fact that a legislature can make a law
retrospectively or prospectively subject to justifiability and
acceptability within the constitutional parameters. A subordinate
legislation can be given retrospective effect if a power in this
behalf is contained in the principal Act. In this regard we may refer
with profit to the decision in Mahabir Vegetable Oils (P) Ltd. and
another v. State of Haryana and Others[13], wherein it has been held
that:-
“We may at this stage consider the effect of omission of the
said note. It is beyond any cavil that a subordinate legislation can
be given a retrospective effect and retroactive operation, if any
power in this behalf is contained in the main Act. The rule-making
power is a species of delegated legislation. A delegatee therefore
can make rules only within the four corners thereof.
42. It is a fundamental rule of law that no statute shall be
construed to have a retrospective operation unless such a construction
appears very clearly in the terms of the Act, or arises by necessary
and distinct implication. (See West v. Gwynne[14]).”
23. In MRF Ltd. Kottayam v. Asstt. Commissioner (Assessment) Sales Tax and
Others[15], the question arose whether under Section 10 (3) of the
Kerala General Sales Tax Act, 1963 power was conferred on the
Government to issue a notification retrospectively. This Court
approved the view expressed by the Kerala High Court in M. M.
Nagalingam Nadar Sons v. State of Kerala[16], wherein it has been
stated that in issuing notifications under Section 10, the Government
exercises only delegated powers while legislature has plenary powers
to legislate prospectively and retrospectively, a delegated authority
like the Government acting under the powers conferred on it by the
enactment concerned, can exercise only those powers which are
specifically conferred. In the absence of such conferment of power
the Government, the delegated authority, has no power to issue a
notification with retrospective effect.
24. In Vice-Chancellor, M.D. University, Rohtak v. Jahan Singh[17], it
has been clearly laid down that in the absence of any provision
contained in the legislative Act, a delegatee cannot make a delegated
legislation with retrospective effect.
25. In Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar
Pasawalla and others[18], a three-Judge Bench has ruled thus: -
“... in a fiscal matter it will not be proper to hold that even in the
absence of express provision, a delegated authority can impose tax or
fee. In our view, such power of imposition of tax and/or fee by
delegated authority must be very specific and there is no scope of
implied authority for imposition of such tax or fee. It appears to us
that the delegated authority must act strictly within the parameters
of the authority delegated to it under the Act and it will not be
proper to bring the theory of implied intent or the concept of
incidental and ancillary power in the matter of exercise of fiscal
power.”
26. On a perusal of the aforesaid authorities there can be no scintilla of
doubt that if the power has been conferred under the main Act by the
legislature, the State Government or the delegated authority can issue
a notification within the said parameters. In the case at hand, the
High Court interpreting Section 16 has opined that such a power has
not been conferred on the Government to issue a notification
retrospectively and, therefore, it can only apply with prospective
effect. Dr. Manish Singhvi, learned counsel appearing for the State,
has submitted that wherever a statutory power is conferred, there is
no limitation with regard to exercise of that power and the same could
be exercised from time to time and even if the words “time to time”
are absent in the statute, the power conferred under the Act could be
exercised all over again and there is no limitation to the number of
times the power is exercised and if the power is exercised once, it
cannot be stated that the power stands exhausted. It is his
submission that the administrative power as well as quasi-legislative
power could be exercised any number of times and this principle is
embodied under Section 21 of the General Clauses Act. The learned
counsel would further contend that even if the words “time to time”
would not have been there in Section 16 of the Act, the power could be
exercised any number of times. To bolster his submissions, he has
commended us to the decisions in A. Thangal Kunju Musaliar v. M.
Venkatachalam Potti, Authorised Official and Income-Tax Officer and
another[19], D.G. Gose and Co. (Agents) Pvt. Ltd. v. State of Kerala
and another[20], Bansidhar and other v. State of Rajasthan and
others[21] and The State of Madhya Pradesh and others v. Tikamdas[22].
27. First we shall deal with the aforesaid authorities as learned counsel
for the State has assiduously endeavoured to justify the retrospective
application of the notification on the fulcrum of aforesaid decisions.
28. In A. Thangal Kunju Musaliar (supra), the Constitution Bench, apart
from other facets, was dealing with the validity of the notification
dated 26.7.1949 as it had brought the Travancore Taxation on Income
(Investigation, Commission) Act into force with effect from 22.7.1949.
The said notification was challenged on the ground that it was bad as
it had purported to bring the Act into operation from retrospective
effect. It was urged that Government could not, in the absence of
express provision authorizing in that behalf, fix the commencement of
the Act retrospectively and further the courts disfavoured
retrospective operation of laws which prejudicially affect vested
rights. Repelling the said submission, the Constitution bench stated
thus: -
“No such reason is involved in this case. Section 1(3) authorises the
Government to bring the Act into force on such date as it may, by
notification, appoint. In exercise of the power conferred by this
section the Government surely had the power to issue the notification
bringing the Act into force on any date subsequent to the passing of
the Act. There can, therefore, be no objection to the notification
fixing the commencement of the Act on 22.7.1949 which was a date
subsequent to the passing of the Act.
So the Act has not been given retrospective operation, that is
to say, it has not been made to commence from a date prior to the date
of its passing. It is true that the date of commencement as fixed by
the notification is anterior to the date of the notification but that
circumstance does not attract the principle disfavouring the
retroactive operation of a statute.”
29. After so stating, their Lordships proceeded to advert to the aspect
whether the notification was retrospective or not and in that regard
ruled thus: -
“The operation of the notification itself is not retrospective. It
only brings the Act into operation on and from an earlier date. In
any case it was in terms authorised to issue the notification bringing
the Act into force on any date subsequent to the passing of the Act
and that is all that the Government did.”
30. On a seemly appreciation of the ratio laid down in that case, we have
no trace of doubt in our mind that the said decision has no
applicability to the facts in the case at hand. As is evident, the
notification giving effect to the enactment was prior to the date of
issue of notification but much after the legislature had passed the
enactment and further the language employed in the Act was quite
different. Hence, it can be stated with certitude that the said
decision does not further the point urged by the learned counsel for
the State.
31. The authority in D.G. Gose and Co. (Agents) Pvt. Ltd. (supra), has
been commended to us by the learned counsel for the State, as we
understand, to substantiate the point that a levy can always be
imposed at any point of time even from the retrospective date unless
it is grossly unreasonable. He has specifically drawn inspiration
from paragraphs 13 and 14 of the said decision. Be it noted, in the
said case, the controversy related to the Kerala Building Tax Act,
1961. The said Act was eventually passed after lot of changes on
2.4.1975 by which tax was imposed on buildings. However, the
imposition of tax on buildings was made with retrospective effect from
1.4.1973. One of the challenges pertained to retrospective
application of the law. In that context, the Constitution Bench,
speaking through Shinghal, J., in paragraphs 14 to 16, stated thus: -
“14. Craies on Statute Law, seventh Edn., has stated the meaning of
“retrospective” at p. 367 as follows:
“A statute is to be deemed to be retrospective, which takes away
or impairs any vested right acquired under existing laws, or
creates a new obligation, or imposes a new duty, or attaches a
new disability in respect of transactions or considerations
already past. But a statute ‘is not properly called a
retrospective statute because a part of the requisites for its
action is drawn from a time antecedent to its passing’.”
It has however, not been shown how it could be said that the Act has
taken away or impaired any vested right of the assessees before us
which they had acquired under any existing law, or what that vested
right was. It may be that there was no liability to building tax until
the promulgation of the Act (earlier the Ordinances) but mere absence
of an earlier taxing statute cannot be said to create a “vested
right”, under any existing law, that it shall not be levied in future
with effect from a date anterior to the passing of the Act. Nor can it
be said that by imposing the building tax from an earlier date any new
obligation or disability has been attached in respect of any earlier
transaction or consideration. The Act is not therefore retrospective
in the strictly technical sense.
15. What it does is to impose the building tax from April 1, 1973. But
as was held in Bradford Union v. Wiltshire[23], if the language of the
statute shows that the legislature thinks it expedient to authorise
the making of retrospective rates, it can fix the period as to which
the rate may be retrospectively made.
16. This Court had occasion to examine the validity of the
retrospective levy of Sales Tax in Tata Iron and Steel Co. Ltd. v.
State of Bihar[24] and it was held that that was not beyond the
legislative competence of the State legislature.”
32. We have already stated that there can be no cavil that the legislature
has the authority to pass a law both retrospectively and prospectively
within the constitutional parameters. In the aforesaid case the
legislature had passed the law with retrospective effect. The Court
opined that the same did not affect the vested rights as nothing had
been done earlier and hence, no right had vested in the citizens. We
may, in addition, state that the said enactment was treated to be
valid as it did not invite the wrath of Article 14 of the
Constitution. In the case at hand, we are really not testing the
retrospective applicability of the law made by the legislature but a
notification issued by the State Government in exercise of power
conferred under a statutory provision. Needless to say, there is a
sea of difference between the two and hence, the aforesaid authority
is of no assistance to the learned counsel for the State.
33. The next submission pertains to the principle embodied under Sections
14 and 21 of the General Clauses Act to bolster the stand that the
power conferred under the statute can be exercised time and again and
there is no limitation to the number of times the power is exercised.
