TMI Blog1959 (12) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... he rule was valid. A third line of attack is now made on the rule on the ground that it has not been made after conforming to the requirements prescribed by section 19 of the Act. We have set out in detail in our judgment in W.A. No. 15 of 1958* and W.P. No. 400 of 1957 the circumstances under which the new rule had to be substituted for the previous one, which, by reason of a defect in draftsmanship, did not reach the sales or purchases effected by a large class of dealers in hides and skins. The impugned rule formed part of a number of amendments notified in 1955. The State Government which is invested with the power to make rules under section 19 of the Act, effected the amendments and substitutions to the Turnover and Assessment Rules, 1939. The rules were duly placed on the table of the Legislative Assembly, as required by section 3(4) of the Act. After obtaining the approval of the Assembly, they were finally published in the Fort St. George Gazette on 7th September, 1955. Section 19(4) of the Act, which was in force on the date when the rules were framed (that provision having been repealed since then by Act I of 1957), provided that there should be a publication of the rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section shall be subject to the conditions of the rules being made after previous publication for a period of not less than four weeks." Section 19. (5) "All rules made under this section shall be published in the Fort St. George Gazette, and upon such publication shall have effect as if enacted in this Act." As stated before, the revised Turnover and Assessment Rules notified in G.O. No. 2733 (Rev.) dated 3rd September, 1955, were not published under section 19(4), but there was only a final publication of the rules under section 19(5) on 7th September, 1955, after the approval by the Legislative Assembly. The question for consideration is whether non-compliance of the provisions of section 19(4) would invalidate the rule. This question came up for consideration before Rajagopala Ayyangar, J., in a batch of petitions filed under Article 226 of the Constitution, W.P. Nos. 14 etc. of 1958*. The learned Judge was of the opinion that non-compliance with the provisions of section 19(4) of the Act would be fatal to the validity of the rules and accordingly declared the new rule 16 invalid. It cannot be disputed that the provisions of section 19(4) are not merely directory; previous p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be one allowed or required by the Act to be prescribed, and would come within the powers granted by section 19. But it was contended that there being a specific provision for the rule under section 3(4), the provision under section 19(2) (a) should be held to be one made ex-abundante cautela and that, notwithstanding that provision, a rule framed under an authority given under the other provisions of the Act should be held not to derive its support under section 19. It is a general rule of construction that every provision or word employed by a statute was intended to have effect or be of some use, and a tautology or superfluity of language should not be imputed to the Legislature except without necessity. Prima facie a statute is not supposed to use words unnecessarily. In Hill v. William Hill (Park Lane) Ltd.[1949] A.C. 530., Viscount Simon observed at page 546: "It is to be observed that though a Parliamentary enactment (like Parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in an Act of Parliament is not to be assumed. When a Legislature enacts a particular phrase in a statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and directed coming into force of the rules after being approved by a resolution of the Legislative Assembly. The words of the section, according to the learned Advocate-General, would postulate that the rules had been completely made before they were so placed on the table of the House of Legislature, whereas under section 19(5) all rules made under section 19 would have effect on the publication in the Gazette, and that, therefore, the two procedures cannot be cumulative. We are unable to see how there could be any conflict in the procedure prescribed by section 3(4) and section 19. What section 19(4) contemplates is the publication of draft rules, giving an opportunity to the interested parties to show cause against them. After that stage has passed, a rule, if made, under section 3(4) could be placed before the Legislature and after its approval published under section 19(5) in the Fort St. George Gazette. It is contended that this is not authorised by the terms of section 3(4) which contemplates the placing before the Legislature of a rule complete in all other respects. Even assuming that the proviso to section 3(4) contemplated a duly framed rule and not a mere draft rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the year 1955-56 shall be deemed to have been made, collected, or levied, as the case may be, as if those rules as amended were in force at all relevant times." (Proviso omitted.) The argument that was urged on behalf of the State was that, although the object with which section 9 was enacted was to validate the assessment etc. of 1955-56, the language employed by the Legislature *Since reported as V. Baluswami Naidu and Sons v. The State of Madras [1960] 11 S.T.C. 231. would be wide enough to validate the rules for all time, and that its operation could not be limited to the assessment for the year 1955-56 alone. Before considering the contention, it is necessary to refer briefly to the context in which that section was enacted. The revised Turnover and Assessment Rules, published in the Fort St. George Gazette on 7th September, 1955, were made to take effect from the beginning of the current financial year, that is, from 1st April, 1955, thus giving them a retrospective operation. Doubts were evidently felt in regard to the validity of such a retrospective provision. Section 9 was enacted for removing all doubts in regard to that matter. In Guruviah Naidu v. State of Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the enumerated instruments provided they have in fact been made or issued in the period in question by or with the assent of the appropriate British or Allied military authority. The whole purpose of this Ordinance, unlike the Order in Council, is to give validity to that which might otherwise have been illegal and to afford protection to those whose acts might otherwise have made them liable to process of law. Such being its purpose it requires, if need be, to be given a liberal interpretation so as to achieve that which its language shows to have been made its object." In the case before the Privy Council, though the object with which the validating Ordinance was passed was limited, the words of the Ordinance were sufficient generally to include all the enumerated instruments. But, in the present case, there are no such general words in section 9 which would warrant the extension of validation effected by the section to assessments other than for the year 1955-56. The words "at all relevant times" are used with respect to the assessment of the year 1955-56 and they cannot be taken as conferring validity on the rules beyond the period for which the section expressly provides. