PETITIONER: MUNICIPAL CORPORATION OF THE CITY OFAHMEDABAD, ETC. Vs. RESPONDENT: NEW SHOROCK SPG. & WVG. CO., LTD., ETC. DATE OF JUDGMENT: 17/04/1970 BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C. CITATION: 1970 AIR 1292 1971 SCR (1) 288 1970 SCC (2) 280 CITATOR INFO : RF 1971 SC 231 (5) RF 1973 SC1461 (566) RF 1975 SC1234 (7) D 1975 SC2037 (11) RF 1975 SC2299 (190,607) RF 1984 SC1780 (8,10) R 1992 SC 522 (17) ACT: Bombay Provincial Municipal Corporation Act (59 of 1949), s. 152A-Scope of-Constitutional validity of s. 152A(3). HEADNOTE: The appellant Corporation assessed the immovable properties of the respondents to property-tax for the year 1964-65 and 1965-66 on the basis of the 'flat rate' method under the Bombay Provincial Municipal Corporation Act, 1949. The assessments were challenged in the High Court but the petitions were 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 challenged the attachment proceedings but their petitions were again dismissed. In appeals against those orders in this Court the respondents prayed for interim stay, but this Court did not grant stay because the appellant undertook to return the amounts if the respondents succeeded. This Court 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, when. the respondents demanded refund of the amounts illegally collected from them the appellant did not comply and hence the respondents moved the High Court again. Those petitions were allowed and the appellant appealed to this Court. While the appeals were pending, the Bombay Provincial Municipal Corporation (Gujarat Amendment and Validity Provisions) Ordinance, 1969, was passed and sub-s. (3) was introduced in s- 152A. HELD : Under s. 152A 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 'assessment 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 D] (2) Sub-Section (3) of s. 152A, 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. The Legislatures under the Constitution have, within prescribed limits, powers to make laws prospectively as well as retrospectively. By exercise of those powers 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 given by courts. Therefore, s. 152A(3), introduced by the Ordinance is repugnant to the Constitution. 1294 H; 295 A-C; 297 F] Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality [1970] 1 S.C.R. Mahal Chand Sethia v. State of West Bengal Cr. A. No. 75/69 dt. 289 10-9-69 and Janpada Sabha, Chhindwara v. Central Provinces Syndicate Ltd. and State of Madhya Pradesh v. Amalgamated Coal Fields Ltd. [1970] 3 S.C.R. 745, followed. The apart it authorises the Corporation to retain the amounts illegally collected and' treat them as loans, that is, authorises the collection of forced loans which is impermissible under the Constitution. State of Madhya Pradesh v. Ranojirao Shinde, [1968] 3 S.C.R. 489, followed. JUDGMENT:
CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeals Nos.
2062 to 2064, 2072 and 2251 of 1968.
Appeals from the judgment and order dated July 3, 4, 1969 of
the Gujarat High Court in Special Civil Applications Nos. 52
of 1969 etc.
and
Writ Petitions Nos. 51, 52 and 57 to 60 of 1970.
Petitions under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
B. Sen and 1. N. Shroff, for the appellants (in C.A. No.
2062 of 1969) and respondent Nos. 2 to 4 (in V.P. Nos. 59
and 60 of 1970).
M. C. Setalvad and I. N. Shroff, for the appellants (in
C.A. No. 2063 of 1969) and respondents 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 Nos. 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 respondents (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)
The Judgment of the Court was delivered by
Hegde, J. These are connected proceedings. Herein the
validity as well as the interpretation of some of the
provisions of the Bombay Provincial Municipal Corporation
Act, 1949 (Act 59 of 1949) (to be hereinafter referred to as
the Act) as amended from time to time by the Gujarat State
comes up for consideration. In these proceedings some of
the Textile Mills of Ahmedabad are ranged against the State
of Gujarat as well as the Municipal Corporation of the City
of Ahmedabad. They are seeking to get refund of some
amounts paid as property tax, by them, which amounts
according to them were illegally collected from them.
