# l.T.C. BHADRACHALAM PAPERBOARDS AND ANR v. MANDAL REVENUE OFFICER, ANDHRA PRADESH AND ORS

- **Citation:** [1996] Supp. 5 S.C.R. 643
- **Court:** Supreme Court of India
- **Decided:** 1996-09-09
- **Case number:** Civil Appeal Nos. 11821-22 of 1966
- **Bench:** B.P. Jeevan Reddy, K.S. Paripoornan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-t-c-bhadrachalam-paperboards-and-anr-v-mandal-revenue-officer-andhra-pradesh-14653
- **Pages:** 32

## Headnote

B
LOJ!d Laws:
Andhra Pradesh Non-Agricultural Land Assessment Act, 1963: Section
11(1) and (2).
C
Levy-Exemption-Order of-Publication in Official Gazette-Require-
, ment of-Held : mandatory-Giving full publicity to the order not sufficient
compliance-While other requirements mentioned in S.11 ( 1) were mandatory,
it-cannot be said requirement of mode of publication to be directory.
·Exemption of Ttre-Grant of-Power confe1red on Govemment to grant
either pem1anently or for specified period-Held : provision was a piece of
conditional legislation.
" Exemption of Tax-Grant of-Power confe"ed 011 Government to grant
either pennanently or for specified period-Exemption granted for period
ante1ior to date of order but subsequent to commencement of Act-Hetd :
power to grant exemption could be excercised prospectively-Hence, such
order of exemption valid.
Exemption of Ttre-Grant of-Requirement of 'laying' of such order
before State Legislature-Held : requirement of 'laying' was not mandatory--
Such requirement was one f o= of legislative control over subordinate legislation.
D
E
F
Andhra Pradesh General Clauses Act, 1891: Section 21.
Order/mle-Requirement of publication of-Jn Official Gazette-Held: G
mandatory-Object of publication in Official Gazette not merely to give
inf o=ation to public-But was official confi=ation uf such order/mle-lt is
also official version of order/mle and could be relied upon by Courts under
S. 83 Evidence Act-To call such requirement as dispensable was unacceptable-Evidence Act, 1872, S.83.
H
643.
644
SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.
A
Administrative Law:
Delegated f;,egislation-Publication or promulgation-Mode ofPrescribed by Statute-Held : such presC1ibed mode must be followed, which
was imperative and could not be dispensed with.
B
Delegated f:egislation-Govemmeni orders-Statutory and nonstatutory GOs--Both covered same subject and period-Held: if inconsistent
with each other statutory G.O. would prevail over non-statutory G.O.
Promisso_ry, estoppel-Against Government-Applicability of-Administrative act and act done under statute-Distinction betwem-GovemC ment order issued without complying with mandatory requirements of
law-Acted upon by person on basis of 'promise' or 'representation' made by
such GO-Held : such a distinction should be kept in mind-If act done by
Government was invalid and ineffective for non-compliance of mandatory
requirements of law such act would not constitute 'promise' or 'representation'
D for invoking rnle of promissory/equitable estoppel on basis of such an
act-There could be no estoppel against statute.
Interpretation of Statutes :
Order/mies inade under Act-Mode of publication of-Presoibed by
E Act-Held : such requirement of mode of publication mandat01y.
Tax exemption----Power confeJTed on Government to grant-Held : Dispensing with levy or payment of tax was a serious matter-Requirements of
provision conferring such power were mandatory and must be strictly comF plied with.
Conditional legislation-Power conferred on Government to bring Act
into force and also to grant exemption-Held : were instances of conditional
legislation and not delegated legislation.
G
Conditional legislation-Power conferred on Government by
Act-Held: could be exercised with retrospective effect provided it was for
period anterior to commencement of Act.
Public duty-:;Creation of-By provisions of statute-Act neglected perf onnances of such public duty-Holding of such act as null and void would
H work serious general inconvenience or injustice to persons having no control
1.T.C. BHADRACHALAM PAPERHOARDSv. MANDALREY. OFFICER 645
over those entlusted with such duty and also would not promote main objects A
of legislature-Provisions creati11g such duty should be treated as directory-Applicability of principle-Held : inapplicable whe11 requireme11t of
provision itself was mandatory.
, Section 11 of the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 (NALA Act) conferred upon the Govern

## Text

_Characters 0–39,814 of 80,021. This is a partial read: ask again with offset=39814 for what follows._

l.T.C. BHADRACHALAM PAPERBOARDS AND ANR.
A
v.
MANDAL REVENUE OFFICER, ANDHRA PRADESH AND ORS.
SEPTEMBER 9, 1996
[B.P. JEEVAN REDDY AND K.S. PARIPOORNAN, JJ.)
B
LOJ!d Laws:
Andhra Pradesh Non-Agricultural Land Assessment Act, 1963: Section
11(1) and (2).
C
Levy-Exemption-Order of-Publication in Official Gazette-Require-
, ment of-Held : mandatory-Giving full publicity to the order not sufficient
compliance-While other requirements mentioned in S.11 ( 1) were mandatory,
it-cannot be said requirement of mode of publication to be directory.
