# JAWAHARMAL v. STATE OF RAJASTHAN AND OTHERS

- **Citation:** [1966] 1 S.C.R. 890
- **Court:** Supreme Court of India
- **Decided:** 1965-09-22
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. HillAYATULLAH, J.C. Shah Ands. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jawaharmal-v-state-of-rajasthan-and-others-3660
- **Pages:** 18

## Headnote

A
B
Raja,s,than Passengers and Goods Taxation (Amendment and Validation.) Act 1964 (22 of 1964), ss. 2
and 4--Act validating
State
Finance Acts of 1961 and 1962-Whether legislature can itself validate
defect caused by non-observance of Art. 255 of the Constitu1ion---Retros-
('ective taxation whether valid an(i reasonable.
C
The Rajasthan State Legislature passed Act 18 of 1959 to levy taX
on passengers and goods carried in motor vehicles.
For the pu.rpose of
the tax roads were divided into two categories i.e. those which were
asphalted etc .. and those which were not. ln respect of goods carried on
the former category of roads the State Government was authorised by .s. 3
of the Act to levy tax at a maximum of tth of the value of the fares and
freights; in respect of goods carried on the second category of roaci.9'
the maximum \Vas 1/ 12th. By a notification under the Act the maximum
rates were levied with effect from May 1, 1959.
The said s. 3 was
amended by the Finance Acts of 1961 and 1962 to raise the maximum
rates Ieviable under that section and the relevant notifications actually
levied the sam<:.
The Acts of 1961 and 1962 however suffered from
the infirmity that the assent of the President had not been obtainet;f in
respect of them as required by Art. 255 of the Constitution.
To cure
the defect Ordinance No. 4 of 1964 was issued.
The Ordinance was
replaced on September 9, 1964 by Act 22 of 1964 for wbich the asoent
of the President was duly obtained.
Section 2 of the Act of 1964
retrospectively re·-enacted the amendments to s. 3 of the principaJ Act
made by the Acts of 1961 and 1962.
Section 4 of the Act validated
all the collections and levies under the earlier Acts and also purported
to cure tlie infirmity in the said earlier Act arising from non-compliance
with Art. 255.
The petitioner who was asked to pay tax under the
Ordinance of 1964 challenged the validity of the said Ordinance as well
as the. Act of 1964 in petitions under Art 32 of the Constitution of
India.
It was contended on behalf of the petitioners that ss. 2 and 4 of the
impugned Act purported to validate the earlier invalid Finance Act of
1961 and 1964.
It was urged that the failure Qf the legislature to comply with the provisions of Art. 255 rendered the said Acts void ab initio
and as such they could not be validated by sub<.>equent legislation. It was
further urged that the said earlier Acts had been held invalid by the
Rajasthan High Court in the case of Vijai Singh and it would be incompetent to the State Legislature to validate the said Acts in spite of the
decision of a court ~competent jurisdiction.
HELD : (i) It was factually not correct to say that the Acts of
1961 and 1962 had been struck down as void ab initio by a court of
competent jurisdiction.
The High Court in Vijai Singh's case had on
the other hand though H unnecessary to pronounce its coo9idered opinion
on that as~ect of the matter.
Act 22 of 1964 was passed on September
9, 1964 while the judgment of the High' Court was delivered in NovemD
E
F
G
H
-
...
1
-
JAWAHARMAL v. STATE (Gajendragadkar, C.J.)
891
A ber 1%4, and so at the time when the Act was passed the earlier Finance
Acts had not been struck down at all. [899 B-E]
B
c
D
E
F
0
H
Vijai Singh and Another v. Deputy Co1nmissioner, Excise & Tax:ztlon (Appeals) Aimer and Kotah Divisions, Jaipur & Ors. I.L.R. (1960)
15 Raj. 285, referred to,
(ii) An Act which suffers from the infirmity that it does not comply
with the requirements of Art. 255 can be validated by subsequent legislation.
Article 2)5 itself provides- that no Act of the Legislature or a
State and no provision in any such Act shall be invalid by reason only
that son1e recommendation or previous sanction required by the, Constituuon was not given, if assent to the Act wa9 given by the President
later. If an Act is passed without obtaining the previous assent of the
President it does not become void but remains unenforceable till such
~_ssent is obtained.
The said infirmit

## Text

_Characters 0–39,989 of 48,702. This is a partial read: ask again with offset=39989 for what follows._

JAWAHARMAL
v.
STATE OF RAJASTHAN AND OTHERS
September 22, 1965
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HillAYATULLAH, J.C. SHAH ANDS. M. SIKRI, JJ.]
A
B
Raja,s,than Passengers and Goods Taxation (Amendment and Validation.) Act 1964 (22 of 1964), ss. 2
and 4--Act validating
State
Finance Acts of 1961 and 1962-Whether legislature can itself validate
defect caused by non-observance of Art. 255 of the Constitu1ion---Retros-
('ective taxation whether valid an(i reasonable.
C
The Rajasthan State Legislature passed Act 18 of 1959 to levy taX
on passengers and goods carried in motor vehicles.
