TMI Blog2014 (4) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... done earlier and hence, no right had vested in the citizens - We may state that the said enactment was treated to be valid as it did not invite the wrath of Article 14 of the Constitution - We are really not testing the retrospective applicability of the law made by the legislature but a notification issued by the State Government in exercise of power conferred under a statutory provision. Needless to say, there is a sea of difference between the two - The aforesaid authority is of no assistance to the appellant-State because the controversy that has emanated in that case is altogether a different one - To put it differently, the proposition laid down in the aforesaid authority does not buttress the submission sought to be urged - In fact, it is farther away from the “North Pole”. Words “time to time” u/s 16 of the Act - We really cannot discern from the language employed in the said provision that because of the use of the words “time to time” a notification can be issued imposing a rate of tax with retrospective effect or apply the notification retrospectively - A notification can only be issued prospectively, and we are inclined to think so as legislature has deliberately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 of the Rules provides for the head under which the cess collected under Section 16 of the Act is to be credited. Rule 14 of the Rules provides for the allocation of the funds for implementation of environment and health projects in mining areas in various parts of the State. Questioning the constitutional validity of the impost under the Act it was contended before the High Court that the State Legislature had no competence to impose environment and health cess on major minerals as the field is occupied by the provisions contained in the Mines and Minerals (Development and Regulation) Act, 1957 (for short the MMDR Act ), which is an enactment by the Parliament. It was urged that the imposition of such cess is not a fee but a tax which is covered by the MMDR Act whereunder the power to levy tax on the mineral rights in respect of major minerals is vested in the Parliament. It was further put forth that the Parliament, in exercise of the powers conferred on it by Entries 54 and 55 of List-I of the Seventh Schedule to the Constitution of India, has enacted the MMDR Act and the Rules framed thereunder and under the said Act, the power vests from all spectrums in the Central Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parately from another piece of land which is being subjected to another kind of user, though the two pieces of land are identically situated except for the difference in nature of user. The tax would remain a tax on land and would not become a tax on the nature of its user. (7) To be a tax on land, the levy must have some direct and definite relationship with the land. So long as the tax is a tax on land by bearing such relationship with the land, it is open for the legislature for the purpose of levying tax to adopt any one of the well known modes of determining the value of the land such as annual or capital value of the land or its productivity. The methodology adopted, having an indirect relationship with the land, would not alter the nature of the tax as being one on land. 6. Elaborating on the said principles, the Constitution Bench adverted to the concept of regulation and, in that context, culled out the principle to the effect that the primary object and the essential purpose of legislation must be distinguished from its ultimate or incidental results or consequences for determining the character of the levy. A levy essentially in the nature of a tax and within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and then addressed itself to the purpose behind the MMRD Act and, eventually, came to hold as follows:- 147. Royalty is not a tax. The impugned cess by no stretch of imagination can be called a tax on tax. The impugned levy also does not have the effect of increasing the royalty. Simply because the royalty is levied by reference to the quantity of the minerals produced and the impugned cess too is quantified by taking into consideration the same quantity of the mineral produced, the latter does not become royalty. The former is the rent of the land on which the mine is situated or the price of the privilege of winning the minerals from the land parted with by the Government in favour of the mining lessee. The cess is a levy on mineral rights with impact on the land and quantified by reference to the quantum of minerals produced. The distinction, though fine, yet exists and is perceptible. 9. At this juncture, it is apt to note that the decision in Kesoram Industries Ltd. (supra) has been referred for consideration by a larger Bench in Mineral Area Development Authority and others v. Steel Authority of India and others (2011) 4 SCC 450 . It may be profitably stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court while dwelling upon the interpretation of taxing statutes. 13. In A.V. Fernandez v. The State of Kerala AIR 1957 SC 657, Bhagwati, J. referred to a passage from Partington v. The Attorney General (1869) 4 H L 100 at p. 122(B) which is as follows: - As I understand the principle of all fiscal legislation it is this : if the person sought to be taxed, comes within the letter of the law he must be taxed however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be. 14. The said passage, as has been stated in the said pronouncement, was quoted with approval by the Privy Council in Bank of Chettinad v. Income-tax Commr. AIR 1940 PC 183 and the Privy Council had registered its protest against the suggestion that in revenue cases the substance of the matter may be regarded as distinguished from the strict legal position. Proceeding further the learned Judge stated that: It is no doubt true that in construing fiscal statutes and in determining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to the words of the statute. VISCOUNT SIMON quoted with approval a passage from Rowlatt, J. expressing the principle in the following words : In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. Relying upon this passage Lord Upjohn said : Fiscal measures are not built upon any theory of taxation . This passage presently finds place at page 826, Twelfth Edition 2012 of Principle of Statutory Interpretation by G.P. Singh. 