TMI Blog1996 (9) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocates, with him), for the appellants. K. Ram Kumar (C. Balasubramaniam) and T.V.S.N. Chari, Advocates, for the respondents. -------------------------------------------------- The judgment of the Court was delivered by B.P. Jeevan Reddy, J. -Leave granted. The Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 (the Act) levies non-agricultural land assessment (NALA) for each fasli year at the rates specified. The rate varies depending upon the nature of user. Section 3 is the charging section. Section 7 of the Act provides for remission of NALA. It reads: 7. Remission.- The Government may, by general or special order and for just and sufficient reason to be recorded therein, remit in whole or in part, the assessment payable under this Act in respect of any non-agricultural land in a local area. Section 11 confers upon the Government the power to exempt any class of non-agricultural lands from the levy. Since it is this section which falls for consideration in this appeal, it would be appropriate to set it out in full: 11. Power to exempt.-(1) The Government may, by order, published in the Andhra Pradesh Gazette, setting out the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ert committee which had submitted its report in February, 1976. The expert committee had recommended the setting up of a High-Power Committee to formulate and implement industrial schemes in the scheduled areas. Government, accordingly, constituted a High-Power Committee in May, 1976. The High- Power Committee recommended certain incentives and concessions to industries to be established in scheduled areas. The Government examined the said recommendations in consultation with the Revenue, Industries and Commerce, Finance and Planning Departments and, hence, the said order. Four types of exemptions are provided by the G.O., viz., (i) exemption from sales tax on purchase of raw material, machinery, etc.; (ii) a total exemption from stamp duty; (iii) fifty per cent exemption in the charges for water used for industrial purposes drawn from sources maintained at the cost of Government or any local body; and (iv) exemption from non-agricultural assessment. It says, according to the orders issued in G.O. Ms. No. 377, Revenue dated June 16, 1965, the entrepreneurs who have established industries whether before or after July 1, 1963 are required to pay half the assessment payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raordinary issue of Andhra Pradesh Gazette, dated May 5, 1990. The statutory part of the G.O. may now be set out. It reads: In exercise of the powers conferred by sub-section (1) of section 11 of the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 (Andhra Pradesh Act 14 of 1963), the Governor of Andhra Pradesh hereby directs that with a view to provide incentives to the industries already established or to be established both in the public and private sectors in the scheduled areas of the State, be exempted from payment of assessment under the Non-Agricultural Lands Assessment Act, 1963, but the usual land revenue be levied on the extent of land instead of Non-Agricultural Lands Assessment as per rules. The above concession shall be applicable for a period of 5 years from the date of establishment of the industry or till the industry reaches its rated capacity in its production whichever is earlier and thereafter full assessment under Non- Agricultural Land Assessment Act should be levied and collected from such undertakings/entrepreneurs. This notification shall be deemed to have come into force with effect from December 17, 1976. A.N. TIWARI Secretary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orabjee, learned counsel for the appellant, urged the following contentions: (1) G.O. Ms. No. 201 dated December 17, 1976 is a valid order issued under section 11 of the Act. Though the G.O. does not recite the source of power or the provision under which it has been issued, it must be related to the Govern- ment s power under section 11. The G.O. has been issued complying with all the requirements of section 11 except two, viz., (i) publication in the Andhra Pradesh Gazette and (ii) laying before the Legislature for the requisite period. Both the said requirements are, however, directory in nature and are not mandatory. It must be held that the said G.O. is an order of exemption validly issued under section 11 of the Act. (2) Though not published in the Gazette, the G.O. itself directs the several authorities of the Government to give it wide publicity and we must presume that it was so given. Having regard to the fact that the object of giving publicity is to acquaint the people of the issuance/existence of such an order, the publicity given must be deemed to be sufficient. The mere non-publication in the Gazette is not fatal. (3) G.O. Ms. No. 201 does not infringe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsists and is operative. G.O. Ms. No. 386, in so far as it purports to give retrospective effect to the concession contained therein on and from December 17, 1976 is invalid and incompetent. G.O. Ms. No. 386 is in the nature of the delegated legislation. It is well-settled that in the absence of a specific provision in the Act, the rule-making authority cannot give retrospective effect to the rules made by it. 8.. On the other hand, Sri Ram Kumar, learned counsel for the State of Andhra Pradesh, urged the following submissions in support of the judgment under appeal: G.O. Ms. No. 201 is not valid or enforceable since it was not published in the Gazette nor was it laid before the Legislature as required by section 11. The requirement of publication in the Gazette is mandatory and not directory. The power of exemption is not a species of delegated legislation; it is an instance of conditional legislation. The power under section 11 can be exercised only in the manner and in accordance with the requirements of section 11 and in no other manner. It does not take effect and become enforceable until and unless it is published in the manner prescribed, i.e., in the Gazette. The power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under the authority of the Government. Publication of an order or rule in the Gazette is the official confirmation of making of such an order or rule. The version as printed in the Gazette is final. The same order or rule may