In essence, it is submitted that there is no exhaustion of power. In
this context, the learned counsel has drawn our attention to the
Constitution Bench decision in Bansidhar’s case. In the said case it
has been held that when there is a repeal of a statute accompanied by
re-enactment of law on the same subject, the provisions of the new
enactment would have to be looked into not for the purpose of
ascertaining whether the consequences envisaged by Section 6 of the
General Clauses Act ensued or not, but only for the purpose of
determining whether the provisions in the new statute indicate a
different intention. It has also been stated therein that a saving
provision in a repealing statute is not exhaustive of the rights and
obligations so saved or the rights that survive the repeal. Building
the edifice on the said premise, it is proponed that the power
conferred on the State Government under Section 16 of the Act can be
exercised any number of times and the words “time to time” are
redundant or otiose. Bestowing our anxious consideration on the
aforesaid submission we only state that the aforesaid authority is of
no assistance to the appellant-State because the controversy that has
emanated in that case is altogether a different one. To put it
differently, the proposition laid down in the aforesaid authority does
not buttress the submission sought to be urged. In fact, it is
farther away from the “North Pole”.
34. At this juncture, we are obliged to state that the learned counsel for
the State had really drawn immense invigorating inspiration from the
pronouncement in Tikamdas (supra). In the said case a three-Judge
Bench was considering whether a subordinate legislation, namely, M.P.
Foreign Liquor Rules could be ultra vires the Sections 62 and 63 of
the M.P. Excise Act, 1915 as the notification that was issued had
retrospective effect. The factual expose’ of the said case is that,
on 25.4.1964 the M.P. Government by virtue of its powers under
Sections 62 and 63 of M.P. Excise Act, 1915 amended M.P. Foreign
Liquor Rules which were published on 25.4.1964 and the said amendment
was given retrospective effect from 1.4.1964 as a consequence of which
a demand for the difference of licence fee was made. The three-Judge
Bench observed that there is no doubt that unlike legislation made by
sovereign legislature, subordinate legislation made by a delegate
cannot have retrospective effect unless the rule-making power in the
concerned statute expressly or by necessary implication confers power
in this behalf. After stating the abovesaid proposition the learned
Judges referred to Section 62 of the relevant Act which empowered the
State Government to make rules for the purpose of carrying out the
provisions of the Act and in that context, observed that the said rule
may regulate the amount of fee, the terms and conditions of licences
and scale of fees and the manner of fixing the fees payable in respect
of such licences, but the said provision by itself did not expressly
grant power to make retrospective rules. Thereafter, the bench
referred to Section 63 which read thus: -
“all rules made and notifications issued under this Act shall be
published in the Official Gazette, and shall have effect from the date
of such publication or from such other date as may be specified in
that behalf.”
35. Interpreting the said Section, the Court opined thus: -
“Clearly the Legislature has empowered its delegate, the State
Government, not merely to make the rules but to give effect to them
from such date as may be specified by the delegate. This provision
regarding subordinate legislation does contemplate not merely the
power to make rules but to bring them into force from any previous
date. Therefore ante-dating the effect of the; amendment of Rule IV
is not obnoxious to the scheme nor ultra vires Section 62.”
36. From the aforesaid, it is luculent that the language used therein is
quite different. In the case at hand, Section 16 uses the words “from
time to time”. Even if we accept the submission of the learned
counsel for the State that the words “time to time” are redundant, the
provision does not remotely suggest to have conferred power on the
State Government to make rules with retrospective effect. In fact,
the aforestated decision was cited with immense aplomb during the
course of hearing that words “time to time” empowers the State
Government or the delegate to make the rules retrospectively. It may
be noted, despite so much gloss put on the said proposition in the
written note of submission, there is a real departure but we think,
and we should, the original submission made in course of hearing
deserves to be dealt with. In Tikamdas (supra) the language used by
the legislature was that the notification issued under the Act shall
have the effect from the date of publication in the Official Gazette
or from such other date as may be specified in that behalf.
Interpreting the same, the Court opined that the legislature had
empowered the delegate to make the rules from any previous date and
hence, it was neither obnoxious to the scheme nor ultra vires Section
62. Thus, the words used therein “or from such other date a may be
specified in that behalf” were interpreted by the Court that the
legislature had empowered the delegate to make a rule retrospectively.
In the case at hand, as has been stated hereinbefore, the words used
in Section 16 are “from time to time”. The learned counsel for the
State is absolutely justified in stating that it can be exercised any
number of times and the power does not get exhausted. To elaborate, a
maximum rate has been specified by the legislature. The State
Government can fix the rate on any of the minerals from period to
period with the conditions prescribed therein, namely, no limitation
is imposed by the Parliament by law relating to mineral development
and the maximum limit of Rs.500/- per tonne. To clarify further, if
there is an imposition of Rs.35 it can be varied as the occasion may
arise. The rate fixed can be varied, changed or modified from time to
time. We really cannot discern from the language employed in the said
provision that because of the use of the words “time to time” a
notification can be issued imposing a rate of tax with retrospective
effect or apply the notification retrospectively. A notification can
only be issued, as we perceive, prospectively, and we are inclined to
think so as legislature has deliberately used the words “from time to
time” and not the language as is noticed in Tikamdas (supra).
37. We are disposed to think that the words “from time to time” in law
have a different connotation. In this regards we may refer with
profit to certain authorities in the field. In Kashmir Singh v. Union
of India and others[25], question arose whether rule of perpetuity
would be applicable in respect of a member of a Sikh Judicial
Commission constituted under the Sikh Gurdwaras Act, 1925 and in that
context the words used “from time to time” that find place in Sections
40 and 70 of Punjab Reorganisation Act, 1996 fell for interpretation.
A contention was raised on behalf of State of Punjab that having
regard to the tenor of Sections 40 and 70 of the Act it was evident
from the language employed in the said provisions a reasonable meaning
was required to be given and on proper construction of the words “from
time to time” would lead to the conclusion that the Government had the
power to make fresh appointments of the members. The Court, while
dealing with various contentions, ruled that the provisions in the Act
clearly indicated the tenure of the Commission but the dichotomy had
been created in view of the words “time to time” and the limited power
of the State to dissolve the Commission. In that context, the Court
observed thus: -
“With a view to find out an answer to the question as to what meaning
should be assigned to the words “from time to time”, in our opinion, a
holistic reading of the statutes should be resorted to.”
38. We have referred to the aforesaid decision for the purpose that in
case one thinks of any implied power from the language used in the statute
by using the words “from time to time” there has to be a holistic reading
of the statute but not a fragmented one. That apart, the said decision
clarifies that on certain occasions the words “from time to time” have
their signification when one relies on a provision that the power exercised
once does not get exhausted solely because the use of words ”from time to
time”, but the said terms may not have any importance but when reliance is
placed as a source of power to issue a notification or order to act
otherwise with retrospective effect. In that event, needless to say it
warrants proper interpretation. In the case at hand, it can definitely be
stated that despite reading the entire Act in a holistic manner we are
unable to trace any other provision throwing any light on the words “from
time to time” and, therefore, the conferment of power shall rest upon the
construction that is exclusively placed on Section 16 of the Act.
38. In M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board[26], the
controversy that arose for determination was whether an agreement
despite expiry would prevail over a regulation made under Section
79(c) of the Electricity (Supply) Act, 1948 pertaining to the age of
superannuation of employees of the Board having regard to the use of
the words “time to time” in Section 2 of the Madhya Pradesh Industrial
Employment (Standing Orders) Act, 1961. After stating the facts the
Court observed thus: -
“43. The power of the Board, therefore, to lay down the conditions of
service of its employees either in terms of regulation or otherwise
would be subject only to any valid law to the contrary operating in
the field. Agreement within the meaning of the proviso appended to
Standing Order 14-A is not a law and, thus, the Regulations made by
the Board shall prevail thereover.
44. The Board has power to make regulations which having regard to
the provisions of the General Clauses Act would mean that they can
make such regulations from time to time.”
39. The aforesaid decision is referred to solely for the purpose that the
words, namely, “from time to time” may be associated with any number
of times, of course subject to the principle of reasonableness and its
impact but does not engulf the spectrum of retrospectivity or
retroactivity in its ambit and sweep.
