# CORPORATION OF THE CITY OF AHMEDABAD, ETC v. NEW SHOROCK SPG. & WVG. CO., LTD., ETC. Aprfl 17, 1970

- **Citation:** [1971] 1 S.C.R. 288
- **Court:** Supreme Court of India
- **Decided:** 1971
- **Bench:** J. C. Shah, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/corporation-of-the-city-of-ahmedabad-etc-v-new-shorock-spg-wvg-co-ltd-etc-aprfl-5019
- **Pages:** 10

## Headnote

Bombay Provincial Municipal Corporation Act (59 of 1949), s. 152AScope of-Constitutional validity of s: 152A (3).
The appellant Corporation assessod the immovable properties of
the
rcsponden.ts to property-tax
for the year1964-65 and. 1965-66 on the
basis of the 'fl.at rate' method under· the
Bombay Provincial
Municipal
Corpcration Act, 1949.
The ass"'smen.ts were challenged in the
High
Court but the petitions \\-'ere dismissed.
While appeals were pending in
this Court, the appellant initiated proceedings for the recovery of the taxes
and attached the properties of the respondents. The respondents challeng_
cd tk attachement proce<din.gs but their petitions were ,again dismissed.
Jn appeals against those orders in this Court the respondents prayed for
interim stay, but this Court did not grant stay
because
the appellant
undertock to return the
amounts if the1 respondents
succeeded. This
Coull thereafter allowed the. appeals by the respondents.
Meanwhile an
amending Act entitled the Bombay
Provincial Municipal
Corporation
(Gujarat, Amendment) Act, 1968, was passed introducing s. 152A into the
1949 Act, but that provision was not brought to the notice of this Court.
However, whe·n, the respondents
demanded re.fund of the amounts
illegally collected from them the appellant did not comply and hence; the
respondrnts moved the High Court again. Those petitions were allowed
and the appellant appealed to this Court. While the appeals were pending,
tho Bombay Provincial Municipal Corporation (Gujarat Amen.dment and
Validity Provisions) Ordinance,
1969, was passed
and sub-s. (3)
was
intrnduced in s. !52A.
HELD: (!)Under s. !52A before a
Corporation can.
retain any
amount collected as property tax, there must be an. assessment according
to law.
But' in· the present case there were no asse'Ssment orders· in accordance with the provisions of the 1949 Act and the rules as amended
by the Amending Act, 1968. Therefore, the appellant was not entitled to
retain. the amounts collected as the section does not authorise the Corporation to .retain amounts illegally collected. [293 G; 294 DJ
(2) Sub-Section (3) of s. l52A commands the Corporation to refuse
to refund the amount illegally collected despite the orders of this Court
and the High Court.
It markes a direct inroad into the judicial powers
of the State. Thet Legislatures under the Constitution have, within prescribed limits, powers to make laws prospectively as well as retrospectively.
By exercise of those powe:rs
the legislature can. remove the basis of a
decision rendered by a competent court thereby rendering the decision
ineffective.
But, no legislature in
this Country has
power to ask
the
instrumentalities of the State to disobey or disregard the decisions l!iven
by courts. Therefore s, 152A(3), introduced by the
Ordi"'1nce is repugnant to the Constitution. f294 H; 295 A-C; 297 F]
Shri Prithvi'Co/lorr Mill• Ltd. v. Broach Borough Municipality {1970] I
S.C.R. Mahal Chand Sethia v.·State of West Bengal Cr. A. No. 75/69 di.
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MUNI. CORP., AHMEDABAD v. NEW SHOROCK co. (i-Jezde, J.) 289
10-9-69 and Janpada Sabha, Ch!!indwara v. Ce'ntral Provinces Syndical
'Ltd. and- State of Madhya Pradesh v.
An1alga111aled
c:oal
Fields .lll
·(1970] 3·s.C.R. 745, followed.
·
The apart it authorises tlic Corp:Jration to retain the am·ounls illej!,"3.l!y
·collectetl and treat them as loans, that is, authorisCs the collection or ···,rccJ
Joans which is impermissible under the Constitution.
State of M"dhya Pradesh v. '-R.anbjirao Shinde, [1968] 3 S.C.R. 489,
followed.
CIVIL APPELLATE/ORIGINAL JURISDICTION:
Civil Appea\5
Nos. 2062 to 2064, 2072 and 2251 of 1968.
