Shetkari Sahakari Sakhar Karkhana Ltd., Sangli, Maharashtra State Etc. v. the Collector of Sangli and Others

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2470 of 1968. .J.- From the Judgment and Order dated 17-1-68 of the Bombay High Court in Special Civil Application No. 6/68. AND CIVIL APPEAL NOS. 39-40 OF 1969 From the Judgment and Order dated 17-1-68 of the Bombay High Court in S.C.A. Nos. 4 and 5 of 1968. AND CIVIL APPEAL NOS. 1925-1926 OF 1972 From the Judgment and Order dated 7 /8-3-1972 of the Bombay High Court in Civil Application Nos. 3077/67 and 570/68. A .K. Sen, Shanti Bhusan, B. Dutta, K. K. Manchanda and A. K. Srivastaia for the Appellants iu CA 2470/68 and CA Nos. 39-40/69. D. V. Patel, P. H. Parakh, C. B. Singh, Miss Vineeta Caprihan and B. L. Verma for the Appellants in CA i925-1926/72. J. L. Nain, S. P. Nayar and M. N. Shtoff for the Respondents. The Judgment of the Court was delivered by KosHAL, J. By this Judgment we shall dispose of five civil appeals in each one of which the appellant who is a registered co-operative society, challenges a judgment of the High Court of Bombay dismissing its petition for the issuance of an appropriate writ striking down the levy and demand of the cess imposed on it under the Bombay Sugarcane Cess Act, 1948 (hereinafter referred to as the 'Bombay Act') supplemented by the Sugarcane Cess (Validation)

Act, 1961 (for short, the 'Central Act'). 2. The following table indicates the name of the appellant and the amount of cess impugned in each of the appeals as also other relevant particulars : No.of appeal 1 Civil Appeal No. 39 of 1969. Name of Amount of Period to Date of Authority appellant · Cess which the the order passing (Rs.) amount of assessthe Order 2 3 The Shetkari Sahakari Sakhar Kar- 370072 ·50 khana Ltd., Sangli. relates ment 4 1.7.1959· to 30-6-1960 5 6 Sugarcane Cess 21-12-1960 Officer, Sangli. SAKHAR KARKllANA v. COLLECTOR (Koshal, ]. ) 2 3 4 5 6 Civil The Shetkari 1-7-1960 Sugarcane appeal Saha,kari to Cess No.40 Sokhar Kar- 801131 ·24 30-6-1961 24-5-1966 Officer of 1969 khana Ltd., Sang]i. Sangli . CTvil 1-7-1961 Appeal to No. 2470 Do. 324610 ·35 31-12-1961 24-5-1966 Do. of 1968 Civil Ashok Saha- 1-7-1961 Sugarcane Appeal kari Sakhar 373640·56 to 12-4-1962 Cess No. 1925 Karkhana 31-12-1961 Officer, of 1972. Ltd., Ashok- Ahmednagar. nagar, Civil Gima (i)

577329 ·65 1-7-1960 18-7-1962 Sugarcane Appeal Sabakari to Cess Olli- No. 1926 Sakhar 30-6-1961 cer, Nasik of!972. Karkhana (ii) 191409 ·53 1-7-1961 18-7-}962 Do. Ltd., Dabhadi. to 31-12-1961 3. It may be of advantage to reprodnce here the relevant provisions of the Bombay Act, Clause (1), (2), (3) and (4) of section 2 thereof read thus : '2. In this Act, unJo~ss ~here is anything repugnant i'n the subject or context,- ( 1) "factory" means any premises, including the precincts thereof, wherein twenty or more workers are working or were working on any day of the preceding twelve months and in any part of which any manufacturing process connected with the production of sugar by means of vacuum pans is being carri<'...d on, or is ordinarily carried on, with the aid of power; (2) "local area" means any area comprised in such factories as may be specified in the notification under section 3; ( 3) "notified factory" means a factory specified in the notification under section 3; ( 4).

