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Case Number

Civ. Misc. Writ Pet. No. 2383 of 1958

Advocates

Jagdish Svarup
Hari Svarup
Advocates.

Judges

V. Bhargava
J.N Takru, JJ.

Acts

Sec. 3, Sec. 3A and Sec. 4 of the U.P Sales Tax Act, 1948,
provisions of Sec. 3A of the U.P Sales Tax Act, 1948,
U.P Sales Tax (Amendment) Act, 1956.3. After that Act
Sec. 3 of the U.P Sales Tax (Validation) Act, 1958,
Sec. 3A(1) of the U.P Sales Tax Act, 1948,
Sec. 3A(2) of the U.P Sales Tax Act, 1948,
Sec. 3-A of the U.P Sales Tax Act, 1948,
1958. Sub-Sec. (1) of Sec. 3 of this Act,
provisions of the U.P Sales Tax Act
U.P Sales Tax (Validation) Act, 1958,
U.P Sales Tax (Amendment) Act, 1956.
U.P Sales Tax (Amendment) Act, 1957
U.P Sales Tax Act, 1948,

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Smart Summary

Judgment Summary — V. Bhargava, J.

Factual and Procedural Background

Five writ petitions under Article 226 of the Constitution were heard together because they raised identical questions. The petitioners challenged the validity of notifications dated 31 March 1956 issued in respect of goods with which the petitioners dealt. Those notifications were said to have been issued purportedly under Sec. 3A(2) of the U.P. Sales Tax Act, 1948 as amended by the U.P. Sales Tax (Amendment) Ordinance, 1956 (which came into force on 1 April 1956) and subsequently replaced by the U.P. Sales Tax (Amendment) Act, 1956.

After passage of the 1956 Act, the validity of the 31 March 1956 notifications was challenged in earlier writ petitions; a Full Bench of this Court in Firm Bangali Mal Satish Chandra Jain v. The Sales Tax Officer, Agra (1958 A.L.J.R. 228) held those notifications to be void because they had not been issued under the amended Sec. 3A(2). The U.P. Legislature thereafter enacted the U.P. Sales Tax (Amendment) Act, 1957 which operated retrospectively to deem Sec. 3A(2) to have been in force on 31 March 1956. Despite that, the Full Bench held that the notifications themselves were not issued in exercise of the amended power and so remained invalid.

To meet the Full Bench's objection, the State Legislature passed the U.P. Sales Tax (Validation) Act, 1958, which came into force on 6 May 1958. Section 3(1) of the Validation Act (quoted in the opinion) provides that specified notifications shall be deemed to have been issued in exercise of the powers conferred by Sec. 3, Sec. 3A and Sec. 4 of the U.P. Sales Tax Act, 1948, "as if the said sections were in force on the date on which the notifications were issued in the form in which they were in force immediately before the commencement of this Act" and declares those notifications valid and deemed always to have been valid.

Legal Issues Presented

Whether the notifications of 31 March 1956 are valid in view of the retrospective amendments and the U.P. Sales Tax (Validation) Act, 1958 (Sec. 3).
Whether Sec. 3 of the U.P. Sales Tax (Validation) Act, 1958 is valid — specifically whether the U.P. Legislature was competent to validate notifications that were not actually issued under the amended delegated power.
How Sec. 3 of the 1958 Act should be interpreted (whether the phrase "in the form in which they were in force immediately before the commencement of this Act" qualifies "the said sections" or "the notifications").
Whether Sec. 3A(1) of the U.P. Sales Tax Act, 1948, as it is to be deemed to have existed on 31 March 1956, offends Article 14 of the Constitution by conferring an unfettered discretion to discriminate between goods or classes of goods.
Whether writ petitions are maintainable to challenge orders passed by Sales Tax Officers in the circumstances of these petitions (i.e., whether petitioners should pursue statutory remedies such as appeal, revision or reference instead).

