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TMI Blog1981 (12) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... . Motors and Timbers (P.) Ltd. O. P. No. 4290 has been filed by A. Chokkanathan. Before referring to the questions of law and dealing with them, the brief factual details at these cases may be adverted to. 3. In O. P, No. 4987 of 1976 the petitioner had been operating a 1949 model vehicle, which due to its obviously obsolescent condition, could not be operated towards the fag end of the year 1971. The vehicle was garaged on 28-9-1971. Tax due in respect of the vehicle had been paid up to 30-0-1971'. In the light of the intimation furnished about the non-user of the vehicle, the 1st respondent-Regional Transport Officer granted exemption from payment of tax for the period from 1-10-1971 to 30-9-1975. 4. This exemption was granted under the provisions of the earlier enactment, Kerala Motor Vehicles Taxation Act, 1963, which was in force in the State till it was replaced by the Kerala Motor Vehicles Taxation Ordinance, 1975 (Ordinance 9 of 1975) promulgated by the Governor and was effective from 1-10-1'975. The Kerala Motor Vehicles Taxation Rules, 1975 were framed by the Government as per Notification No. 33942/ TC2/75/PW dated 29-9-1975 and published in the Kerala Gaze ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The fact that the vehicle which had no valid permit nor certificate of fitness for the period in question and that it had been off the road from 28-9-1971 and the further fact that the Regional Transport Authority itself had granted exemption for the period up to 30-9-l'975, had been emphasised in Ext. P3. The representation was, however, rejected by Ext. P4 dated 1-7-1976 on the ground of omission to furnish advance information relating to the non-user of the vehicle in accordance with Section 5(1) of the Act- An appeal Ext. P5 was taken by the petitioner against the above order before the 2nd respondent who rejected it by Ext, P6 order dated 22-10-1976. This order too, rested on the ground for rejection of the claim for exemption on the omission to give advance intimation about the non-user of the vehicle within one week of the commencement of the period to which the tax related. A further representation Ext. P7 dated 8-10-1976 was filed before the 1st respondent reiterating the non-user of the vehicle ever since 28-9-1971, and non-liability of the petitioner for tax under the Act, emphasising the aspects that the vehicle had no permit from 8-1-1975 and had not been used o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehicle on the roads in the State for the quarter ending 31-12-1975 and thereafter. The stand of the departmental authorities have been, however, that irrespective of such consideration, tax was exigible in respect of the vehicles for non-compliance with the Act and the Rules, which insist on an intimation being given in advance. Particular emphasis was made on the wording of the exemption section -- Section 5 -- where-under the operator was obliged to give previous intimation in writing about the intention not to use or keep for use the vehicle. In the present case, in respect of the quarter ending 31-12-1975 and commencing on 1-10-1975 admittedly there was no prior intimation. The respondents therefore contend that the claim of the writ petitioners is unjustified on merits. 10. The scheme of the Act and the Rules had been analysed recently by one of us (George Vadakkel, J.) in a recent decision-- O. P. No. 1802 of 1980. As observed by our learned brother: The Act has been enacted by virtue of the provision in Entry 57 in list 2 in Schedule VII of the Constitution. The said entry enables the State Legislature to enact on 'tax on vehicles, whether mechanically propelled o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carrier goods vehicle covered by National Permit issued by competent authorities of other State/Union Territories in India in pursuance of Sub-section (11) of Section 63 of the Motor' Vehicles Act, 1939 (Central Act IV of 1939) shall be paid by crossed demand drafts drawn in favour of the Secretary, State Transport Authority, Kerala, Trivandrum and payable at Tri-vandrum from any one of the Nationalised Banks. Rule. 10. Exemption from tax (Section 5 (1)) : (1) The previous intimation referred to in Sub-section (1) of Section 5 shall be made to the Regional Transport Officer concerned in Form G or in writing with the particulars required therein so as to reach him within one week from the date of commencement of the period for which exemption from payment of tax in respect of the vehicle is claimed due to non-use. (2) On receipt of the intimation, the Regional Transport Officer concerned shall certify, after such verification as may be deemed necessary, the non-use of the vehicle for the period for which tax is not payable, by making necessary endorsement in the certificate of registration of the vehicle, Note; The previous intimation referred to in this rule shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in terms of the section. 