"occupier" means the perso'n who has ultimate contt'ol over the affairs of a notified factory; provided that where the affairs of such factory are entrusted to a managing agent, such agent shall be deemed to be the occupier; Section 3 empowers the State Governm~nt to specify, by notification in the official gazette, any factory the area comprised in which shall be a local area for the purposes of the Act. Section 4 minus the proviso states : "4. A cess at such rate not exceeding ten rupees per ton as may be specified by the State Government in a notification in the Official Gazette shall be levied on the entry of sugarcane into a local area for consumption or use therein : "

Section 5 provides for licences to be taken out by consumers or users of sugarcane in notified factories while section 6 lays down that every occupier shall furnish to the prescribed authority before the seventh day of each month a return in the pr~scribed form stating the total quantity in tons of sugarcane which entered lhe local area comprised in his factory for consumption of or use therein during the preceding month. Section 7 and 8 provide for the assessment, recovery and collection of the sugarcane cess. The rest of the Act consists of miscellaneous provisions which need not be referred to here. 4. Now we may detail the circumstances in which the Central Act was made part of .the statute book. In 1956 the U.P. legislature passed the U .P. Sugarcane Cess Act (hereinafter rekrred to as the 'U.P. Act') the provisions of which were similar to that of the Bombay Act. Section 3 of the U.P. Act authorised the State Government to impose, by notification in tho~ official gazette, a cess not exceeding four annas per maund on the entry of sugarcane into the premises of a factory for use, consumption or sale therein.

The constitutiobal validity of that section was chalienged in Diamond Sugar Mills Ltd. & Another v. The State of Uttar Pradesh & Another.(') Reliance on behalf of the State was plac-;:d on Entry 52 in List II forming part of the Seventh Schedule to the Constitution of India in support of the argument that the cess was validly levied. That Entry reads thus : "52. Taxes on the entry of goods into a local area for consumption 1 use or sale therein-'.' The counsel for the appellant in that case however cont·~nded that the premises of a factory were not a local area within the meaning of the Entry and that the Act was therefore b·~yond the competence of the Slate iegislature. Out of the five Judges of this Court who decided (I) [1961] 3 S.C.R. 242. SAK!TAR KARKHANA v. COLLECTOR (Koslwl, J.1) 987' the case, four (Jafar Imam, J. L. Kapur, K. C. Das Gupta and Raghubar Dayal, JJ.) accepted the contention and struck down the Act as a whole, boing of the opinion that the proper meaning to be attached to the words 'local area' in Entry 52 was an area administered by a local body like a municipality, a district board, a local board, a union board, a Panchayat or the like and that the premises of a factory were therefore not a 'local area' within the meaning of the Entry.

J3y the time the Diamond Sugar Mills' case was decided, enactments similar in content and effect to the Bombay Act had been passed by lcgisla:ures of various States a"nd Parliament considered it advisable to make the cess imposed by these enactments a constitutionally valid c0ss and that was the reason for the passa~ of the Central Act. Clause (a) of section 2 of the Central Act defined 'cess' thus : " 'ces:s' meanS' the cess payable under any State Act and includes any sum recowrable under any such Act by way of interest or penalty;•· Clause (b) of the section defined 'State Act' as any of the Acts mentioned in the latter portion of the clause as in force in any State from time to time. The Acts mentioned included the Bombay Act. Sub-section ( 1) of section 3 of the Central Act may be set out in extenso as it is mainly that provision which has been attacked before 1,1s on behalf of the appellants :_ "3. (I)

Notwithstanding any judgment, decree or ardor of any court, all cesses imposed, assessed or collected or purporting to have been imposed, assessed or collected under, any Stak Act before the commencement of this Act shall be deemed to have been validily imposed, assessed or collected in accordance with law, as if the provisions of the State Acts a'nd of all notifications, ord·ors and rules issued or made thereunder, in so far as such provisions relate to the imposition, as1sessment and collection of such cess had been included in and formed part of this section and !liis section had been in force at all material times when such cess was imposed, assessed or collected; and accordingly,- ( a) 'no suit or other proceeding shall be maintained or continued in any conrt for the refund of any cess paid under any State Act;

( b) no court shall enforce a decree o;r order directing the refund of any cess paid under any State Act; and II SUPREME COUJl.T REPORTS ( c) any cess imposed or assessed under any State Act before the commencement of this Act but not collected before such commencement may be recovered (after assessment of the cess, where necessary) in the manner provided under that Act." 5. ·we may now take np for consideration the contentions raised at the hearing before us. Mr. A. K. Sen representing the appellant in Civil Appeal No. 2470 of 1968 argned in "the first instance that the Central Act merely authorized the collection of amounts which had already been imposed, assessed or collected and that no assessment, recovery or collection could be made under section 3 of the Central Act read with the relevant provisions of the Bombay Act after the enforcement of the Central Act.