Arguments of the Parties

Petitioners' Arguments

The notifications of 31 March 1956 were invalid because they were not issued under the amended Sec. 3A(2) and thus could not be validated retrospectively by virtue of subsequent legislation.
Section 3 of the U.P. Sales Tax (Validation) Act, 1958 is itself invalid because the U.P. Legislature could not (or should not) validate notifications that could not have been issued by the Legislature itself — i.e., the Legislature lacked competence to validate such delegated action.
There was a textual/interpretive argument (advanced by Shri Jagdish Sarup) that the English authoritative text of Sec. 3 should be read so that the expression "in the form in which they were in force immediately before the commencement of this Act" qualifies "the notifications" rather than "the said sections."
Shri Jagdish Sarup also argued that Sec. 3A(1), as deemed to have existed on 31 March 1956, offended Article 14 because it conferred an unfettered discretion on the State Government to discriminate between goods or classes of goods.
In some petitions, petitioners raised points challenging decisions of Sales Tax Officers and sought writ relief to overturn such orders.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Firm Bangali Mal Satish Chandra Jain v. The Sales Tax Officer, Agra (1958 A.L.J.R. 228) — Full Bench decision	The Full Bench held that although an Act (1957) retrospectively deemed Sec. 3A(2) to be in force on 31 March 1956, the notification of 31 March 1956 was not issued in exercise of the newly deemed power and therefore was not valid; retrospective conferral of power does not convert a notification actually issued under the old provision into one issued under the new provision.	The Court accepted and followed the Full Bench's analysis as to the prerequisites for validating the notifications; it treated the Validation Act, 1958 as enacted to meet the particular difficulty identified by the Full Bench and applied the Validation Act accordingly to hold that the notifications are validated by the fiction contained in Sec. 3 of the 1958 Act.

Court's Reasoning and Analysis

The Court proceeded in a sequential, text-focused manner:

Acknowledgement of background and prior Full Bench ruling: The Court recognized the Full Bench’s conclusion that prior to the Validation Act there was a legal difficulty — the notifications were not issued in exercise of the amended Sec. 3A(2) and therefore were void despite retrospective deeming of that section.
Purpose of the Validation Act, 1958: The Court read Sec. 3(1) of the Validation Act and concluded that the Legislature had enacted the 1958 Act specifically to overcome the difficulty identified by the Full Bench by creating a fresh legal fiction.
Textual interpretation (English vs. Hindi authoritative text): Because the U.P. Legislature had adopted Hindi as the legislative language, the Court referred to the Hindi original (authoritative text under Art. 348(3)) to resolve an ambiguity in the English authoritative text. On examination of the Hindi version, the Court held that the qualifying phrase in Sec. 3 ("in the form in which they were in force immediately before the commencement of this Act") qualifies "the said sections" (i.e., the statutory provisions) and not "the notifications."
Legal effect of Sec. 3: Having resolved the textual doubt, the Court concluded that Sec. 3 creates a fiction that the statutory sections (Sec. 3, Sec. 3A and Sec. 4 of the U.P. Sales Tax Act) were in force on the date the notifications were issued in the form in which those sections were in force immediately before commencement of the Validation Act. Consequently, it deems that the notifications were issued in exercise of the powers conferred by the relevant sections as so deemed. This addresses the Full Bench's second requirement for validation and, on that basis, the Court held the notifications valid.
Competence of the Legislature to validate delegated legislation: The Court rejected the contention that the Legislature could not validate the notifications. It explained that if the Legislature is competent to legislate on a subject, it can validate similar provisions which were provided by delegated authorities. The Court reasoned that validating delegated legislation by statute is effectively independent legislation that re-creates the legal position which could have been created directly by the Legislature.
Article 14 challenge to Sec. 3A(1): The Court declined to engage with the general question whether Article 14 is attracted where discrimination is between goods/classes of goods rather than persons. Instead, the Court examined the deemed Sec. 3A(1) together with sub-sec. (3) and found sufficient legislative safeguard: notifications by the State Government must be laid before the Legislative Assembly, which can amend or modify them within the session; thus the discretion is not unfettered. The Article 14 argument therefore failed on these grounds.
Appropriate remedies for challenges to Sales Tax Officer orders: As to the petitions that attacked Sales Tax Officers' orders, the Court held that petitioners have statutory remedies (appeal, revision or reference) under the U.P. Sales Tax Act and that writ petitions are not maintainable unless there are manifest errors apparent on the face of the record. The Court, after hearing counsel, declined to find such manifest errors and refused to entertain writs on these points.