also be published in the newspapers or may be broadcast by radio or television. If a question arises when was a particular order or rule was made, it is the date of Gazette publication that is relevant and not the date of publication in a newspaper or in the media [See Pankaj Jain Agencies v. Union of India [1994] 5 SCC 198]. In other words, the publication of an order or rule is the official irrefutable affirmation that a particular order or rule is made, is made on a particular day (where the order or rule takes effect from the date of its publication) and is made by a particular authority; it is also the official version of the order or rule. It is a common practice in courts to refer to the Gazette whenever there is a doubt about the language of, or punctuation in, an Act, rule or order. Section 83 of the Evidence Act says that the court shall presume the genuineness of the Gazette. The court will take judicial notice of what is published therein, unlike ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f publication in an Official Gazette is twofold: to give publicity to the notification and further to provide authenticity to the contents of that notification in case some dispute arises with regard to the contents. 10.. To the same effect are the observations in B.K. Srinivasan v. State of Karnataka [1987] 1 SCC 658. While pointing out the importance of subordinate legislation in the affairs of the modern State, Chinnappa Reddy, J., speaking for himself and G.L. Oza, J., made the following observations: But unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resolution intending to impose a tax should be published in the Official Gazette and in the local newspapers. The rate-payers can submit their objections in response to such publication, after considering which the Corporation may levy the tax or duty by a resolution which is also required to be published in the Official Gazette and in the local newspapers. The corporation passed a resolution levying the tax but the notification levying the tax was not published in the Gazette. It was contended by the appellant before this Court that the said non-publication was fatal to the legality of the imposition of tax. Reliance was placed on the decision of this Court in Harla v. State of Rajasthan [1952] 3 SCR 110 and State of Kerala v. P.J. Joseph AIR 1958 SC 296. The Constitution Bench did not say that the requirement of publication in the Official Gazette is not mandatory or that it is directory. It merely held that section 38(1) cured the said defect/irregularity. Section 39(1) provides that no act done or proceeding taken under this Act shall be questioned merely on the ground..........(b) of any defect or irregularity in such act or proceeding not affecting the merits of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof that the tax has been imposed in accordance with the provisions of this Act . Three objections were raised by the rate-payers to the levy of water tax, viz., (a) omission to publish the preliminary proposal in the manner prescribed by section 131(3) read with section 94, (b) non-publication of the modified proposal in accordance with section 132(2) and (c) non- publication of the special resolution directing the imposition of tax in accordance with section 94. All the three objections were negatived by a three-Judge Bench of this Court. With respect to the first objection, it was held that though the publication was not in the prescribed form, yet the omission was a mere irregularity and since the object of publication under section 131(3) is to inform the inhabitants of the proposal and to enable them to file objection, that object was achieved by publication in the local daily Rashtra Sandesh . With respect to the second objection, it was held that since the local inhabitants did have the notice of the proposal and did indeed submit their objections, no prejudice is caused by not inviting fresh objections to the modified proposals. The court also pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaint did not pertain to the non-publication of the final notification levying taxes but only to publication of draft proposals. The majority (Gajendragadkar, C.J., Wanchoo and Raghubar Dayal, JJ.) held that section 131(3) read with section 94(3) consists of two parts, the first one providing that the proposals and the draft rules for a tax intended to be imposed should be published for the objections of the public, if any, and the second laying down that the publication must be in the manner prescribed in section 94(3) Section 94(3) read as follows: "Every resolution passed by a board at a meeting shall, as soon thereafter as may be, be published in a local paper published in Hindi and where there is no such local paper, in such manner as the State Government may, by general or special order, direct.". The majority held that having regard to the object underlying the provision for publication, it must be held that while the first part is mandatory, the second part is not. In that case, it was held, the first part was complied with but that there was an irregularity in complying with the second part inasmuch as instead of publishing in a local newspaper published in Hindi, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise. In this view of the matter, we do not think it necessary to deal with the decisions cited at any length-except with Dattatraya Moreshwar [1952] SCR 612. The matter arose under the Preventive Detention Act, 1950. The decision of the Government confirming the detention order was not authenticated in the manner prescribed by article 166. It was argued that since the decision of the Government is not so expressed, it must be deemed that there is no decision by the Government. This contention was repelled holding firstly that the Preventive Detention Act did not prescribe any particular form for expressing the decision of the Government confirming the detention. Even if it is assumed that the said decision being an executive decision, has to be expressed and authenticated in the manner laid down in article 166, the court held, the omission to comply with those provisions does not render the executive action as nullity. Where such a decision has in fact been taken by the appropriate Government, it was held, there is no further requirement of law which has to be complied with. It is in this connection that the aforesaid principle was invoked and relied upon. There is a qualitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appropriate Government would have to be considered when that occasion arises . Hidayatullah, J., speaking for himself and Ramaswami, J., (minority opinion) did not say otherwise on this aspect. The learned Judge observed: the section 36 cannot lightly be described as a piece of delegated legislation . 