14. The interpretation of Section 5, however, presents certain difficulties due to the obscurity of the language in which it is couched. We shall presently demonstrate this strange phenomenon in the statutory provisions. The section provides that in the case of a motor vehicle which is not intended to be used or kept for use during the first month or the first and second months of a quarter, or the whole of a quarter or year, as the case may be the registered owner shall give previous intimation in writing . Take, for illustration, the quarter commencing on the 1st of January of a year. II the operator does not intend to use or keep for use the vehicle for January, he is enabled to make an application for exemption. So is the case if the intended non-user relates to January and February. If the non-user relates to January, February and March, then also exemption is contemplated if other conditions are satisfied. However, if the non-user relates to February, or February and March, the exemption will not be available, as the period of non-user does not answer the description 'first month', or 'the first and second months of a quarter' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic, then it is agreed that the intimation has been given within a week of the effective knowledge of the petitioner of the Rules, which among others include the manner in which application for exemption has to be made and the form in which such application has to be preferred. The question whether an operator is, therefore, bound to comply with the requirements of the Rules on the date on which the Gazette containing the same is, printed, will, therefore, arise for consideration, In other words, if the Gazette containing the Rules had been released only on 14-10-1975 and consequently the operator could have information about it only subsequently, the question is whether the Rules could be held to be effective from a date anterior to the date of release of the Gazette. 16. This direct question has been considered by a recent decision of the Andhra Pradesh High Court in G. Narayana Reddy v. State of Andhra Pradesh, (1975) 35 STC 319. A Division Bench of the Andhra Pradesh High Court consisting of Chinnappa Reddy and Madhava Reddy, JJ. held that notwithstanding the date of publication of the statutory notification under the Andhra Pradesh General Sales-tax Act, 1957 given as 1-12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with that during which there was progress 'towards a comprehensive system of administrative law', in England too, and which Lord Diplock regarded as having been the greatest achievement of the English Courts in my judicial lifetime --See IRC v. Federation of Self-Employed (1981) 2 All ER 93 at 104) will be a revealing feature to any students of constitutional history and law. In a sense, the expositions contained in Maneka Gandhi's case and its further amplifications in R. D. Shetty's case, AIR 1979 SC 1628, and Ajay Hasia's case, AIR 1981 SC 487, mark 'the commanding heights of the law', as against the 'twilight area of maladministration'. 19. The following passage occurring at p. 624 in Smt. Maneka Gandhi v. Union of India, AIR 1978 SC 597, is the index-finger of approach of courts towards law and legal procedure: Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete . We have referred to this aspect only to point out that a well-known distinction exists between a Parliamentary enactment and a subordinate legislation. 22. This vital distinction between the legislative exercise of a sovereign Parliament and the subordinate functioning of delegate of legislature had been noted by the Indian High Courts, soon after the advent of the Constitution. Even in respect of rule-making powers, the fact that a subordinate functionary or a delegate of legislative power could not make provisions with retrospective effect unless such a power is conferred expressly by the very parent statute, had been held by two decisions of 1956 in Modi Food Products Ltd. v. Commr. of Sales Tax, U. P. AIR 1956 All 35 and M. L Bagga v. C. Murhar Rao AIR 1956 Hyd 35. The Allahabad High Court in the decision referred to above observed as follows (at p 39 of AIR 1956 All):-- A legislature can certainly give retrospective effect to pieces of legislation passed by it but an executive Government exercising subordinate and delegated legislative powers, cannot make legislation retrospective in effect unless that power is expressly conferred. The same question was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Supreme Court decisions have been noted in a Full Bench decision of this court in T. C. Sreednaran Pilial v. State of Kerala, 1973 Ker LT 151 : (1973 Lab IC 722). 