_Appeals from the',judgment and order aated July 3, 4, 1969 of
the Gujarat High O~urt in Special Civil Applications Nos. 52 of
C
1969 etc.
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E
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and
Writ I'etitions Nos·. 5-1., 52 a;nd 57 to 60 of 1970.
Petitions under Art. 32 of the Constitution of. India for the
enforcement of fundamental right~.
,
.
B. Sen and I. N. Shroff, for the

## Text

288
MUNICIPAL
CORPORATION
OF
THE
CITY
OF
AHMEDABAD, ETC.
V.
NEW SHOROCK SPG. & WVG. CO., LTD., ETC.
Aprfl 17, 1970
(J. C. SHAH AND K. S. HEGDE, JJ.J
Bombay Provincial Municipal Corporation Act (59 of 1949), s. 152AScope of-Constitutional validity of s: 152A (3).
The appellant Corporation assessod the immovable properties of
the
rcsponden.ts to property-tax
for the year1964-65 and. 1965-66 on the
basis of the 'fl.at rate' method under· the
Bombay Provincial
Municipal
Corpcration Act, 1949.
The ass"'smen.ts were challenged in the
High
Court but the petitions \\-'ere dismissed.
While appeals were pending in
this Court, the appellant initiated proceedings for the recovery of the taxes
and attached the properties of the respondents. The respondents challeng_
cd tk attachement proce<din.gs but their petitions were ,again dismissed.
Jn appeals against those orders in this Court the respondents prayed for
interim stay, but this Court did not grant stay
because
the appellant
undertock to return the
amounts if the1 respondents
succeeded. This
Coull thereafter allowed the. appeals by the respondents.
Meanwhile an
amending Act entitled the Bombay
Provincial Municipal
Corporation
(Gujarat, Amendment) Act, 1968, was passed introducing s. 152A into the
1949 Act, but that provision was not brought to the notice of this Court.
However, whe·n, the respondents
demanded re.fund of the amounts
illegally collected from them the appellant did not comply and hence; the
respondrnts moved the High Court again. Those petitions were allowed
and the appellant appealed to this Court. While the appeals were pending,
tho Bombay Provincial Municipal Corporation (Gujarat Amen.dment and
Validity Provisions) Ordinance,
1969, was passed
and sub-s. (3)
was
intrnduced in s. !52A.
HELD: (!)Under s. !52A before a
Corporation can.
retain any
amount collected as property tax, there must be an. assessment according
to law.
But' in· the present case there were no asse'Ssment orders· in accordance with the provisions of the 1949 Act and the rules as amended
by the Amending Act, 1968. Therefore, the appellant was not entitled to
retain. the amounts collected as the section does not authorise the Corporation to .retain amounts illegally collected. [293 G; 294 DJ
(2) Sub-Section (3) of s. l52A commands the Corporation to refuse
to refund the amount illegally collected despite the orders of this Court
and the High Court.
It markes a direct inroad into the judicial powers
of the State. Thet Legislatures under the Constitution have, within prescribed limits, powers to make laws prospectively as well as retrospectively.
By exercise of those powe:rs
the legislature can. remove the basis of a
decision rendered by a competent court thereby rendering the decision
ineffective.
But, no legislature in
this Country has
power to ask
the
instrumentalities of the State to disobey or disregard the decisions l!iven
by courts. Therefore s, 152A(3), introduced by the
Ordi"'1nce is repugnant to the Constitution. f294 H; 295 A-C; 297 F]
Shri Prithvi'Co/lorr Mill• Ltd. v. Broach Borough Municipality {1970] I
S.C.R. Mahal Chand Sethia v.·State of West Bengal Cr. A. No. 75/69 di.
A
B
c
D
E
F
G
H
A
B
MUNI. CORP., AHMEDABAD v. NEW SHOROCK co. (i-Jezde, J.) 289
10-9-69 and Janpada Sabha, Ch!!indwara v. Ce'ntral Provinces Syndical
'Ltd. and- State of Madhya Pradesh v.
An1alga111aled
c:oal
Fields .lll
·(1970] 3·s.C.R. 745, followed.
·
The apart it authorises tlic Corp:Jration to retain the am·ounls illej!,"3.l!y
·collectetl and treat them as loans, that is, authorisCs the collection or ···,rccJ
Joans which is impermissible under the Constitution.
