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TMI Blog1982 (8) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... f Chandigarh (designated as the Chief Commissioner), in exercise of the powers conferred under section 5 of the Act, enhanced the rate of tax leviable from 2 to 3 per cent. Similar notification was issued on 11th June, [1969] and later on 13th June, 1975, enhancing the tax to 4 per cent. The last notification calls for notice in extenso: "No. 3658-UTF II(6)75/8394.-In exercise of the powers conferred by subsection (1) of section 5 of the Punjab General Sales Tax Act, 1948, and all other powers enabling him in this behalf, the Chief Commissioner, Chandigarh, is pleased to make the following amendment in the Punjab Government, Excise and Taxation Department, Notification No. 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 11(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." 3.. It is then the admitted stand that on the creation of the Union Territory of Chandigarh, a Notification No. 3269 dated 1st November, 1966 (annexure B to the writ petition), was promulgated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd P. 11) having been issued by a delegate of the Central Government were bad because the Central Government could not further delegate its power to the Administrator, i.e., Chief Commissioner of Chandigarh, Union Territory. This contention found favour with the learned judge wholly on the ground that the Central Government having been itself delegated the legislative power under the Punjab General Sales Tax Act could not further delegate this power to the Chief Commissioner. It was also held that the Central Government had at no stage delegated this power to the Chief Commissioner of the Union Territory. In a brief judgment [1982] 50 STC 222 at p. 222), the writ petition was, therefore, allowed on this solitary ground. 5.. The Chandigarh Administration thereafter preferred Review Application No. 71 of 1981 against the aforesaid judgment of the learned single judge. Therein, it was particularly pleaded that the Government of India, Ministry of Home Affairs, notification dated 30th October, 1968 (annexure D to the writ petition), had altogether missed consideration and further that by virtue of section 3, clause (8)(b)(iii) of the General Clauses Act, the impugned notification m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave obviously wider ramifications. 9.. As noticed earlier, the cardinal question herein is whether in promulgating the impugned notifications (annexures C, F and P. 11), the Chief Commissioner of Chandigarh was acting as a delegate or on the other hand was only a medium or machinery through whom the President connoting the Central Government had acted. This somewhat subtle distinction, historically speaking, has been best highlighted by the Court of Appeal in Carltona Ltd. v. Commissioners of Works [1943] 2 All ER 560. Therein, an Assistant Secretary acting for the Minister of Works and Planning had issued the order of requisition which was challenged. Rejecting the contention, Lord Greene. M.R., rendered the following classic exposition: "In the administration of Government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its functions, the committee is merely machinery for the discharge by the authority of the business entrusted to the committee all of whose acts are subject to the authority's approval." 10.. Because of the fact that the aforesaid constitutional position has been authoritatively approved and accepted by the final court in India, it is unnecessary to elaborate the matter. The Constitution Bench in A. Sanjeevi Naidu v. State of Madras AIR 1970 SC 1102 held as under: "........ When a civil servant takes a decision, he does not do it as delegate of his minister. He does it on behalf of the Government. It is always open to a minister to call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that overall power, the officers designated by the 'Rules' or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates" and "As mentioned earlier in the very nature of things, neither the council of ministers nor an individual minister can attend to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of any minister or officer under the Rules of Business made under these two articles, viz., article 77(3) in the case of the President and article 166(3) in the case of the Governor of the State is the decision of the President or the Governor respectively." With regard to the Central Government, an identical view has been expressed by the Division Bench in R.C. Roy v. Union of India AIR 1971 Delhi 186 in the following words: "........ The Central Government is not an individual but an organisation. Whether a function is exercised by the President as the Head of the Union of India or whether a power is vested by the Constitution on the President as such as a persona designata the procedure for the exercise of the power would be the same, namely, either the one prescribed by the Rules of Business framed under article 77(3) of the Constitution or under the law and the rules made under the proviso to article 309 of the Constitution. When an authorised officer is acting in the name of the Central Government or the President, he is not acting as a delegate. He is merely authenticating the order of the President or the Central Government according to the prescribed procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted is only a limb, a machinery or a medium through whom the President exercises his constitutional function of administering the Union Territory. 