·Exemption of Ttre-Grant of-Power confe1red on Govemment to grant
either pem1anently or for specified period-Held : provision was a piece of
conditional legislation.
" Exemption of Tax-Grant of-Power confe"ed 011 Government to grant
either pennanently or for specified period-Exemption granted for period
ante1ior to date of order but subsequent to commencement of Act-Hetd :
power to grant exemption could be excercised prospectively-Hence, such
order of exemption valid.
Exemption of Ttre-Grant of-Requirement of 'laying' of such order
before State Legislature-Held : requirement of 'laying' was not mandatory--
Such requirement was one f o= of legislative control over subordinate legislation.
D
E
F
Andhra Pradesh General Clauses Act, 1891: Section 21.
Order/mle-Requirement of publication of-Jn Official Gazette-Held: G
mandatory-Object of publication in Official Gazette not merely to give
inf o=ation to public-But was official confi=ation uf such order/mle-lt is
also official version of order/mle and could be relied upon by Courts under
S. 83 Evidence Act-To call such requirement as dispensable was unacceptable-Evidence Act, 1872, S.83.
H
643.
644
SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.
A
Administrative Law:
Delegated f;,egislation-Publication or promulgation-Mode ofPrescribed by Statute-Held : such presC1ibed mode must be followed, which
was imperative and could not be dispensed with.
B
Delegated f:egislation-Govemmeni orders-Statutory and nonstatutory GOs--Both covered same subject and period-Held: if inconsistent
with each other statutory G.O. would prevail over non-statutory G.O.
Promisso_ry, estoppel-Against Government-Applicability of-Administrative act and act done under statute-Distinction betwem-GovemC ment order issued without complying with mandatory requirements of
law-Acted upon by person on basis of 'promise' or 'representation' made by
such GO-Held : such a distinction should be kept in mind-If act done by
Government was invalid and ineffective for non-compliance of mandatory
requirements of law such act would not constitute 'promise' or 'representation'
D for invoking rnle of promissory/equitable estoppel on basis of such an
act-There could be no estoppel against statute.
Interpretation of Statutes :
Order/mies inade under Act-Mode of publication of-Presoibed by
E Act-Held : such requirement of mode of publication mandat01y.
Tax exemption----Power confeJTed on Government to grant-Held : Dispensing with levy or payment of tax was a serious matter-Requirements of
provision conferring such power were mandatory and must be strictly comF plied with.
Conditional legislation-Power conferred on Government to bring Act
into force and also to grant exemption-Held : were instances of conditional
legislation and not delegated legislation.
G
Conditional legislation-Power conferred on Government by
Act-Held: could be exercised with retrospective effect provided it was for
period anterior to commencement of Act.
Public duty-:;Creation of-By provisions of statute-Act neglected perf onnances of such public duty-Holding of such act as null and void would
H work serious general inconvenience or injustice to persons having no control
1.T.C. BHADRACHALAM PAPERHOARDSv. MANDALREY. OFFICER 645
over those entlusted with such duty and also would not promote main objects A
of legislature-Provisions creati11g such duty should be treated as directory-Applicability of principle-Held : inapplicable whe11 requireme11t of
provision itself was mandatory.
, Section 11 of the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 (NALA Act) conferred upon the Government the power to
exempt any class of non-agricultural lands from the levy. The Government
issued GOMs No. 877 which provided incentives to the industries established both in the public and private sectors in the State. Subsequently,
B
the Government issued GOMs No. 201 which was n11t issued under any
enactment(s). It stated that in the case of indnstries set up in the scheduled C
areas usual land revenue be levied on the extent of land instead of nonagricultural assessment. It was stated that the orders, issued in the said
G.O. would come into force with immediate effect. The concerned
authorities were requested to give full publicity to the scheme. Thereafter,
the Government i~sued GOMs No. 386 which stated that GOMs No. 201 D
was not published in the State Gazette as required under Section 21 of the
Andhra Pradesh General Clauses Act, 1891 and that it also did not clarify
whether the concession granted thereby was a permanent one or was
operative only for five years as was provided in GOMs No. 877. With a
view to providing incentives the said GO 386 granted exemption from E
payment of assessment under NALA Act to industries for five years but it
was directed that "usual land revenue be levied on the extent of land
instead of non-agricultural lands assessment as per rules".
The appellant established a factory in the scheduled area. The land
was acquired by the State for the purpose of the appellant. The appellant
completed the construction of the factory in 1979 and commenced production on and from 1.10.1979. When a demand was made by the Tehsildar in
the year 1980 for payment of tax under NALA in respect of the said land,
the appellant submitted that by virtue of GO Ms 201, it was not liable to
F
pay the said tax. However, the Manda) Revenue Officer continued to issue G
demand notices and sought to attach the movables of the appellant. In
these circumstances, the appellant filed a writ petition before the High
Court for a direction that the said demand was illegal and unenforceable.
