{"id":62453,"date":"1974-04-26T00:00:00","date_gmt":"1974-04-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-s-k-g-sugar-ltd-vs-state-of-bihar-and-ors-on-26-april-1974"},"modified":"2017-04-22T17:59:21","modified_gmt":"2017-04-22T12:29:21","slug":"ms-s-k-g-sugar-ltd-vs-state-of-bihar-and-ors-on-26-april-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-s-k-g-sugar-ltd-vs-state-of-bihar-and-ors-on-26-april-1974","title":{"rendered":"M\/S. S. K. G. Sugar Ltd vs State Of Bihar And Ors on 26 April, 1974"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. S. K. G. Sugar Ltd vs State Of Bihar And Ors on 26 April, 1974<\/div>\n
Equivalent citations: 1974 AIR 1533, \t\t 1975 SCR (1) 312<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Ray, A.N. (Cj), Mathew, Kuttyil Kurien, Alagiriswami, A., Goswami, P.K., Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nM\/s.  S. K. G. SUGAR LTD.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF BIHAR AND ORS.\n\nDATE OF JUDGMENT26\/04\/1974\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nRAY, A.N. (CJ)\nMATHEW, KUTTYIL KURIEN\nALAGIRISWAMI, A.\nGOSWAMI, P.K.\n\nCITATION:\n 1974 AIR 1533\t\t  1975 SCR  (1) 312\n 1974 SCC  (4) 827\n CITATOR INFO :\n RF\t    1977 SC1361\t (200)\n RF\t    1980 SC1124\t (18)\n\n\nACT:\nThe  Bihar  Sugar  Factories  Control  Act,  (7\t of   1937)-\nProvisions  re\t:  production, supply  and  distribution  of\nsugar  held to be in conflict with provisions  of  Essential\nCommodities  Act (10 of 1955)-Validity of taxing  provisions\nof  Bihar Act, if affected-President's Act 8 of\t 1969-Effect\nof.\n\n\n\nHEADNOTE:\nThe  Bihar Sugar Factories Control Act, (7 of 1937),  was  a\ntemporary  Act the life of which was extended from  time  to\ntime  and  Bihar  Act 7 of 1955\t reenacted  it\tpermanently.\nBihar  Act  17\tof 1963 substituted in\tthe  Act,  with\t re-\ntrospective effect from January 1, 1962, a new s. 29,  which\nempowered  the\tState Government to impose  by\tnotification\ncess  and tax on sugarcane.  The Constitutional validity  of\nthe  Act was challenged and the High Court held the Act\t un-\nconstitutional\tand  invalid.  When the matter\tcame  up  on\nappeal to this Court (A. K.   Jain's  case ([1969] 2  S.C.C.\n340) it was held that if Bihar Act of 1937 provides anything\ncontrary  to  rule 3(3) of the Sugar Cane  (Control)  Order,\n1955,  issued  under the Essential Commodities Act  1955  it\nmust  be  held to have been altered as per Art. 372  of\t the\nConstitution.\tIn  January,  1968, an\tOrdinance  was\tpro-\nmulgated  by  the  Governor  of Bihar,\tand  s.\t 35  of\t the\nOrdinance  corresponded to s. 29 inserted by  the  1963-Act.\nSec.  50 of the Ordinance revealed Bihar Act 7 of 1937,\t and\ns.  50(2) contained a saving and validating  provision\twith\nregard\tto anything done, tax imposed or liability  incurred\netc. under the Repealed Act.  A notification under s. 35  of\nthe Ordinance imposing a tax was issued by the Government in\nFebruary,    1968.    Successive    Ordinances\t  thereafter\npromulgated  by\t the Governor validated\t the  provisions  or\nanything  done\tthereunder.   In  August  1969,\t during\t the\nPresident's Rule, the Bihar Sugar Cane (Regulation of Supply\nand  Purchase) Act, (Presidents Act 8 of 1969)\twas  Passed.