40. In Shree Sidhbali Steels Limited and Others v. State of Uttar Pradesh
and Others[27], the Court in a writ petition preferred under Article
32 of the Constitution was dealing with the issue of justifiability of
the action taken by U.P Power Corporation Limited which had issued a
notification on 7.8.2000. It was propounded that the said
notification was illegal, arbitrary and violative of Article 14, 19
(1) (g) and 21 of the Constitution insofar as it denies the petitioner
the hill development rebate of 33.33% on the total amount of
electricity bills issued by the respondents for the remaining
unexpired period of five years from the date of commencement of supply
of electricity to the industrial units of the petitioners. The
question that emerged for consideration before the three-Judge Bench
was whether benefit given by statutory notification could be withdrawn
by the Government by another statutory notification and whether the
principles of promissory estoppel could be applicable to a case where
concessions/rebates given by statutory notification were subsequently
withdrawn by another statutory notification. The three-Judge Bench
did not accept the statement of law in U.P. Power Corpn. Ltd. V. Sant
Steels and Allys (P) Ltd.[28] where a Division Bench had stated that
the notification issued under Section 49 of the Electricity (Supply)
Act, 1948 could be revoked/modified only if express provision exists
for the revocation/modification of the said notification under Section
49 itself and as there is no such provision under Section 49 it was
not open to the Corporation to revoke the same. That apart, it was
stated therein that the provisions of the General Clauses Act would be
applicable in case of delegated legislation if withdrawal/curtailment
of benefit was in larger public interest or if the legislation was
enacted by the legislature authorizing the Government to
withdraw/curtail the benefit granted by a notification. While not
accepting the said statement of law as correct the three-Judge Bench
referred to Sections 14 and 21 of the General Clauses Act, 1897 and
opined thus:-
“Section 14 deals with the exercise of a power successively and has
no relevance to the question whether the power claimed can at all be
conferred. By Section 14 of the General Clauses Act, 1897, any power
conferred by any Central enactment may be exercised from time to time
as occasion arises, unless a different intention appears in the Act.
There is no different intention in the Electricity (Supply) Act, 1948.
Therefore, the power to issue a notification under Section 49 of the
Act of 1948, can be exercised from time to time if circumstances so
require.”
After so stating the learned Judges analysed the scope of Section 21
of the General Clauses Act and opined that Section 21 embodies 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,
etc. Thereafter, the court enumerated the principle thus:-
“...there is no manner of doubt that the exercise of power to make
subordinate legislation includes the power to rescind the same. This
is made clear by Section 21. On that analogy an administrative
decision is revocable while a judicial decision is not revocable
except in special circumstances. Exercise of power of a subordinate
legislation will be prospective and cannot be retrospective unless the
statute authorises such an exercise expressly or by necessary
implication.”
Analysing further the learned Judges opined that by virtue of Sections
14 and 21 of the General Clauses Act, when a power is conferred on an
authority to do a particular act, such power can be exercised from time to
time and carries with it the power to withdraw, modify, amend or cancel the
notifications earlier issued, to be exercised in the like manner and
subject to like conditions, if any, attached with the exercise of the
power. It would be too narrow a view to accept that chargeability once
fixed cannot be altered. Since the charging provision in the Electricity
(Supply) Act, 1948 is subject to the State Government’s power to issue
notification under Section 49 of the Act granting rebate, the State
Government, in view of Section 21 of the General Clauses Act, could always
withdraw, rescind, add to or modify an exemption notification. No industry
couldn claim as of right that the Government should exercise its power
under Section 49 and offer rebate and it is for the Government to decide
whether the conditions were such that rebate should be granted or not. The
aforesaid authority clearly lays down that the power conferred can be
exercised in the context of wores “from time to time” as used in the Act or
in aid of General Clauses Act.
41. At this juncture, we may fruitfully refer to the meaning given to the
words “from time to time” in certain dictionaries and the description
made in certain other texts. In “Words and Phrases”, Volume 17 A,
1974, “from time to time” has been enumerated in various contexts. We
may think it appropriate to reproduce certain contexts which are
useful in the present case.
“The phrase “from time to time” means as occasion may arise, at
intervals, now and then occasionally. Florey v. Meeker, 240 P. 2d
1177,1190,194 Or. 257.”
xxx xxx xxx xxx xxx
“In constitutional amendment, authorizing Legislature to alter
salaries of named county officers “from time to time”, the quoted
phrase does not mean from “term to term”. Almon v. Morgan County, 16
So.2d 511,514,245 Ala. 241.”
xxx xxx xxx xxx xxx
“The phrase “from time to time”, as used in the Constitution,
authorizing the Legislature to increase the number of judges of the
Supreme Court from time to time, means occasionally; that is, as
occasion requires, and therefore the words cannot be held to mean that
the Legislature may not decrease the number of judges after an
increase thereof. State v. McBride, 70 P.25,27,29 Wash. 335.”
xxx xxx xxx xxx
“The Century Dictionary defines the phrase ‘from time to time’ to mean
‘occasionally’; and the Universal Dictionary defines ‘from time to
time’ to mean, ‘at intervals; now and then.” The phrase is used in
such meaning in Acts1898, c. 123, para 95, which directs the police
commissioners of Baltimore, at the request of the park commissioners,
to detail from time to time members of regular police force for
preservation of order in the parks. Upshur v. City of Baltimore, 51 A.
953, 955, 94 Md. 743.”
xxx xxx xxx xxx
“The county board of supervisors had no authority to alter an election
precinct in September, under statute providing that board may, from
time to time, change the boundaries of precincts and providing that
changes might be made at regular or special meeting in July, since the
two provisions were in pari materia and should be construed together
in the light of all the provisions of the statute, the words “from
time to time” meaning “at times to recur,” and not “at any time.” Laws
1885, p. 193 para 29, Laws 1871-72, p. 380, para 30, S.H.A. ch. 46,
para 29, 30. County Board of Union County v. Short, 77 Ill App. 448.”
42. In The Law Lexicon, The Encyclopedic Law Dictionary: (2nd edition,
1997, page 764), the words have been conferred the following meaning:-
“From time to time – “as occasion may arise”. The words “from time to
time” mean that an adjournment may be made as and when the occasion
requires and they will not mean adjournment from one fixed day to
another fixed day. The words “from time to time” are words which are
constantly introduced where it is intended to protect a person who is
empowered to act from the risk of having completely discharged his
duty when he has once acted, and therefore, not being able to act
again in the same direction. The meaning of the words “from time to
time” is that after once acting the donee of the power may act again;
and either independently of, or by adding to, or taking from, or
reversing altogether, his previous act.”
43. In Blacks Law Dictionary: (5th edition page 601), it has been defined
as follows:-
“From time to time – Occasionally, at intervals, now and then.”
44. In Stroud’s Judicial Dictionary: (5th edition volume 2 page 1053), it
has been stated as follows:-
“From time to time ‘as occasion may arise’ (as per William, J., Bryan
v. Arthur, 11 A. & E 117).”
45. Thus, the conspectus of authorities and the meaning bestowed in the
common parlance admit no room of doubt that the words “from time to
time” have a futuristic tenor and they do not have the etymological
potentiality to operate from a previous date.
The use of the said
words in the Section 16 of the Act cannot be said to have conferred
the jurisdiction on the State Government or delegate to issue a
notification in respect of the rate with retrospective effect.
Such
an interpretation does not flow from the statute which is the source
of power.
Therefore, the notification as far as it covers the period
prior to the date of publication of the notification in the official
Gazette is really a transgression of the statutory postulate.
Thus
analysed, we find that the view expressed by the High court on this
score is absolutely flawless and we concur with the same. We may
reiterate for the sake of clarity that we have not adverted to the
defensibility of the analysis from other spectrums which are founded
on the principles set forth in Kesoram’s case as the matter has been
referred to a larger Bench and the lis in these appeals fundamentally
pertain to the retrospective applicability of the notification issued
by the State Government as regards the rate of cess on the major
mineral, i.e. Rock Phosphate.
46. Resultantly, the appeals, being devoid of merit, stand dismissed.
Ordinarily, we would have imposed costs regard being had to the change
of stance by the appellant from time to time but recognizing the
anxiety on behalf of the State, we restrain from doing so.
……………………………….J.
[Anil R. Dave]
……………………………….J.
[Dipak Misra]
New Delhi;
December 06, 2013.
-----------------------
[1] (1990) 1 SCC 12
[2] (1991) Suppl. 1 SCC 430
[3] (2004) 10 SCC 201
[4] (2011) 4 SCC 450
[5] (2005) 2 SCC 673
[6] AIR 1957 SC 657
[7] (1869) 4 H L 100 at p. 122(B)
[8] AIR 1940 PC 183
[9] AIR 1961 SC 1047
[10] AIR 1999 SC 1275
[11] This passage presently finds place at page 826, Twelfth Edition 2012
of “Principle of Statutory Interpretation” by G.P. Singh.
[12] AIR 1998 SC 120
[13] (2006) 3 SCC 620
[14] (1911) 2 Ch 1 : 104 LT 759 (CA)
[15] (2006) 8 SCC 702
[16] (1993) 91 STC 61 (Ker)
[17] (2007) 5 SCC 77
[18] AIR 1992 SC 2038
[19] AIR 1956 SC 246
[20] (1980) 2 SCC 410
[21] (1989) 2 SCC 557
[22] (1975) 2 SCC 100
[23] 1868 LR 3 QB 606, 616
[24] AIR 1958 SC 452
[25] (2008) 7 SCC 259
[26] (2004) 9 SCC 755
[27] (2011) 3 SCC 193
[28] (2008) 2 SCC 777
-----------------------
42
The respondent preferred DB Civil Writ Petition No. 4357 of 2009
before the High Court of Judicature for Rajasthan at Jodhpur
challenging the constitutional validity of Chapter VII of the Rajasthan Finance Act, 2008 (for brevity ‘the Act’) which provides for levy of cess on mineral rights.
The respondent was granted a mining
lease for extraction on major minerals.
As per the amendment brought
in the year 2008 it was required to pay the environment and health
cess imposed under Section 16 of the Act.