The High Court dismissed the writ petition. Being aggrieved the appellant
preferred the present appeal.
H
A
B
c
D
E
646
SUPREME COURT REPORTS [1996) ~.UPP. 5 S.C.R.
On behalf of the appellants it was contended that GO Ms No. ~01 was
a valid order of exemption issued under Section 11 of the Acti 'that the
requirements of publication of the G.O. in the Official Gazette and its
'laying' before the legislature for the requisite period were merely directory
and not mandatory; that it was enough if due publicity was given to the
order; that GOMs No. 201 was a representation made by the Government
acting within the scope of its ostensible authority or. which the appellant
acted, the Government must be held bound by it; that any defect in
procedure or any irregularity could be waived so as to render the repre·
sentation valid; that the doctrine of promissory/equitable estoppel and of
legitimate expectations were attracted; that if the Government was allowed
to go back upon its promise contained in GOMs No. 201 it would virtually
amount to permitting it to commit a legal fraud; that the retrospective
operation given to GOMs 386 was in the nature of delegated legislation;
and that in the absence of a specific provision in the Act, the rule-making
authority could not give retrospective effect to the rules made by it.
Dismissing the appeal, this Court
HELD : 1.1. The object of publication in the Gi.zette under Section
11 of the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963
is not merely to give information to public. The Official Gazette, as the
very name indicates, is an official document. It is published under the
authority of the government. Publication of an order or rule in the Gazette
is the official confirmation of making of such an order or rule. The version
as printed in the Gazette is final. The same order or rule may also be
published in the 'newspapers or may be broadcast by radio or television.
F If a question arises when was a particular order or rule was made, it is
the date of Gazette publication that is relevant and not the date of
publication in a newspaper or in the media. The publication of an order
or rule is the official irrefutable affirmation that a particular order or rule
is made, is made on a particular day (where the order or rule takes effect
G from the date of its publication) and is made by a particular authority; it
is also the official version of the order or rule. It is a common practice in
courts to refer to the Gazette whenever there is a doubt about the language
of, or punctuation in, an Act, Rule or Order. Section 83 of the Evidence
Act says that the court shall presume the genuineness of the Gazette. Court
will take judicial notice of what is published therein, unlike the publication
H in a newspaper; which has to be proved as a fact as provided in the
1.T.C. BHADRACHALAM PAPERBOARDS v. MANDAL REV. OFFICER 647
Evidence Act. If a dispute arises with respect to the precise language or A
contents of a rule or order, and if such rule or order is not published in
the Official Gazette, it would become necessary to refer to the original
itself, involving a good amount of inconvenience, delay and unnecessary
controversies. It is for this reason that very often enactments provide that
Rules and/or Regulations and certain type of orders made thereunder shall
be published .in the Official Gazette. To call such a requirement as a
dispensable one - directory requirement • is unacceptable. Where the parent
statute presoibes the mode of pu~licatio11 or promulgation that mode has to
be fol/owed and such a requirement is imperative and cannot be dispensed
with. [658-C-G, 660-D]
Pankaj Jain Agencies v. Union of India, [1994] 5 SCC 198; Sambhu
Nath Iha v. Kedar Prasad Sinha & Ors., [1972] 1 SCC 573 and B.K.
S1inivasa11 v. State of Kamataka, [1987] 1 SCC 658, relied on.
B
c
1.2. A levy created by a statute can be lifted, suspended or withdrawn
only by a statute or in the manner prescribed by the statute creating the D
levy. Dispensing with the levy or payment of tax is a serious matter. It is
done only with a view to promote a countervailing public interest. When
such a power is conferred by Legislature upon another authority, that
authority has to, and can, exercise that power only in strict compliance
with the requirements of the provision conferring that power. It is in the E
interest of general public that such notifications are not only given wide
publicity but there should also be no dispute with respect to the date of
their making or with respect to the language and contents thereof. In the
context of Section 11(1) of the Act there is no reason to make a distinction
that while the other requirements mentioned in Section 11 (1) are mandatory, only the requirement of publication in the Gazette is not. The power
given by Section 11 is of a substantive nature besides being in the nature
F
of an exception. For this reason too, the provision conferring that power
has to be complied with fully, i.e., in all respects. [660-E-G]
Bang/ore Woolen and Cotton Silk Mills v. Corporation of City of G
Bang/ore, [1961] 3 SCR 707; Municipal Board, Sitapur v. Prayag Narain
• Saigal & Fin11 Moosaram Bhagwandas, [1969] 3 SCR 387 and Raza Buland
Sugar Co. Ltd. v. Municipal Board, Rampur, [1965] 1 SCR 970, held
inapplicable.
Har/av. State of Rajasthan, [1952] SCR 110 and State of Kera/a v. P.J. H
648
SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.
A Joseph, AIR (1958) SC 296, referred to.