For the pu.rpose of
the tax roads were divided into two categories i.e. those which were
asphalted etc .. and those which were not. ln respect of goods carried on
the former category of roads the State Government was authorised by .s. 3
of the Act to levy tax at a maximum of tth of the value of the fares and
freights; in respect of goods carried on the second category of roaci.9'
the maximum \Vas 1/ 12th. By a notification under the Act the maximum
rates were levied with effect from May 1, 1959.
The said s. 3 was
amended by the Finance Acts of 1961 and 1962 to raise the maximum
rates Ieviable under that section and the relevant notifications actually
levied the sam<:.
The Acts of 1961 and 1962 however suffered from
the infirmity that the assent of the President had not been obtainet;f in
respect of them as required by Art. 255 of the Constitution.
To cure
the defect Ordinance No. 4 of 1964 was issued.
The Ordinance was
replaced on September 9, 1964 by Act 22 of 1964 for wbich the asoent
of the President was duly obtained.
Section 2 of the Act of 1964
retrospectively re·-enacted the amendments to s. 3 of the principaJ Act
made by the Acts of 1961 and 1962.
Section 4 of the Act validated
all the collections and levies under the earlier Acts and also purported
to cure tlie infirmity in the said earlier Act arising from non-compliance
with Art. 255.
The petitioner who was asked to pay tax under the
Ordinance of 1964 challenged the validity of the said Ordinance as well
as the. Act of 1964 in petitions under Art 32 of the Constitution of
India.
It was contended on behalf of the petitioners that ss. 2 and 4 of the
impugned Act purported to validate the earlier invalid Finance Act of
1961 and 1964.
It was urged that the failure Qf the legislature to comply with the provisions of Art. 255 rendered the said Acts void ab initio
and as such they could not be validated by sub<.>equent legislation. It was
further urged that the said earlier Acts had been held invalid by the
Rajasthan High Court in the case of Vijai Singh and it would be incompetent to the State Legislature to validate the said Acts in spite of the
decision of a court ~competent jurisdiction.
HELD : (i) It was factually not correct to say that the Acts of
1961 and 1962 had been struck down as void ab initio by a court of
competent jurisdiction.
The High Court in Vijai Singh's case had on
the other hand though H unnecessary to pronounce its coo9idered opinion
on that as~ect of the matter.
Act 22 of 1964 was passed on September
9, 1964 while the judgment of the High' Court was delivered in NovemD
E
F
G
H
-
...
1
-
JAWAHARMAL v. STATE (Gajendragadkar, C.J.)
891
A ber 1%4, and so at the time when the Act was passed the earlier Finance
Acts had not been struck down at all. [899 B-E]
B
c
D
E
F
0
H
Vijai Singh and Another v. Deputy Co1nmissioner, Excise & Tax:ztlon (Appeals) Aimer and Kotah Divisions, Jaipur & Ors. I.L.R. (1960)
15 Raj. 285, referred to,
(ii) An Act which suffers from the infirmity that it does not comply
with the requirements of Art. 255 can be validated by subsequent legislation.
Article 2)5 itself provides- that no Act of the Legislature or a
State and no provision in any such Act shall be invalid by reason only
that son1e recommendation or previous sanction required by the, Constituuon was not given, if assent to the Act wa9 given by the President
later. If an Act is passed without obtaining the previous assent of the
President it does not become void but remains unenforceable till such
~_ssent is obtained.
The said infirmity is cured by subsequent assent and
the law becomes enforceable.
The legislature
can also in a suitable
case adopt the cours-e of passing a subsequent law re-introducing the pr~
v1s1uns of the earlier law which had not received the assent of the President and obtaining his a95ent thereto as prescribed by the Constitution.
Legally there is no bar to the legislature adopting either of the courses
mentioned above.
[899 F-H; 900 A-DJ
(iii) Section 2 of the Act of 1964 does not in fact purport to validate
t:.'-ie Finance Acts of 1961 and 1962.
What it does is to amend retrospectively s. 3 of the principal Act by inserting a proviso to sub-s. (I)
of the said section.
On its plain reading s. 2 has the effect of inserting
the aai<l proviso to s. 3 ( 1) of the principal Act; and since the amendment so made is, in term retrospective', when a tax is levied for the
periods cove:ed by clauses (a) and (b) of the proviso thus introduced
in s. 3 ( 1) of the principal Act, the Court n1ust proceed to deal \Vi th
the matter on the basis that these clauses had been introduced in the
principal Art right up from the commencement.
[900 E-G]
The power to legi9late includes the power to legislate prospectively
as well as retrospectively and in that behalf, tax legislation is no different
from any other lcg;slation.
The pnwer to tax can be comperently
exercised by the legislature eithe:- prospectively or retrospectively; and
that is pre:::iseJy \Vhat s-. 2 has done in the present case. Therefore there
was no substani.:c in the argument that s. 2 of the Act v,,·as invalid. [900
HJ
(iv) The Act of 1964 and all its provisions had received the assent
of the Pres-ident and so prin1a facie the assent of the President to the
Act would help the Act to validate the provisions of the earlier Ac's
which were not enforceable by reason of the fact that they had not
£CCured his assent as required by Art. 225. But the assent of the President could not serve to make s. 4 valid. [902 C-D]
. What s. 4 _in truth and in substance says is that the failure to comply
w1'h the reqmrements of Art. 255 does not invalidate the Finance Acts
in question and will not invalidate any action taken or to
be
taken,
under their respective relevant provisions-.