The State Government, in
exercise of the powers conferred by Section 19 of the Act, framed a
set of rules called Rajasthan Environment and Health Cess Rules, 2008
(for short “the Rules”). Rule 13 of the Rules provides for the head
under which the cess collected under Section 16 of the Act is to be
credited.
Rule 14 of the Rules provides for the allocation of the
funds for implementation of environment and health projects in mining
areas in various parts of the State.
Questioning the constitutional
validity of the impost under the Act it was contended before the High Court that the State Legislature had no competence to impose environment and health cess on major minerals as the field is occupied by the provisions contained in the Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘the MMDR Act’), which is an enactment by the Parliament. =
In
the present batch of cases, the controversy is different as the High
Court has declared the notification dated 23.1.2009 amending the
earlier notification dated 25.2.2008 w.e.f. 1.4.2008 with regard to
imposition of cess on Rock Phosphate at the rate of Rs.500/- per tonne
is ultra vires because the notification issued by the Government
ccould only be prospectively effective and cannot have retrospective
operation. The said opinion has been expressed on the foundation that
legislature has not conferred the power on the Executive to issue such
a notification. Regard being had to the said controversy, our
advertence in this batch of appeals shall be a restricted one, namely,
to scrutinize whether the view expressed by the High Court declaring
the notification to the effect that it cannot have retrospective
effect is valid and justified or warrants any interference. =
Therefore, the notification as far as it covers the period
prior to the date of publication of the notification in the official Gazette is really a transgression of the statutory postulate.
Thus analysed, we find that the view expressed by the High court on this score is absolutely flawless and we concur with the same.
We may
reiterate for the sake of clarity that we have not adverted to the
defensibility of the analysis from other spectrums which are founded
on the principles set forth in Kesoram’s case as the matter has been
referred to a larger Bench and the lis in these appeals fundamentally
pertain to the retrospective applicability of the notification issued
by the State Government as regards the rate of cess on the major
mineral, i.e. Rock Phosphate.
46. Resultantly, the appeals, being devoid of merit, stand dismissed.
Ordinarily, we would have imposed costs regard being had to the change
of stance by the appellant from time to time but recognizing the
anxiety on behalf of the State, we restrain from doing so.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 8283 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Basant Agrotech (India) Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 8288 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Solaris Chemtech Industries Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 8291 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Madhyabharat Phosphate P. Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 10815 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Liberty Phosphate Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 10816 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Asian Fertilizer Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14654 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Poly Chemical Industries & Anr. ...Respondents
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14655 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Madhya Bharat Agro Products Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14656 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Khaitan Chemicals & Fertilisers Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14657 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Bhilai Eng. Corp. Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14658 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Indian Potash Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14659 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Nirma Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14660 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Arawali Phosphate Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14662 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. T.J. Agro Fertilisers P. Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14663 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Indra Organic Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14664 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Shiva Fertilisers Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14665 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. R.C. Fertilisers P. Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14667 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Indian Phosphate Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14666 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Gajraj Fertilisers P. Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 14668 of 2012)
State of Rajasthan and others ... Appellants
Versus
M/s. Manglam Phosphates Ltd. ...Respondent
WITH
CIVIL APPEAL NO. OF 2013
(Arising out of S.L.P. (C) No. 16252 of 2012)
State of Rajasthan and others ... Appellants
Versus
Dharamsi Morarji Chemical Co. Ltd. ...Respondent
J U D G M E N T
Dipak Misra, J.
Leave granted in all the Special Leave Petitions.
2. Regard being had to the commonality of issue involved and the
similitude of controversy pyramided in all these appeals, preferred by
special leave, they were heard together and are disposed of by a
singular order. For the sake of convenience, the facts in Civil
Appeal arising from Special Leave Petition (Civil) No. 8283 of 2012
are adumbrated herein.
3. The respondent preferred DB Civil Writ Petition No. 4357 of 2009
before the High Court of Judicature for Rajasthan at Jodhpur
challenging the constitutional validity of Chapter VII of the Rajasthan Finance Act, 2008 (for brevity ‘the Act’) which provides for levy of cess on mineral rights.
The respondent was granted a mining
lease for extraction on major minerals.
As per the amendment brought
in the year 2008 it was required to pay the environment and health
cess imposed under Section 16 of the Act.
The State Government, in
exercise of the powers conferred by Section 19 of the Act, framed a
set of rules called Rajasthan Environment and Health Cess Rules, 2008
(for short “the Rules”). Rule 13 of the Rules provides for the head
under which the cess collected under Section 16 of the Act is to be
credited.
Rule 14 of the Rules provides for the allocation of the
funds for implementation of environment and health projects in mining
areas in various parts of the State.
Questioning the constitutional
validity of the impost under the Act it was contended before the High Court that the State Legislature had no competence to impose environment and health cess on major minerals as the field is occupied by the provisions contained in the Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘the MMDR Act’), which is an enactment by the Parliament.
It was urged that the imposition of such
cess is not a fee but a tax which is covered by the MMDR Act
whereunder the power to levy tax on the mineral rights in respect of
major minerals is vested in the Parliament.
It was further put forth
that the Parliament, in exercise of the powers conferred on it by
Entries 54 and 55 of List-I of the Seventh Schedule to the
Constitution of India, has enacted the MMDR Act and the Rules framed
thereunder and under the said Act, the power vests from all spectrums
in the Central Government in respect of major minerals and, therefore,
the State Legislature could not have enacted such law for imposing
such cess on major minerals.
It was contended that the cess in
question is a nature of fee and the levy of fee on major minerals is
governed by the provisions contained in the MMDR Act and the Rules
framed thereunder and hence, the State Legislature does not have
competence to impose such cess.
4. Apart from the aforesaid contentions, certain other submissions were
advanced and reliance was placed on India Cement Ltd. and others v.
State of Tamil Nadu and others[1] wherein it has been held that the
royalty was a tax.
Be it noted, keeping in view the principle stated
in India Cement Ltd.’s case, (a seven-Judge Bench decision) a three-
Judge Bench in Orissa Cement Ltd. v. State of Orissa[2], held that the
decision of levy of cess impugned therein was unconstitutional.
5. On behalf of the State reliance was placed on the Constitution Bench
decision in State of W.B. v. Kesoram Industries Ltd. and Others[3].
In the said case the State of West Bengal was aggrieved by the
judgment rendered by the High Court of Calcutta wherein it was held
that the levy of cess on coal bearing land was similar to the one
which had been struck down in India Cement Ltd. (supra) and Orissa
Cement Ltd. (supra) and on that foundation it was ruled that the State
Legislature had no competence to levy such cess.
The majority in the
Constitution Bench referred to the Entries 52, 54, 96 and 97 of the
Union List (List-I) and Entries 23, 49, 50 and 56 of the State List
(List-II) of the Seventh Schedule, adverted to issues pertaining to
tax legislation and dwelled upon how the nature of tax levied is
different from the measure of tax and culled out number of principles
two of which are reproduced below:
“(6) “Land”, the term as occurring in Entry 49 of List II, has a wide
connotation. Land remains land though it may be subjected to
different user. The nature of user of the land would not enable a
piece of land being taken out of the meaning of land itself.
Different uses to which the land is subjected or is capable of being
subjected provide the basis for classifying land into different
identifiable groups for the purpose of taxation. The nature of user
of one piece of land would enable that piece of land being classified
separately from another piece of land which is being subjected to
another kind of user, though the two pieces of land are identically
situated except for the difference in nature of user. The tax would
remain a tax on land and would not become a tax on the nature of its
user.
(7) To be a tax on land, the levy must have some direct and definite
relationship with the land. So long as the tax is a tax on land by
bearing such relationship with the land, it is open for the
legislature for the purpose of levying tax to adopt any one of the
well known modes of determining the value of the land such as annual
or capital value of the land or its productivity. The methodology
adopted, having an indirect relationship with the land, would not
alter the nature of the tax as being one on land.”
6. Elaborating on the said principles, the Constitution Bench adverted to
the concept of regulation and, in that context, culled out the
principle to the effect that the primary object and the essential
purpose of legislation must be distinguished from its ultimate or
incidental results or consequences for determining the character of
the levy. A levy essentially in the nature of a tax and within the
power of the State Legislature cannot be annulled as unconstitutional
merely because it may have an effect on the price of the commodity. A
State legislation, which makes provisions for levying a cess, whether
by way of tax to augment the revenue resources of the State or by way
of fee to render services as quid pro quo but without any intention of
regulating and controlling the subject of the levy, cannot be said to
have encroached upon the field of “regulation and control” belonging
to the Central Government by reason of the incidence of levy being
permissible to be passed on to the buyer or consumer, and thereby
affecting the price of the commodity or goods. Thereafter, it
observed as follows: -
“A tax or fee levied by the State with the object or augmenting its
finances and in reasonable limits does not ipso facto trench upon
regulation, development or control of the subject. It is different if
the tax or fee sought to be levied by the State can itself be called
regulatory, the primary purpose whereof is to regulate or control and
augmentation of revenue or rendering service is only secondary or
incidental.”