2. The principal of holding provisions of a statute to be directory
only when such provisions relate to the performance of a public duty, the
negligence of which would work serious general inconvenience or injustice
to persons who have no control over those entrusted with the duty and at
B the same time would not promote the main object of the legislature is not
applicable to the instant case when the requirement of the provisions itself
is mandatory in nature. [664-F-G]
c
Dattatraya Moresliwar v. State of Bombay, [1952) SCR 612; State of
U.P. v. Ma11bodha11 Lal Srivastava, [1958) SCR 533 and J.K. Gas Plant
Ma11ufactu1i11g Co. Ltd. v. Emper01; (1947) FCR 141, held inapplicable.
3.1. Very often the legisilature makes a law but leaves it to the
I
executive to prescribe a date with effect from which date the Act shall come
into force. The power given to the executive to bring an Act into force as
•1
D also the power conferred upon the government to exempt persons or
E
F
G
properties from the operation of the enactment are both instances of
conditional legislation and cannot be described as delegated legislation.
The power conferred on the Government under Section 11 of the Act is a
category of conditional legislation. [668-F-G]
Jalan Trading Company v. Mill Mazdoor Union, [1967) 1 SCR 15;
Hamdard Dwakhana v. Union of India, [1960) 2 SCR 671 and Tulsipur
Sugar Co. Ltd.· v. Notified Area Committee, Tulsipur, [1982) 2 SCC 295,
relied on.
Field v. Clarke, [1892) 143 U.S. 649, referred to.
Hampton & Co. v. United States, (1927) 276 U.S. 394; The Queen v.
Burah, (1878) 3 A.C. 889; Russel v. The Queen, (1882) A.C. 829; King_Emperor v. Be11ga1ilal Sanna, (1944) L.R. 72 I.A. 57 and Sardar lnder Singh
v. State of Rajastha11, [1957) SCR 604, cited.
3.2. Section 11(1) of the Act says that the government can grant the
exemption "either permanently or for a specified period". Having regard to.
the nature of the power and the character of the provision, it cannot be
held that this power can be exercised only prospectively. The period
specified can cover either wholly or partly the period anterior to the date
H of order, so long as the period specified is subsequent to the commence-
.J
1.T.C. BHADRACHALAM PAPERBOARDSv. MANDALREV.OFFlCER 649
ment of the Act. [670-A-B]
A. T7iangal Kunju Musaliar v. M. Venkatachalam Potti, Authorised
Official and Income-Tax Officer & Anr., [1955] 2 SCR ll96, relied on.
3.3. The retrospective operation given to GOMs. No. 386 is valid and
lawful. Once this is so, the very existence of GOMs. No. 201 becomes
doubtful. There cannot be a· statutory and a non-statutory G.O. covering
A
B
the same period, inconsistent with each other. While G.O.Ms. No. 386
provides exemption only for a period of five years prescribed therein,
GOMs. No. 201 pertains to grant the exemption on a permanent basis. The
appellant can, therefore, claim exemption only under and in accordance C
with GOMs. No. 386. [670-C]
4. The requirement of 'laying' prescribed by Section 11 (2) of the Act
is not mandatory and an order of exemption under Section 11 cannot be
said to be ineffective or unenforceable for the reas<'n of 'non-laying' as
required by Section ·11 (2) of the Act. The requirement is one form of D
legislative control over subordinate legislation. [670-E-F]
Mis. Atlas Cycle Industries Ltd. & Ors. v. State of Haryana, [1979] 2
sec 196, followed.
D.K. Klishnan v. Secretary Regional Transport Authority, Chittor,
(1956) AP 129, approved.
E
5. In order to determine the applicability of the principle of Promissory estoppel it is necessary to keep in mind the distinction between an
administrative act and an act done under a statute. Where the field is
F
occupied by an enactment, the executive has to act in accordance therewith,
particularly where the provisions are mandatory in nature. There is no
room for any administrative action or for doing the thing ordained by the
statute otherwise than in accordance therewith. Where, of course, the
matter is not governed by a law made by a competent Legislature, the G
executive can act in its executive capacity since the executive power of the
State extends to matters with respect to which the Legislature of a State
has the power to make laws (Article 162 of the Constitution). Ifit is found
that the act done by the Government is invalid and ineffective for non-compliance with the mandatory requirements of law, if would be rather curious
if it is held that notwithstanding such non-compliance, it yet constitutes a H
650
SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
A 'promise' or a 'representation' for the purpose of invoking the rule of
promissory/equitable estoppel. Accepting such a plea would amount to
nullifying the mandatory requirement of law besides providing a licence to
the government or other body to act ignoring the binding provisions of law.