In other words the legislature
seems to say by s. 4 that even though Art. 255 may not have been
complied with by the earlier Finance Acts, it is competent to pass s. 4
whereby it will prescribe that the failure to comply with Art. 255 doe•
not really matter and the assent of the President to the Act amounts to
this that th·e
Pre~;ident also agrees that the Legislature is emoowered
to say that the infirmity re•ulting from the non-compliance with Art. 25S
does not matter. This approach is entirely misconceived. [902 D-F]
The legislature no doubt can valld~te an earlier Act which is invalid
by reason of Art. 255 and such an Act may receive the asoent of the
892
SUPREME COURT
REPORTS
[1966] I S.C.R.
President . which will make the Act effecl_ivc.
"!be Iegi•lature cannot,
A
h«:>wcver, lls~lf declare by a statu~ory provision that the failure to comply
with Art. 2)5 ~an be cured by its own enactment,
even
if
the
said
cnactmen.t received the assent of the President.
Even the
as..~cnt of
the President cannot . airer the constitutional position under ,\rt. 255.
The assent of the President cannot by any legislative provision be deemed
to haye been given to _an earlier Act at a time v.·hen it was not so given.
~n th~ context there 1s no scope f~r a retrospective deeming p:-ovisioo
in regard to the assent_ <;>t the President.
·1ne infirmity in quc:sti,Jn can
B
be. <..-ur~d onJy by obta1.01og the assent of the President and not hv anv
~egi_slah-:e fiat. In enacting s. 4 the State Legislature cle.irly exccodCd iii
1unsd1ct1on. [903 A-D. F-GJ
M. P. V. Sundararaniier &
<..,~o. v. The State of Andhra Pradesh &:
Ano1her, [1958] S.C.R. 1422. distinguished.
(v) It is idle to contend that merely because a taxing 5tJlut; purports to operate retrospectively the retrospective operation per se involves
oontraven1ion of the fundamenlal righ( of the citizen guaranteed under
Arc 19( I) (f} or (g).
In the present case having regard to the Jeg3-
~t1vc background of the provision prescribed hy s. 2 1here could be
httle doubt tha1 there \V<IS no element of unreasonableness involved in
the retrospective operation of cl. (b) of the proviso add•:J hv 1!"-c- said
St.'Ction to s. 2( I) of the principal Acl. (905 D-Fl
·
(vi) Section 2 of the impugned Act had laid down the rates of tax
only up to the period ending March 26, 1962. It was silent about the
pcnod af'er that date.
The petitioner therefore could not he taxed for
lhe period after that date on the strength of els. (a) and (b) of the
proviso to s. 2.
If s. 4 hod Ileen valid then the tax at the enhanced
rates prescribed by the Act of 1962 would also have been valid; bu!
since s. 4 was inv<1lid the tax could be validly and Jegitimatcl·• Jc\ied
for the period after March 26. 1962 only at the rates prescribed in 1959.
[906 D-F)
ORir.JNAL JuRISDICTION.-Writ Petition No. 19 of 1965.
Petition under Art. 32 of the Constilution of India for enforcement of fundamental rights.
c
D
M. M. Tiwari and Ga11pat Rai, for the petitioner.
F
G. C. Kas/iwa/a, Advocate-General Rajasthan,
K. K. Jain
and R. N. Sachthey, for the re,pondents.
The Judgment of the Court was udivcred by
Gajendragadkar C.J.
The petitioner, Jawaharmal, carries
on business of plying his motor buses on four routes under the
Stage Carriage Permits granted to him under the relevant provi-
'ions of the Motor Vehicles Act, 1939.
The three re<pondcnts
to his petition respectively are : The S!ate of Raja,than,
the
Deputy Commissioner. Excice and Taxation (Appeals), Jaipur,
and the Taxation Officer, (The Rajasthan Motor Vehicles) Sikar,
State of Rajasthan. It appears that respondent No. 3 passed.sever~!
assessment orders imposing different amounts of tax against his
G
H
JAWAHARMAL v. STATE (Ga1endragadkar, C.I.)
893
A five vehicles which were running on the four routes in question.
The periods for which these assessment orders were passed differed from vehicle to vehicle; but, on the whole, they covered the
period between the 1st April, 1962 and the 30th September,
1964. The total amount of tax imposed in respect of these
vehicles by the assessment orders in question is Rs. 19,062-93P.
B These orders have been passed under section 2 of the Rajasthan
Passengers and Goods Taxation (Validation) Ordinance, 1964
(Ordinance No. 4 of 1964). This Ordinance was made and promulgated by the Governor of Rajasthan on May 15, 1964.