17. In Commissioner of Wealth Tax, Gujarat-III, Ahmedabad v. Ellis Bridge Gymkhana AIR 1998 SC 120, it has been observed thus: - The rule of construction of a charging section is that before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section. No one can be taxed by implication. A charging section has to be construed strictly. If a person has not been brought within the ambit of the charging section by clear words, he cannot be taxed at all. 18. Keeping in mind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility within the constitutional parameters. A subordinate legislation can be given retrospective effect if a power in this behalf is contained in the principal Act. In this regard we may refer with profit to the decision in Mahabir Vegetable Oils (P) Ltd. and another v. State of Haryana and Others (2006) 3 SCC 620, wherein it has been held that:- We may at this stage consider the effect of omission of the said note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect and retroactive operation, if any power in this behalf is contained in the main Act. The rule-making power is a species of delegated legislation. A delegatee therefore can make rules only within the four corners thereof. 42. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. (See West v. Gwynne (1911) 2 Ch 1 : 104 LT 759 (CA)). 23. In MRF Ltd. Kottayam v. Asstt. Commissioner (Assessment) Sales Tax and Others (2006) 8 SCC 702, the question arose whether under Section 10 (3) of the Kerala General Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no limitation with regard to exercise of that power and the same could be exercised from time to time and even if the words time to time are absent in the statute, the power conferred under the Act could be exercised all over again and there is no limitation to the number of times the power is exercised and if the power is exercised once, it cannot be stated that the power stands exhausted. It is his submission that the administrative power as well as quasi-legislative power could be exercised any number of times and this principle is embodied under Section 21 of the General Clauses Act. The learned counsel would further contend that even if the words time to time would not have been there in Section 16 of the Act, the power could be exercised any number of times. To bolster his submissions, he has commended us to the decisions in A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised Official and Income-Tax Officer and another AIR 1956 SC 246, D.G. Gose and Co. (Agents) Pvt. Ltd. v. State of Kerala and another (1980) 2 SCC 410, Bansidhar and other v. State of Rajasthan and others (1989) 2 SCC 557 and The State of Madhya Pradesh and others v. Tikamdas (1975) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down in that case, we have no trace of doubt in our mind that the said decision has no applicability to the facts in the case at hand. As is evident, the notification giving effect to the enactment was prior to the date of issue of notification but much after the legislature had passed the enactment and further the language employed in the Act was quite different. Hence, it can be stated with certitude that the said decision does not further the point urged by the learned counsel for the State. 31. The authority in D.G. Gose and Co. (Agents) Pvt. Ltd. (supra), has been commended to us by the learned counsel for the State, as we understand, to substantiate the point that a levy can always be imposed at any point of time even from the retrospective date unless it is grossly unreasonable. He has specifically drawn inspiration from paragraphs 13 and 14 of the said decision. Be it noted, in the said case, the controversy related to the Kerala Building Tax Act, 1961. The said Act was eventually passed after lot of changes on 2.4.1975 by which tax was imposed on buildings. However, the imposition of tax on buildings was made with retrospective effect from 1.4.1973. One of the challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affect the vested rights as nothing had been done earlier and hence, no right had vested in the citizens. We may, in addition, state that the said enactment was treated to be valid as it did not invite the wrath of Article 14 of the Constitution. In the case at hand, we are really not testing the retrospective applicability of the law made by the legislature but a notification issued by the State Government in exercise of power conferred under a statutory provision. Needless to say, there is a sea of difference between the two and hence, the aforesaid authority is of no assistance to the learned counsel for the State. 33. The next submission pertains to the principle embodied under Sections 14 and 21 of the General Clauses Act to bolster the stand that the power conferred under the statute can be exercised time and again and there is no limitation to the number of times the power is exercised. In essence, it is submitted that there is no exhaustion of power. In this context, the learned counsel has drawn our attention to the Constitution Bench decision in Bansidhar s case. In the said case it has been held that when there is a repeal of a statute accompanied by re-enactment of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make rules for the purpose of carrying out the provisions of the Act and in that context, observed that the said rule may regulate the amount of fee, the terms and conditions of licences and scale of fees and the manner of fixing the fees payable in respect of such licences, but the said provision by itself did not expressly grant power to make retrospective rules. Thereafter, the bench referred to Section 63 which read thus: - all rules made and notifications issued under this Act shall be published in the Official Gazette, and shall have effect from the date of such publication or from such other date as may be specified in that behalf. 