\nSec.  66(1)  of the Act provided  that\tnotwithstanding\t any\njudgment, decree or order by any court all cesses and  taxes\nimposed\t or  collected under any State law before  the\tcom-\nmencement  of  the Act shall be deemd to have  been  validly\nimposed\t etc.,\tas  if\tthe Act had been  in  force  at\t all\nmaterial times.\nWith respect to certain purchases of sugar cane made by\t the\npetitioner  in\tJanuary\t 1968  the  respondent\tState\tsent\nrequisitions to the petitioner for realisation of cane\tcess\nand purchase tax due under the notification under Bihar\t Act\n7  of 1937.  The petitioner challenged the imposition  in  a\npetition  under Art. 32, on the ground that  the  imposition\nwas without the authority of law.\nDismissing the petition,\nHELD  :\t The validity of the impugned notification  and\t the\ncess  and  tax\timposed thereunder has\tto  be\tjudged\twith\nreference to successive Ordinances and the President's\tAct.\nBy virtue of the legal fiction introduced by the  validating\nprovision  in s. 66(1) of the President's Act, the  impugned\nnotification  will  be\tdeemed\tto  have  been\tissued\t not\nnecessarily  under  the\t Ordinance of  1968  but  under\t the\nPresident's Act itself deriving its legal force and validity\ndirectly from the latter.\n(1)  The  Bihar Ordinance of 1968 was within the  competence\nof the Governor under Art. 213 of the Constitution.  The two\nconditions  required  by that Article are satisfied  in\t the\npresent case.  The State legislature was not in session\t and\nthe   Governor\twas  satisfied\tas  to\tthe   necessity\t  of\npromulgating the ordinance.  The Governor is the sole  judge\nas  to the existence of the necessary circumstances and\t his\nsatisfaction is not a justiciable matter.\nState  of  Punjab  v. Sat Pal Dang,<\/a>  [1969]  1\tS.C.R.\t633,\nfollowed.\n(2)  (i)  The  taxing provisions of the Bihar  Act  of\t1937\nnever  lost  their validity and continue,] to be  in  force.\nThe notification issued under the Bihar Act\n313\nof  1937  and continued under the latter Acts  imposing\t the\ntaxes or cesses also remained operative during the period in\nquestion till it was replaced by another notification  under\nthe  Ordinance\tof 1968.  It is therefore incorrect  to\t say\nthat  there was any period during which the tax\t was  levied\nwithout the authority of law.  The taxing provisions of\t the\nBihar Act were neither rendered inoperative by Art.  254(1),\nnor repealed or altered by the competent legislature  within\nthe contemplation of Art. 372 of the Constitution.  The\t Act\nof  1937  dealt\t with two distinct  and\t ,separate  matters,\nnamely.\t (a)  the  regulation  of  production,\tsupply\t and\ndistribution   of  sugar  cane,\t and  (b)   imposition\t and\ncollection  of\tcesses and taxes in respect of\tsugar  cane.\nMatter (a) was referable to Entry 33 of the Concurrent\tList\nand matter (b) to Entry 52 of the State List.  The Essential\nCommodities Act (Central Act of 1955) related to matter\t (b)\nonly.\tIn  the\t light of Art. 372 the Bihar  Act  would  be\ndeemed\tto have been repealed with effect from the  date  on\nwhich  the Central Act came into force (April 1, 1955)\tonly\nin  so\tfar  as\t it  controlled\t or  authorised\t control  of\nproduction  supply  and\t distribution  of,  and\t trade\t and\ncommerce in sugar cane.\t The taxing provisions of the  Bihar\nAct were not in any way repugnant to the Central Act or\t any\nother law passed by Parliament. [317C-318D; 319F]\n(ii) The observations of_the High Court while striking\tdown\nthe  Act, though very widely expressed, must be confined  to\nthe  precise points for determination that arose before\t it.