C
Aggrieved by these orders, the petitioner filed appeals before
respondent No. 2, but respondent No. 2 refused to entertain the
said appeals unless the petitioner paid in advance the tax imposed
by the orders under appeal. Whilst these appeals were pending
before respondent No. 2, the petitioner moved for stay in respect
of the recovery of the tax assessed, but the said appiication was
D rejected on the ground that there was no provision in law to
entertain any such application. That is why the petitioner submitted an application before the Commissioner,
Commercial
Taxes, Rajasthan on the 3rd February, 1962 and prayed that his
buses should not be attached and sold in execution of the orders
of assessment, against which he had preferred appeals, pending
E the hearing and final disposal of the said appeals. The Commissioner rejected this application on the 8th February, 1962. Respondent No. 3 then proceeded to attach one of the buses of the
petitioner, viz., Bus No. RJP-854 and took possession of it. The
petitioner thereupon paid the amount of the taxes as assessed by
the impugned orders, but the payment was made under protest.
F
The present petition has been filed by the petitioner under
Art. 32 of the Constitution challenging the validity of the assessment orders in question. The main ground on which the validity
of the said orders is challenged, is that the Ordinance under which
the impugned orders were passed and the Rajasthan Pas0engers
and Goods Taxation (Amendment and Validation) Act 1964
G (No. 22 of 1964) (hereinafter called the Act) which repealed
and replaced the said Ordinance, are comtitutionally invalid. The
petitioner prays that this Court should hold that the Act is invalid,
and should, by an appropriate writ, quash the impugned orders of
assessment passed against him. The petitioner also claims that
H pending the final disposal of his petition, the respondents, their
servants, and agents should be restrained from realising the tax
as directed by the impugned orders and from seizing the other
buses of the petitioner for the purpose of recovering the said tax.
894
SUPREME
COURT
REPORTS
[1966] l S.C.R.
In order to appreciate the contention of the petitioner that
A
the Act is invalid, it is necessary to mention the legislative background of the Act. The Legislature of respondent No. 1 passed
an Act in 1959 (No. 18
of 1959 known as the Rajasthan
Passengers and Goods Taxation Act, 1959 (hereinafter calleJ 'the
principal Act'). This Act received the assent of the President on
April 2, 1959; was published in the Rajasthan Gazette on April
B
30, 1959, and came into force on May 1, 1959. The validity of
this Act has been upheld by this Court in M / s Sainik Motors,
Jodhpur & Ors. v. The State of Rajasthan('). Section 3 of the
principal Act authorised the State Government to levy,
charge
and collect tax on all fares and freights in respect of all pas' engers carri,ed and goods transported by motor vehicles in Rajasthan. The said section further provided that the rate of the tax
shall not exceed l/8th of the value of fare or freight in the case
of cemented, tarred, asphalted, metalled, gravel and kankar roads,
and shall not exceed 1/12 of such value in other cases as may be
notified by the State Government from time to time.
Section 21 of the principal Act authorised the Government of
Rajasthan to frame rules consistent with the said Act for securing
c
D
the payment of tax and generally for the purposes of carrying
into effect its provisions. Accordingly, the Government of Rajasthan framed suitable rules which came into force on the 2 lst
May, 1959. Thereupon, a notification was issued by respondent
E
No. 1 on the 30th April, 1959 under s. 3 of the said Act and it
came into force on May 1, 1959; it directed the manner in which,
and the rates at which, the tax shal! be charged and recovered.
These rates were the same as had been prescribed by s. 3 of the
same Act as maximum permissible rates.
This notification was
made effective on and from the 1st May, 1959. There is no di'· F
pute that the principal Act is valid and that the notification issued
under it is also valid.
In 1961, the Rajasthan Finance Act (No. 14 of 1961) was
passed. Section 8 of this Act purported to amend s. 3 of the
principal Act. As a result of this amendment, the maximum rate
G
at which the State Government could levy, charge and collect hx
on fares and freights was increased from 1/8th to 15 per cent in
the first category of cases; and in the second category of cases it
was increased from 1 /12th to 10 per cent. In pursuance of the
provisions of this Finance Act, respondent No. 1 issued a notification on the 9th March, 1961 levying tax at the said maximum H
permissible rates. Neither the bill in respect of this Act received
(I) (1962] 1 S.C.R. 517.
,
-
-
•
JAWAHARMAL v. STATE (Gajendragadkar, C./.)
895
/I.
the assent of the President before it was introduced in the State
Legislature, nor did this Act receive his assent after it was passed.
In 1962, the Rajasthan Finance Act (No. 11 of 1962) was
passed. Section 9 of this Act amended s. 3 of the principal Act
and authorised the increase of the two respective taxes to 20 per
B cent and 15 per cent respectively. A notification was then issued
by respondent No. 1 . under the provision; of s. 9 of the said Act.
This notification author.sect levy of taxes at the maximum rates
permissible under s. 9. Neither the bill in respect of this Act
before it was introduced in the State Legislature, nor this Act
c
after it was passed received the assent of the President.
Then followed the Finance Act (No. 13 of 1963). This Act
purported to amend s. 11 of the principal Act; but with this
amendment we are not concerned in the present proceedings.