17.. In Hamdard Dawakhana v. Union of India [1960] 2 SCR 671, this Court dealt with the distinction between conditional legislation and delegated legislation. The following observations are apposite: The distinction between conditional legislation and delegated legislation is this that in the former the delegate s power is that of determining when a legislative declared rule of conduct shall become effective; Hampton Co. v. United States [1927] 276 US 394, and the latter involves delegation of rule-making power which constitutionally may be exercised by the administrative agent. This means that the Legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislation or conditional legislation. The court ultimately held that it belongs to the former category and is void being violative of article 14 of the Constitution. 19.. We may in this connection refer to the decision of the Supreme Court of United States in Field v. Clark [1892] 143 US 649 = 36 Lawyers Edn. 294. The Tariff Act of 1890 empowered the President to suspend the operation of the Act, permitting free import of certain products within United States, on being satisfied that the duties imposed upon such products were reciprocally unequal and unreasonable. It was submitted that the said power transfers the legislative and treaty-making power to the President and, hence unlawful. The attack was repelled holding that the President was a mere agent of the Congress to ascertain and declare the contingency upon which the will of the Congress was to take effect. The court quoted with approval the following passage from an earlier case: The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to fix the date of commencement of the Act with retrospective effect, the Government had no power to say on July 26, 1949 that the Act must be deemed to have come into operation on July 22, 1949. This contention was negatived by the Constitution Bench of this Court in the following words: The reason for which the court disfavours retroactive operation of laws is that it may prejudicially affect vested rights. 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 the 22nd July, 1949, which was a date subsequent to the pass- ing 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 noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to laying subject to negative resolution and laying subject to affirmative resolution -is not mandatory notwithstanding the use of the expression shall in the relevant provision. The court was dealing with sub- section (6) of section 3 of the Essential Commodities Act, 1955 which provides for laying the orders made under the Act before the appropriate Legislature, an instance of simple laying or laying without further procedure . The said decision appears to be consistent with the authorities on the subject, both in India and in the United Kingdom, and is binding upon us. It is brought to our notice that as early as 1956, Subba Rao, C.J., had taken the same view in Andhra Pradesh High Court vide D.K. Krishnan v. Secretary, Regional Transport Authority, Chittoor AIR 1956 Andhra 129. Accordingly, we hold that the requirement of laying prescribed by sub-section (2) of section 11 is not mandatory and an order of exemption under section 11 cannot be said to be ineffective or unenforceable for the reason of non-laying as required by section 11(2) of the Act. 25.. Sri Sorabjee next contended that even if it is held that the publication in the Gazette is mandatory yet G.O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged by the learned counsel for the appellant falls foul of our constitutional scheme and public interest. It would virtually mean that the rule of promissory estoppel can be pleaded to defeat the provisions of law whereas the said rule, it is well-settled, is not available against a statutory provision. The sanctity of law and the sanctity of the mandatory requirement of the law cannot be allowed to be defeated by resort to rules of estoppel. None of the decisions cited by the learned counsel say that where an act is done in violation of a mandatory provision of a statute, such act can still be made a foundation for invoking the rule of promissory/equitable estoppel. Moreover, when the Government acts outside its authority, as in this case, it is difficult to say that it is acting within its ostensible authority. If so, it is also not permissible to invoke the principle enunciated by the court of appeal in Wells v. Minister of Housing Local Government [1967] 2 All ER 1041. 26.. Sri Sorabjee, however, relied upon certain observations in the opinion of Chandresekhara Aiyer, J., in Collector of Bombay v. Municipal Corporation of the City of Bombay [1952] SCR 43. We may briefly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now allowed to go back on the representation, and, if we do so, would it not amount to our countenancing the perpetration of what can be compendiously described as legal fraud which a court of equity must prevent being committed? If the resolution can be read as meaning that the grant was of rent-free land, the case would come strictly within the doctrine of estoppel enunciated in section 115 of the Indian Evidence Act. But even otherwise, that is, if there was merely the holding out of a promise that no rent will be charged in the future, the Government must be deemed in the circumstances of this case to have bound themselves to fulfil it. Whether it is the equity recognised in Ramsden s case [1866] L.R. 1 H.L. 129, or it is some other form of equity, is not of much importance. Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power. As pointed out by Jenkins, C.J., in Dadoba Janardhan v. Collector of Bombay [1901] ILR 25 Bom 714, a different conclusion would be opposed to what is reasonable, to what is probable, and to what is fair . I am of the opinion that the decision of the Privy Council in Ariff v. Jadunath [1931] 58 IA 91, is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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