\nThe  High Court was not concerned with the validity  of\t the\ntaxing provisions of the Bihar Act.  The question before the\nHigh   Court   was  the\t conflict  between   the   Essential\nCommodities  Act and the Sugar Control Order,  1955,  issued\nthereunder on the one hand, and the Bihar Act of 1937 on the\nother,\tbecause\t the regulation of price  of  sugarcane\t was\nexpressly dealt with by the Bihar Act.\tThus only that\tpart\nof  the Bihar Act came out) for consideration which  related\nto  Entry 13 of the Concurrent List and that part  could  be\nsaid  to  be  inconsistent  with the  Central  Act,  but  no\nquestion  of  the validity of the taxing provisions  of\t the\nBihar Act arose before the High Court. [319A-D]\n(iii)\t  The\tmatters\t relatable  to\tEntry  33   of\t the\nConcurrent  List  in the Act were severable from  the  other\nprovisions  of\tthe  Act.   There  was\tno  competition\t  or\ncollision between the taxing provisions of the Bihar Act and\nthose of the Central Act.  The two existed side by side\t and\neach  remains  operative in its own distinct  field  without\ninterfering with the other. [319D-E]\n(iv) A\tLegislature has the power to make a law\t imposing  a\ntax retrospectively or validate defective laws by subsequent\nlegislation or even past unlawful collections, the power  of\nvalidation  being ancillary to and included in the power  to\nlegislate on a particular subject. [320C]\n(vi) The  language  of\tthe  validating\t provisions  of\t the\nPresident's  Act  are of wide amplitude, and even if  it  is\nassumed\t that  the Essential Commodities Act  had  cast\t any\ndoubt\ton  or\tintroduced  any\t infirmity  in\tthe   taxing\nprovisions  of the State Act, the same had been\t removed  or\ncured  by  s. 66(1) of the President's Act  which  not\tonly\nnullify the effect if any, of the judgment of the High Court\non  the\t taxing\t provisions  of the Act\t of  1937  but\talso\nvalidates  the imposition, assessment or collection  of\t all\ncesses and taxes imposed under any State with  retrospective\neffect\tas if the President's Act had been in force  at\t all\nmaterial  times\t including the period in question,  that  is\nJanuary, 1968. [320D-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Writ Petition No. 370 of 1969.
\nUnder Article 32 of the Constitution of India.
\nP.   K. Chatterjee, N. H. Hingorani and Rathin Das, for\t the
\nappellant.\n<\/p>\n
L.   N. Sinha, Solicitor General, R. K. Garg, S. C.  Agarwal
\nand S. S.\n<\/p>\n
Bhatnagar, for respondent no. 1
\nThe Judgment of the Court was delivered by
\nSARKARIA,  J.-In  this\tpetition under\tArticle\t 32  of\t the
\nConstitution,  the  petitioner,\t a  Private  Ltd.   Company,
\nchallenges the validity of the
\n314<\/span>
\nCane  Cess  and Purchase tax levied on it for the  month  of
\nJanuary,  1968.\t  Respondents 1, 2 and 3 are  the  State  of
\nBihar,\tCertificate Officer and the Collector of  Champaran,
\nrespectively.\n<\/p>\n
The facts are these
\nThere was in force in the State of Bihar a  pre-Constitution
\nlaw known as Bihar Sugar Factories Control Act, 1937 (Act  7
\nof  1937).  By notification issued under s. 29 of that\tAct,
\ncane  cess and purchase tax were being levied in respect  of
\nsugar  cane intended to be used or used in a sugar  factory.
