1997 (7) TMI 650

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... is a legislative power. this is the principle deducible from the education of the Federal Court in Basanta Chandra Vs. Emperor AIR 1944 FC 86 (90) and Ogden vs. Black Ledge 1804(2) Lawyers Edition 276 (278). 3. It would be within the exclusive domain of judiciary to expound the law as it is and not to speculate what it should be as it is the function to the Legislature. It is also within the exclusive power of the Judiciary to hold that a statute passed by the Legislature is ultra vires. The Legislature in that situation dose not become a helpless creature as it continues to remain a living pillar of a living constitution. Though it cannot directly override the judicial decision, it retains the plenary powers under Articles 245, 246 and .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... served as under: When a Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to condition, of Course, is that the Legislature must posess the power to impose the tax, for, if it does not , the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are go fun .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... a new Act altering fundamentally the provisions which were the basis of the judgment passed by the Court. This can be done with retrospective effect. So far as service conditions are concerned, they can be altered with retrospective effect by making service rules under Article 309 or by an Act of the Legislature. 7. In the instant case, the judgments rendered by this Court in the earlier decisions relating to the seniority of the present incumbents were founded on the service rules then existing These service rules have since been replaced by the impugned Act which has been enforced with retrospective effect. The various aspects of merits have been considered by my Brother Pattanaik an d I cannot usefully add any further words on merits. .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X