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TMI Blog1978 (7) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... d (2) Violation of article 19(1)(f) thereof. These claims are denied by the Government on the ground that even if the exemptions are assumed to be invalid initially they were retrospectively validated by the Validation Act of 1976. The above contentions of law have arisen from the following facts: The Bengal Finance (Sales Tax) Act, 1941, was extended to Delhi under section 2 of the Part C States (Laws) Act, 1950, which ran as follows, by notification dated 28th April, 1951, with the necessary restrictions, amendments and modifications: "The Central Government may, by notification in the official Gazette, extend to the Union Territory of Delhi, Himachal Pradesh, Manipur or Tripura, or to any part of such territory, with such restrictions and modifications as it thinks fit, any enactment which is in force in a State at the date of the notification. " Under section 6(2), as originally applicable to Delhi, a notice of not less than three months had to be given by the Government before the Second Schedule to the Act could be amended to withdraw any exemption from sales tax enjoyed by any commodities thereunder. But by notification dated 7th December, 1957, the Government amended se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Validation.-(1) Subject to the provisions of sub-section (2), each of the sales tax extension notifications shall, for all purposes [including the levy, assessment and collection of taxes under the principal Act and the purposes of section 73 of the Delhi Sales Tax Act, 1975 (43 of 1975)], be deemed to have been, and to be, a law enacted by Parliament which took effect on the date on which such notification was published in the Gazette of India and accordingly anything done or purporting to have been done or any action taken or purporting to have been taken before the commencement of this Act under the principal Act or under the said section 73 shall be deemed to be and to have always been, as valid and effective as if this section had been in force when such thing was done or such action was taken. (2) Notwithstanding anything contained in sub-section (1), the provisions of sub-section (2) of section 6 of the principal Act shall, for all purposes [including the levy, assessment and collection of tax under that Act and the purposes of section 73 of the Delhi Sales Tax Act, 1975 (43 of 1975)], have effect and be deemed always to have had effect as if the said sub-section (2) (he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial decision of the Supreme Court sought to be abrogated will remain the law in view of article 141 of the Constitution and the collection of the tax held invalid by the judicial decision would be contrary to article 265 of the Constitution. We are to examine, therefore, whether the validation by section 3 is of the former or of the latter kind. In trying to show that the Validation Act of 1976 did not remove the basis of the Supreme Court decision and was, therefore, itself invalid, Mr. B. Sen argued as follows: (1) When section 73 of the Delhi Sales Tax Act, 1975, repealed the Bengal Finance (Sales Tax) Act, 1941, as applied to Delhi, the repealed Act became dead; (2) The deeming provisions of section 3 of the Validation Act could not revive the dead Act unless it was re-enacted; and (3) The Validation Act, therefore, did not achieve its purpose and was invalid as being contrary to article 141 and no assessment could be made by virtue of the validation as it is contrary to article 265. Mr. B. Sen did not dispute the validity of the argument developed in the book "Judicial Review of Legislation" by one of us (V.S. Deshpande, J.) that the effect of a judicial decision inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fy the effect of section 6 of the General Clauses Act. Section 73(1) of the Delhi Sales Tax Act is as follows: "(1) The Bengal Finance (Sales Tax) Act, 1941 (VI of 1941), as in force in Delhi (hereinafter referred to as the said Act), is hereby repealed: Provided that such repeal shall not affect the previous operation of the said Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder and subject thereto, anything done or any action taken including any appointment, notification, notice, order, rule, form or certificate in the exercise of any power conferred by or under the said Act shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken, and all arrears of tax and other amounts due at the commencement of this Act may be recovered as if they had accrued under this Act." The effect of reading section 6(2) of the Bengal Finance (Sales Tax) Act, 1941, section 73 of the Delhi Sales Tax Act, 1975, and section 3 of the Validation Act, 1976, in the light of the decision of the Supreme Court may be stated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative powers therein granted shall be vested in the Congress. The Constitution of India vests only the executive power in the President. It does not vest the legislative power of the Parliament or the State Legislature or the judicial power in the Supreme Court and the High Courts. The doctrine of separation of powers contained in the Constitution of the United States is not reproduced in our Constitution. The theory propounded by the United States Supreme Court under the United States Constitution was that the delegation of essential legislative functions by the Congress to the executive was contrary to article 1, section 1, of the United States Constitution, whereby the legislative power was vested in the Congress alone and could not be delegated to the executive. The adoption of this theory by our Supreme Court on the analogy of the United States Supreme Court decision is based more on the need to avoid the undesirable consequences of excessive delegation by Parliament which could not be intended by article 245(1) than on any express provision in our Constitution comparable to article 1, section 1, of the United States Constitution. This theory has, therefore, been applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be revived by the latter except by a re-enactment of the former by Parliament. Since Parliament did not re-enact section 6(2) of the Bengal Finance (Sales Tax) Act, 1941, it continued to be a now-law (sic). Therefore, any rights and obligations which were enforceable under it could not survive its repeal and levy, assessment and collection of sales tax which become due thereunder could not be made either under section 73 of the Delhi Sales Tax Act, 1975, or by virtue of section 3 of the Validation Act, 1976. As already stated above, this power is plenary power of Parliament to enact any legislation not forbidden by the Constitution and the effect of section 6 of the General Clauses Act as modified by section 73 of the Delhi Sales Tax Act. There has never been any doubt as to the power of Parliament to enact retrospective legislation, nor has it been doubted that rights and obligations under the repealed Act can be preserved by virtue of section 6 of the General Clauses Act subject to such modifications as may be made by the repealing Act, i.e., section 73 of the Delhi Sales Tax Act, 1975, in the present case. Whether the validating Act violates the provisions of article 19(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s if there had been no repeal........ Consequently, the repeal............did not in any way affect the power of the Deputy Commissioner to institute proceedings for revision suo motu under the repealed Act" (also see Hira Lal Rattan Lal v. Sales Tax Officer, Section III, Kanpur[1973] 31 S.T.C. 178 (S.C.). In Krishna Chandra Gangopadhyaya v. Union of India A.I.R. 1975 S.C. 1389., V.R. Krishna Iyer, J., speaking for the court, reviewed the case-law relating to the effect of the validating Act. His Lordship specifically dealt with the question of the validating Act referring to a statute which had been held to be invalid by the Supreme Court in Baijnath Kedia v. State of BiharA.I.R. 1970 S.C. 1436. In paragraph 14 of the Reports, the court referred to the argument of the Solicitor-General that "Parliament had legislated for itself, although adopting a shorthand form of incorporation referentially of a State Act and subordinate legislation given in the schedule to the Validation Act.........If the re-enacting technique adopted for the referential or incorporating legislation was not sufficient in law, he failed. Otherwise, the Act and the Rules referred to in the schedule to the Vali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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