\nIt was a temporary enactment.  Originally, it was to  remain
\nin  force  until June 30, 1941.\t But its life  was  extended
\nfrom  time  to time by different amending  Acts.   The\tlast
\nextension was made by Bihar Act 6 of 1950 upto January\t 30,
\n1955,  which came into force on January 9, 1950 when it\t was
\npublished  in  the Bihar  Government  Gazette.\t Thereafter,
\nBihar Act 7 of 1955 which came into force on March 30, 1955,
\namended s. 1(3) of Act 6 of 1950 extending the life of Act 7
\nof  1937, indefinitely beyond June 30, 1955.  In  the  mean-
\ntime,\tthe  Essential\tCommodities  Act  No.  10  of\t1955
\n(hereinafter   called  the  Central  Act)  was\tenacted\t  by
\nParliament.  After the assent of the President, it came into
\nforce  on April 1, 1955.  Section 16(1) (b) of\tthe  Central
\nAct expressly repealed “any other law in force in any  State
\nimmediately before the commencement of this Act in so far as
\nsuch   law  controls  or  authorises  the  control  of\t the
\nproduction,  supply  and  distribution\tof,  and  trade\t and
\ncommerce in, any essential commodity.”
\nBihar  Act  17\tof 1963 substituted in Act 7  of  1937\twith
\nretrospective effect from January 1, 1962, this new  Section
\n29 :\n<\/p>\n
\t      “Cess and tax on cane-The State Government may
\n\t      by notification impose-\n<\/p><\/blockquote>\n
\t      (a)   a  cess  not  exceeding  fifty-one\tnaya
\n\t      paise  per quintal on the entry  of  sugarcane
\n\t      into   a\t local\tarea,  specified   in\tsuch
\n\t      notification,  for  consumption, use  or\tsale
\n\t      therein;\n<\/p><\/blockquote>\n
\t      (b)   a tax not exceeding fifty-one naya paise
\n\t      per quintal on the purchase of sugarcane by or
\n\t      on behalf of the occupier of a factory;
\n\t      Provided that such tax shall not be payable in
\n\t      respect of sugarcane for which a cess  imposed
\n\t      under clause (a) is payable.”\n<\/p><\/blockquote>\n
The  Government of Bihar, acting under this Section,  issued
\nand  published\ta notification on October 21, 1963,  in\t the
\nGazette whereby cane cess and purchase tax at certain  rates
\nwere   levied\tin  the\t local\tareas\tspecified   in\t the
\nnotification.\n<\/p>\n
The  constitutional validity of Bihar Act 7 of 1937 and\t the
\nrules framed thereunder was challenged by a writ petition in
\nthe High Court of Patna which by its judgment, dated July 4,
\n1966, in A. K. Jain and anr. v. Union of India,(1) held\t Act
\n7   of\t 1937  and  the\t rules\tframed\tthereunder   to\t  be
\nunconstitutional and invalid.  On appeal against that
\n(1)  1968 Pat.\tLaw Journal Reports p. 179
\n\t\t\t    315<\/span>
\njudgment  this\tCourt in A. K. Jain and others v.  Union  of
\nIndia  and  ors.<\/a>(1)  held that if the Bihar Act\t 7  of\t1937
\nprovides  anything  contrary to Rule 3(3) of  the  Sugarcane
\n(Control) Order 1955, issued under the Central Act, it\tmust
\nbe  held  to have been altered in view of Art.\t372  of\t the
\nConstitution.\tThe  Patna High Court followed\tits  earlier
\ndecision  in A. K. Jain’s case, in Sugauli Sugar Works\tPvt.
\nLtd. v. Cooperative Development and Cane Marketing  Union(2)
\nand  in\t Belsand  Sugar\t Co. Ltd.  v.  Thakur  Girja  Nandan
\nSingh(3).\n<\/p>\n
After Bihar Act 7 of 1937 was struck down by the High Court,
\nno  legislative measures were taken until January  12,\t1968
\nwhen  Ordinance\t No. 3 was promulgated by  the\tGovernor  of
\nBihar with instructions of the President.