It appears that the constitutional validity of the material provisions of the principal Act and rules and notifications issued
D under it as well as the constitutional validity of the Finance Acts
of 1961 and 1962 and the notifications issued respectively thereunder was challenged by a number of bu3 operators by writ petitions filed by them before the Rajasthan High Court under Art.
226 of the Constitution. During the pendency of these writ petitions, the Rajasthan Ordinance No. 4 of 1964 was promulgated.\
E Later, the said Ordinance was repealed and replaced by the Act
with which we are concerned in the present proceedings. This
Act came into force on the 9th September, 1964, having received
the assent of the President on the 8th September, 1964.
The writ petitions filed by the other bus operators were decidF ed by the said High Court on the 30th November, 1964 vide
Vijai Singh and another v. Deputy Commissioner, Excise & Taxation (Appeals), Ajmer and Kotah Divisinns, Jaipur & other(').
In substance, the High Court has held in that case that the earlier
Finance Acts of 1961 and 1962 suffered from the infirmity that
they did not comply with the requirements of Art. 255 of the
G Constitution. It, however, did not think it necessary to finally
determine the question as to whether by reason of the said infirmity, the said earlier Acts were void or not, because in its
opinion, the Act of 1964 "is not merely an amending and a curative Act in that limited sense, but it is really an Act which virtually re-enacts the provisions of the earlier Acts wh;ch suffered
H from a constitutional infirmity" ( p. 300). The High
Court
examined the
contentions raised
by
the
petitioners that
(I) [1965] l.L.R. IS Raj. 285.
896
SUPREME
COURT REPORTS
[1966] I S.C.R.
the proviSions of the Act were invalid, and has rejected the petiA
tioners' case that the said provisions suffered from any constitutional infirmity. In the result, the peytions filed before it challenging the validity of the Act failed.
It appears that the petitioners had also challenged the validity of the -recovery of penalty
for nol).-payment of tax, and the High Court held, following its
earlier decisions, that the levy of any pena,lty in the cases before B
it would be illegal and, therefore, must be struck down. In other
words, except for the limited relief granted in respect of the levying of the penalty, the substantial contention raised by the petitioners challenging the validity of the Act has been rejected by the
High Court. Against this judgment, the High Court has granted
certificates of fitness for leave to appeal to this Court and the
record in the said appeals is being printed in the High Court. In
that sense, the said appeals can be said to be pending before this
Court.
c
The learned Advocate-General who has appeared for the respondents in the present writ proceedings, requested us to postD
pone the hearing of this writ petition and take it up along with
the appeals to which we have just referred. We did not, however,
accede to this request, because we thought that it would not be
right to postpone the hearing of the present writ petition for an
indefinitely long period, and so, we allowed the learned AdvocateGeneral to argue the matter fully and refer us to the judgment of
the Rajasthan High Court which is under appeal in the said appeals.
E
We made it clear to the learned Advocate-General that our decision in the present writ petition would cover the decision of the
said appeals in so far as it would relate to the validity of the provisions of the Act which are impugned before us by tlie present
petitioner and not to that part which •covered the question of F
penalty.
AcC9rdingly, the learned Advocate-General has elaborately addressed us on the relevant points and has taken us
through the relevant portions of the judgment of the Rajasthan
High Court in. the case of Vijai Singh(').
The respondents :(Hed their written statement in the present
G
pr_oceedings and they urged that the petitioner's challenge to the
validity of the relevant provisions of the Act should not be sustained. · According to· ·them, the Act is constitutionally valid and
·the impugned orders of assessment are fully justified by the said
provisions. That is how the main question which falls to be considered in the present writ petition _is whether the relevant proH
visions of the Act are valid or not.
(I) (1965) I.L.R. IS Raj. 285,
•
•
\
..
i
f
JAWAHARMAL v. STATE (Gajendragadkar, C./.)
897
A
Let us therefore proceed to refer to the provisions -of the Act
and enquire whether the petitioner is justified in challenging their
validity.
The Act consists of five sections. Section 1 gives its
title; s. 2 amends s. 3 of the principal Act; s. 3 deals with validation of certain lump sum payments in lieu of tax; s. 4 purports to
validate certain sections of the Rajasthan Acts 14 of 1961, 11 of
B 1962 and 13 of 1963; it also purports to validate the tax levied,
paid or payable and action taken or things done during the period
between the 9th day of March, 1961 and the date of commencement of this Act. The last section 5 repeals Ordinance No. 4 of
1964. In the present proceedings we are not concerned with lump
C sum payments; and so, s. 3 does not fall to be considered.
D
E
F
G
H
At this stage it is convenient to set out sections 2 and 4; they
read as under :
"2. In section 3 of the Rajasthan Passengers and
Goods Taxation Act, 1959 (Rajasthan Act 18 of 1959)
hereinafter referred to as the principal Act, to subsection (1), the following proviso shall be and be
deemed always to have been added, namely :-
Provided that the tax shall be charged in respect
._, of all passengers carried and goods transported by motor
· vehicles,-
(a)
(b)
during the period between the 1st day of May,
1959 and the 8th day of March, 1961, at the
rate of-
( i) one-eighth of the value of the fare or freight
in case of cemented, tarred, asphalted,
metalled, gravel and kankar roads and
(ii) one-twelfth of the fare or freight, in other
cases, subject to a minimum of one Naya
Paisa in any one case, the amount of tax
being calculated to the nearest Naya Paisa;
and
during the period between the 9th day of March,
1961 and the 25th day of March, 1962, at the
rate of-
( i) fifteen per cent of the value of the fare or
freight in the case of cemented, tarred, asphalted, metalled, gravel and kankar roads,
and
LSSupC. I/65-14
898
SUPREME
COURT
REPORTS
!1%t'] 1 S.C.R.