Holding and Implications

Holding: The petitions were dismissed. The Court's core rulings (emphasized) are:

DISMISSED

Implications and consequences:

The Court held that Section 3 of the U.P. Sales Tax (Validation) Act, 1958 validly creates a legal fiction by deeming the relevant statutory sections to have been in force in the form in which they were in force immediately before commencement of the Validation Act, and thereby validates the notifications dated 31 March 1956. As a result, those notifications are to be regarded as valid and deemed always to have been valid until amended, varied or rescinded under the statutory provisions mentioned in Sec. 3.
The U.P. Legislature was held competent to enact Section 3 and thereby to validate the notifications; validating delegated legislation by independent legislative enactment is within the Legislature’s competence where it could itself have legislated on the subject.
The Article 14 challenge to the deemed Sec. 3A(1) failed because sub-sec. (3) provides a parliamentary check — notifications must be laid before the Legislative Assembly, which can amend or modify them — preventing an unfettered, unchecked discretion.
Challenges to orders of Sales Tax Officers should generally be pursued by the statutory appellate/revisional/reference mechanism; writ relief is inappropriate unless there is a manifest error apparent on the face of the record — the Court did not find such an error in the cases before it.
Direct effect on the parties: the petitions challenging the notifications and seeking relief in these proceedings were dismissed; the notifications of 31 March 1956 were held valid by virtue of the Validation Act and the other relief sought in the petitions was refused.

End of summary. This summary is based exclusively on the contents of the provided opinion.

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Haji Lal Mohammad Biri Works, Meerganj, Alld. And Others v. The Sales Tax Officer, Alld. And Others Opposite Parties.

V. Bhargava, J.:— These five petitions under Art. 226 of the Constitution were heard together today. One of them was presented day before yesterday and the remaining four were presented today. All these five petitions were heard together as learned counsel for the petitioners stated that the important questions arising in all these petitions were identical.

2. All these five petitions have been presented by petitioners who challenge the validity of notifications dated the 31st of March, 1956, issued in respect of goods in which these petitioners are dealing. Those notifications were purported to be issued by the State Government in exercise of their power under Sec. 3A(2) of the U.P Sales Tax Act, 1948, as amended by the U.P Sales Tax (Amendment) Ordinance, 1956. The U.P Sales Tax (Amendment) Ordinance 1956, in accordance with the provisions contained in it, came into force on the 1st of April, 1956. That Ordinance was replaced by the U.P Sales Tax (Amendment) Act, 1956.