7. After so stating the Constitution Bench ruled that taxes on lands and
buildings in Entry 49 of List II cannot be levied by the Union. Taxes
on mineral rights, a subject in Entry 50 of List II, can also not be
levied by the Union though as stated in Entry 50 itself the Union may
impose limitations on the power of the State and such limitations, if
any, imposed by Parliament by law relating to mineral development to
that extent shall circumscribe the States’ power to legislate. Power
to tax mineral rights is with the States; the power to lay down
limitations on exercise of such power, in the interest of regulation,
development or control, as the case may be, is with the Union and that
is the result achieved by homogeneous reading of Entry 50 of List II
and Entries 52 and 54 in List I. So long as a tax or fee on mineral
rights remains in pith and substance a tax for augmenting the revenue
resources of the State or a fee for rendering services by the State
and it does not impinge upon regulation of mines and mineral
development or upon control of industry by the Central Government, it
is not unconstitutional.
8. Thereafter, the Court adverted to individual cases, namely, coal
matters, tea matters, brick earth matters, mining and mineral matters
and then addressed itself to the purpose behind the MMRD Act and,
eventually, came to hold as follows:-
“147. Royalty is not a tax. The impugned cess by no stretch of
imagination can be called a tax on tax. The impugned levy also does
not have the effect of increasing the royalty. Simply because the
royalty is levied by reference to the quantity of the minerals
produced and the impugned cess too is quantified by taking into
consideration the same quantity of the mineral produced, the latter
does not become royalty. The former is the rent of the land on which
the mine is situated or the price of the privilege of winning the
minerals from the land parted with by the Government in favour of the
mining lessee. The cess is a levy on mineral rights with impact on the
land and quantified by reference to the quantum of minerals produced.
The distinction, though fine, yet exists and is perceptible.”
9. At this juncture, it is apt to note that the decision in Kesoram
Industries Ltd. (supra) has been referred for consideration by a
larger Bench in Mineral Area Development Authority and others v. Steel
Authority of India and others[4]. It may be profitably stated that a
three-Judge Bench has referred the matter to a Bench of nine Judges by
framing eleven questions of law. A direct reference to a nine-Judge
Bench has been explained in the following terms:-
“...we may clarify that normally the Bench of five learned Judges in
case of doubt has to invite the attention of the Chief Justice and
request for the matter being placed for hearing before a Bench of
larger coram than the Bench whose decision has come up for
consideration (see Central Board of Dawoodi Bohra Community v. State
of Maharashtra[5]). However, in the present case, since prima facie
there appears to be some conflict between the decision of this Court
in State of W.B. v. Kesoram Industries Ltd (supra) which decision has
been delivered by a Bench of five Judges of this Court and the
decision delivered by a seven-Judge Bench of this Court in India
Cement Ltd. v. State of T.N. (supra), reference to the Bench of nine
Judges is requested.”
10. It is the admitted position that certain matters arising out of the
said decision are awaiting for answer of reference in the case of
Mineral Area Development Authority (supra) by the larger Bench.
In
the present batch of cases, the controversy is different as the High
Court has declared the notification dated 23.1.2009 amending the
earlier notification dated 25.2.2008 w.e.f. 1.4.2008 with regard to
imposition of cess on Rock Phosphate at the rate of Rs.500/- per tonne
is ultra vires because the notification issued by the Government
ccould only be prospectively effective and cannot have retrospective
operation. The said opinion has been expressed on the foundation that
legislature has not conferred the power on the Executive to issue such
a notification. Regard being had to the said controversy, our
advertence in this batch of appeals shall be a restricted one, namely,
to scrutinize whether the view expressed by the High Court declaring
the notification to the effect that it cannot have retrospective
effect is valid and justified or warrants any interference.
11. We have heard Dr. Manish Singhvi, learned counsel for the appellants
and Ms. Shweta Garg, learned counsel for the respondents.
12. Before we appreciate the controversy that has travelled to this Court,
we think it necessary to state the fundamental principles that serve
as guidance to understand the fiscal legislations and the duty of the
Court while dwelling upon the interpretation of taxing statutes.
13. In A.V. Fernandez v. The State of Kerala[6], Bhagwati, J. referred to
a passage from Partington v. The Attorney General[7] which is as
follows: -
“As I understand the principle of all fiscal legislation it is this :
if the person sought to be taxed, comes within the letter of the law
he must be taxed however great the hardship may appear to the judicial
mind to be. On the other hand, if the Crown, seeking to recover the
tax, cannot bring the subject within the letter of the law, the
subject is free, however apparently within the spirit of the law the
case might otherwise appear to be.”
14. The said passage, as has been stated in the said pronouncement, was
quoted with approval by the Privy Council in
Bank of Chettinad v. Income-tax Commr.[8] and the Privy Council had registered its protest
against the suggestion that in revenue cases “the substance of the
matter” may be regarded as distinguished from the strict legal
position. Proceeding further the learned Judge stated that:
“It is no doubt true that in construing fiscal statutes and in
determining the liability of a subject to tax one must have regard to
the strict letter of the law and not merely to the spirit of the
statute or the substance of the law. If the Revenue satisfies the
Court that the case falls strictly within the provision of the law,
the subject can be taxed. If, on the other hand, the case is not
covered within the four corners of the provisions of the taxing
statute, no tax can be imposed by inference or by analogy or by trying
to probe into the intentions of the legislature and by considering
what was the substance of the matter.”
[Emphasis added]
15. In Commissioner of Salex-tax, U.P. v. Modi Sugar Mills Ltd.[9], Shah,
J., speaking for the majority in the Constitution Bench, has observed
thus: -
“In interpreting a taxing statute, equitable considerations are
entirely out of place. Nor can taxing statutes be interpreted on any
presumptions or assumptions. The Court must look squarely at the
words of the statute and interpret them. It must interpret a taxing
statute in the light of what is clearly expressed : if cannot imply
anything which is not expressed; it cannot import provisions in the
statutes so as to supply any assumed deficiency.”
16. In Commissioner of Income-tax, Madras v. Kasturi and Sons Ltd.[10], a
two-Judge Bench has approvingly quoted a passage from the book
“Principles of Statutory Interpretation” by Justice G.P. Singh, Sixth
Edition 1966, which is as follows: -
“The well established rule in the familiar words of LORD WENSLEYDALE,
reaffirmed by LORD HALSBURY and LORD SIMONDS, means : “The subject is
not to be taxed without clear words for that purpose; and also that
every Act of Parliament must be read according to the natural
construction of its words”. In a classic passage LORD CAIRNS stated
that the principle thus: “If the person sought to be taxed comes
within the letter of the law he must be taxed, however great the
hardship may appear to the judicial mind to be. On the other hand, if
the Crown seeking to recover the tax, cannot bring the subject within
the letter of the law, the subject is free, however apparently within
the spirit of law the case might otherwise appear to be. In other
words, if there be admissible in any statute, what is called an
equitable, construction, certainly, such a construction is not
admissible in a taxing statute where you can simply adhere to the
words of the statute.” VISCOUNT SIMON quoted with approval a passage
from Rowlatt, J. expressing the principle in the following words :
“In a taxing Act one has to look merely at what is clearly said.
There is no room for any intendment. There is no equity about a tax.
There is no presumption as to tax. Nothing is to be read in, nothing
is to be implied. One can only look fairly at the language used.”
Relying upon this passage Lord Upjohn said : “Fiscal measures are not
built upon any theory of taxation”.”[11]
17. In Commissioner of Wealth Tax, Gujarat-III, Ahmedabad v. Ellis Bridge
Gymkhana[12], it has been observed thus: -
“The rule of construction of a charging section is that before taxing
any person, it must be shown that he falls within the ambit of the
charging section by clear words used in the section. No one can be
taxed by implication. A charging section has to be construed
strictly. If a person has not been brought within the ambit of the
charging section by clear words, he cannot be taxed at all.”
18. Keeping in mind the aforesaid primal principles and the kernel of
fiscal legislation, we shall now proceed to deal with principal source
of power under the Act and then test whether the amended notification,
a retrospective one, has been issued in consonance with the said
power. In this context, it is imperative to refer to Section 16 of
the Act which delegates authority to the State Government to issue a
notification to levy and collect the cess in issue in such manner as
may be prescribed. The said provision reads as follows:-
“16. Levy and collection of cess on mineral rights. – Subject to any
limitation imposed by Parliament by law relating to mineral
development, there shall be levied and collected, in such manner as
may be prescribed, an environment and health cess on mineral rights in
respect of such minerals and at such rates, not exceeding rupees five
hundred each tonne of mineral dispatched, as may be notified by the
State Government from time to time.”
19. In exercise of power contained in Section 16 of the Act the Finance
Department issued a notification on 25.2.2008. The said notification
stipulated that the rate of environment and health cess on mineral
rights and the minerals in respect of which cess shall be levied. The
rate as stipulated in the said notification in respect of minerals,
namely, (i) Cement Grade Limestone, (ii) Gypsum, (iii) Rock Phosphate,
(iv) Wollastone and (v) M.R. Cess on Lead and Zinc was Rs.5/-, Rs.5/-,
Rs.35/-, Rs.40/- and Rs.80/- per tonne respectively.