(ii) ten per cent of the fare or freight in o:Mr
A
cases subject to a minimwn of one Naya
l'aisa in any one c::se, the amount of tax
being calculated to th: nearest
Naya
Paisa''.
"4. NotwiUistanding any judgment, decree or order
of any Court, but subject to the provisions of this Act,
section 8 of the Rajasihan Finance Act, 1961 (Raja11than Act 14 of 1961), section 9
of the Rajasthan
Finance Act, 1962 (Rajasthan Act 11 of 1962), and
section 14 of the Rajasthan Finance Act, 1963 Rajasthan Act 13 of 1963) shall not be deemed to be invalid, or ever to have been invalid during the period
between the 9th day of March, 1961 and the date of
commencement of this Act, merely by rea,on of the
fact that the Bills, which were enacted as the Acts
aforesaid, were introduced
in the Rajasthan State
Legislature without the previous sanction of the President under the proviso to Art. 304(b) of the Constitution and were not assented to by the President and
the tax levied, paid or payable, the composition fee paid
or payable and any action taken or things done or purporting to have been taken or done during the period
aforesaid under the Rajasthan Passengers and Goods
Taxation Act, 1959 (Raja~than Act 18 of 1959),
a~
amended by the Acts afore,aid, shall be deemed always to have been validly levied, paid, payable, talien
or done in accordance with law and the aforesaid enactments shall be, and be deemed always to have been,
validly enacted, notwithstanding the aforesaid defects,
and accordingly.
(a) no suit or other proceeding shall be instituted,
maintained or continued in any court for the
refund of any tax or fee so paid or for
any
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other relief on the ground of invalidity of the
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said sections of the Acts aforesaid; and
( b) no court shall enforce any decree or
orckr
directing any such refund or relief'.
Mr. Tiwari for the petitioner contends that ss. 2 and 4 purport to validale the earlier invalid Finance Acts of 1961
<md
1962.
He argues that the failure of the Legislature to comply
with the provisions of Art. 255 of the Constitution renders the
JI
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JAWAHARMAL v. STATE (Gajendragadkar, C.J.)
899
A said Acts void ab initio and as such, they cannot be validated by
subsequent legislation.
Mr. Tiwari also urges that the
said
earlier Acts have been held to be invalid by the Rajasthan High
Court in the case of Vijai Singh(') and it would be incompetent
to the State Legislature to validate the said Acts in spite of the
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decision of a court of competent jurisdiction.
We are not impressed by this argument. Jn the first place,
it is not clear that the Rajasthan High Court has held that the
said earlier Finance Acts are void ab initio; in fact, as we have
already pointed out, the mid High Court thought it unnecessary
to pronounce its considered opinion on that aspect of the matter,
c because it held that the Act of 1964 with which it was primarily
dealing in the said proceedings not merely amended or cured tho
earlier Finance Acts, but re-enacted the provisions of the said
Acts, and so, the provisions of the said Acts became ·operative by
their own force.
Therefore, factually, it is not correct to say
that the said earlier Acts have been struck down as void ab initio
D
hy any court of competent jurisdiction. Besides, in assessing the
validity of this argument, it is necessary to remember that the Act
was passed on September 8, 1964 and the judgment of the Rajasthan High Court was pronounced on November 30,
I 964;
and so, it is clear that at the time when the Act was passed the
earlier Finance Acts had not been struck down at all.
E
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The next question to consider is whether an Act which
suffers from the infirnrity that it does not comply with the requirements of Art. 255, can be validated by subsequent legislation.
There are two answers to this question.
Article 255 provides,
inter alia, that no Act of the Legislature of a State and no provision in any such Act, shall be invalid by reason only that some
recommendation or previous sanction required by this Constitution was not given, if assent to the Act was given by the President later. The position with regard to the laws to which Art. 255
applies, therefore, is that if the assent in question is given even
after the Act is passed, it serves to cure the infirmity arising from
G the initial non-compliance with its provisions.
In other words,
if an Act is passed without obtaining the previous assent of the
President, it does not become void by reason of the said infinnity;
it may be said to be unenforceable until the assent is secured.
Assuming that such a law is otherwise valid, its validity cannot
be challenged only on the ground that the assent of the President
H
was not obtained earlier as required by the other relevant provisions of the Constitution.
The said infirnrity is cured by the
(1) (1965) I.L.R. 15 Raj. 285.
900
SUPREME COURT
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[1966] l S.C.R.
subsequent assent and the law becomes enforceable.