Such a course would render the mandatory provisions of the enactment
B
meaningless and superfluous. It falls foul of our constitutional scheme and
public interest. It would virtually mean that the rule of promissory estoppel can be pleaded to defeat the provisions of law whereas the said rule, it
is well- settled, is not available against a statutory provision. The sanctity
of law and the sanctity of the mandatory requirement of the law cannot be
allowed to be, defeated by resort to rule of estoppel. It cannot, therefore,
C
be said that where an act is done in violation of a mandatory provisions
of a statute, such act can still be made a foundation for invoking the rule
of promissory/equitable estoppel. Moreover, when the government acts
outside its authority, as in this case, it is difficult to say that it is acting
within its ostensible authority. [671-B-H; 672-A-B]
D
E
F
Collector of Bombay v. Municipal Co1poration of the City of Bombay,
[1952) SCR 43; Dadoba Janardhan v. The Collector of Bombay, (1901) ILR
25 Born. 714 and Municipal C01poratio11 of tlie City of Bombay v. T11e
Secretmy of State for India in Council, (1905) ILR 29 Born. 580, held
inapplicable.
Wells & Ors. v. Minister of Housing & Local Govemment & Anr.,
[1967) All. E.R. 104, referred to.
Ramsden v. Dyson, (1866) LR 1HL129 andAriff v.Jadunath, (1931)
LR 58 IA 91; cited.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 11821-22
of 1966.
From the Judgment and Order dated 15.4.94 of the Andhra Pradesh
G High Court in W.P. Nos. 3097 and 17179of1990.
Soli J. Sorabjee, Ms. Nisha Bagchi, Kailash Vasdev and C.K. Sasi for
the Appellants.
K. Ram Kumar and (C. Balasubramaniam) for T.V.S.N. Chari for
H
the Respondents.
·
,,_
LT.C'BHADRACHAIAM PAPERBOARDS v. MANDALREV. OFFICER(JEEVAN REDDY,J.J 651
The Judgment of the Court was delivered by
A
B.P. JEEVAN REDDY, J. Leave granted.
The Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963
(the Act) levies non-agricultural land assessment (NALA) for each fasli
year at the rates specified. The rate varies depending upon the nature of B
user. Section 3 is the charging section. Section 7 of the Act provides for
remission of NALA. It reads :
"7 Remission : The Government may, by general or special order
and for just and sufficient reason to be recorded therein, remit in
whole or in part, the assessment payable under this Act in respect
of any non-agricultural land in a local area."
Section 11 confers upon the government the power to exempt any
class of non-agricultural lands from the levy. Since it is this section which falls
for consideration in this appea~ it would be appropriate :o set it out in full:
"11. Power to exempt : (l) The Government may, by order, published in the Andhra Pradesh Gazette, setting out the grounds
thereill, exempt either permanently or for a specified period, any
class of non-agricultural lands from the levy uf assessment under
c
D
this Act, subject to such restrictions and conditions as the GovernE
ment may consider necessary to impose.
(2) Every order made under sub-section (1) shall, immediately
after it is made be laid on the table of the Legislative Assembly if
it is in session, and if it is not in session, in the session immediately
following, for a total period of fourteen days which may be comF
prised in one session or in two successive sessions and if, before
the expiration of the session in which it is so laid or the session
immediately following, the Assembly agrees in making any
modification in the order or in the annulment of the order, the
order shall thereafter have effect only in such modified form, or G
shall stand annulled, as the case may be, so however that any such
modification or annulment shall be without prejudice to the validity
of anything previously done under that order."
Section 13 confers upon the government the power to make rules to
carry out the purposes of the Act.
H
652
SUPREME COURT REPORTS (1996) SUPP. 5 S.C.R.
· A
In the year 1965, the government issued G.O.Ms. No. 877 dated June
16, 1965 under Section 7 of the Act directing that "with a view to provide ·
incentives to the industries established both in the public and private
sectors in the State, either before or after the 1st July, 1963, half of the
assessment payable under the Act in respect of the non-agricultural lands
B . in the entire area of the industrial undertakings shall be remitted for a
period of five years from the date of establishment, or upto the date of
production of rated capacity of such undertakings, whichever is · earlier".
The validity of the G.O. is not in issue nor is it sought to be enforced by
the appellant. It is referred to more as representing the first step in the
matter of providing incentives to newly established industries.