State of M"dhya Pradesh v. '-R.anbjirao Shinde, [1968] 3 S.C.R. 489,
followed.
CIVIL APPELLATE/ORIGINAL JURISDICTION:
Civil Appea\5
Nos. 2062 to 2064, 2072 and 2251 of 1968.
_Appeals from the',judgment and order aated July 3, 4, 1969 of
the Gujarat High O~urt in Special Civil Applications Nos. 52 of
C
1969 etc.
D
E
~
and
Writ I'etitions Nos·. 5-1., 52 a;nd 57 to 60 of 1970.
Petitions under Art. 32 of the Constitution of. India for the
enforcement of fundamental right~.
,
.
B. Sen and I. N. Shroff, for the appellants (in .C.A. Nok206~
ot 1969) and resp'ondent Nos. 2 to 4 (in W.P. Nos: 59 and 60 of
1970).
.
M. c. Seta/vad and l. N. Shroff, for the ~ppel!ants (in C.A.
No. 2063 of 1969) and respon9ents Nos. 2 to 4 (in W.P. Nos.
51 and 52 of 1970.
I. N. Shroff, for the appellants. (in C.A. Nos. 2064, 2072 and
2251 of 1969) and respondent Nqs. 2 to 4 (in W.P. No. 57 and
58 of 1970).
S: T: Desai, R. N. Bannerjee, K. M. Desai and Ravinder Narain,
for respond6,nts· (in all the appeals) and the petitioners (in all the
petitions). ,,
B. D. Sharma and R. N. Sachthey, for 'respondent No. 1 (in all
the petitions).
T1'e Judgmeint of the Court was delivered, by
Iiegde, J.
These are connected
proceedings.
Herein
the
\"3lidity at well as the interpretation of some of the ·provisions of
the Eombay Provincial Municipal Corporation Act, 1949 (Act
59 of J 949) (to be hereina'fter r~ferred to as the Act) as amer dd
from time to time by the Gujarat State comes up for considerarion. In these proceedings--s9me of the Textile Mi!ls of Alimeda-.
bad are ranged against the Sfate·o.f Gujarat as well as the Municipal Corporation of the City of Ahmedabad. They are seeking to
get refund of some amount~ paid as proper!~· tax, by them, which
annocmr~ according to them were illegally collected from them.
l
290
SUPREME COURT REPORTS
(1971] l S.C.R.
In order to understand the controversies involved in these
proceedings, it is best to set out the course of events leading upto
t!Jese proceedings.
Various Textile Mills which are involved in
ti1ese cases will hereafter be
referred to as the
"companies".·
These companies own immovable properties coasisting of lands
and buildings in th~ city of Ahmedabad. · The Municipal Corporation of the City of Ahmedabad (which will hereinafter be referred to as the "Corporation") in the purported exercise of its
power under the Act and the rules framed thereun.ier assessed
the immovable properties of the companies to property tax for the
assessment years 1964-.65 and 1965-66. Those assessments were
done on the basis of the method popularly known as ''flat ra1e"
meil'od. According to that method in valuing the lands, the value
of plants and machinery were also taken into consideration. The
buildings were assessed on •he basis of their floor area. Those
assessments were challenged by means of writ
petitions under
Arts. 226 and 227 of the Constitution before the High Court of
Gujarat, by the companies.
Those petitions were dismissed by
the High Court. The aggrieved companies thereafter brought up
the matters in appeal to this Court. During the pendency of those
appeals, the Corporation proceeded to assess those companies
as well as others to property tax for the assessment year 1966-67.
Those assessments. were challenged before this Court by some of
the companies by means of writ petitions under Art. 32 of the
Constitution. Meanwhile on the strength of the assessment made
for the assessment years 1964-65 and 1965-66, the Corporation
initiated proceedings for recovery of the taxes due under those
assessments.
Some of the companies paid the tax assessed but
some others including the New Manek Chowk Spinning and Weaving Mills Co. Ltd. did not pay the tax levied on them. Hence the
Officers of the Corporation resorted to the attachment of their
properties. At that stage, those companies challenged the validity
of those attachment proceedings before the High Court of Gujarat
under Art. 226 of the Constitution.
Those writ petitions were
dismissed.
The High Court also refused to grant
certificates
under Art. !33(1) of the Constitution. But the concerned companies appealed to this Court after obtaining special leave from
this Court.