It is
unnecessary for the purpose of the present proceedings to consider
when such a law becomes enforceable, whether subsequ.::nt assent
makes it enforceable from the date when the said law purported
to come into force, or whether it becomes enforceable from the
date of its subsequent assent. Besides, it is plain that the Legis·
lature may, in a suitable case, adopt th~ course of passing a subse-
'{Uent law re-introducing the provisions of the earlier law which
bad not received the assent of the President, and obtaining his
assent thereto as prescribed by the Constitution. We see no sub·
stance in the argument that an Act which has not complied '"ith
the provisions of Art. 255, cannot be validated by subsequent
legislation even where such subsequent Act complies with Art. 255
and obtains the requisite assent of the President as prescribed by
the Constitution. Whether the infinnity in the Act which has failed
to comply with the provisions of Art. 255, should be cured by
obtaining the subsequent assent of the President or by passing a
subsequent Act re-enacting the provisions of the earlier law and
securing the assent of the President to such Act, is a matter which
the Legislature can decide in the circumstances of a given case.
Legally, there is no bar to the legislature adopt'ng either of the
said two courses. Therefore, the preliminary objection raised by
Mr. Tiwari against the validity of the Act fails.
That takes us to the construction of section 2 and 4 of the
Act. It would be noticed that s. 2 in fact docs not purport to
validate the earlier Finance Acts of 1961 and 1962. What it
dce1 is to amend retrospectively s. 3 of the pr;ncipal Act by insert·
ing a proviso to sub-s. ( 1) of the said section. On its plain reading. s. 2 has the effect of inserting the said proviso to s. 3 (I) of
the principal Act; and since the amendment so made is, in t~rms,
retrospective, when a tax is levied for the periods covered by
clauses (a) & (b) of the provi10 thus introduced ins. 3!1) of
the principal Act, the Court must proceed to deal with the matter
on the basis that these clauses had been introduced in the principal Act right up from the commencement.
We have alreach·
noticed that the principal Act has b~cn held to be valid hy •hi'
Court; and so, we see no basis for the argum~nt that in amending s. 3 (I) of the principal Act, s. 2 of the Act has contravened
any Constitutional prohibition.
It is well-recognised that the power to legislate includes the
power to legislate prospectively as well as retrospectively, an~ in
that behalf, tax legislation is no different from any other le0 1slation. If the Legislature decides to levy a tax, it may levy such tax
A
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JAWAHARMAL v. STATE (Gajendragadkar, C.J.)
901
A either prospectively or even retrospectively.
When retrospective
legislation is passed imposing a tax, it may, in conceivable cases,
become necessary to consider whether such retrospective taxation
is reasonable or not. But apart from this theoretical aspect of the
matter, fu~ power to tax can be competently exercised by the legisB
lature either prospectively or retrospectively; and that is precisely
what s. 2 has done in the present case.
Therefore, there is no
substance in the argument that s. 2 of the Act is invalid.
As the said s. 2 has been drafted, it appears clear that clause
(a) of the priviso added by it to s. 3 (1) of the principal Act,
covers the period between 1st of May, 1959 and the 8th of March,
C
1961, whereas clause (b) covers the period between the 9th
March, 1961, and the 25th March, 1962. The first period had in
fact been already covered by. a notification validly issued on April
30, 1959 under s. 3 of principal Act; and so, it is not easy to
understand why it was thought necessary to refer to this period by
the said retrospective amendment.
The second period had been
D attempted to be covered by Finance Act 14 of 1961 and the notification issued thereunder. In order to make the provisions of the
sa'd notification effective, the Legislature has adopted the legitimate
expedient of making the said provisions a part of the amendment
which has been introduced to s. 3 ( 1) of the principal Act; and so,
E
the rates prescribed by clause (b) can be validly imposed during
the said retrospective amendment.
The second period had been
the Finance Act 11 of 1962 and the notification issued under it
has not been included in the retrospective amendment introduced
bys. 2; this period ranges between 26th March, 1962 and the 9th
September, 1964; and so, the rates prescribed by the notification
issued under the relevant provisions of the said Finance Act are
not re-enacted by the amendment made by s. 2. In other words,
s. 2 does not purport to re-enact, by retrospective amendment, the
rates prescribed by the notification issued under the Finance Act
11 of 1962. We are inclined to take the view that the draftsmen
of the Act have referred to the first period unnecessarily in the
said proviso, and have failed to refer to the third period, through
6
oversight.
This infirmity tends to show that the drafting of s. 2
has been casual and somewhat careless. As we will presently point
out, the consequence would be that the higher rates prescribed for
the period between 26th March, 1962 and the 9th September,
1964 by the notification issued under Finance Act 11 of 1962, are
H
not saved by the general provisions of s. 4 of the Act. It is to the
said provisions that we must now tum.
Section 4 consists of three parts. In its firs! part, it provides
that the several sections of the three Finance Acts .enumerated by
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[1966] l S.C.R.
it, shall not be deemed to be invalid, or ever to have been invalid,
during the period there specified, merely by reason of the fact that
Art. 255 of the Constitution had not been complied with: -ParrZ
of the said section provides inter alia that the tax levied, paid or
payable during the period as amended by the said specified Acts,
shall be deemed always to have been validly levied, paid or payable; and part 3 prescribes that the aforesaid enactments shall be,
and be deemed always to have been, validly enacted, notwithstanding the aforesaid defects. The question which arises for our
decision is whether this section is valid.