c
In December 17, 1976, the government in Social Welfare department
issued G.0,Ms. No. 201. The G.O. does not purport to have been issued
under any enactment(s). At the end of G.O., it is recited that it is issued
"by order and in the name of the Governor or Andhra Pradesh". The
D contents of the G.0. are to the following effect : with a view to explore the
possibilities of rapid industrialisation of scheduled areas in the State, the
government had set up an expert committee which had submitted its report
in February, 1976. The expert committee had recommended the setting up
of a High-Power Committee to formulate and implement industrial
E
schemes in the scheduled areas. Government, accordingly, constituted a
High-Power Committee in May, 1976. The High-Power Committee recommended certain incentives and concessions to industries to be established
in scheduled areas. The government examined the said recommendations
in consultation with the Revenue, Industries and Commerce, Finance and
Planning departments and, hence, the said order. Four types of exemptions
F
are provided by the G.O., viz., (i) exemption from sales tax on purchase of
raw material, machinery etc.; (ii) a total exemption from Stamp duty; (iii)
fifty percent exemption in the charge for water used for industrial purposes
drawn from sources maintained at the cost of government or any local
body; and (iv} exemption fr~m non-agricultural assessment. It says, "according to the orders issued in G.O. Ms. No. 377 Revenue dated 16.6.1965,
G the entrepreneurs who have established industries whether before or after
1.7.1963 are required to pay half the assessment payable under the Andhra
. Pradesh Non-Agricultural Lands Assessment Act, 1963 in respect of nonagriculturl!l land in the entire areas of the industrial under-takings for a
period ·of' five years from the date of estabFshment or up to the date of
H production of rated capacity of such undertakings, whichever is earlier. In
I.T.C.BHADRACHAIAMPAPERBOARDSv.MANDALREV.OFFICER[JEEVANREDDY,J.)653
the case of industries set up in the scheduled areas, it is hereby ordered that A
the usual land revenue be levied on the extent of land instead of non-agricultural assessment". It is stated that the orders issued in the said G.O. shall
come into force with immediate effect. The Director of Information and
Public Relations, Director of industries and Director of Tribal, Cultural
Research and Trading Institute and the Convenor of High Power CommitB
tee were requested to see that the scheme is given full publicity. Though
the G.O. seeks to provide exemption from the relevant provisions of the
Andhra Pradesh General Sales Tax Act, Stamp Act, laws concerning the
municipalities (water charges) and Andhra Pradesh Non-Agricultural
Lands Assessment Act, it does not refer to the provisions for exemption,
if any, in any of the said enactments nor does it recite that it is issued under
those provisions.
c
On May 2, 1990, the government of Andhra Pradesh issued another
order contained in G.O.Ms. No. 386. The G.O. is in two parts, the nonstatutory part and the statutory part. In the non-statutory part of the G.O., D
reference is made to G.0.Ms. No. 877 dated June 16, 1965 and to G.0.Ms.
No. 201 dated December 17, 1976. It refers to the contents of G.O.Ms. No
877 and to the contents of G.0.Ms. No. 201 (insofar as it related to
exemption under the Act). It then states that G.0.Ms. No. 201 was not
published in the Andhra Pradesh Gazette as required under Section 21 of
the Andhra Pradesh General Clauses Act, 1891 and that it !J.lso did not E
clarify whether the concession granted thereby was a permanent one or
was operative only for five years as was provided in G.O.Ms. No. 877. The .
G.O. then recites : "A doubt has, therefore, arisen with regard to implementation of the above concession and the District Collectors of
Adilabad and Khammam have sought for a clariEcation'', that the governF
ment has examined the matter carefully in'i'onsultation with the Commissioner of Land Revenue and is issuing the appended notification which was
directed to be published in the extra-ordil'.~iry issue of Andhra Pradesh
Gazette dated May 5, 1990. The statutory pu: of the G.O. may now be set
out. It reads :
G
"In exercise of the powers conferred by sub-section (1) of Section
11 of the Andhra Pradesh Non-Agricultural Lands Assessment
Act, 1963 (Andhra Pradesh Act 14 of 1963), the Governor of
Andhra Pradesh hereby directs that with a view to provide incentives to the industries already established or to be established both H
654
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B
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D
SUPREME COURT REPORTS [1996) SUPP:5 S.C.R.
in the Public and Private Sectors in the Scheduled Areas of the
State, be exempted from payment of assessment under the NonAgricultural Lands Assessment Act, 1963, but the usual land
revenue be levied on the extent of land instead of N on-1Agricultural
Lands Assessment as per rules.
The .above concession shall be applicable for a period of 5 years
from the date of establishment of the industry or till the industry
reaches its rated capacity in its production whichever is earlier and
thereafter full assessment under Non-Agricultural Land Assessment Act should be levied and collected from such undertakings/entrepreneurs.
This notification shall be deemed to have come into force with
effect from 17th December, 1976.
A.N. TIWARI
SECRETARY TO GOVERNMENT"
The appellant, Bhadrachalam Paper Boards Limited, established a
factory on an extent of about 507 acres 10 guntas of land in Sarapaka
Village in the Scheduled areas of Khammarn district. The land was acquired by the State for the purpose of the appellant. The appellant says
E
that it completed the construction of the factory in 1979 and commenced
production on and from Ist October, 1979. When a demand was made by
the Tehsildar in the year 1980 for payment of NALA in respect of the said
land, the appellant submitted that by virtue of G.O.Ms. No. 201 dated
December 17, 1976, it is not liable to pay the said tax. Representations were
F
also made to the Collector and the Secretary to the Government in
Revenue department. Notwithstanding that the matter was being considered at higher levels, the Manda! Revenue Officer continued to issue
demand notices from time to time. Ultimately, on February 16, 1990, the
authorities under the Act raised a demand in a total sum of Rs.
