JUDGMENT
G.S. Singhvi, J.
1. These petitions have been filed to challenge the legality of the notification dated September 2, 1993 whereby enhanced lump-sum tax has been imposed on the petitioners with effect from October 1, 1992.
2. For the purpose of this order, it will be sufficient to narrate a few facts from C.W.P No. 11994 of 1996.
3. The petitioner, Ranbir Singh Ram Gopal, has been manufacturing bricks in village Ladrawan, District Rohtak. In terms of Section 26 of the Haryana General Sales Tax Act, 1973 (hereinafter referred to as “the Act”) and Rule 39-A of the Haryana General Sales Tax Rules, 1975 (for short, “the Rules”), the petitioner has been paying lump-sum tax at the rates prescribed by the Government from time to time. By notification dated August 27, 1990, the amount of lump-sum tax was fixed for the period from April 1, 1988 to September 30, 1992. On September 14, 1992, the Government of Haryana issued a draft notification for revising the rates of the lump-sum tax. However, the final notification came to be issued on September 2, 1993 for charging the enhanced lump-sum tax. The rates of tax specified in the notification dated September 2, 1993 are lower than the rates specified in the provisional notification dated September 14, 1992 but the final notification has been made effective from October 1, 1992. The petitioners have challenged the imposition of the lump-sum tax at higher rates mainly on the ground that the amendment made by the notification dated September 2, 1993 in Rule 39-A cannot be given retrospective effect.
4. The respondents have defended the retrospective levy of enhanced lump-sum tax by pleading that the provisional notification had been issued by the Government on September 14, 1992 and the petitioners were aware of the fact that the enhanced lump-sum tax will be charged with effect from October 1, 1992. The respondents have also raised an objection to the maintainability of the writ petition on the ground of availability of alternative remedies by way of appeal, etc., and failure of the petitioner to avail such remedies.
5. We have heard Shri Kulvir Narwal, learned counsel for the petitioners and Shri Parmod Goyal, Deputy Advocate-General, Haryana, for the respondents.
6. With regard to the objection of the respondents to the maintainability of the writ petitions, it is sufficient to say that the remedies of appeal, etc., provided under Sections 39, 40 and 41 of the Act cannot be treated as alternative remedies because vires of the notification cannot be gone into by the appellate and revisional authorities. Therefore, the petitioners cannot be non-suited on the ground of their failure to avail the alternative remedies.
7. On the merits of the case, we find substance in the plea of the petitioners that the amendment made in Rule 39-A of the Rules cannot be given retrospective effect. None of the provisions contained in the Act including Section 64 read with Section 26 empowers the State Government to frame or amend the Rules with retrospective effect. In the absence of such provision, the State Government which acts as a delegate of the Legislature cannot enact a rule with retrospective effect nor can it amend the existing Rules with retrospective effect. Legal proposition that the delegated/subordinate legislation cannot be enacted with retrospective effect in the absence of the power vesting in the rule-making authority in that behalf is well-settled. Therefore, the impugned notification cannot be sustained in so far as it seeks to levy enhanced lump-sum tax with retrospective effect, i.e., from October 1, 1992.
8. We may also mention that a similar issue has been considered in C.W.P. No. 10311 of 1993 [Arya Gram Udyog Bhatha Sangh (Trust) v. State of Haryana]. By an order dated November 25, 1993 (see infra) a division Bench of this Court declared the notification to be invalid qua its retrospective operation, Though that order does not contain elaborate reasons for declaring the notification to be invalid, we are of the opinion that the conclusion recorded by the division Bench is correct.
9. For the reasons mentioned above, the writ petitions are allowed. The notification dated September 2, 1993 is quashed to the extent it has been made applicable with effect from October 1, 1992. The respondents are restrained from making recovery of enhanced lump-sum tax from the petitioners for the period between October 1, 1992 and September 1, 1993. The petitioners shall be liable to pay tax at the old rates for the aforesaid period.
10. The parties are left to bear their own costs.
Appendix
[The judgment of the division Bench of the Punjab and Haryana High Court consisting of S.S. SODHI and N.K. SODHI, JJ., in ARYA GRAM UDYOG BHATHA SANGH (TRUST) v. STATE OF HARYANA (Civil Writ Petition No. 10311 of 1993 decided on 25th November, 1993) is printed below :–]
ARYA GRAM UDYOG BHATHA SANGH (TRUST) v. STATE OF HARYANA
ORDER
The challenge here is to the notification of the Haryana Government issued on April 22, 1993 (annexure P-4) to be precise to the retrospective effect thereof. On the face of it such a notification can only be prospective in its effect and operation. There is thus patent legal infirmity in its retrospective effect. We, consequently, hold the notification to be invalid with regard to the retrospective effect thereof and hold that it shall be operative prospectively only, i.e., with effect from the date of its issuance, namely, April 22, 1993.
This writ petition is allowed in these terms.