In dealing with this question, we must, of course, bear in mind
·the fact that the Act and all its provisions have received the assent
of the President; and so, prima facie, the assent of the President to
the Act would help the Act to validate the provisions of the earlier
Acts which were not enforceable by reason of the fact that they
had not secured his assent as required by Art. 255. But can the
assent of the President to the Act serve the purpose of making s. 4
valid ? What s. 4 in truth and in substance says is that the failure
to comply with the requirements of Art. 255 will not invalidate the
Finance Acts in question and will not invalidate any action taken,
or to be taken, under their resp~tive relevant provisions. In other
words, the Legislature seems to say by s. 4 that even though Art.
255 may not have been complied with by the earlier Finance Acts.
it is. competent to pass s. 4 whereby it wiJI prescribe that the failure
to comply with Art. 255 does not really matter, and the assent of
the President to the Act amounts to this tha~ the President also
agrees that the Legislature is empowered to say that the infirmity
resulting from the non-compliance with Art. 255 does not matter.
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In our opinion, the Legislature is incompetent to declare that the
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failure to comply with Art. 255 is of no consequence; and, ·with
respect, the assent of the President to such declaration also does
not serve the purpose which subsequent assent by the President
can serve under Art. 255.
The learned Advocate-General has
strenuously contended
before us that we should look at the substance of the matter and
G
not decide the validity of s. 4 merely because the words med in it
may not be happy or appropriate. We agree that questions of this
character must be judged on considerations of substance and not
merely of form, and we have tried to read s. 4 as favourably as we
can while appreciating the argument of the learned AdvocateGeneral; but the words used in all the three parts of s. 4 are clear
H
and unambiguous; they indicate that the Legislature thought that
it was competent to it to cure, by its o"?' legislative process, the
'
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JAWAHARMAL v. ST~TE (Gajendragadkar, C.J.)
903
A infirmity resulting from the non-compliance with Art. 255 when
it passed the earlier Finance Acts in qu.estion, and it was probably
advised that such a legislative declaration would be valid and effective, provided it received the assent of the President. In our
opinion, the approach adopted by the Legislature in this case is
entirely misconceived. The Legislature, no doubt, can validate an
B earlier Act which is invalid by reason of non-compliance with Art.
255 and such an Act may receive the assent of the President which
will make the Act effective.
The Legislature cannot, however,
itself declare by a statutory provision that the failure to comply
with Art. 255 can be cured by its own enactment, even if the
said enactment received the assent
of the President.
In our
C
opinion, even the assent of the President cannot alter the true
constitutional position under Art. 255. The assent of the President cannot, by any legislative process, be deemed to have been
given to an earlier Act at a time when in fact it was not so given.
In this context there is no scope for a retrospective deeming provision in regard to the assent of the President. It is somewhat unD
fortunate that the casual drafting of s. 2 leaves the period covered
by Act 11 of 1962 and the notification issued thereunder as
unenforceable as before, and the omnibus and general provisions of
s. 4 are of no help in regard to the said period.
The learned Advocate-General strongly relied on the last part
E of s. 4. This part provides that the aforesaid enactments shall be,
and be deemed always to have been, validly enacted, notwithstanding the aforesaid defects.
The clause "notwithstanding the
aforesaid defects" emphatically points to the fact that the Legislature thought that it could legislate retrospectively, and by such retrospective legislation, it could itself cure the infirmity in question.
F
What has been overlooked by the Legislature is the fact that the
infirmity in question can be cured only by obtaining the assent of
the President and not by any legislative fiat. We have given our
anxious consideration to the problem raised by the wording of s. 4
and we have come to the conclusion that it would not be possible
to uphold its validity. On many occasions, this Court has tried to
G look at the substance of the matter and determine the issue in spite
of the fact that the words or expressions used in the relevant provisions are either slovenly inappropriate or unhappy. But in the
present case, however benevolently or favourably we look at the
provisions of s. 4, we see no escape from the conclusion that in
enacting it, the Legislature appears to have clearly assumed that it
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can by itself cure the infirmity resulting from the non-compliance
with Art. 255 and all that it has to do in such a case is to obtain
the assent of the President to its own view about its power to cure
SUPREME
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[1966] I S.C.R.
such an infirmity.
We are satisfied that it is necessary that the
A
true position in regard to the scope and effect of Art. 255 must be
clearly brought out in order to avoid any misapprehension in
future.
·
In support of his argument that the form adopted by the Legislature in enacting s. 4 is not inappropriate, the learned AdvocateB
General has referred ns to a decision of this Court in M.P. V.
Sundararamier & Co. v. The State of Andhra Pradesh and
Another('). It is true that in that case, s. 2 of the Sales Tax
Laws Validation Act, 1956 (No. 7 of 1956), which is a Central
Act, used phraseology which is similar to the phraseology adopted
by s.