G 23,10,149.SOp for the fasli years 1393 to 1399 (1983-84 to 1988-89) and for
another sum of Rs. 3,07,850 (for the year 1989-90) and sought to attach
the movables of the appellant. In those circumstances, the appellant filed
a writ petition (No. 3091 of 1990) in the High Court of Andhra Pradesh
for issuance of an appropriate writ, order or direction declaring the said
demand of NALA as illegal and unenforceable and to direct the respon~
H dents not to take any action to collect the said assessment from the
I.TC BHADRACHALAM PAPERBOARDS v. MAN DAL REV. OFFICER (JEEVAN REDDY, J.] 655
appellant. It may be noticed that the writ petition was filed sometime prior A
to May 2, 1990, on which date the aforementioned G.O.Ms. No. 386 was
issued.
The respondents opposed the writ petition contending that G.O.Ms.
No. 201 dated December 17, 1976 was not effective or enforceable in law
and that the o~ly exemption to which the appellant is entitled is the one B
provided in G.O.Ms. No. 386 issued on May 2, 1990. The respondents
pointed out that G.O.Ms. No. 386 has been given retrospective effect from
December 17, 1976 which means that it supersedes G.O.Ms. No. 201,
thereby rendering the latter G.O.Ms. totally ineffective and inoperative.
The High Court dismissed the writ petition upholding the contentions of the respondents. It also negatived the plea of promissory estoppel
and legitimate expectation put forward by the appellant.
In this appeal, Sri Soli J. Sorabjee, learned counsel for the appellant,
c
urged the following contentions :
D
(1) G.0.Ms. No. 201 dated December 17, 1976 is a valid order issued
under Section 11 of the Act. Though the G.O. does not recite the source
of power or the provision under which it has been issued, it must he related
to the government's power under Section 11. The G.0. has been issued E
complying with all the requirements of Section 11 except two, viz., (i)
publication in the Andhra Pradesh Gazette and (ii) 'laying' before the
)egislature for the requisite period. Both the said requirements are, however, directory in nature and are not mandatory. It must be held that the
said G.O. is an order of exemption validly issued under Section 11 of the
~
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(2) Though not published in the Gazette, the G.O. itself directs th\:
several authorities of the government to give it wide publicity and we must
presume that it was so given. Having regard to the fact that the object of
giving publicity is to acquaint the people of the issuance/.- nstence of such G
an order, the publicity given must be deemed to be sufficient. The mere
non- publication in the Gazette is not fatal.
(3) G .O.Ms. No. 201 does not infringe upon or curtail the rights of
anyone. It does not create any liability of tax nor does it create any other
charge upon anyone. It embodies the policy of the government granting H
656
SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.
A
incentives to new industries set up in scheduled areas of the State. It is an
invitation, an assurance and a promise to potential entrepreneurs to establish industries in the schedulec;I areas of the State.
B
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( 4) The appellant has no control over the Andhra Pradesh government. It was the duty of the Andhra Pradesh government to have published
the said G.O. in the Gazette. It is well-settled that where the prescriptions
of a statute relate to the performance of a public duty and where the
invalidation of acts done in neglect thereof would work serious general
inconvenience or injustice to persons who have no control over those
entrusted with the duty, without promoting the essential aims of the legislature, such prescriptions should be treated as directory. Non-compliance
with such prescriptions does not affect the validity of the act done in ·
disregard of them.
(5) It is well-settled by a catena of decisions that 'non-laying' of the
rules/orders on the floor of the Legislature as required by law does not
D render the rules or ·the order void or non-existent. The requirement has
been held to be directory only.
E
F
(6) The government having issued G.O.Ms. No. 201 cannot and
should not be allowed to question its validity. More so, because the
appellant has acted on it. Where the government acts within the scope of
its ostensible authority and makes a representation on which another acts,
it must be held bound by it. A defect in procedure or any irregularity can
be waived so as to render the representation valid. Representations and
promises can be embodied in non-statutory executive orders as well. In
other words, the non-compliance with statutory requirement does not
affect the 'representation' contained in G.O.Ms. No. 201 in any manner.
The doctrine of promissory/equitable estoppel and of the legitimate expectations are attracted in such a case.
(7) Accepting the contention of the respondents would amount to
permitting them to commit a legal fraud. It would amount to subjecting a.
G person to hardship for the fault of the government in carrying out the
requirement of publication and the requirement of 'laying'. Such a, course
would neither be fair nor reasonable. G.O.Ms. No. 201 still subsists and is
operative. G.O.Ms. No. 386, insofar as it purports to give retrospective
effect to the concession contained therein on and from December 17, 1976
H is invalid' and incompetent. G.O.Ms. No 386 is in the nature of the
I.TC BHADRACHA!AM PAPERBOARDS v. MANDALREV. OFFICER (JEEVAN REDDY, J.( 657
delegated legislation. It is well-settled that in the absence of a specific A
·provision in the Act, the rule-making authority cannot give retrospective
effect to the rules made by it.