35. Interpreting the said Section, the Court opined thus: - Clearly the Legislature has empowered its delegate, the State Government, not merely to make the rules but to give effect to them from such date as may be specified by the delegate. This provision regarding subordinate legislation does contemplate not merely the power to make rules but to bring them into force from any previous date. Therefore ante-dating the effect of the; amendment of Rule IV is not obnoxious to the scheme nor ultra vires Section 62. 36. From the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etrospective effect or apply the notification retrospectively. A notification can only be issued, as we perceive, prospectively, and we are inclined to think so as legislature has deliberately used the words from time to time and not the language as is noticed in Tikamdas (supra). 37. We are disposed to think that the words from time to time in law have a different connotation. In this regards we may refer with profit to certain authorities in the field. In Kashmir Singh v. Union of India and others (2008) 7 SCC 259, question arose whether rule of perpetuity would be applicable in respect of a member of a Sikh Judicial Commission constituted under the Sikh Gurdwaras Act, 1925 and in that context the words used from time to time that find place in Sections 40 and 70 of Punjab Reorganisation Act, 1996 fell for interpretation. A contention was raised on behalf of State of Punjab that having regard to the tenor of Sections 40 and 70 of the Act it was evident from the language employed in the said provisions a reasonable meaning was required to be given and on proper construction of the words from time to time would lead to the conclusion that the Government had the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning of the proviso appended to Standing Order 14-A is not a law and, thus, the Regulations made by the Board shall prevail thereover. 44. The Board has power to make regulations which having regard to the provisions of the General Clauses Act would mean that they can make such regulations from time to time. 39. The aforesaid decision is referred to solely for the purpose that the words, namely, from time to time may be associated with any number of times, of course subject to the principle of reasonableness and its impact but does not engulf the spectrum of retrospectivity or retroactivity in its ambit and sweep. 40. In Shree Sidhbali Steels Limited and Others v. State of Uttar Pradesh and Others (2011) 3 SCC 193, the Court in a writ petition preferred under Article 32 of the Constitution was dealing with the issue of justifiability of the action taken by U.P Power Corporation Limited which had issued a notification on 7.8.2000. It was propounded that the said notification was illegal, arbitrary and violative of Article 14, 19 (1) (g) and 21 of the Constitution insofar as it denies the petitioner the hill development rebate of 33.33% on the total amount of electri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfers the power to issue the notification, etc. Thereafter, the court enumerated the principle thus:- ...there is no manner of doubt that the exercise of power to make subordinate legislation includes the power to rescind the same. This is made clear by Section 21. On that analogy an administrative decision is revocable while a judicial decision is not revocable except in special circumstances. Exercise of power of a subordinate legislation will be prospective and cannot be retrospective unless the statute authorises such an exercise expressly or by necessary implication. Analysing further the learned Judges opined that by virtue of Sections 14 and 21 of the General Clauses Act, when a power is conferred on an authority to do a particular act, such power can be exercised from time to time and carries with it the power to withdraw, modify, amend or cancel the notifications earlier issued, to be exercised in the like manner and subject to like conditions, if any, attached with the exercise of the power. It would be too narrow a view to accept that chargeability once fixed cannot be altered. Since the charging provision in the Electricity (Supply) Act, 1948 is subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unty board of supervisors had no authority to alter an election precinct in September, under statute providing that board may, from time to time, change the boundaries of precincts and providing that changes might be made at regular or special meeting in July, since the two provisions were in pari materia and should be construed together in the light of all the provisions of the statute, the words from time to time meaning at times to recur, and not at any time. Laws 1885, p. 193 para 29, Laws 1871-72, p. 380, para 30, S.H.A. ch. 46, para 29, 30. County Board of Union County v. Short, 77 Ill App. 448. 42. In The Law Lexicon, The Encyclopedic Law Dictionary: (2nd edition, 1997, page 764), the words have been conferred the following meaning:- From time to time as occasion may arise . The words from time to time mean that an adjournment may be made as and when the occasion requires and they will not mean adjournment from one fixed day to another fixed day. The words from time to time are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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