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be satisfied: (1) The enactment granting a power to make rules should be one of those coming under Chapter IV of that Act. (2) The power to make rules should be expressed to be conferred subject to their previous publication. (3) The rules should be purported to have been made in exercise of the powers granted. (4) There should be a final publication in the Official Gazette. If the above conditions are satisfied, the final publication in the Official Gazette of the rules is to be taken as conclusive proof that the rules have been duly made. There is no controversy that the 1st and 4th requirements have been satisfied in that the Madras General Sales Tax Act is one coming under Chapter IV of the General Clauses Act and that there has been a final publication of the rules under section 19(5) of the Act. It would be convenient, before considering the rival contentions in regard to the 2nd requirement, to consider whether the 3rd requirement has been satisfied. G.O. No. 2733 (Rev.) dated 3rd September, 1955, states that the rules were made "in exercise of the powers conferred by sections 3 and 5 of the Madras General Sales Tax Act, 1939, and of all other powers" which enable the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to make rules under the section was subject to the condition of the rules being made after the previous publication, and (3) those which prescribed that there should be a pre-publication of the rules for a particular period, an instance being found in sections 128 and 130 of the Madras Public Health Act (Act III of 1939). The learned counsel contended that section 7 of the General Clauses Act would apply only to categories 1 and 2 set out above, and not to those rules coming under the 3rd category in respect of which there exists a statutory mandate fixing a minimum period of pre-publication. We are, however, unable to find any warrant for any such distinction on the terms of section 7 of the Madras General Clauses Act. Section 7 applies to all cases of an enactment coming within Chapter IV where a power to make rules is expressed as subject to the condition of the rule being made after previous publication. The words are of general import, and will include not only a case of rules which have to be promulgated after previous publication, but also those which have to be promulgated after the minimum period of previous publication. The alternative line of argument was tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould get sanctity, though not made in the actual exercise of the power but under a bona fide belief that it was made in the exercise of that power. The learned Chief Justice further observed: "But what is necessary is that the rule should be made under a purported or actual exercise of power which is defined in the sub-section. The power is defined as one to make rules after publication. The power is a conditional one. Unless that condition, namely, pre-publication in the prescribed manner has been complied with, there cannot be an exercise of that power, whether actual or purported. Till the condition is satisfied, the power does not exist and, therefore, a rule cannot be made in exercise of that non-existent power. To state differently the power to make rules under section 19 of the Act can be exercised only after the condition of publication is fulfilled and if a rule is made purporting to be in exercise of that power, it is conclusive under the rule. We, therefore, hold that, if there was no publication in the manner prescribed by section 19(4) of the Act, there was no power in the Government to make the rule and, therefore, the validity of a rule made in exercise of that non-e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, like want of pre-publication etc., should not be held to invalidate them (probably years afterwards) so as to render illegal all assessments which might have been made under the rules. Section 7(e) was, as pointed out in Rangaswami Chettiar Co. v. State of Madras[1957] 8 S.T.C. 222. intended to achieve that purpose. In his judgment in W.P. Nos. 14 etc. of 1958*, Rajagopala Ayyangar, J., held that section 7(e) would not apply "where the Government admitted that they proceeded on the basis that for a rule to be made under section 3(4) of the Act the only formality to be complied with was to have the resolution approved by the Legislative Assembly, and that they did not consider it essential to conform to the requirements of section 19(4)." That concession, which was made in that case, is not made in the case before us. But even so, we are of opinion, that the operation of section 7(e) would be irrespective of any later concession by the Government. An extreme illustration was put before us in the course of arguments. It was contended that if the Government had stated in the notification itself what they admitted now [i.e., of not having the publication under section 19(4) deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id. W.A. No. 40 of 1958 related to the provisional assessment for the year 1956-57. The appellant did not take objection to the rule on the ground of want of publication before Rajagopala Ayyangar, J. But, in view of the fact that the appellant has taken a ground of objection regarding the non-compliance of section 19(4) in the memorandum of grounds, and as the appeal was heard along with other petitions, we have allowed him to raise the objection. T.C. No. 135 of 1959 relates to the assessment for the year 1956-57. Both the appeal and the tax case have got to be dismissed, in view of our finding that the validity of the rule could not be impugned by reason of section 7(e) of the Madras General Clauses Act, W.P. Nos. 400 of 1957 and 282 of 1957 relate to the assessment for the year 1955-56. Independent of the question of the validity of the rules by reason of section 7(e) of the Madras General Clauses Act, the assessment in these cases would be validated by section 9 of Act I of 1957. Rules nisi would be discharged. The result is that W.A. No. 40 of 1958, W.P. Nos. 400 and 282 of 1957 fail, and are dismissed. The respondents will pay the costs of this application in W.A. No. 40 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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