20. While the said notification was in vogue, the State Government brought
a notification dated 23.1.2009 amending the notification dated
25.2.2008 with effect from 1.4.2008. The said amendment reads as
follows: -
“In the said notification the existing S. No. 3 and entries thereto
shall be substituted by the following namely: -
|3. |M.R. Cess on Rock Phosphate |500/-” |
21. From the aforesaid notification, it is vivid that the first
notification was issued on 25.2.2008 in exercise of power under
Section 16 of the Act for imposing a levy at a particular rate on
certain major minerals. By bringing the amendment on 23.1.2009 the
rate of tax in respect of Rock Phosphate was increased to Rs.500/- per
tonne with retrospective effect.
22. There is no dispute over the fact that a legislature can make a law
retrospectively or prospectively subject to justifiability and
acceptability within the constitutional parameters. A subordinate
legislation can be given retrospective effect if a power in this
behalf is contained in the principal Act. In this regard we may refer
with profit to the decision in Mahabir Vegetable Oils (P) Ltd. and
another v. State of Haryana and Others[13], wherein it has been held
that:-
“We may at this stage consider the effect of omission of the
said note. It is beyond any cavil that a subordinate legislation can
be given a retrospective effect and retroactive operation, if any
power in this behalf is contained in the main Act. The rule-making
power is a species of delegated legislation. A delegatee therefore
can make rules only within the four corners thereof.
42. It is a fundamental rule of law that no statute shall be
construed to have a retrospective operation unless such a construction
appears very clearly in the terms of the Act, or arises by necessary
and distinct implication. (See West v. Gwynne[14]).”
23. In MRF Ltd. Kottayam v. Asstt. Commissioner (Assessment) Sales Tax and
Others[15], the question arose whether under Section 10 (3) of the
Kerala General Sales Tax Act, 1963 power was conferred on the
Government to issue a notification retrospectively. This Court
approved the view expressed by the Kerala High Court in M. M.
Nagalingam Nadar Sons v. State of Kerala[16], wherein it has been
stated that in issuing notifications under Section 10, the Government
exercises only delegated powers while legislature has plenary powers
to legislate prospectively and retrospectively, a delegated authority
like the Government acting under the powers conferred on it by the
enactment concerned, can exercise only those powers which are
specifically conferred. In the absence of such conferment of power
the Government, the delegated authority, has no power to issue a
notification with retrospective effect.
24. In Vice-Chancellor, M.D. University, Rohtak v. Jahan Singh[17], it
has been clearly laid down that in the absence of any provision
contained in the legislative Act, a delegatee cannot make a delegated
legislation with retrospective effect.
25. In Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar
Pasawalla and others[18], a three-Judge Bench has ruled thus: -
“... in a fiscal matter it will not be proper to hold that even in the
absence of express provision, a delegated authority can impose tax or
fee. In our view, such power of imposition of tax and/or fee by
delegated authority must be very specific and there is no scope of
implied authority for imposition of such tax or fee. It appears to us
that the delegated authority must act strictly within the parameters
of the authority delegated to it under the Act and it will not be
proper to bring the theory of implied intent or the concept of
incidental and ancillary power in the matter of exercise of fiscal
power.”
26. On a perusal of the aforesaid authorities there can be no scintilla of
doubt that if the power has been conferred under the main Act by the
legislature, the State Government or the delegated authority can issue
a notification within the said parameters. In the case at hand, the
High Court interpreting Section 16 has opined that such a power has
not been conferred on the Government to issue a notification
retrospectively and, therefore, it can only apply with prospective
effect. Dr. Manish Singhvi, learned counsel appearing for the State,
has submitted that wherever a statutory power is conferred, there is
no limitation with regard to exercise of that power and the same could
be exercised from time to time and even if the words “time to time”
are absent in the statute, the power conferred under the Act could be
exercised all over again and there is no limitation to the number of
times the power is exercised and if the power is exercised once, it
cannot be stated that the power stands exhausted. It is his
submission that the administrative power as well as quasi-legislative
power could be exercised any number of times and this principle is
embodied under Section 21 of the General Clauses Act. The learned
counsel would further contend that even if the words “time to time”
would not have been there in Section 16 of the Act, the power could be
exercised any number of times. To bolster his submissions, he has
commended us to the decisions in A. Thangal Kunju Musaliar v. M.
Venkatachalam Potti, Authorised Official and Income-Tax Officer and
another[19], D.G. Gose and Co. (Agents) Pvt. Ltd. v. State of Kerala
and another[20], Bansidhar and other v. State of Rajasthan and
others[21] and The State of Madhya Pradesh and others v. Tikamdas[22].
27. First we shall deal with the aforesaid authorities as learned counsel
for the State has assiduously endeavoured to justify the retrospective
application of the notification on the fulcrum of aforesaid decisions.
28. In A. Thangal Kunju Musaliar (supra), the Constitution Bench, apart
from other facets, was dealing with the validity of the notification
dated 26.7.1949 as it had brought the Travancore Taxation on Income
(Investigation, Commission) Act into force with effect from 22.7.1949.
The said notification was challenged on the ground that it was bad as
it had purported to bring the Act into operation from retrospective
effect. It was urged that Government could not, in the absence of
express provision authorizing in that behalf, fix the commencement of
the Act retrospectively and further the courts disfavoured
retrospective operation of laws which prejudicially affect vested
rights. Repelling the said submission, the Constitution bench stated
thus: -
“No such reason is involved in this case. Section 1(3) authorises the
Government to bring the Act into force on such date as it may, by
notification, appoint. In exercise of the power conferred by this
section the Government surely had the power to issue the notification
bringing the Act into force on any date subsequent to the passing of
the Act. There can, therefore, be no objection to the notification
fixing the commencement of the Act on 22.7.1949 which was a date
subsequent to the passing of the Act.
So the Act has not been given retrospective operation, that is
to say, it has not been made to commence from a date prior to the date
of its passing. It is true that the date of commencement as fixed by
the notification is anterior to the date of the notification but that
circumstance does not attract the principle disfavouring the
retroactive operation of a statute.”
29. After so stating, their Lordships proceeded to advert to the aspect
whether the notification was retrospective or not and in that regard
ruled thus: -
“The operation of the notification itself is not retrospective. It
only brings the Act into operation on and from an earlier date. In
any case it was in terms authorised to issue the notification bringing
the Act into force on any date subsequent to the passing of the Act
and that is all that the Government did.”
30. On a seemly appreciation of the ratio laid down in that case, we have
no trace of doubt in our mind that the said decision has no
applicability to the facts in the case at hand. As is evident, the
notification giving effect to the enactment was prior to the date of
issue of notification but much after the legislature had passed the
enactment and further the language employed in the Act was quite
different. Hence, it can be stated with certitude that the said
decision does not further the point urged by the learned counsel for
the State.
31. The authority in D.G. Gose and Co. (Agents) Pvt. Ltd. (supra), has
been commended to us by the learned counsel for the State, as we
understand, to substantiate the point that a levy can always be
imposed at any point of time even from the retrospective date unless
it is grossly unreasonable. He has specifically drawn inspiration
from paragraphs 13 and 14 of the said decision. Be it noted, in the
said case, the controversy related to the Kerala Building Tax Act,
1961. The said Act was eventually passed after lot of changes on
2.4.1975 by which tax was imposed on buildings. However, the
imposition of tax on buildings was made with retrospective effect from
1.4.1973. One of the challenges pertained to retrospective
application of the law. In that context, the Constitution Bench,
speaking through Shinghal, J., in paragraphs 14 to 16, stated thus: -
“14. Craies on Statute Law, seventh Edn., has stated the meaning of
“retrospective” at p. 367 as follows:
“A statute is to be deemed to be retrospective, which takes away
or impairs any vested right acquired under existing laws, or
creates a new obligation, or imposes a new duty, or attaches a
new disability in respect of transactions or considerations
already past. But a statute ‘is not properly called a
retrospective statute because a part of the requisites for its
action is drawn from a time antecedent to its passing’.”
It has however, not been shown how it could be said that the Act has
taken away or impaired any vested right of the assessees before us
which they had acquired under any existing law, or what that vested
right was. It may be that there was no liability to building tax until
the promulgation of the Act (earlier the Ordinances) but mere absence
of an earlier taxing statute cannot be said to create a “vested
right”, under any existing law, that it shall not be levied in future
with effect from a date anterior to the passing of the Act. Nor can it
be said that by imposing the building tax from an earlier date any new
obligation or disability has been attached in respect of any earlier
transaction or consideration. The Act is not therefore retrospective
in the strictly technical sense.
15. What it does is to impose the building tax from April 1, 1973. But
as was held in Bradford Union v. Wiltshire[23], if the language of the
statute shows that the legislature thinks it expedient to authorise
the making of retrospective rates, it can fix the period as to which
the rate may be retrospectively made.
16. This Court had occasion to examine the validity of the
retrospective levy of Sales Tax in Tata Iron and Steel Co. Ltd. v.
State of Bihar[24] and it was held that that was not beyond the
legislative competence of the State legislature.”
32. We have already stated that there can be no cavil that the legislature
has the authority to pass a law both retrospectively and prospectively
within the constitutional parameters. In the aforesaid case the
legislature had passed the law with retrospective effect. The Court
opined that the same did not affect the vested rights as nothing had
been done earlier and hence, no right had vested in the citizens. We
may, in addition, state that the said enactment was treated to be
valid as it did not invite the wrath of Article 14 of the
Constitution. In the case at hand, we are really not testing the
retrospective applicability of the law made by the legislature but a
notification issued by the State Government in exercise of power
conferred under a statutory provision. Needless to say, there is a
sea of difference between the two and hence, the aforesaid authority
is of no assistance to the learned counsel for the State.