In those appeals, those companies prayed for an
interim stay of the recovery proceedings.
This Court declined
10 stay the proceedings in view of the undertaking given on behalf
of the Corporation to refund the tax collected within a month
from the date of the judgment of this Court, if those companies
succeedt.'<i in the writ petitions before this Court. By its judgment
dated February 21, 1967, this Court struck down the rules framed under the Act permitting the Corporation to value the lands
and buildings on the "flat rate" method. This Court opined that
it was not permissible for the Corporation to value the premises
on the basis of the floor area nor could it take into consideration
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MUNI. CORP., AHMEDABAD v. NEW. SHOROCK co. (Hegde, J.) 291"
the value of plants and machinery in determining the rateable
value of the lands and buildings.
That decision is reported in
[1967]2, Supreme Comt Reports p. 679 (New Manek Chowk
Spinning and Weaving Mills Co. Ltd. and ors. v. Municipal Cor-·
poration of the City of Alimedabad and ors.
In view of that
conclusion the assessments impugned in the writ petitions were
set aside.
The judgment of this Court dealt with the validity
of the
assessment for the year 1966-67. But at the time when that judgment was delivered, the appeals filed by some of the companies
in respect of the asse~sment made for the years 1964-65 and
1965-66, were still pending in this Court. On March 30, 1968,
the State of Gujarat brought into force an Act entitled, Bombay
Provincial Municipal Corporation
(Gujarat Amendment) Act.
1968 (hereinafter referred to as the amending Act). The appeals
filed by the companies in this Court came up for hearing on April
15, 1968. This Court allowed those appeals following its decision
in New Manek Chowk Spg. and Weaving Mills Co. Ltd. and ors.
case (supra). When those appeals were heard «either the State
of Gujarat, nor the Corporation brought to the notice of this Court,
the provisions of the amending Act.
After the judgment of this
Court in those appeals, the concerned companies called upon the
Corporation to refund the amounts illegally collected from them
as property taxes for the assessment years 1964-65 and 1965-66.
The Corporation did not respond to the demands made by those
companies. Hence they again moved the High Court of Gujarar
under Art. 226 of the Constitution seeking writs of Mandamus
against the Corporation and its Officers directing them to refund
the amo\ints illegally collected from them and for a declaration
that s. l 52A of the Act newly introduced by the amending Act
is ultra vires the Constitution. The High Court of Gujarat allowed those petitions.
That Court did not go into the vires of s.
l 52A but on a construction of that provision, it came to the conclusion that the said provision did not permit the Corporation to
withhold the amounts illegally collected. The appeals with which
we are concerned now were filed by the State of Gujarat and the
Corporation against that decision. During the pendency of those·
appeals, the Corporation moved this Court to stay the operation
of the judgment of the High Court pendinQ;
disposal of those
appeals.
Th.ose applications came up for hearing on November
5. 1969. On that date, this Court stayed the operation of t!-e
judgment of the High Court of Gujarat on the Corporation undertal-ing to pay interest on the amounts i!l questior, at 6% per
annum from the date on which they were collected till the date
of refund in the event of the ~nneq]s failing.
A few dav< thereafter, the Corporatiou moved this Court to mcdify that order. It
wanted to resile from the undertaking given by it.
Hence this
SUPREME COURI Rf PORl;S
[1971] I S.::.R.
.( ourt 111odilied its earlier order and dismissed the stay appli~a
•ions on December 9, J 969.
On 'Or about December 2J. 1959
the Governpr of' Gujarat promulgated an Ordinance und~r Ari.
.213 of the Constitution entitled Bombay Provincial Municj;ial
·Corporation
(Gujarat Amendment and Validating Provis;~--,,
Ordinance. 1969.
This Ordinance will bt herein•':"' referrd
to as "the Ordinance".
Th_at Ordinance cal'~~ ,into effect im111ediately.
By means of that Ordinance. :.'new sub-section nan;ely
.'l1b-s. (3) was introduced into s. l52A. The effect of the insertio.:
of sub-s. ( 3) in s. I 52A is ,fo authorise the Corporation and i<s
Officers to rcf'llse to refund 'the amount of tax illegally collectd
despite the <;>rders of this Court as wel) as the Gujarat High Court
till the assessment or re<i~sessment ·of prqperty t?X is made in
.accordance ·with, the provision·s of_the Act as amended, But unde!·
its provisions, the Corporation is required to pay interest at (,'.~
on the amount ultimately found liable to be re.funded,
In lhe
wrif petitions under consideration the vajidity of the aforem~n
·1oined provision is challenged.