On the other hand, Sri Ram Kumar, learned counsel for the State of
Andhra Pradesh, urged the following submissions in support of the judgment under appeal : G.O.Ms. No. 201 is not valid or enforceable since it B
c
was not published in the Gazette nor was it laid before the Legislature as
required by Section 11. The requirement of publication in the Gazette is
mandatory and not directory. The power of exemption is not a species of
delegated legislation; it is an instance of conditional legislation. The power
under Section 11 can be exercised only in the manner and in accordance
with the requirements of Section 11 and in no other manner. It does not
take effect and become enforceable until and unless it is published in the
manner prescribed, i.e., in the Gazette. The power of exemption should be
strictly construed. The order which is not in conformity with the requirements of Section 11 cannot be treated as an order thereunder, nor can it D
give rise to or form a foundation for the pleas of promissory/equitable
estoppel or to legitimate expectations. It is already held by this Court that
no exemption notification is effective until and unless it is published in the
Gazette as required by the Act. Public interest demands strict compliance
with the said requirement. Moreover, G.O.Ms. No. 386 has been validly E
issued and the retrospective effect given to it on and from December 17,
1976 is equally valid. It means that G.0.Ms. No. 386 must be deemed to
have been issued on December 17, 1976; it is admittedly a statutory G.O.
If so, there cannot be another non-statutory G.O. on the same subject
inconsistent with the terms of the statutory G.0. covering the same period.
For this reason too, G.O.Ms. No. 201 is neither effective nor enforceable.
The first question we have to answer is whether the publication of
F
the exemption notification in the Andhra Pradesh Gazette, as required by
Section 11(1) of the Act, is mandatory or merely directory? Section 11(1)
requires that an order made thereunder should be (i) published in the G
Andhra Pradesh Gazette and (ii) must set out the grounds for granting
the exemption. The exemption may be on a permanent basis or for a
specified period and shall be subject to such restrictions or conditions as
the government may deem necessary. Sri Sorabjee's contention is that while
the requirements that the power under Section ll should be expressed H
658
SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.
A
through an order, that it must contain the grounds for granting exemption
and that the order should specify whether the exemption is on a permanent
basis or for a specified period are mandatory, the requirement of publication in the Gazette is not. According to the learned counsel, the said
requirement is merely directory. It is enough, says the counsel, if due
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publicity is given to the order. H ~ relies upon certain decisions to which
we shall presently refer. We find it difficult to agree. The power under
Section 11 is in the nature of conditional legislation, as would be explained
later. The object of publication in the Gazette is not merely to give
information to public. Official Gazette, as the very name indicates, is an
official document. It is published under the authority of the government.
Publication of an order or rule in the Gazette is the official confirmation
of making of such an order or rule. The version as printed in the Gazette
, is final. The same order or rule may also be published in the newspapers
or may be broadcast by radio or television. If a question arises when was
a particular order or rule was made, it is the date of Gazette publication
D that is relevant and not the date of publication in a newspaper or in the
media [See Pankaj Jain Agencies v. Union of i11dia, [1994] 5 S.C.C. 198. In
other words, the publication of an order or rule is the official irrefutable
affirmation that a particular order or rule is made, is made on a particular
E
F.
day (where the order or rule takes effect from the date of its publication)
and is made my a particular authority; it is also the official version of the
order or rule. It is a common practice· in courts to refer to the Gazette
whenever there is a doubt about the language of, or punctuation in, an Act,
Rule or Ord.er. Section 83 of the Evidence Act says that the court shall
presume the genuineness of the Gazette. Court will take judicial notice of
what is published therein, unlike the publication in a newspaper, which has
to be proved as a fact as provided in the Evidence Act. If a dispute arises
with respect to the precise language or contents of a rule or order, and if
such rule or order is not published in the Official Gazette, it would become
necessary to refer to the original itself, involving a good amount of inconvenience, delay and unnecessa1y controversies. It is for this reason that very
G often enactments provide that Rules and/or Regulations and certain type
of orders made thereunder shall be published in the Official Gazette. To
call such a requirement as a dispensable one - directory requirement - is,
in our opinion, unacceptable. Section 21 of the Andhra Pradesh General
Clauses Act says that even where an Act or rule provides merely for .
H publication but does not say expressly that it shall be published in the
I.T.C BHADRACHAI.AM PAPERBOARDS" MANDALREV. OFFICER!JEEVAN REDDY,J.J 659
official Gazette, it would be deemed to have been duly made if it is A
published in the official Gazette•. As observed by Khanna, J ., speaking for
himself and Shelat, J. in Sammbhu Nath Iha v. Kedar Prasad Sinha & Ors.,
(1972) 1 S.C.C. 573 at 578, the requirement of publication in the Gazette
"is an imperative requirement and cannot be dispensed with". The learned
. Judge was dealing with Section 3(1) of the Commissions of Inquiry Act, B
1952 which provides inter alia that a Commission of Inquiry shall be
appointed "by notification in the official Gazette". The learned Judge held
that the said requirement is mandatory and cannot be dispensed with. The
learned Judge further observed :
"The commission of inquiry is appointed for the purpose of making
an inquiry into some matter of public importance. The schedule
containing the various allegations in the present case was a part
of the notification, dated March 12, 1968 and specified definite
matters of public importance which were to be inquired into by
c
the Commission. As such, the publication of the schedule in the D
Official Gazette should be held to be in compliance with the
statutory requirement.