33. The next submission pertains to the principle embodied under Sections
14 and 21 of the General Clauses Act to bolster the stand that the
power conferred under the statute can be exercised time and again and
there is no limitation to the number of times the power is exercised.
In essence, it is submitted that there is no exhaustion of power. In
this context, the learned counsel has drawn our attention to the
Constitution Bench decision in Bansidhar’s case. In the said case it
has been held that when there is a repeal of a statute accompanied by
re-enactment of law on the same subject, the provisions of the new
enactment would have to be looked into not for the purpose of
ascertaining whether the consequences envisaged by Section 6 of the
General Clauses Act ensued or not, but only for the purpose of
determining whether the provisions in the new statute indicate a
different intention. It has also been stated therein that a saving
provision in a repealing statute is not exhaustive of the rights and
obligations so saved or the rights that survive the repeal. Building
the edifice on the said premise, it is proponed that the power
conferred on the State Government under Section 16 of the Act can be
exercised any number of times and the words “time to time” are
redundant or otiose. Bestowing our anxious consideration on the
aforesaid submission we only state that the aforesaid authority is of
no assistance to the appellant-State because the controversy that has
emanated in that case is altogether a different one. To put it
differently, the proposition laid down in the aforesaid authority does
not buttress the submission sought to be urged. In fact, it is
farther away from the “North Pole”.
34. At this juncture, we are obliged to state that the learned counsel for
the State had really drawn immense invigorating inspiration from the
pronouncement in Tikamdas (supra). In the said case a three-Judge
Bench was considering whether a subordinate legislation, namely, M.P.
Foreign Liquor Rules could be ultra vires the Sections 62 and 63 of
the M.P. Excise Act, 1915 as the notification that was issued had
retrospective effect. The factual expose’ of the said case is that,
on 25.4.1964 the M.P. Government by virtue of its powers under
Sections 62 and 63 of M.P. Excise Act, 1915 amended M.P. Foreign
Liquor Rules which were published on 25.4.1964 and the said amendment
was given retrospective effect from 1.4.1964 as a consequence of which
a demand for the difference of licence fee was made. The three-Judge
Bench observed that there is no doubt that unlike legislation made by
sovereign legislature, subordinate legislation made by a delegate
cannot have retrospective effect unless the rule-making power in the
concerned statute expressly or by necessary implication confers power
in this behalf. After stating the abovesaid proposition the learned
Judges referred to Section 62 of the relevant Act which empowered the
State Government to make rules for the purpose of carrying out the
provisions of the Act and in that context, observed that the said rule
may regulate the amount of fee, the terms and conditions of licences
and scale of fees and the manner of fixing the fees payable in respect
of such licences, but the said provision by itself did not expressly
grant power to make retrospective rules. Thereafter, the bench
referred to Section 63 which read thus: -
“all rules made and notifications issued under this Act shall be
published in the Official Gazette, and shall have effect from the date
of such publication or from such other date as may be specified in
that behalf.”
35. Interpreting the said Section, the Court opined thus: -
“Clearly the Legislature has empowered its delegate, the State
Government, not merely to make the rules but to give effect to them
from such date as may be specified by the delegate. This provision
regarding subordinate legislation does contemplate not merely the
power to make rules but to bring them into force from any previous
date. Therefore ante-dating the effect of the; amendment of Rule IV
is not obnoxious to the scheme nor ultra vires Section 62.”
36. From the aforesaid, it is luculent that the language used therein is
quite different. In the case at hand, Section 16 uses the words “from
time to time”. Even if we accept the submission of the learned
counsel for the State that the words “time to time” are redundant, the
provision does not remotely suggest to have conferred power on the
State Government to make rules with retrospective effect. In fact,
the aforestated decision was cited with immense aplomb during the
course of hearing that words “time to time” empowers the State
Government or the delegate to make the rules retrospectively. It may
be noted, despite so much gloss put on the said proposition in the
written note of submission, there is a real departure but we think,
and we should, the original submission made in course of hearing
deserves to be dealt with. In Tikamdas (supra) the language used by
the legislature was that the notification issued under the Act shall
have the effect from the date of publication in the Official Gazette
or from such other date as may be specified in that behalf.
Interpreting the same, the Court opined that the legislature had
empowered the delegate to make the rules from any previous date and
hence, it was neither obnoxious to the scheme nor ultra vires Section
62. Thus, the words used therein “or from such other date a may be
specified in that behalf” were interpreted by the Court that the
legislature had empowered the delegate to make a rule retrospectively.
In the case at hand, as has been stated hereinbefore, the words used
in Section 16 are “from time to time”. The learned counsel for the
State is absolutely justified in stating that it can be exercised any
number of times and the power does not get exhausted. To elaborate, a
maximum rate has been specified by the legislature. The State
Government can fix the rate on any of the minerals from period to
period with the conditions prescribed therein, namely, no limitation
is imposed by the Parliament by law relating to mineral development
and the maximum limit of Rs.500/- per tonne. To clarify further, if
there is an imposition of Rs.35 it can be varied as the occasion may
arise. The rate fixed can be varied, changed or modified from time to
time. We really cannot discern from the language employed in the said
provision that because of the use of the words “time to time” a
notification can be issued imposing a rate of tax with retrospective
effect or apply the notification retrospectively. A notification can
only be issued, as we perceive, prospectively, and we are inclined to
think so as legislature has deliberately used the words “from time to
time” and not the language as is noticed in Tikamdas (supra).
37. We are disposed to think that the words “from time to time” in law
have a different connotation. In this regards we may refer with
profit to certain authorities in the field. In Kashmir Singh v. Union
of India and others[25], question arose whether rule of perpetuity
would be applicable in respect of a member of a Sikh Judicial
Commission constituted under the Sikh Gurdwaras Act, 1925 and in that
context the words used “from time to time” that find place in Sections
40 and 70 of Punjab Reorganisation Act, 1996 fell for interpretation.
A contention was raised on behalf of State of Punjab that having
regard to the tenor of Sections 40 and 70 of the Act it was evident
from the language employed in the said provisions a reasonable meaning
was required to be given and on proper construction of the words “from
time to time” would lead to the conclusion that the Government had the
power to make fresh appointments of the members. The Court, while
dealing with various contentions, ruled that the provisions in the Act
clearly indicated the tenure of the Commission but the dichotomy had
been created in view of the words “time to time” and the limited power
of the State to dissolve the Commission. In that context, the Court
observed thus: -
“With a view to find out an answer to the question as to what meaning
should be assigned to the words “from time to time”, in our opinion, a
holistic reading of the statutes should be resorted to.”
38. We have referred to the aforesaid decision for the purpose that in
case one thinks of any implied power from the language used in the statute
by using the words “from time to time” there has to be a holistic reading
of the statute but not a fragmented one. That apart, the said decision
clarifies that on certain occasions the words “from time to time” have
their signification when one relies on a provision that the power exercised
once does not get exhausted solely because the use of words ”from time to
time”, but the said terms may not have any importance but when reliance is
placed as a source of power to issue a notification or order to act
otherwise with retrospective effect. In that event, needless to say it
warrants proper interpretation. In the case at hand, it can definitely be
stated that despite reading the entire Act in a holistic manner we are
unable to trace any other provision throwing any light on the words “from
time to time” and, therefore, the conferment of power shall rest upon the
construction that is exclusively placed on Section 16 of the Act.
38. In M.P. Vidyut Karamchari Sangh v. M.P. Electricity Board[26], the
controversy that arose for determination was whether an agreement
despite expiry would prevail over a regulation made under Section
79(c) of the Electricity (Supply) Act, 1948 pertaining to the age of
superannuation of employees of the Board having regard to the use of
the words “time to time” in Section 2 of the Madhya Pradesh Industrial
Employment (Standing Orders) Act, 1961. After stating the facts the
Court observed thus: -
“43. The power of the Board, therefore, to lay down the conditions of
service of its employees either in terms of regulation or otherwise
would be subject only to any valid law to the contrary operating in
the field. Agreement within the meaning of the proviso appended to
Standing Order 14-A is not a law and, thus, the Regulations made by
the Board shall prevail thereover.
44. The Board has power to make regulations which having regard to
the provisions of the General Clauses Act would mean that they can
make such regulations from time to time.”
39. The aforesaid decision is referred to solely for the purpose that the
words, namely, “from time to time” may be associated with any number
of times, of course subject to the principle of reasonableness and its
impact but does not engulf the spectrum of retrospectivity or
retroactivity in its ambit and sweep.