This,. in brief is _the history '''
1hese.
c~ses'.".
In th~{e proceeclings three questions of law arise fpr decisit'n
nanlely (I) What is the true scope of s. l 52A (2) ls that pr"·
vision ult'ra vires any of the provisions of the-Constitution and 13)
ls sub-s. (3 i of s. I 52A' ( introduced"by th~ o·rdinance) violative
of the Constitution?
Section I 52A reads as follows :
"(I) in tbc City of Ahmedabad i( in respec.t of ·
premises included in the assessment
book relating to
Spedal Property Sect:on, the levy, assessment, collection or recovery,..of any of the property taxes for any
·Official year preceding. the official year commencing on
the I st ~pril 1968 is affected by a decree or order of a
cpurt on the ground that the determination of' tlle rateable value of the premises on the basis of rental value.
per foot of the floor area was not according to law or
'that sub-rules ( 2) and ( 3) of rule 7 of the rules contained in Ch?pter VI I I of Schedule A to this Act were
'invalid, then it sl)all be lawful for the Municipal Corporntion of the City of Ahmedabad to«assess or reassess in
respect of such premises any such property tax for any
such official year at the rates applicable for that year in
·accordance with the provisions of this Act and the rule>
as amended by ihe Bombay Pr0vincial Municipal Corporations, (Gujarat Amendment) Act, 1968, as ,if the
said Act had been 'in force during the year for which
·any such tax is to be assessed ·or reassessed; and accord-
'ingly 1he rateable -..alne of lands aflq huildings in such
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MUNCPL. CORP., AHMEDABAD v. NEW SHOROCK co. (Hegde, J.)293
premises may be fixed and any such tax, when assessed
or reassessed may be levied, collected and recovered by
the said Corporation and the provisions of this Act and
the rules shall so far as may be apply to such levy, collection and recovery and the fixation of rateable value
and the assessment or reassessment, levy collection and
recovery of any such tax under this section shall be
valid and shall not be caUed in question on the ground
that the same were in any way inconsistent with the provisions of this Act and the rules as in force prior to the
commencement of the said Act :
Provided that if in respect of any such premises the
amount of tax assessed or reassessed for any year in
accordance with the provisions of this section exccds
t.he amount of tax which but for the decree or order of
the court as aforesaid could have been assessed for that
year in re>pect of the premises, then the amount of tax
to be levieJ for· that year in respect of the premises in
uccortlance with the provisions of this section shall be
an amount arrived at after deducting from the ainount
of tax so assessw or reassessed such amount as may b~
equal to the amount as so in excess.
(2) Where any such property tax in respect of any
su.:h premises is
assessed or reaS>essed under
subsection ( 1) for any official year and in respect of the
same premises, the property tax for that year has already been collected or recovered, then the amount of
tax so collected or recovered shall be taken into account
in determining· the amount of tax to be levied and collected under sub-section ( 1) and if the amount already
collected or recovered exceeds the
amount to be so
levied and collected, the excess shall be refunded in accordance with the rules."
We are in agreement with the .High Court that this section
does not empower the Corporation to retain the amounts illegally
collected as property tax.
Under this section before a Corporation can retain any amount collected as property tax, there must
be an assessment according to law.
What the section authorises
the Corporation is that despite the fact that certain assessments
have been set aside by courts, it shall be lawful for the Cocporation to assess or reassess the premises concerned in thme d~c sion,
to property tax for the concerned assessment years at the rate,
applicable for those years in accordance with the provisions of the
Act and the rules as amended by the amending Act as if the soid
Act has been in force during the years for which such tax is to
be assessed or reassessed and accordingly fix the rateable value of
L 12 Sup Cl 70-5
SUPREME COURT
REPOJl.f.~,
[1971] l S.C.R.