\nSection 35 of the Ordinance corresponded to s.29 inserted in
\nAct  7 of 1937 by the Amending Act of 1963,  excepting\tthat
\nthe  maximum rate of the cess\/tax leviable was fixed  at  67
\npaise per quintal.\n<\/p>\n
Section\t 50  of the Ordinance repealed the Bihar  Act  7  of
\n1937.  Its sub-section (2) contained a saving and validating
\nprovision  with\t regard\t to anything done,  tax\t imposed  or
\nliability incurred etc. under the Repealed Act 7 of 1937.
\nA  notification\t under\ts.  35 imposing\t a  tax\t under\tthis
\nOrdinance  3 of 1968, however, was issued by the  Government
\non  February 16, 1968.\tOrdinance No. 3 lapsed\ton  February
\n28,  1968, on which date, another Ordinance (No. 6 of  1968)
\nwas promulgated.  Sub-sections (1) ‘and (2) of s. 35 of this
\nOrdinance were the same as those of the preceding  Ordinance
\nexcepting  that a second proviso to sub-s.(1) was  added  in
\nthese terms :\n<\/p>\n
\t      “Provided further that any tax imposed by\t the
\n\t      State  Government in respect of  the  crushing
\n\t\t\t    year 1967-68 under the provisions of t
\nhe  Bihar
\n\t      Sugarcane (Regulation of supply and  purchase)
\n\t      Ordinance 1968 (Bihar Ordinance No. 3 of 1968)
\n\t      shall  be\t deemed\t to  have  been\t effectively
\n\t      imposed ” from the date of enforcement of\t the
\n\t      Ordinance.\n<\/p><\/blockquote>\n
By  s.\t35(3) Ordinance 3 of 1968 was repealed.\t But  s.  50
\nsaved and validated everything done under Act 7 of 1937\t and
\nthe repealed Ordinance.\n<\/p>\n
On July 4, 1968, the Governor promulgated Bihar Ordinance  4
\nof  1969.   It provided that except its ss. 1 and  52  which
\ncame into force at once, the remaining provisions “shall  be
\ndeemed\tto  have come into force from the 25th\tJune  1969”.
\nSection 49 reproduced the taxing provisions contained in its
\npreceding   Ordinance.\t Section  66  contained\t  validating
\nprovisions  analogous  to  those  found\t in  the   preceding
\nOrdinance :\n<\/p>\n
\t      Notwithstanding any judgment, decree or  order
\n\t      of   any\tcourt,\tall\t cesses\t and   taxes
\n\t      imposed, assessed or collected
\n(1)  [1969] 2 S.C.C. 340.\n<\/p><\/blockquote>\n
(2)  Misc.   J. Case No. 1344 of 1964 decided by Patna\tHigh
\nCourt on July 29, 1966.\n<\/p>\n
(3) AIR 1969 Pat. 8.\n<\/p>\n
31 6
\n.lm15
\nor  purporting to have been imposed, assessed  or  collected
\nunder  any State Law, before the 25th June, 1968,  shall  be
\ndeemed\tto have been validly imposed, assessed or  collected
\nin  accordance\twith law as if this Ordinance  had  been  in
\nforce  at  all\tmaterial times when such  cess\tor  tax\t was
\nimposed, assessed or collected, and accordingly….