25. This difference between an act of legislature and a subordinate legislation, had been dealt with by Maxwell while discussing the retrospective effect of a legislative enactment. While it has been noted that an Act of Parliament can be effective from the date on which the Act receives the Royal assent, the position in relation to statutory instruments was held to be different. This difference had been clearly brought out in the decision in Johnson v. Sargant Sons (1918) I KB 101. Maxwell refers to that case with the following observation: According to a decision of Bailhache J., statutory instruments do not come into operation the day on which they are made, but on the day on which they are first made available or known to the public or to the person whom it is sought to affect by them. See Maxwell on the Interpretation of Statutes, 12th Edition pp. 15 and 16. Bail-bache, J., in the decision aforesaid, adverted to the argument (given at page 102 of the report) of the defence counsel: The Order be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds). The law must be open and dequately publicised. If it is to guide people they must be able to find out what it is. (see pp. 198 and 199) Adequate publicity to those from whom law expects obedience thereto, has thus been held as a basic requirement of the law itself. 28. We do not wish to expatiate on the basis of the law to a greater extent than is necessary for the purpose of this case. It may, however, be desirable to bear in mind that law by its very accepted definition consists of the rules recognised and acted on by courts of justice (see Salmond on Jurisprudence, eleventh edition, Chapter 2, note 17, page 41 under the title 'Definition of Law'). While discussing the concept of justice according to Law , Salmond states that justice demands that a man should not be punished except for breach of a knowable rule . Again the author stated: Laws are in theory, as Hooker says, 'the voices of right reason' they are in theory the utterances of Justice speaking to men by the mouth of the State . The necessity that a rule should be known, has again been emphasised by him when he statess It is often more important that a rule should be definite, certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be readily comprehensible to and sensibly organised for those who work with it, and that it should also make as much sense as possible to the non-professionals whose lives are regulated by it. At present we have no way of knowing how far the second of these desiderate is or is not met. 31. The necessity for adequate publicity of the Rules to be known to those from whom law expected obedience, had been clearly noted by the decisions of our Supreme Court, soon after the advent of the Constitution. We need therefore only refer to those decisions and formulate, what, according to us, are the correct principles which emerge from the decisions of the Supreme Court on this aspect. We shall presently deal with this. 32. The Supreme Court in Harla T. State of Rajasthan, AIR 1951 SC 457 speaking through Bose, J. (who had been held in such high esteem and whose celebrated judgments had elicited appreciation from and recognition of English Judges by having been quoted with approval in England, as is seen, for example, in R. v. Brixton Prison (Governor) (1963) 2 QB 243, which paid tributes to the judgment of Bose, J. in Muller v. Superintendent, Presidency Jail, Calcutta 1955 Inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promulgation thereof and that they shall come into effect from the moment at which their promulgation can have been known . So also it has been applied in India in, for instance, matters arising under Rule 119, Defence of India Rules. See, for example. Emperor Crown v. Manghumal Tekumal ILR (1944) Kar 107 : (AIR 1944 Sind 142), Shakoor v. Emperor (AIR 1944 Nag 40) and Babulal v. King Emperor ILR (1945) Nag 762 : AIR 1945 Nag 218. It is true, none of these cases is analogous to the one before us but they are only particular applications of a deeper rule which is founded on natural justice. 33. The necessity for such a requirement of adequate publication was again insisted upon in a decision which went to the Supreme Court from the State of Kerala. The absence of adequate publication led to the invalidation of an excise levy in that case. The Supreme Court held in that case as follows (at pp. 299, 300 of AIR 1958 SC) : The rules, which included Rule 7 under which the licences in question had been issued have been published in Cochin Sarkar Gazette and those rules have the force of law and have to be read as part of the Act and can only be varied, suspended or annulled in lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on the basis of Section 38(1) of the City of Bangalore Municipal Corporation Act (69 of 1949) which contained a saving provision in the following terms (at p. 563): No act done, or proceeding taken under this Act shall be questioned merely on the ground - (a)..... (b) of any defect or Irregularity in such act or proceeding, not affecting the merits of the case. It was in the above background and having regard to the provision of Section 38(1), which, according to the Supreme Court, was unambiguous and clear, that the levy was upheld, observing that mere failure to notify the final resolution of the imposition of the tax in the Government Gazette is not fatal to the legality of the imposition. 