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TMI Blog2001 (3) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... taxes, cess and fees other than the betterment tax. The court also held that the power to levy and recover taxes, cess and fees has to be expressly conferred on the BDA by the BDA Act and such power cannot be presumed by mere implication. It further held that there was no material on record to hold that the BDA has been rendering any service to the members of the public who own lands and/or buildings which service should correspond to taxes, cess and fees recoverable because such tax is service related. The said finding of the learned Single Judge came to be affirmed by the appellate Bench in Writ Appeal Nos.223-39/92. After the said judgment of the Division Bench, an Ordinance was promulgated which later became an Act of the Legislature whereby the principal BDA Act came to be amended by the Bangalore Development Authority (Amendment) Act, 1993. By this Amending Act, Sections 28- A, 28-B and 28-C were incorporated in the said Act. By these amendments, the BDA was statutorily entrusted with the obligation of providing certain civic amenities specified in Section 28A of the Act and in Section 28B, the BDA was specifically empowered to levy and collect property tax in the same manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of legislation as large and of the same nature as those of the British Parliament itself and no constitutional limitation on the delegation of legislative power to a subordinate unit is to be found in the Indian Councils Act, 1861, or the Government of India Act, 1935, or the Constitution of 1950. It is therefore as competent for the Indian Legislature to make a law delegating legislative power, both quantitatively and qualitatively, as it is for the British Parliament to do so, provided it acts within the circumscribed limits (ii) Delegation of legislative authority is different from the creation of a new legislative power. In the former, the delegating body does not efface itself but retains its legislative power intact and merely elects to exercise such power through an agency or instrumentality of its choice. In the latter, there is no delegation of power to subordinate units but a grant of power to an independent and co-ordinate body to make laws operative of their own force. For the first, no express provision authorising delegation is required. In the absence of a constitutional inhibitation, delegation of legislative power, however extensive, could be made so long as the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorporated the machinery provisions of the Corporation Act under Section 109, for the purpose of levying and collecting the tax which, according to the appellant, is arbitrary inasmuch as the tax collected by the Corporation was to be utilised for large number of functions enumerated in Section 59 of the Corporation Act while the amount so collected under the BDA Act is to be utilised for limited functions specified under Section 28A of the Amending Act. We do not find any force in this argument also. It is true that under Section 59 of the Corporation Act, the Corporation is obligated to perform as many as 23 functions specified therein while under Section 28A of the BDA Act, the BDA has to perform only 3 or 4 functions. But on behalf of the respondents, it is pointed out to us that a complete reading of the BDA Act shows that the BDA also has to perform many other functions which are similar to those enumerated in Section 59 of the Corporation Act. That apart, it is pointed out that under the Corporation Act the Corporation is empowered to collect other revenues also apart from those enumerated in Section 109 of the Corporation Act while the BDA can collect only that tax which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding was sought to be validated without indicating how the Legislature has remedied the want of services pointed out by the High Court. In the earlier case, the High Court had held that in the principal Act there was no specific provision to levy taxes similar to those leviable under the Corporation Act. It also came to the conclusion that any such tax even if it were to be levied by the BDA with the sanction of the Legislature, could be levied only if the BDA performed certain functions mentioned in the said judgment. The Court further came to the conclusion that such functions not being performed by the BDA, collection of tax, apart from being unauthorised for want of statutory sanction, is also bad because the BDA did not render any service in lieu of such collection. Therefore, it is seen that by the said judgment the High Court had held that the collection of tax by the BDA was service-related. In other words, such power of levy can be vested in the BDA only if the BDA renders certain services to the subscribers to such tax and it is in this context that the High Court gave a specific finding that no such services had been rendered. This finding not having been challenged by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. This above ratio laid down in the said case has been consistently followed by this Court in all subsequent cases where this question arose for consideration. See M/s. Hindustan Gum Chemicals Ltd. v. State of Haryana Ors. (1985 (Supp.) 2 SCR 630). Applying the said principles to the facts of the present case, it is seen that the invalidity pointed out by the High Court about the lack of services rendered at the relevant point of time is an invalidity which was not capable of being removed to justify the levy of tax by an Amending Act and the Legislature could not have either ignored this finding of fact by the High Court or overruled the same. Therefore, in our opinion, in respect of the tax collected for the period before the date of the Amendment there could have been no validation of such collection. Hence, the Amending Act so far as it validates the collection of property tax by the BDA, cannot be sustained for a period prior to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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