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TMI Blog2003 (7) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Kerala General Sales Tax Act, 1963. 4.. On December 31, 2001, the Kerala General Sales Tax (Amendment) Ordinance, 2001 (Ordinance No. 37 of 2001) was published in the Reported in [2003] 131 STC 136 [Desai Brothers (Papers) Pvt. Ltd. v. State of Kerala] Government Gazette. It was declared that during the period of operation of the Ordinance, the Act shall have effect subject to the amendments specified in sections 3 and 4. The relevant provision is contained in section 3(c) by which the rate of tax on the sale of paper was raised from 4 per cent to 8 per cent. It was followed by Ordinance No. 4 of 2002, viz., "The Kerala General Sales Tax (Second Amendment) Ordinance, 2002". It was published in the Gazette on April 11, 2002. In the Preamble it was inter alia mentioned that a Bill to replace Ordinance No. 37 of 2001 by an "Act of the State Legislature could not be introduced in and passed by the Legislative Assembly of the State of Kerala, during its session which commenced on the 1st day of March, 2002 and ended on the 15th day of March, 2002". Thus, the second ordinance was promulgated. On July 9, 2002, Act No. 4 of 2002 was published in the gazette. It was to be " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the existence of the First Ordinance". There were no circumstances to justify the promulgation of an Ordinance. Thus, the levy is "ex facie arbitrary, unreasonable, unfair and consequently unconstitutional". On these premises, it prays that the provisions of section 3(c) by which the rate of tax on the sale of "paper" has been raised from four per cent to eight per cent with retrospective effect from December 31, 2001 be declared unconstitutional and that the notices produced as exhibits P7, P8 and P9 be quashed. 7.. The writ petition had been filed on November 12, 2002. It was heard on November 13, 2002. At that stage, no counter-affidavit was filed. The writ petition was decided vide judgment dated December 24, 2002. Thereafter, the writ petitioner had filed this appeal on January 29, 2003. It was listed for hearing on January 31, 2003. Notice was issued for February 14, 2003. At the stage of appeal, a counter-affidavit was filed on behalf of respondent Nos. 2 to 4. 8.. The issue of the two Ordinances was admitted. Though "the Legislative Assembly was convened after the promulgation of the Ordinance," it "could not be placed before the Assembly. Therefore, the said Ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articles 14 and 19(1)(g). 11.. Mr. Thanu Pillai contended that the Ordinances were given no publicity. Even the subscribers had not got a copy of the gazette notification in which the Ordinance was published. Thus, the action of the respondents in enforcing the liability is untenable. 12.. On the other hand, Mr. Raju Joseph, learned counsel for the respondents, submitted that the Ordinances were duly published. Thus, the demand of tax at a higher rate is legal and valid. He pointed out that Ordinance No. 37 of 2001 could not be placed before the Assembly as it had to be prematurely prorogued. The counsel maintained that the first Ordinance having been promulgated on December 31, 2001, the provisions of the Act are really not retrospective. On these premises, the counsel contended that the claim as made by the appellants cannot be sustained. 13.. Learned counsel for both sides also referred to various decisions in support of their respective submissions. These shall be noticed at the appropriate stage. 14.. After hearing learned counsel for the parties, we find that the short question that arises for consideration in these cases is-Do the Ordinances and the Act confo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le that the law provides for publication in the Official Gazette. In the very nature of things, publication in the gazette is taken as a notice to the public. Thereafter, it has to be assumed that everyone has been made aware of it. 20.. In our country, a large majority of the people is not even literate. It may also be fair to say that the gazette notification does not always reach every nook and corner of the country. But if this reason were to be accepted as a defence, it would become impossible for the State to enforce its laws. Thus, publication in the Government Gazette has to be presumed as enough for the promulgation of the law. The General Clauses Act provides that since the Ordinances and the Act were duly published, it will have to be assumed that everyone was made aware of the change in the rate of tax. 21.. The counsel referred to the decision of their Lordships of the Supreme Court in Harla v. State of Rajasthan AIR 1951 SC 467. This was a case where the Ruler of Jaipur, who had legislative powers, had died. His successor was a minor. A Council of Ministers