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TMI Blog1982 (2) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... o. S. D. 175/P.A. 46/48/S. 5/66 dated the 30th June, 1966, as amended-vide Chandigarh Administration, Excise and Taxation Department, Notification No, 4451-UTF II(6)69/7263 dated the 11th June, 1969, namely: AMENDMENT.-In the said notification, in proviso (12), for the word 'three', the word 'four' shall be substituted." The contention of the learned counsel for the petitioner is that though in view of the Adaptation Order dated 20th November, 1968 (annexure E), issued by the Government of India under section 89 of the Punjab Reorganisation Act, 1966, for the words "Punjab Government" occurring in sub-section (1) of section 5 of the Act, the words "Central Government" have to be read, yet the power to issue a notification of the type impugned being a delegated legislative power, only the Central Government could issue the notification raising the rate of tax. That having not been done by the Central Government, the impugned notifications are bad on that account alone. On the other hand, the stand of the respondentauthorities is that the power exercisable under section 5(1) of the Act is only an administrative or executive power and not a legislative power, and therefore, in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also deserves to be mentioned here that no other point, though raised in the petition, has been pressed before me except the one on which I have pronounced above. Keeping in view the facts and circumstances of the case I pass no order as to costs. The decision of the Court dated 5th February, 1982, in Review Application No. 71 of 1981 in C. W. P. No. 2913 of 1972 filed by the Chief Commissioner is printed below. M. L. Puri, for the appellant/petitioners. Anand Swaroop with Sunil Parti, for the respondents. TIWANA, J.-The respondents seek the review of my order dated 17th November, 1981, in Civil Writ No. 2913 of 1972 whereby the impugned notifications issued by the Chief Commissioner, Union Territory, Chandigarh, enhancing the rate of sales tax have been quashed on the ground that at the time of passing of the said order the provisions of section 3(8)(b)(iii) of the General Clauses Act, 1897 (for short, the Act), and the notification, annexure D, were not brought to my pointed notice by the learned counsel for the respondents, and had that been done, the result of the petition, according to the learned counsel, would have been otherwise., For the disposal of this applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le and dischargeable under laws other than Central Act shall, in relation to the Union Territory of Chandigarh, be also exercised and discharged by the Administrator of that Union Territory. [No. F. 2/9/68-UTL-(i)] K. R. Prabhu, Joint Secretary to Government of India." (Emphasis added*) As the above-noted provision of the Act and the notification, annexure D, make a reference to the provisions of article 239 of the Constitution of India, it is but essential to notice the relevant part of that article too. "239. (1) Save as otherwise provided by Parliament by law, every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify." (Emphasis added*) Though I have my doubts about the correctness of the submission that the President, while authorising the Chief Commissioner, vide annexure D, to exercise all the powers and discharge the functions of the Central Government, acts as the executive head of the Central Government and the applicability of the above-noted definition of "Central Government" in the Act to the facts of this case, yet I have to exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esident thinks fit. In regard to matters not falling within the authority conferred on the Administrator, the President has essentially to act directly. Under section 3(8)(b)(iii) of the Act, the Administrator-the Chief Commissioner in the case in hand-of a Union Territory only while acting within the scope of the authority given to him under article 239 of the Constitution, constitutes the Central Government with reference to the administration of the Union Territory. Various provisions of the Constitution of India bring out a clear-cut and welldefined differentiation between the various branches of the Government, that is, executive, legislative and judicial. This distinction is made more explicit by the following explanation noticed in Wharton's Law Lexicon, 14th Edition, page 388: (Emphasis added*) "Executive, that branch of the Government which puts the laws into execution as distinguished from the legislative and judicial branches. The body that deliberates and enacts laws is legislative; the body that judges and applies the laws in particular cause is judicial; and the body that carries the laws into effect or superintends the enforcement of them, is executive. " Readi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel suggests that the tax which has either been paid or is sought to be recovered from the petitioners under the abovesaid notifications has already been passed on by them to the consumers at the time of the sales made in the latter's favour. In view of that he pleads that the petitioners should not be made entitled to the refund or non-payment of that tax which they have already collected on behalf of the State authorities. This submission of the learned counsel, to my mind, is not devoid of merit. The net result of quashing these notifications would be that the petitioners would not only be absolved of the liability to pay the tax but would also be entitled to claim refund of the one already paid by them in spite of the fact that they have already realised that tax from the consumers. This aspect of the matter was neither highlighted at the time of the passing of the order dated 17th November, 1981, nor was noticed by me. It is axiomatic that discretionary relief under article 226 of the Constitution may be declined to a person who though entitled to it on technical grounds yet the non-grant of the same does not result in loss or injustice to that person. This is so becau ..... 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