35. The question was considered again in the decision of the Supreme Court in State of Maharashtra V. Mayer Hans George AIR 1965 SC 722. It is necessary to bear in mind that in that case, a notification under the Foreign Exchange 'Regulation Act, 1947 had been published by the Government in the Gazette. and the notification purported to have effect only from the date of publication in the Gazette. There was no contention in that case that the publication was not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of smuggling would be entirely frustrated if a condition were to be read into Section 8(1) or Section 23(1-A) of the Act qualifying the plain words of the enactment, that the accused should be proved to have knowledge that he was contravening the law before he could be held to have contravened the provision. The observations of Subba Rao, J- in the minority judgment may also be usefully extracted in this connection (at p. 732) : Even so it is contended that the notification dated November 8, 1982, is law and that the maxim 'ignorance of law is no defence' applies to the breach of the said law. To state it differently, the argument is that even the mental condition of knowledge on the part of a person is imported into the notification; the said knowledge is imputed to him by the force of the said maxim. Assuming that the notification dated Nov. 8, 1962. is a delegated legislation, I find it difficult to invoke that maxim as the statute empowering the Reserve Bank of India to give the permission, or the rules made thereunder do not prescribe the mode of publication of the notification. Indeed a similar question arose before the Privy Council in 1963 AC 160 and a simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice, though, I have no doubt, that the learned Judge did not mean to add to the two great principles of natural justice. Nemo judex in causa sua and audi alteram partem-What the learned Judge meant was that the principle that there can be no law that is not published or promulgated is as true a principle of justice and fair play as any principle of natural justice. Judges in India are brought to administer law according to the principle of justice, equity and good conscience - After referring to Harla's case (AIR 1951 SC 467) and quoting from that judgment the passage referred to earlier herein, Chinnappa Reddy, J. proceeded to observe (at p. 1370 of 1972 Lab IC) : I most respectfully agree that the Idea that a person may be governed by a law that cannot be known by him because it is not published or promulgated is revolting to judicial conscience and civilised thought. It has with it a strong odour of totalitarianism and of the Gestapo. It is repugnant to the Principles of Justice, Freedom, Equality and Fraternity, cherished by all lovers of Democracy and enshrined in our Constitution. With respect, we wholly endorse the view and share the sentiments. 37. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive date, though the publication of the notification happened to be later. The Division Bench summarised the legal position as follows: The result again is that, in a case like this, the mere making of the subordinate legislation is sufficient to give validity to it : publication is not necessary for bringing it into force or giving it validity. Harla's case was distinguished in the following words : We may also point out that the facts in Harla's case AIR 1951 SC 467, were different, the Jaipur Opium Act could not have been said to have been made; there was only a resolution by the Council of Ministers. And we may also add that this case does not appear to have been considered in Mayer Hans George's case AIR 1965 SC 722 . 39. Reliance was also placed by the Division Bench on the comments made by Alien in relation to the decision in Johnson v. Sargant (1918) 1 KB 101 as referred to in the 1965 edition of 'Law and Orders'. 40. With respect, we feel that the approach of the Division Bench on this question had not been correct. It may be noticed that the decision in Mayer Hans George's case, AIR 1965 SC 722, did not hold that the view of Bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of State is essentially an official act, and there is a presumption that such an act was in fact done. The provision as to notice is directory only, and is not a condition precedent : Le Feuvre v. Miller (1857) 8 E B 321. It was not a case where the Coal Mines Order had not been published by the Government. The following passage occurring at page 676 of the report will make the position dear : The justices were of opinion as to contention 1, that the Government printers' copy was in itself sufficient evidence of the alleged order of July 24, 1899, having been made by a Secretary of State, and of a direction by him as to the manner in which notice should be given of the making of such order, and that the sending of the order by the agent of the colliery to the appellant was also sufficient evidence of such notice having been given within the meaning of Section 6 of the Coal Mines Regulation Act, 1896. It is thus evident that a statutory order had been printed by the Queen's printer. Such publication of the Order by the Queen's printer was contended as sufficient notice of the making of the Order. Even personal service of the Order on the affected person was e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eo ne fuit bien batu, quasi diceret, le ley per bon disputacion serra bien conus'. (Y. B. 11 Hen. 4, Mich. fo. 37). 