\nOn  August  31,\t 1969 during  the  President’s\tRule,  Bihar
\nSugarcane  (Regulation\tof Supply and  Purchase)  Act,\t1969
\n(President’s  Act 8 of 1969) was passed.  Section  66(1)  of
\nthat Act provided :\n<\/p>\n
\t      “Notwithstanding any judgment, decree or order
\n\t      of  any court, all cesses and  taxes  imposed,
\n\t      assessed\tor collected or purporting  to\thave
\n\t      been imposed, assessed or collected under\t any
\n\t      State  law,  before the commencement  of\tthis
\n\t      Act,  shall  be deemed to\t have  been  validly
\n\t\t\t    imposed,  assessed or collected  in\t a
\nccordance
\n\t      with  law as if this Act had been in force  at
\n\t      all  material times when such cess or tax\t was
\n\t      imposed,\t  assessed    or    collected\t and
\n\t      accordingly….”\n<\/p><\/blockquote>\n
In  January  1968, the petitioner  purchased  sugarcane\t for
\nproduction  of\tsugar  in its  factory\tfrom  the  sugarcane
\ngrowers\t of the area allotted to its factory on\t payment  of
\nthe price fixed by the State Government.  Respondent 1\tsent
\nfour requisitions for realization of cane cess and  purchase
\ntax  said  to  be due under the Bihar Act 7  of\t 1937.\t The
\ndemand notices were issued under s.5 of the Bihar and Orissa
\nPublic Demands Recovery Act 4 of 1914.\tOne of such  notices
\nwas   a\t  demand  of  Rs.  1,71,543\/56P.   alleged   to\t  be
\ncess\/purchase tax dues for January, 1968.
\nThe  petitioner challenges these impositions and  consequent
\nrequisitions and demands on several grounds out of which the
\nfollowing have been canvassed before us :\n<\/p>\n
\t      (1)   Bihar  Act 7 of 1937 and Act 7  of\t1955
\n\t      which  attempted to make it permanent and\t the
\n\t      notification  issued thereunder  imposing\t the
\n\t      cess  and\t tax  in  question,  were   declared
\n\t      unconstitutional and invalid by the Patna High
\n\t      Court in A.     K. Jain’s case (supra) on July
\n\t      4, 1966 and that decision was affirmed by this
\n\t      Court  in appeal.\t There was no law  in  force
\n\t      authorising  the\tlevy of\t the  cess\/tax\ttill
\n\t      January  12,  1968 when Bihar Ordinance  6  of
\n\t      1968 was promulgated;\n<\/p><\/blockquote>\n
\t      (2)   The\t  2nd  proviso\tto  s.35  of   Bihar
\n\t      Ordinance 6 of 1968 is invalid.  Section 35 of
\n\t      Ordinance\t 3  and\t 6 of 1968 per\tse  did\t not
\n\t      impose  any tax.\tIt only empowered the  State
\n\t      Government to do so by notification, and\tthat
\n\t      too prospectively.  The second proviso  cannot
\n\t      operate  to give retrospective effect  to\t the
\n\t      notification,   dated   February\t 16,   1968.
\n\t      Reference has been made to Hukam Chand etc. v.<\/p><\/blockquote>\n
\t      Union of India and ors.(1)
\n(1) [1973] 1 S.C.R. 896.\n<\/p>\n
317<\/span><\/p>\n
\t      (3)   The second proviso to s.35 of  Ordinance
\n\t      6 of 1968 antedated the imposition of tax from
\n\t      January 12, 1968, the date of promulgation  of
\n\t      the first Ordinance 3 of 1968.  Assuming\tthis
\n\t      proviso to be valid, there was no notification
\n\t      imposing\tthe tax, in existence for the  period
\n\t      from January 1, 1968 to January 11, 1968.\t Any
\n\t      tax  or cess levied for this uncovered  period
\n\t      was without the authority of law :\n<\/p>\n
\t      (4)   The Bihar Ordinance 3 of 1968 was beyond
\n\t      the  competence of the Governor under  Article
\n\t      213  of the Constitution because there was  no
\n\t      urgency for, the promulgation of the Ordinance
\n\t      and the power was exercised malafide-.\n<\/p>\n
We  shall  take the last contention  first.   Barring  those
\ncases where the Governor has to obtain previous\t instruction
\nfrom  the  President,  the Governor’s  power  to  promulgate
\nOrdinances  under  Art. 213 is subject\tto  two\t conditions,
\nnamely :\n<\/p>\n
\t      (a)that  the house or houses, as the case\t may
\n\t      be,  of the State Legislature must not  be  in
\n\t      session when the Ordinance is issued; and\t (b)
\n\t      the  Governor  must  be satisfied\t as  to\t the
\n\t      existence\t of  circumstances which  render  it
\n\t      necessary for him take immediate action.\n<\/p><\/blockquote>\n
There  is no dispute with regard to the satisfaction of\t the
\nfirst  condition.   Existence  of  condition  (b)  only\t  is
\nquestioned.   It is however well-settled that the  necessity
\nof  immediate action and of promulgating an Ordinance  is  a
\nmatter\tpurely\tfor  the  subjective  satisfaction  of\t the
\nGovernor.   He is the sole Judge as to the existence of\t the
\ncircumstances  necessitating  the making of.  an  Ordinance.