40. In Shree Sidhbali Steels Limited and Others v. State of Uttar Pradesh
and Others[27], the Court in a writ petition preferred under Article
32 of the Constitution was dealing with the issue of justifiability of
the action taken by U.P Power Corporation Limited which had issued a
notification on 7.8.2000. It was propounded that the said
notification was illegal, arbitrary and violative of Article 14, 19
(1) (g) and 21 of the Constitution insofar as it denies the petitioner
the hill development rebate of 33.33% on the total amount of
electricity bills issued by the respondents for the remaining
unexpired period of five years from the date of commencement of supply
of electricity to the industrial units of the petitioners. The
question that emerged for consideration before the three-Judge Bench
was whether benefit given by statutory notification could be withdrawn
by the Government by another statutory notification and whether the
principles of promissory estoppel could be applicable to a case where
concessions/rebates given by statutory notification were subsequently
withdrawn by another statutory notification. The three-Judge Bench
did not accept the statement of law in U.P. Power Corpn. Ltd. V. Sant
Steels and Allys (P) Ltd.[28] where a Division Bench had stated that
the notification issued under Section 49 of the Electricity (Supply)
Act, 1948 could be revoked/modified only if express provision exists
for the revocation/modification of the said notification under Section
49 itself and as there is no such provision under Section 49 it was
not open to the Corporation to revoke the same. That apart, it was
stated therein that the provisions of the General Clauses Act would be
applicable in case of delegated legislation if withdrawal/curtailment
of benefit was in larger public interest or if the legislation was
enacted by the legislature authorizing the Government to
withdraw/curtail the benefit granted by a notification. While not
accepting the said statement of law as correct the three-Judge Bench
referred to Sections 14 and 21 of the General Clauses Act, 1897 and
opined thus:-
“Section 14 deals with the exercise of a power successively and has
no relevance to the question whether the power claimed can at all be
conferred. By Section 14 of the General Clauses Act, 1897, any power
conferred by any Central enactment may be exercised from time to time
as occasion arises, unless a different intention appears in the Act.
There is no different intention in the Electricity (Supply) Act, 1948.
Therefore, the power to issue a notification under Section 49 of the
Act of 1948, can be exercised from time to time if circumstances so
require.”
After so stating the learned Judges analysed the scope of Section 21
of the General Clauses Act and opined that Section 21 embodies 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,
etc. Thereafter, the court enumerated the principle thus:-
“...there is no manner of doubt that the exercise of power to make
subordinate legislation includes the power to rescind the same. This
is made clear by Section 21. On that analogy an administrative
decision is revocable while a judicial decision is not revocable
except in special circumstances. Exercise of power of a subordinate
legislation will be prospective and cannot be retrospective unless the
statute authorises such an exercise expressly or by necessary
implication.”
Analysing further the learned Judges opined that by virtue of Sections
14 and 21 of the General Clauses Act, when a power is conferred on an
authority to do a particular act, such power can be exercised from time to
time and carries with it the power to withdraw, modify, amend or cancel the
notifications earlier issued, to be exercised in the like manner and
subject to like conditions, if any, attached with the exercise of the
power. It would be too narrow a view to accept that chargeability once
fixed cannot be altered. Since the charging provision in the Electricity
(Supply) Act, 1948 is subject to the State Government’s power to issue
notification under Section 49 of the Act granting rebate, the State
Government, in view of Section 21 of the General Clauses Act, could always
withdraw, rescind, add to or modify an exemption notification. No industry
couldn claim as of right that the Government should exercise its power
under Section 49 and offer rebate and it is for the Government to decide
whether the conditions were such that rebate should be granted or not. The
aforesaid authority clearly lays down that the power conferred can be
exercised in the context of wores “from time to time” as used in the Act or
in aid of General Clauses Act.
41. At this juncture, we may fruitfully refer to the meaning given to the
words “from time to time” in certain dictionaries and the description
made in certain other texts. In “Words and Phrases”, Volume 17 A,
1974, “from time to time” has been enumerated in various contexts. We
may think it appropriate to reproduce certain contexts which are
useful in the present case.
“The phrase “from time to time” means as occasion may arise, at
intervals, now and then occasionally. Florey v. Meeker, 240 P. 2d
1177,1190,194 Or. 257.”
xxx xxx xxx xxx xxx
“In constitutional amendment, authorizing Legislature to alter
salaries of named county officers “from time to time”, the quoted
phrase does not mean from “term to term”. Almon v. Morgan County, 16
So.2d 511,514,245 Ala. 241.”
xxx xxx xxx xxx xxx
“The phrase “from time to time”, as used in the Constitution,
authorizing the Legislature to increase the number of judges of the
Supreme Court from time to time, means occasionally; that is, as
occasion requires, and therefore the words cannot be held to mean that
the Legislature may not decrease the number of judges after an
increase thereof. State v. McBride, 70 P.25,27,29 Wash. 335.”
xxx xxx xxx xxx
“The Century Dictionary defines the phrase ‘from time to time’ to mean
‘occasionally’; and the Universal Dictionary defines ‘from time to
time’ to mean, ‘at intervals; now and then.” The phrase is used in
such meaning in Acts1898, c. 123, para 95, which directs the police
commissioners of Baltimore, at the request of the park commissioners,
to detail from time to time members of regular police force for
preservation of order in the parks. Upshur v. City of Baltimore, 51 A.
953, 955, 94 Md. 743.”
xxx xxx xxx xxx
“The county board of supervisors had no authority to alter an election
precinct in September, under statute providing that board may, from
time to time, change the boundaries of precincts and providing that
changes might be made at regular or special meeting in July, since the
two provisions were in pari materia and should be construed together
in the light of all the provisions of the statute, the words “from
time to time” meaning “at times to recur,” and not “at any time.” Laws
1885, p. 193 para 29, Laws 1871-72, p. 380, para 30, S.H.A. ch. 46,
para 29, 30. County Board of Union County v. Short, 77 Ill App. 448.”
42. In The Law Lexicon, The Encyclopedic Law Dictionary: (2nd edition,
1997, page 764), the words have been conferred the following meaning:-
“From time to time – “as occasion may arise”. The words “from time to
time” mean that an adjournment may be made as and when the occasion
requires and they will not mean adjournment from one fixed day to
another fixed day. The words “from time to time” are words which are
constantly introduced where it is intended to protect a person who is
empowered to act from the risk of having completely discharged his
duty when he has once acted, and therefore, not being able to act
again in the same direction. The meaning of the words “from time to
time” is that after once acting the donee of the power may act again;
and either independently of, or by adding to, or taking from, or
reversing altogether, his previous act.”
43. In Blacks Law Dictionary: (5th edition page 601), it has been defined
as follows:-
“From time to time – Occasionally, at intervals, now and then.”
44. In Stroud’s Judicial Dictionary: (5th edition volume 2 page 1053), it
has been stated as follows:-
“From time to time ‘as occasion may arise’ (as per William, J., Bryan
v. Arthur, 11 A. & E 117).”
45. Thus, the conspectus of authorities and the meaning bestowed in the
common parlance admit no room of doubt that the words “from time to
time” have a futuristic tenor and they do not have the etymological
potentiality to operate from a previous date.
The use of the said
words in the Section 16 of the Act cannot be said to have conferred
the jurisdiction on the State Government or delegate to issue a
notification in respect of the rate with retrospective effect.
Such
an interpretation does not flow from the statute which is the source
of power.
Therefore, the notification as far as it covers the period
prior to the date of publication of the notification in the official
Gazette is really a transgression of the statutory postulate.
Thus
analysed, we find that the view expressed by the High court on this
score is absolutely flawless and we concur with the same. We may
reiterate for the sake of clarity that we have not adverted to the
defensibility of the analysis from other spectrums which are founded
on the principles set forth in Kesoram’s case as the matter has been
referred to a larger Bench and the lis in these appeals fundamentally
pertain to the retrospective applicability of the notification issued
by the State Government as regards the rate of cess on the major
mineral, i.e. Rock Phosphate.
46. Resultantly, the appeals, being devoid of merit, stand dismissed.
Ordinarily, we would have imposed costs regard being had to the change
of stance by the appellant from time to time but recognizing the
anxiety on behalf of the State, we restrain from doing so.
……………………………….J.
[Anil R. Dave]
……………………………….J.
[Dipak Misra]
New Delhi;
December 06, 2013.
-----------------------
[1] (1990) 1 SCC 12
[2] (1991) Suppl. 1 SCC 430
[3] (2004) 10 SCC 201
[4] (2011) 4 SCC 450
[5] (2005) 2 SCC 673
[6] AIR 1957 SC 657
[7] (1869) 4 H L 100 at p. 122(B)
[8] AIR 1940 PC 183
[9] AIR 1961 SC 1047
[10] AIR 1999 SC 1275
[11] This passage presently finds place at page 826, Twelfth Edition 2012
of “Principle of Statutory Interpretation” by G.P. Singh.
[12] AIR 1998 SC 120
[13] (2006) 3 SCC 620
[14] (1911) 2 Ch 1 : 104 LT 759 (CA)
[15] (2006) 8 SCC 702
[16] (1993) 91 STC 61 (Ker)
[17] (2007) 5 SCC 77
[18] AIR 1992 SC 2038
[19] AIR 1956 SC 246
[20] (1980) 2 SCC 410
[21] (1989) 2 SCC 557
[22] (1975) 2 SCC 100
[23] 1868 LR 3 QB 606, 616
[24] AIR 1958 SC 452
[25] (2008) 7 SCC 259
[26] (2004) 9 SCC 755
[27] (2011) 3 SCC 193
[28] (2008) 2 SCC 777
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