was appointed to look after the governance of the State. On December 11, 1923 the Council passed a resolut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d never has been a presumption that every one knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application'. It is, therefore, not possible to presume, in the absence of any material placed before the court, that the appellant had full knowledge of its right to exemption so as to warrant an inference that the appellant waived such right by addressing the letter dated 25th June, 1970. We accordingly reject the plea of waiver raised on behalf of the State Government." The above observations were made in the context of the plea of waiver of the right to claim exemption. Their Lordships were considering the case in the context of the plea of promissory estoppel. These observations cannot be read to mean that despite publication in the Official Gazette, each citizen has to be individually informed about the change in law. That would be an uphill task. Such has never been the state of law. 25.. It may be added here that Mr. Raju Joseph had referred to the decision of their Lordships of the Supreme Court in Union of India v. Ganesh Das Bhojraj [2000] 119 STC 293; AIR 2000 SC 1102 to contend that the law becomes effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances existed, which rendered it necessary for the Governor to take immediate action by way of repromulgation of the Ordinances." Such is not the position in the present case. Still further, it was also observed that the life of an Ordinance "cannot exceed seven and half months unless it is replaced by an Act of Legislature or disapproved by the resolution of the Legislature before the expiry of that period". In the present case, the Ordinance was replaced by an Act of Legislature within the period of seven and half months. Act 4 of 2002 had been promulgated on July 9, 2002. Factually, the two cases stand on a totally different footing. 31.. It is true that in Wadhwa's case AIR 1987 SC 579, it was observed by their Lordships that "the Government cannot by-pass the Legislature....there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular session or the time at the disposal of the Legislature in a particular session may be short. "Otherwise, it would be a colourable exercise of power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, the Governor had accepted the advice. He had issued the Ordinance. This Court cannot go into the issue of the Governor's satisfaction. It has to be assumed that he was satisfied about the need to issue the Ordinance. In any case, nothing was pointed out from the record to show that there was no justification for the enactment. 35.. Mr. Somayaji lastly contended that the Ordinance was promulgated on the recommendation of the sub-committee constituted for the purpose of amending the law relating to levy of tax on the sale or purchase of goods. The counsel submitted that the Committee had recommended the levy at 4 per cent only. Thus, the reason for the enhancement of the rate of levy is non-existent. 36.. The contention cannot be accepted. A tax is a compulsory exaction of money. The rate has to be fixed by the Legislature. This Court cannot go into the rate of tax as actually imposed. The Legislature is the best Judge of the needs of the people. It has to decide the matter in the light of the facts as it faces. This Court cannot go into the validity of the reason on account of which the State revises the rate of tax. 37.. Mr. Mohan Parasaran submitted that the Act wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant when a taxing statute validly imposes a tax. Equity and tax are not twins. 42.. Mr. Thanu Pillai, learned counsel for the appellant in W.A. No. 353 of 2003, contended that the subscribers had not got a copy of the Gazette notification. Thus, the demand is vitiated. 43.. This is a question of fact, which cannot be gone into in this writ appeal. The Ordinances and the Act were duly published. The documents placed on record with the counter-affidavit show that copies had been sent even to the Taxation Department. Thus, it cannot be said that merely because some subscriber may not have got a copy by post, the Act was not in force. 44.. No other point was raised. 45.. In view of the above, it is held that: 1.. Article 213 empowers the Governor to issue an Ordinance. It is a legislative power. However, under our system, the power has to be exercised on the aid and advice of the Council of Ministers. An Ordinance can be issued regarding any matter regarding which the State Legislature is competent to legislate. But the power to issue an Ordinance can be invoked only when the Legislature is not in session. 2.. The Ordinance should be laid before the Legislative Assembly o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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