A
lands
an~. buil.d_ings of those premises. .~nd assess or reassess
the tax payable and when the tax is so assessed or reassessed,
the tax so assesse.d, !Ilay .Pe leyied, · co)l!"cted and. recovered
by the. Corporation and for that purpose the provision~ of the
amending Act and the rule's §hall, so far as. may, be apply to such
collection and proceedings preceding those collection,s. , That
provision further says that.the fixation of,rateable. value so.made" B
and the collection and ~ecove!"Y of sucjl tax shall: be valid and. shall
not be ,called in questipn on the ground t!iat ihe same were in any
way incoqsis\ent with the provisions of tqe di.ct and the rules in
force prior to the commencement 9f the, amending Act.
The
section also authorises the Corpor!ltion.to dedudt from, the amounts
earlier illegally collected the tax 'asse~sed according to law.
All
that the proviso to that s~ction says is that the Corporation shall
pay simple interest at ·the rate of,six pe.r' centum for annum on the
amount of exces.s Iiabl'e to be:refun'ded 'under sub-s. (2) from
!he date of the decree 'or ord~r of the court referred to in sub-s. ( 1)
to the date on which such~excess is refunded. At this ~fage it may
be noted that there had b~n -no assessment orders even when
these appeals ivere' heard. In view of our .above conclusion that
:s. I 52A does not ~uthonsy the Corporation to retain the amounts
illegally collected, it is unnecessary for !Js to examine the validity
.of that section.
•
This takes us to tli.e validity of sub-s. (3) of s.
duced into that section by means uf the Ordinance.
sion reads. :
·
!52A introfhat provi-
"Notwithstanding anything contained in any judgment, decree or order of any court, it shall be lawful,
and shall be deemed always to have been 'lawful, for
the Municipal Corporation of the City of Ahmedabad to
withhold refund of the amount already collected or re-
~overed in respect of any of the property taxes to which
sub-section (I) applies till assessment or reassessment
of such property taxes is made, and the amount of tax to
be lev;ed and collected is determi,ued under sub-
~ection (1) :
/
Provided that the Corporation shall pay simple interest at the rate of si,x per cent per annum on the
amount of excess
liable to be' refunded under subsection (2), from tlje date of decree or order of the
<:our! referred to in sub-section ( 1) to the date on which
such excess is refunded."
-
This is a strange provision. Prime facie that provision appears
lo command the Corporation to refuse .to refund the amount illega!ly collecfed despite the orders of this Court and the High Court.
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.MUNCPL. CORP., AHMEDAllAD v. NEW SHOROCK co. (Hegde, J.)295
The State of G.ujarat was not well advised in introducing this
provision.
That provision attempts to make a direct inroad into
the judicial powers of the State. The legislatures under our Constitution have within the μrescribed limits, powers to make Jaws
prospectively as well as retrospectively.
By
exercise of those
powers, ihe legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision in- .
effective.
But no legislature. in this country h~s power to ask
the instrumentalities of the State to
disobey or
disregard the
decisions given by courts. The limits of the power of legislatures
to interfere. with the directions issued by courts were considered
by several decisions of this Court.
In Shri Ptirhvi Cotton Mills
Ltd. and anr, v. The Broach Baro.ugh Municipality and ors. (1)
our present Chief Justice speaking for the Constitution Bench
of the Court observed :
"Before we examine s. 3 to find out whether it is
effective in its purpose or not we may say a few words
about validating statutes in general. When a legisbture
sets out to validate a tax declared by a court to be illegally collerted under an ineffective or an invalid Jaw,
the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectiv~ly.
The most important condition of course, is that the legislature must possess the power to impose the tax, for,
if it does not, the action must ever remain ·ineffective
and illegal.
Granted legislative competance, it is not
sufficient to declare merely that the decision of the court
shall not bind for that is tantamount to rever>ing the
decision in exercise of judicial power which the legislature does not possess or exercise. A court's deci>ion
must always bind unless the conditions on which it is
based are so fundamentally altered that the
decision
could net have been given in the altered circumstances.
Ordinarily, a court holds a tax to be invalidly imposed
because the power tc tax is wanting or the statute or th!
rules or both are invalid or do not sufficiently create
the jurisdiction. Validation of a tax so declared illegal
may be done only if <he grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal.
Sometime this
is done by providing for j1irisdiction where jurisdiction
had not been properly invested before.
Sometimes this
is done by re-enacting re-trospectively a valid and legal
taxing orovision and then by fiction making the tax already collected to stand under the re-enacted law."
I
U) [!9701 I S.C.R. 388
296
SUPREME COURT REPOB,TS
[1971] l S.C.R.