3. After that Act had been passed, the validity of those notifications was challenged - in certain writ petitions before this Court and the Court held that the notifications of 31st of March, 1956, were void. Thereafter the U.P Sales Tax (Amendment) Act, 1957 was passed inter alia with the object of giving effect to the amended Sec. 3A retrospectively with effect from the 31st of March, 1956. The object was to validate those notifications of 31st March, 1956. After that Act was passed, a writ petition was filed in this Court under Art. 226 of the Constitution which was heard by a Full Bench of this Court. The decision of the Full Bench of this Court is reported in Firm Bangali Mal Satish Chandra Jain v. The Sales Tax Officer, Agra 1958 A.L.J.R 228.. The Full Bench in that case held that the effect of the U.P Sales Tax (Amendment) Act, 1957, no doubt, was that Sec. 3A(2) of the U.P Sales Tax Act, 1948, was to be deemed to be in force on the 31st of March, 1956, in the form in which it was introduced by the U.P Sales Tax (Amendment) Ordinance, 1956, as replaced by the U.P Sales Tax (Amendment) Act, 1956. The Full Bench came to the view that, since the new Sec. 3A(2) was deemed to exist on 31st March, 1956, in the U.P Sales Tax Act, 1948, the power of the State Government to issue a notification of the nature which was issued, did exist on that date; but it further held that the notification was never purported to be issued in exercise of that power and, consequently, the notification was not valid. It was held by the Full Bench that a reading of the notification itself made it clear that it was issued in exercise of the powers conferred by Sec. 3A of the U.P Sales Tax Act, 1948, as amended from time to time and on the date when the notification in question was issued, Sec. 3A(2), which was in force, was the old section without containing in it the amendments which were subsequently introduced by the U.P Sales Tax (Amendment) Ordinance, 1956, or the U.P Sales Tax (Amendment) Act, 1956. It was further held that the fact that, in view of the retrospective operation of the 1957 Act, the State Government must be deemed to have requisite power under the new Sec. 3A(2) on the 31st of March, 1956, will not convert a notification issued under the old Sec. 3A(2) into one issued under the new section. The notification itself not being under the new section, it was held that the retrospective conferment of the necessary power could not validate that notification which was not issued in exercise of that power. That notification was, therefore, declared void again by the Full Bench. After that decision by the Full Bench, the U.P Legislature has now passed the U.P Sales Tax (Validation) Act, 1958, which came into force on the 6th of May, 1958. Sub-Sec. (1) of Sec. 3 of this Act, with which we are concerned is as follows:—

“3(1) — Notwithstanding any judgment, decree or order of any court, the notification specified in Part A, Part B and Part C of the Schedule shall be deemed to have been issued in exercise of the powers conferred respectively by Sec. 3, Sec. 3A and Sec. 4 of the U.P Sales Tax Act, 1948, as if the said sections were in force on the date on which the notifications were issued in the form in which they were in force immediately before the commencement of this Act and all the said notifications shall be valid and shall be deemed always to have been valid and shall continue in force until amended, varied or rescinded by any notification issued under any of the said section.”

4. It is to be kept in view that, in interpreting this provision of law, we have to accept the position, which was recognised by the Full Bench of this Court in the case of Firm Bangali Mal Satish Chandra Jain cited above that the result of the earlier legislation already was that the power of issuing the notifications of 31st. March, 1956, must be deemed to have existed in the State Government on the 31st of March, 1956. The Full Bench declared the notification, which was questioned before it, void on the ground that the notification had not been issued in exercise of that power which was to be deemed to exist. The language of Sec. 3 of the U.P Sales Tax (Validation) Act, 1958, quoted above clearly indicates that this Act has now been, enacted just to get over the difficulty which was pointed out by the Full Bench in that case. As a question of fact, there can be no doubt that the notifications of the 31st of March, 1956, were not and could not have been issued in exercise of the power which actually came into existence after the 31st of March, 1956, as a result of the subsequent legislation and which, by the retrospective application of that legislation, only created a fiction of law that power must be deemed to have existed on the 31st of March, 1956. By Sec. 3 of the Act now in question, another legal fiction has been created and that fiction of law is that the power, which was actually and, in fact not exercised under the amended Sec. 3A(2), is to be deemed to have been exercised under that amended provision of law. Sec. 3 of the U.P Sales Tax (Validation) Act, 1958, clearly lays down that those notifications of the 31st of March, 1956 are to be deemed to have been issued in exercise of the powers conferred by Sec. 3A of the U.P Sales Tax Act, 1948, as if the said section was in force on the 31st of March, 1956, in the same form in which it was in force on 6th May, 1958, when the U.P Sales Tax (Validation) Act, 1958, came into force. On the language of Sec. 3 of the 1958 Act there was some argument by Shri Jagdish Sarup, learned counsel for one of the petitioners, that, in this section, the expression ‘in the form in which they were in force immediately before the commencement of this Act’ should be read as qualifying the words ‘the notifications’ and should not be read as qualifying the expression ‘the said sections’ which occurs a little earlier. To resolve this doubt, we sent for the U.P Gazette in which this Act was published in Hindi. Hindi has been adopted as its language by the U.P Legislature. Under Art. 348(3) of the Constitution, if a Legislature of a State prescribes any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinance promulgated by the Governor of the State or in any order, rule, regulation or bye law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State is to be deemed to be the authoritative text thereof in the English language under Art. 348 of the Constitution. The English version of the Act, on the basis of which arguments were advanced before us, in this State has merely the status of an authoritative text in the English language of the original Act. The original Act is in Hindi and wherever there be any doubt and, in fact, principal for purposes of properly interpreting any provision of such an enactment the proper course is to look at the original Act as published in Hindi. In these circumstances, we looked up the Hindi version of this Act. On examining find that there can be no doubt, at all that the expression in English authoritative version ‘in the form in which they were in force immediately before the commencement of this Act’ qualifies the words ‘the said sections’ and does not qualify the words ‘the notifications’ in Sec. 3 of the U.P Sales Tax (Validation) Act, 1958. The language in the Hindi version is as follows:—