290
In order to understand the controversies involved in these
proceedings, it is best to set out the course of events
leading upto these proceedings. Various Textile Mills which
are involved in these cases will hereafter be referred to as
the “companies”. These companies own immovable properties
consisting of lands and buildings in the 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 thereunder 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 rate” method. According
to that method in valuing the lands, the value of plants and
machinery were also taken into consideration. The buildings
were assessed on the 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. 133(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 to 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 succeeded 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
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 Court Reports p. 679 (New
Manek Chowk Spinning and Heaving Mills Co. Ltd. and ors. v.
Municipal Corporation of the City of Ahmedabad 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 assessment 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 cam up for hearing on April15, 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 neither 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 Gujarat under Art. 226 of the Constitution seeking
writs of Mandamus against the Corporation and its Officers
directing them to refund’ the amounts illegally collected
from them and for a declaration that s. 152A 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. 152A
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 pending disposal of those
appeals. Those applications came up for hearing on
November. 5, 1969. On that date, this Court stayed the
operation of the. judgment of the High Court of Gujarat on
the Corporation undertaking to pay interest on the. amounts
in- question at 6% per annum from the date on which they
were collected till the date of refund in the event of the
appeals failing. A few days thereafter, the Corporation
moved this Court to modify that order. It wanted to resile
from the undertaking given by it. Hence this
292
Court modified its earlier order and dismissed the stay
applications on December 9, 1.969. On or about December 23,
1969 the Governor of Gujarat promulgated an Ordinance under
Art. 213 of the Constitution entitled Bombay Provincial
Municipal ,Corporation (Gujarat Amendment and Validating
Provisions) Ordinance, 1969. This Ordinance will be
hereinafter referred to as “the Ordinance”. That Ordinance
came into effect immediately. By means of that Ordinance, a
new sub-section namely sub-s. (3) was introduced into s.
152A. The effect of the insertion of sub-s. (3) in s. 152A
is to authorise the Corporation and its ,Officers to refuse
to refund the amount of tax illegally collected despite the
orders of this Court as well as the Gujarat High Court till
the assessment or reassessment of property tax is made in
,,accordance with the provisions of the Act as amended. But
under its provisions, the Corporation is required to pay
interest at 6% on the amount ultimately found liable to be
refunded. In the writ petitions under consideration the
validity of the aforementioned provision is challenged.
This, in brief is the history of these cases.
In these proceedings three questions of law arise for
decision namely (1) What is the true scope of s. 152A (2)
Is that pro-vision ultra vires any of the provisions of the
Constitution and (3) Is sub-s. (3) of s. 152A (introduced by
the Ordinance) violative. of the Constitution?
Section 152A reads as follows
“(1) In the City of Ahmedabad if in respect
of premises included in the assessment, book
relating to Special Property Section, the
levy, assessment, collection or recovery of
any of the property taxes for any official
year preceding, the official year commencing
on the 1st April 1968 is affected by a decree
or order of a court on the ground that the
determination of the 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 Chapter VIII of Schedule A
to this Act were invalid, then it shall be
lawful for the Municipal Corporation 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 rules as
amended by the Bombay Provincial 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 accordingly the readable
value of lands and buildings in such
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 called 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 exceeds the, amount
of tax which but for the decree or order of
the court as aforesaid could have been
assessed for that year in respect of the
premises, then the amount of tax to be levied
for that year in respect of the premises in
accordance with the provisions of this section
shall be an amount arrived at after deducting
from the amount of tax so assessed or
reassessed such amount as may be equal to the
amount as so in excess.