In Mehal Chand Sethia v. State of West Benga/(1), Mitter, l.
speaking for the Court stated the legal position in these words :
"The argument ·of counsel for the appellant was
that although it was open to the State Legislature by an
Act and the Governor by an Ordinance to amend the
West
Bengal
Criminal Law Amendment (Special
Courts) Act, 1949, it was incompetent for either of
them to validate an order of transfer which had already
been quashed by the issue of a writ of certiorari by the
High Court and the order of transfer being virtually
dead, could not be re-suscitated by the Governor or the
Legislature and the validating measures could not touch
any adjudication by the Court.
It appears to us that the High Court took the correct
view and the Fourth Special Court had clearly gone
wrong in its appreciation of the scope and effect of the
Validating Act and Ordinance. A legislature of a State
is competent to pass any measure which is within the
legislative competence under the Constitution of India.
Of course, this is subject to the provisions of Part III of
the Constitution.
Laws can be enacted either by the
Ordinance making power of a Governor or the Legislature of a State in respect of.the topics covered by the entries in the appropriate List in the Seventh Schedule to
the Constitution. Subject to the above !imitations laws
:an be prospective as also retrospective in
operation.
:ourt of law can pronounce upon the validity of any law
and declare the same to be null and void if it was beyond
the legislative competence of the legislature or if it infringed the rights enshrined in Part III of the Constitution .. Needless to add it can strike down or declare invalid any Act or direction of a State Government which
is not authorised by law. The position of a Legislature
is however different. It cannot declare any decision of
a court of law to be void or of no effect."
Again Shah. J. (one of us) in Janpada Sabha, Chhindwara
v.
The Central Provinces Syndicate Ltd. and anr. and State of
Madf.;a Pradesh v. Amalgamated Coal Fields Ltd. and anr.( 2 );
speaking for the Constitution Bench explained the legal position
in these words :
'The relevant words which purported to validate the
imposition. assessment and collection of cess on coal
may be recalled they are 'cesses imposed, assessed or
collected by the Board in pursuance of the notificat!ons'
(!)Cr. Appeal No. 75/69 decided on 10-9-1969.
(21 [19701 3 S.C.R.1745.
B
c
D
E
F
G
H
A
B
c
D
MUNCPL. CORP., AHMEDABAD v. NEW SHOROCK co. (Hegde, J.)297
notices specified in the Schedule shall, for all purposes,
be deemed to be, and to have always been validly imposed, assessed or collected as if the enactment under
which they were so issued stood amended at all material
times so as to empower the Board to issue the said notifications/ notices. Thereby the enactments, i.e. Act 4 of
1920 and the Rules, framed under the Act pursuant to
which the notifications and notices were issued, must
be deemed to have been amended by the Act. But the Act
does not set out the amendm~nts intended to be made
in the enactments. Act 18 of 1964 is a piece of clumsy
drafting. By a fiction it deems the Act of 1920 and the
rules framed thereunder to have been amended without
· disclosing the text or even the nature of the amendments."
Proceeding fUtther, it was observed :
"On the words used in the Act, it is plain that the
legislature attempted to overrule or set aside the decision
of this Court. That in our judgment, is not open to the
Legislature to do under our constitutional scheme. It
is op~n to the Legislature within certain limits to amend
the provisions of an Act retrospectively and to declare
what the law shall be deemed to have been, but it is not
. open to the Legislature to say that a judgment of a court
properly constituted and rendered in exercise of its
powers in a matter brought before it shall be deemed to
be ineffective and the interpretation of the law shall be
otherwise than as declared by the Court."
We are clearly of the opinion that sub-s. (3) of s. 152A introduced by the Ordinance is repugnant to our Constitution. That
f
· apart, the said provision authorities the Corporation to retain the
amounts illegally collected and treat them as Joans. That is an
authority to collect forced Joans.
Such conferment of power is
impermissible under our Constitution-see State of Madh.va Pradesh
v. Ranojirao Shinde and anr.(')
G
H
In the result, the above appeals are dismissed with co1ts and
the writ petitions allowed ands. 152A(3) is struck down.
The
petitioners are entitled to their costs in those petitions-one hearing fee both in the appeals and in the writ petitions.
Y.P.
Appeals dismissed.
(4) [1968] 3 S.C.R. 489.