The co,ntention is without force and in this connection we need do no more than refer to the langnage of clause ( c) above extracted which specifically authorizes both assessment and recovery of the cess after the commencement of the Central Act, and to two earlier decisions of this Court in which an identical argnment was made and repelled. The first of those decisions is reported as Jaora Sugar Mills (P) Ltd. v. State of Madhya Pradesh and Others('). The follo;ving observations made therein by Gajendragadkar, C.J., who delivered the judgment of the Court, are pertinent : "Section 3 does not purport to validate the invalid State statutes. Wbat Parliament has done by enacting the said section is not to validate the invalid State statutes, but to make. a law concerning the cess covered by the said statutes and to provide that the said law shall come into operation retrospectively. Tl1ere is a radical difference between the two positions.

Where the legislature wants to validate an earlier Act which bas been declared to be invalid for one reason or another, it proceeds to remove the infirmity from the said Act and validates its provisions which are free from any infirmity. That is not what Parliament has done in enacting the pr.,..ent Act. Parliament knew that the relevant State Acts were invalid, because the State Legislatures did not possess legislative competence to enact them. Parliament also knew tba:t it was fully compe~ont to make an Act in respect of the subject-matter covered by the said invalid State statutes. Parliament, however, decided that rather than make elaborate and long provisions in respect of the recovery of cess, it would be more convenient to make a (l) 11966] I S.C.R. 521. t SAK!!AI( KARKJIANA I'. COLLECTOR (Koshal, .I.) 98 9 compendious provision such as is contained in s. 3. The plain meaning of s.

3 is that the material and relevant provisions of the State Acts as wzll as the provisions of notifica-. tions, orders and rules issued or made thereunder are included ih s. 3 and shall be deemed to have been included at all material times in it. In other words, what s. 3 provides is that by its order and force, the respective ccsses wm be deemed to have been recovered, becaus•e the provisions in relation to the recovery of the said cesses have been incorp0- rated in the Act itself. The command under which the cesses would be dremed to have been recovered would, therefore, be the command of Parliament, because all the rcleva:nt sections, notifications, orders, a'nd rules have been adopted by the Parliamentary statute itself. We are, therefore satisfied that the sole basis on which Mr. Pathak's argument rests is invalid, because foe said basis is inconsistent with the plain and clear meaning of s. 3. As we have already indicated. Mr. Pathak does not dispute-and rightly-that it is competent to Parliament to make a law in respect of the cesses ih questioq, to apply the provision of such a law to the different States, and to make them retrospective in operation ...

" The second case on the point is reported as Bhopal Sugar Industries Ltd., v. State of Madhya Pradesh and Others('') in which Shinghal and Desai, JJ., followed the Jaora Sugar Mills' case and Shinghal, J., who delivered the judgme'nt of tho Court spoke th\J\<> in connection therewith : "The decision in Diamond Sugar Mills' case came up for consideration in this Court in 1aora Sugar Mills (P) Ltd. v. State of Madhya Pradesh and Others with a specific referenc-o to the provisions of the State Act, and it was once again hdd, following that decisioh, that the imposition of the cess was outside the legislative competence of the State. While examining that asp~ct of the controversy, this Court made it clear that what Parliament had done by enacting sec:ion 3 of the Validation Act was not to validate the invalid State statutes, but to make a law concerning the cess covered by the said statuks a'nd to provide that the said law shall come into operation retrospectively.

This Court clarified that by virtue of section 3 of the Validation Act, the command under which the cess would be deemed to have been recovered would be the command of the Parliament, because (I) [197912 S.C.R. 605. [1980] I S.C.R. the relevant sections, no:ifications, orders and rules had been adopted by the Parliamentary statute itself.'; With respect, we also fully agree with. the view expresscJ in Jaora Sugar Mills' case (supra).

It is thus plain that sec:ioh 3 of the Central Act did not merely validate what the State autheritics had aiready done under the Bombay Act but ac'.ually re-enacted the provisions of th~ Bombay Act by virtue of the authority vested in P,arliament under Entry 97 in List I of the Seventh Schedule to the Constitution of India so that the Bombay Act became. fully alive and operative as an enactment of Parliament as soon as the Central Act was promulgated and the authorities named in the Act were invested with full power to assess and recover the cess not under the Bombay Act but under the Central Act into which the provisions of the Bombay Act and the rules framed as well as the notifications issued thereunder became incorporated. 6. The only other contention put forward by Mr. Sen (which was reiterated by Mr. Shanti Bhushan on behalf of the appellant in Civil Appeal No. 39 of 1969) was that the assessments having been made under statutory provisions which were invalid because of lack of legislative competence on the part of the Bombay Legislature, Parliament could not pass a law retrospectively validating those assessments by converting their .character from assessmllllts under the State statutes to those made under its own statute <4perating retrospectively.