5. It would of course, have been better, had the meaning conveyed in the original Hindi version been put in the proper form in the English translation so as not to leave any ambiguity which could easily have been done if the expression ‘on the date on which the notifications were issued’ had not been placed in this section at the place where this expression has been placed but had been placed earlier between the expression ‘as if the said sections were’ and the words ‘in force’. If this had been done it would not have been necessary for us to make a reference to the original Hindi version. That reference has clarified the point that Sec. 3 of the U.P Sales Tax (Validation) Act, 1958, does not envisage that the notifications of the 31st of March, 1956, were, in any form, in force immediately before the commencement of the Act. What that section envisages is merely the fact of existence of those notifications or, to put it in another form, it takes notice of the fact that such notifications were at one time issued. Further this provision of law does not take any notice of the fact as to what power was purported to be exercised for the purpose of issuing those notifications. What Sec. 3 of this 1958 Act does is merely to recognise the existence of those notifications and then to lay down a fiction of law that those notifications are to be deemed to have been issued in exercise of the power which existed in the State Government because of the earlier fiction of law that Sec. 3-A of the U.P Sales Tax Act, 1948, on the 31st of March, 1956, was in the same form in which it was on the 6th of May, 1958, when this U.P Sales Tax (Validation) Act, 1958, was passed. As a result of this fiction of law introduced by the U.P Legislature, the second requirement for validating the notifications of the 51st of March 1956 laid down by the Full Bench of this Court is fully satisfied. Consequently, following the decision of the Full Bench, with which we may say with respect we fully agree, it has to be held that the effect of the U.P Sales Tax (Validation) Act, 1958, is that all the requirements for holding the notifications of 31st March, 1956, valid have come into existence and those notifications are, therefore, valid. The validity of those notifications is put further beyond doubt by the U.P Legislature in the later part of Sec. 3 of the 1958 Act by stating in so many words that those notifications shall be valid and shall be deemed always to have been valid and shall continue in force until amended, varied or rescinded by any notification issued under any of the sections mentioned therein.