12.. It is equally pertinent to notice the alternative argument of Mr. Mridul, the learned counsel for the appellant-Chief Commissioner, in this context. The counsel highlighted the fact that the conferment and entrustment of power on the Administrator (vide annexures B and D) have not been the subject-matter of any challenge whatsoever both in the writ petition and in the present appeals. This has been done not merely under article 239 of the Constitution but expressly in pursuance of all other powers enabling the President in this behalf. Clearly enough the language used herein is of the widest amplitude and would, therefore, include within its ambit all other constitutional provisions as well which vest the President with the powers and further enable him to act through officers subordinate to him. Reference in this connection may first be made to article 53(1) of the Constitution which is in the following terms: "53. (1) The executive power of the Union shall be vested in the President and shall be exercised by him either direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding on the applicability thereof one way or the other. A passing doubt was, however, expressed that these may not ipso facto become applicable to the Punjab General Sales Tax Act. What perhaps bears highlighting herein is that the real issue is the applicability of section 3(8) aforesaid for construing annexures B, D and E to the writ petition and not to the provisions of the Punjab General Sales Tax Act. Herein what calls for pointed notice is the fact that in the context of the creation of the Union Territory in the appointment and conferring of powers on the Administrator, the provisions of the Punjab Reorganisation Act, 1966, and in particular sections 4, 88 and 89 thereof are directly attracted. In fact in annexures B and D (which, as already noticed, are not the subject-matter of any challenge) these have been specifically invoked. By virtue of the provisions of the Punjab Reorganisation Act, the existing laws applicable to the erstwhile State of Punjab were made ipso facto applicable to the Union Territory of Chandigarh. However, a period of two years was provided thereafter for their adaptation and modification, if necessary, with effect from 1st November, 1966, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat action herein must be taken by the Central Government, it would still follow that the same having been taken by the President, in the eyes of law, it must be deemed to have been taken by the Central Government because the two entities have been made synonymous. The larger argument herein is that both on the concept of the exercise of the sovereign power through a medium and the particular language of section 3(8)(b), conceptually the President and the Central Government are identical and interchangeable terms. Since all executive actions of the Central Government are to be exercised and expressed in the name of the President, it would follow in the converse that whatever is exercised in the name of the President in the particular context may be deemed to be the exercise by the Central Government itself. The well-known exceptions herein are (though very limited ones) where the President either expressly by the provisions of the Constitution, or by necessary implication, has to act outside the advice of the council of ministers. The well-known examples herein are the dismissal of the the council of ministers by the President or the dissolution of the House of Parliament without t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the executive functions qua the Union Territory and he may choose to act through the Administrator, to such extent as he thinks fit. Therefore, it appears to me that the scope of article 239 is wide-ranging and despite pinpointing the learned counsel for the respondent was unable to point any peculiar construction or limitation thereof. 17.. Now, in the above context, it deserves highlighting that the appointment of the Administrator of the Union Territory under article 239 has not even remotely been the subject-matter of challenge. In the writ petition no material was placed or even an allegation was made that the Administrator herein was not lawfully appointed or further that he had in any way acted beyond the scope of the authority given to him under article 239. Obviously one of the criteria herein would be the valid appointment of the Administrator and that being not put in issue he must be deemed to be acting within the parameters of article 239 unless conclusively shown otherwise. Therefore, if he was rightly appointed, then the actions of the Administrator including the issuance of the impugned notifications would well be within the scope of the authority given to him und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at because of this provision, in the State of Punjab, its Governor would have the power to issue a notification for the enhancement, lowering or modifying the rates of sales tax. By the legislative fiat itself the levy of the rates of tax is vested in the executive head of the Government, and therefore, no question of its further delegation arises. Now, if the Governor of the Punjab can validly act thereunder for the territory of the said State, (and this was expressly so admitted by the learned counsel for the respondents) a fortiori it would follow that the Presi-, dent as the executive head of the Union Territory, Chandigarh, can do the same. It has already been shown that in the issuance of the impugned notification, the Administrator is only a limb or machinery through whom the President himself or the Central Government Acts. With respect, therefore, we find ourselves unable to subscribe to the theory that in this case there is any question of a further delegation of legislative power. The legislature having once given its mandate and clothed the executive with the power under section 5, it is the consequent executive action in pursuance thereto which has to be tested on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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