This contention also was repelled by this Court in Jaora Sugar Mills' case (supra) with the following observations : "So, the crucial question is : if collections are made under statutory provisions which are invalid because they deal with a topic outside the legislative competence of the State legislatures, call Parliament, in exercise of its undoubted legislative competence, pass a Jaw retrospectively validating the said collections by converting their character from collections made under the State statutes to that of collections made under its own statute operating vestrospectively ? In our opinion, the answer to this question has to be in the affirmative, because to hold otherwise would be to cut down the width and amplitude of the legislative comp~tence conferred on Parliament by Art. 248 read with Entry 97 in List I of the Seventh Schedule.

Whether or not retrospective operation .of such a law is reasonable; may fall to be considered in certain cases; but that consideration has not be~n raised before us and ill the circumstances of this case, it cannot r SAKHAR KARKHANA v. COLLECTOR (Koshal, J.) validity be raised either. We must, therefore, hold that the High Court was right in rejecting the appellant's case that the Act was invalid, and hence no demands could be made under its provisions either for a cess or for commission." With the greatest respect, we find no reason at all to differ. 7. Article 265 of the Constitution of India was pressed into service by :\fr. Sha'nti Bhnshan in support of the proposition that no tax could be levied or collected except by authority of Jaw. The proposition is unexceptionable but we fail to see in what manner Parliament lacked the authority of Jaw while enacting the Central Act and incorporating into it the provisions of the Bombay Act.

As pointed out above, Entry 97 in List I of the Seventh Schedule to the Constitution of India provides full legislative competence to Parliament in relation to the Central Act inasmuch as it vests all residuary powers of legislation in Parliament. The contention b,ased on alleged Jack of authority of 'Jaw in Parliamtnt is therefore repelled. 8. The submissions made by Mr. Patel appearing for the appellants in Civil Appeals No. 1925 and 1926 of 1972 alone now remain to be considered. He put forward two points. The first one was that section 4 of the Bombay Act was discriminatory, that the power confnPcd by it was unguided and uncanalised and that therefore it was hit by article 14 of the Constitution of India. When asked as to whether the point had been rais•cd before the High Court, Mr. Patel's answer was in the negative and it transpired that no foundation for the point had b~en laid even in the pleadings submitted to the High Court.

It was therefore not allowed to be raised by us at this late stage. Mr. Patel's second point was that in view of the proviso to clause ( 4) of section 2 of the Bombay Act, the managing agents of the factories in question would alone be JiableJ and that the assessed cess could not be recovered from his clients who were owners of the concerned factories. The point is wholly without substance and that for two reasons. For one thing, no managing agent is involved in the two appeals in which Mr. Patel has. put in appearance. Secondly, clause ( 4) of section 2 merely defines the term 'occupier' and has 'nothing to say about the person on whom the cess is to be imposed or from whom it is to be recovered.

Them are no doubt other provisions in the Bombay Act [section 6, sub-section (1) of section 7 and section 8] which indicate that the authorities assessing or recovering the tax are primarily to deal with the occupi•or but those provisions have obviously been enacted as a matter of convenience [1980] 1 S.C.R, both for the said authorities and the assessees so that an absent owner may not be unduly harassed nor proceedings delayed by reason of his absence and not for limiting to the occupier alone the liability to pay the cess. In fact sub-section (2) of section 7 which is in the following terms would indicate that the liability. of the owner of the concerned factory is not excluded : "7. (1) ...................... .. (2)

If the occupier fails to furnish in due time the return referred to in section 6 or furnishes a r~turn which in the opinion of the prescribed authority is incorrect 9r defective, the prescribed authority shall assess the amount payable by him in such manner as may be prescrib~d and the provisions of sub-rection ( 1) shall apply as if such assessment has been made on the basis of a return furnished by the owner .... " Both the submissions made by Mr. Patel are therefore, repelled. 9. In the result all the five app~als fail and are dismissed with costs, one set. N.V.K. Appeals dismissed. r t