9911796707
TMI Blog1977 (5) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 were not entitled to any relief as they had not challenged the Act of 1962 which had validated the Act of 1959. After the decision of the High Court. respondent No. 2, the Tax Officer, assessed tax in varying amounts for different quarters on the goods carried by the appellants by road. The appellants then filed fresh writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the President under the Proviso to Art. 304 of the Constitution. As shown by the Preamble, the Act was passed in order to provide for the level of tax on certain goods carried by roads or inland waterways in the State of Orissa and to validate certain taxes imposed on such goods. By s. 1 (3), the Act was to be deemed to have come into force on April 27, 1959 being the date on which the Act of 1959 had come into force. Section 3 of the Act which contains the charging provision provides that there shall be levied a tax on goods of the description mentioned in the section 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 anyt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act had come into force and it created a legal fiction, which was permissible for it to do, that all actions taken under the Act of 1959 shall be deemed to have been taken under the Act or 1968. Mr. Gobind Das, appearing on behalf of some of the appellants, raised points commonly associated with high constitutional concepts, but lacking in substance. He urged that the Act of 1968 is a piece of colourable legislation, that it constitutes a flagrant encroachment on (1) [1966] 1 S.C.R. 890 the functions of the judiciary and that since the Act has no operation in futuro and operates only on the dead past, it is void as lacking in legislative competence. Learned counsel also employed the not unfamiliar phrase that the Act is a fraud on the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged 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 Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears on behalf of some of the appel- lants, attempted to challenge the Act of 1968 on the ground of unreasonableness but he did not pursue that argument. But he made another point which requires some attention. The appellants or some of them, did not challenge the orders of assessment passed against them as the Acts of 1959 and 1962 were held unconstitutional. Counsel's apprehen- sion is that any appeal filed hereafter for challenging the assesSment made under the earlier Acts would be barred by limitation and the appellants would be deprived of their statutory right to question the correctness of the assess- ment. This apprehension is unfounded because the 2nd proviso tO S. 12 of the Act of 1968 empowers the appropriate authority to admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns as to disposal of ques- tions relating to Constitutional validity of laws. (1) A.I.R. (1973) S.C. 405. [1975] Supp S.C.R. 394. "144A (1) The minimum number of Judges of the Supreme Court who shall sit for the purpose of determining any question as to the Constitu- tional validity of any central law or State law shall be seven. (2) A Central law or a State law shall not be declared to be constitutionally invalid by the Supreme Court unless a majority of not less than two-thirds of the Judges sitting for the purposes of determining the question as to the constitutional validity of such law hold it to be constitutionally invalid."" The points raised in these appeals undoubtedly involve the determination of questions as to the constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