45. The observations of Bailhache, J. had commenced themselves for acceptance by the Supreme Court of India in Harla's case AIR 1951 SC 467. According to us, it contains a more reasonable and rational view as regards the operation of, and coming into effect of, a rule, which acts on, and affects, the rights of the citizens. That interpretation is more in accordance with the democratic functioning of the limits of the State and with the constitutional scheme of making and implementing laws, as correctly observed by one of us (Poti, J.) and Chin-nappa Reddy, J. It may be remembered in this connection that while English enactments are beyond the doctrine of ultra vires the position is different in other systems with written constitution and its concomitant importation of the doctrine of ultra vires. As Allen himself remarks at p. 446 of 'Law in the Making' by Sir Carleton Kemp Allen, 7th edition : It goes without saying that we do not recognize the distinction, which exists in countries like France and the United States, between 'organic' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate legislation will take effect from the date on which it is made and the absence of publication will not invalidate it. We cannot agree with the finding of the Division Bench that the decision in Mayer Hans George's case AIR 1965 SC 722, was authority for the proposition that the subordinate legislation comes into force on the date on which it is made. 48. The two sentences in which the decision of the Supreme Court in Harla's case (AIR 1951 SC 467) was considered and sought to be distinguished by the Division Bench, read (at p. 885 of 1973 Ker LT 880) : We may also point out that the facts in Harla's case, AIR 1951 SC 467 were different : the Jaipur Opium Act could not have been said to have been made : there was only a resolution by the Council of Ministers. And we may also add that this case does not appear to have been considered in Mayer Hans George's case, AIR 1965 SC 722. We do not think that the reasoning in Harla's case about the basic requirement of adequate publicity of any legislative action, could be distinguished on such tenuous grounds, 49. In Jaipur, it was conceded that the Ruler had full powers of legislation When in 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force or giving validity , is wrongly decided. The views expressed by one of us (Poti, J.) in Gracy v. State of Kerala 1972 KLT 141 : (1972 Lab IC 1367), and by Chinnappa Reddy, J. in R Narayana Reddy v. State of A. P. (1969) 1 Andh WR 77 represent the correct position in law. We overrule the decision of the Division Bench in Kochu-sara's case 1973 Ker LT 880. 53. Before parting with the case, we may also note that Section 28 of the Act, which confers rule-making powers on the Government, provides that such rules are to be made by notification in the Gazette. And as stated earlier, the Gazette containing the notification relating to the Rules in question had been released only on 14-10-1975. 54. In the light of our foregoing discussion, the applications for exemption are to be treated as within time. Consequently, the demand for vehicles tax for those periods is unjustified. 55. In the result, we allow original petitions Nos. 4987, 4990 and 4290 of 1976 and quash Exts. P4 and P6 in both writ petitions to the extent they direct payment of vehicles tax for the period 1-10-1975 to 31-12-1975 in respect of the vehicle No. KLT 1081 in O. P. No. 4987 of 1'976 and vehicl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concession made by the learned Advocate General to which I adverted in the preceding paragraph will not mitigate the rigour of Section 5(1) of the Act requiring 'previous intimation in writing' -- intimation before the period for which exemption is sought for begins to run -- if the said requirement is held to be of a mandatory character. As already said I am of the view that it is not so. In that view and in the above said situation arising in this case, namely, no solution to the question as to whether exemption can be claimed for October 1975 on the ground that the Rules came into force only on 14-10-1975 can be found merely by examining as to when the said Rules came into force, I refrain myself from expressing any opinion on the larger question mooted; when does a legislation framed by a delegate of the legislator by virtue of power conferred on him to make such legislation come into force,-- when it is framed?; when it is published? when the factum of such legislation is notified? which may be done even without publication of the Rules in the official Gazette; or only when the same, generally speaking, reaches the hands of those for whom it is intended. The answer t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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