6. Learned counsel for the petitioners challenged the validity of Sec. 3 of the U.P Sales Tax (Validation) Act, 1958, itself on the ground that the notifications of 31st March, 1956, could not have been issued by the U.P Legislature and, consequently, the U.P Legislature was not competent to validate those notifications. It appears to us that the question whether the U.P Legislature could or could not issue those notifications is not at all material. The principle, that is appliable, is that, if a Legislature is competent to pass any enactment making any particular provision, it can validate a similar provision made under its delegated authority because it was competent to pass a valid legislation covering that subject. Delegation of legislative power by a Legislature is merely a convenient device to avoid detailed legislation by the Legislature itself which may not have time for that purpose. The authority, to which the power is delegated has to act within the four corners of the power conferred on that authority by the Legislature. The manner, in which the power is to be exercised, is prescribed by the Legislature. It is not necessary that the Legislature, which has conferred the power of delegated legislation, should, when legislating on the same matter, follow the same procedure which is prescribed for the exercise of that power by the authority to which the power has been delegated. All that is required is that the Legislature should be competent to legislate on the subject as a whole. If it can legislate on that subject, it can validate the delegated legislation which may not have been within the four corners of the delegated power. In such a case, to validate delegated legislation would amount to independent legislation by the Legislature bringing about the same position which could have been brought about if the delegate had properly exercised the delegated power. In the present case, the directions, that are contained in the notifications dated the 31st of March, 1956, could have been enforced by the U.P Legislature itself but the U.P Legislature had chosen to leave it to the discretion of the State Government to be exercised under its delegated power. The exercise of that power by the Government was held to be invalid. The Legislature is certainly now competent to adopt either of the two courses viz. it can either enact those notifications as part of its own Act giving them retrospective operation with effect from the 31st of March, 1956, or, in the alternative, it can create a fiction of law of the type contained in Sec. 3 of the U.P Sales Tax (Validation) Act, 1958 so as to give validity to the notifications already issued. The effect of Sec. 3 of the 1958 Act is to convert a notification issued by a State Government, which was not valid, into a valid notification issued in exercise of the proper delegated authority conferred on the State Government by the U.P Legislature. As such we do not consider that the U.P Legislature, in enacting Sec. 3 of the U.P Sales Tax (Validation) Act, 1958, in any way, went beyond the scope of its legislative powers.

7. One more important question, which was urged by Shri Jagdish Sarup, learned counsel for one of the petitioners, before us, was that Sec. 3A(1) of the U.P Sales Tax Act, 1948, as it is to be deemed to have existed on the 31st of March, 1956, offended against the provisions of Art. 14 of the Constitution in so far as it gave an unfettered discretion to the State Government to discriminate between any goods or classes of goods. We have not considered it at all necessary to enter into the question whether the provisions of Art. 14 of the Constitution are or are not attracted when there is discriminate between goods or classes of goods and not between persons. We find that the provisions of Sec. 3A of the U.P Sales Tax Act, 1948, as it is deemed to have existed when the notifications of 31st March, 1956, were issued, do not confer an unfettered discretion on the State Government. No doubt, under sub-sec. (1) of Sec. 3A, it would appear that the State Government can issue a notification in respect of any goods or any class of goods but an important restriction is imposed in sub-sec. (3) of Sec. 3A of that Act, under which every such notification has to be laid before the Legislative Assembly of the State as soon as may be after it is made. When it is laid before the Legislative Assembly, the Legislative Assembly, within the session in which it is laid, has the power of amending or modifying it by a resolution. If there is any such amendment or modification then, with effect from the date of the resolution, the notification takes effect as amended or modified by the Legislative Assembly. On the other hand, if there is no amendment or modification, the notification, as originally issued, continues in force. This shows that the power exercised by the State Government under sub-sec. (1) of Sec. 3-A comes up for approval before the State Legislative Assembly and the exercise of that power by the State Government can be modified or amended where the State Legislative Assembly considers it advisable to do so. In our opinion, considering the nature of the power conferred on the State Government, there is a sufficient check on the unfettered and discriminative exercise of the power conferred on the State Government. In the circumstances, this argument also has no force.

8. In some of the petitions, some other detailed points have been raised on behalf of the petitioners to challenge orders which have been passed by the Sales Tax Officers. After hearing learned counsel, we find that those are points on which the petitioners can seek appropriate remedy by way of appeal, revision or reference in accordance with the provisions of the U.P Sales Tax Act and is not at all necessary to entertain the writ petitions. Errors may have been committed by the Sales Tax Officers but no writ petitions are to be entertained unless those errors are manifest errors apparent on the face of the record and, after hearing learned counsel, we are not prepared to hold that any such manifest errors apparent on the face of the record have been committed which would justify our issuing a writ of certiorari.

9. The petitions are all, consequently, dismissed.

10. Petition dismissed.

Haji Lal Mohammad Bi... v. The Sales Tax Office...