TMI Blog1977 (5) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... to the constitutional validity of a State law but they are so utterly devoid of substance that Mr. Asoke Sen and Mr. Gokhale who appear for the appellants could say nothing in support of their contentions beyond barely stating them - C.A. 1810 OF 1971 - - - Dated:- 2-5-1977 - BEG, M. HAMEEDULLAH (CJ) CHANDRACHUD, Y.V. BHAGWATI, P.N. KRISHNAIYER, V.R. UNTWALIA, N.L. FAZALALI, SYED MURTAZA KAILASAM, P.S. JUDGMENT In 1959, the Orissa Legislature enacted the Orissa Taxation (on Goods carried by Roads or Inland Waterways) Act, 7 of 1959, the constitutionality of which was challenged by the appellants on the ground that the Bill leading to the Act was moved without the previous sanction of the President of India, as required by the proviso to Art. 304 of the Constitution. During the pendency of the writ petitions filed by the appellants in the Orissa High Court, the Orissa Legislature passed the Orissa Taxation (on Goods carried by Roads or Inland Waterways) Validation Act, 18 of 1962, validating the Act of 1959. The High Court accepted the appellants' contention that the Act of 1959 was unconstitutional but it dismissed the Writ petitions on the ground that the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection and carried by means specified therein. Section 27 of the Act provides in so far as material that notwithstanding the expiry of the Act of 1959 and notwith- standing anything contained in any judgment, decree or order of any Court, all assessments made, all taxes imposed or realised, any liability incurred or any action taken under the Act of 1959 shall be deemed to have been validly made, imposed, realised, incurred or taken under the corresponding provisions of the Act of 1968. These provisions of the Act of 1968 show that what the State legislature did thereby was to enact, with retrospective effect, a fresh piece of taxing statute after complying with the constitutional mandate contained in the proviso to Art. 304 that no Bill for the purposes of clause (b) of the Article shall be introduced or moved in the Legislature of a State without the previous sanction of the President. The reliance of the appellants on the judgment of this Court in Jawaharmal v. State of Rajasthan(1) is wholly misconceived. In that case, s. 4 of the impugned Act of 1964 in truth and substance provided that the failure to comply with the constitutional mandate of Presidential sanction shall no.t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an operate. As regards the power to pass a validating Act, that power is essen- tially subsidiary to the legislative competence to pass a law under an appropriate: entry of the relevant list. Thus the impugned enactment is a valid exercise of legislative power and is in no sense a fraud on the Constitution. As regards the alleged encroachment by the legislature on fields judicial, the argument overlooks that the Act of 1968 does not, like the Act under consideration in Jawahar- mal(2), declare that an invalid Act shall be deemed to be valid. It cures the constitutional vice from which the Act of 1959 suffered by obtaining the requisite sanction of the President and thus armed, it imposes a new tax, though with retrospective effect. Imposition of taxes or valida- tion of action taken under void laws is not the function of the judiciary and therefore, by taking these steps the legislature cannot be accused of trespassing on the preserve of the judiciary. Courts have to be vigilant to ensure that the nice balance of power so thoughtfully conceived by our Constitution is not allowed to be upset but the concern for safeguarding the judicial power does not justify conjur- ing up trespass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of review subject to the rules made under the Act. We have no doubt that if any appeal challenging. an order of assessment is filed beyond the period of limitation and the authority is satisfied that the appeal could not be filed within limitation for the reason that the Acts of 1959 and 1962 were held to be unconstitutional, the delay in filing the appeal would be condoned. We are equally confident that if any appeal filed for challenging an order of assessment was withdrawn or not pursued for the reason that the two Acts were held unconstitutional, the authority concerned would pass appropriate orders reviving the appeal. We are happy to note the assurance of the learned Advocate-General of the State of Orissa that the State will not oppose in such cases the condonation of delay or the revival of appeals. For these reasons we dismiss the appeals but there will be no order as to costs. The Special Leave Petitions which were kept pending to await the decision of these appeals are hereby dismissed. We may take this opportunity to dwell upon the incon- venience resulting from the enactment of art. 144A which was introduced by the 42nd Amendment to the Constitution. That article ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