(2) Where any such property tax in respect
of any such premises is assessed or reassessed
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 subsection (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 Corporation to
‘assess or reassess the premises concerned in those
decisions to property tax for the concerned assessment years
at the rates applicable for those years in accordance with
the provisions of the Act and the rules as:amended by the
amending Act as if the: said Act has been, in force during
the years. for which such tax is to assessed or reassessed
and accordingly fix the rateable value of
L 12 Sup CI 70-5
294
lands and buildings of those premises and assess or reassess
the tax payable and when the tax is so assessed or
reassessed, the tax so assessed may be levied, collected
‘and recovered by the Corporation and for that purpose the
provisions of the amending Act and the rules shall, so far
as may, be apply to such collection and proceedings
preceding those collections. That provision further says
that the fixation of rateable value so made and the
collection and recovery of such tax shall be valid and shall
not be called in question on the ground that the same were
in any way inconsistent with the provisions of the Act and
the rules in force prior to the commencement of the amending
Act. The section also authorises the Corporation to deduct
from the amounts earlier illegally collected the tax
assessed according to law. All that the proviso to that
section says is that the Corporation shall pay simple
interest at the rate of six per centum for annum on the
amount of excess liable to be refunded under sub-s. (2) from
the date of the decree or order of the court referred to in
sub-s. ( 1 ) to the date on which such excess is refunded.
At this stage it may be noted that there had been no
assessment orders even when these appeals were heard. In
view of our above conclusion that s. 152A does not authorise
the Corporation to retain the amounts illegally collected,
it is unnecessary for us to examine the validity of that
section.
This takes us to the validity of sub-s. (3) of S. 152A
introduced into that section by means of the Ordinance.
That provision reads
“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 recovered in respect of any of
the property taxes to which sub-section (1)
applies till assessment or reassessment of
such property taxes is made, and the amount of
tax to be levied and collected is determined
under subsection (1 ) :
Provided that the Corporation shall pay
simple interest at the rate of six per cent
per annum on the amount of excess liable to
be, refunded under subsection (2), from the
date of decree or order d the court 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 to command the Corporation to refuse to refund the
amount illegally collected despite the orders of this Court
and the High Court.
295
The State of Gujarat 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
prescribed limits, powers to make laws prospectively as well
as retrospectively. By exercise of those powers, the
legislature can remove the basis of a decision rendered by a
competent court thereby rendering that decision ineffective.
But no legislature in this country has 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 Prithvi Cotton Mills Ltd. and anr. v. The Broach
Borough 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 legislature sets out, to
validate a tax declared by a court to be ille-
gally collected under an ineffective or an
invalid law, the cause for ineffectiveness or
invalidity must be removed before validation
can be said to take place effectively. 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 competence, it
is not sufficient to declare merely that the
decision of the court shall not bind. for that
is tantamount to reversing the decision in
exercise of judicial power which the legis-
lature does not possess or exercise. A
court’s decision must always bind unless the
conditions on which it is based are so
fundamentally altered that the decision could
not have been given in the altered
circumstances. Ordinarily, a court holds a
tax to be invalidly imposed because the power
to tax is wanting or the statute or the rules
or both are invalid or do not sufficiently
create the jurisdiction. Validation of a tax
so declared illegal may be done only if the
grounds of illegality or invalidity are
capable of being removed and are in fact re-
moved and the tax thus made legal. Sometime
this is done by providing for jurisdiction
where jurisdiction had not been properly
invested before. Sometimes this is done by
re-enacting retrospectively a valid and legal
taxing provision and then by fiction making
the tax already collected to stand under the
re-enacted law.”
(1) [1970] 1 S.C.R. 388
296
In Mehal Chand Sethia v. State of West Bengal(1), officer,
J.. 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
resuscitated 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 HI 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
limitations laws can be prospective as also
retrospective in operation. court 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
Madhya 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
notifications’
(1) Cr. Appeal No. 75/69 decided on 10-9-
1969.
(2) [1970] 3 S.C.R. 745.
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 amendments
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 further, 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
open 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 apart, the said provision authorities
the Corporation to retain the ,amounts illegally collected
and treat them as loans. That ,is an authority to collect
forced loans. Such conferment of power is impermissible
under our Constitution-see State of Madhya Pradesh v.
Ranojirao Shinde and anr. ( 4 )
In the result, the above appeals are ‘dismissed with costs
and the writ petitions allowed and s. 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.
298