\nHis satisfaction is not a justiciable matter.  It cannot  be
\nquestioned  on ground of error of judgment or  otherwise  in
\ncourt-see State of Punjab v. Sat Pal Dang<\/a>(1) The  contention
\nis  devoid of merit.  Moreover, after the coming into  force
\nof  the President’s Act 8 of 1969, this question had  become
\nmerely academic.\n<\/p>\n
This   takes  us  to  the  other  contentions.\t  They\t are
\ninterlinked.   To  us,\tnone of them  appears  to  be  well-
\nfounded.\n<\/p>\n
The first question is, whether after the commencement of the
\nCentral\t Act  on April 1, 1955, the whole of Act 7  of\t1937
\nbecame\t‘void’\tand  inoperative  ?  The  question   further
\nresolves  itself into the issue : To what extent  this\tpre-
\nConstitution Act 7 of 1937 was repugnant to the Central Act,
\nand, in consequence stood repealed or altered ?
\nAct  7 of 1937 dealt with two distinct and separate  matters
\nviz.,\t(a)  the  regulation  of  production,\tsupply\t and
\ndistribution   of   sugar-cane,\t and  (b)   imposition\t and
\ncollection of cesses and taxes in respect of sugarcane.
\nMatter (a) was referable to Entry 33 of the Concurrent\tList
\n(III)  and matter (b) to Entry 52 of the State List (11)  in
\nthe  7th Schedule of the Constitution which  corresponds  to
\nEntry 49 of the Provincial Legislative List (List II) of the
\nGovernment  of India Act, 1935.\t The Central Act 10 of\t1955
\nrelated to matter (b) only. ]Bihar Act 7 of
\n(1)  [1969] 1 S.C.R. 633.\n<\/p>\n
318<\/span><\/p>\n
1937 and Bihar Act 7 of 1955 which purported to reenact\t the
\nformer permanently, in so far as it provided for  regulation
\nof production, supply and distribution of sugarcane a matter
\nfalling under Entry 33 of the Concurrent List- was repugnant
\nto  the Central Act 10 of 1955, and, in view of Article\t 254
\nof  the\t Constitution, to the extent of that  repugnancy  or
\ninconsistency would be void.  In the light of Article 372 of
\nthe Constitution read with s. 16(1) (b) of the Central\tAct,
\nthe  Bihar  Act would be deemed to have been  repealed\twith
\neffect from April 1, 1955, only in so far as, it  controlled
\nor  authorised\tthe control of the  production,\t supply\t and
\ndistribution of, and trade and commerce in sugar-cane.\t The
\ntaxing\tprovisions  of\tthe Bihar Act were not\tin  any\t way
\nrepugnant  to  the Central Act or any other  law  passed  by
\nParliament.   Those taxing provisions, as  already  noticed,
\nfall  under Entry 52, List II and that was why s.16  of\t the
\nCentral\t Act  confined the repeal only to  those  provisions
\nwhich  were  covered  by Entry 33,  list  Ill.\t The  taxing
\nprovisions  of\tthe Bihar Act, therefore, never\t lost  their
\nvalidity  and  continued to be in force.   The\tnotification
\nissued\tunder the Bihar Acts of 1937, (and  continued  under
\nthe  Acts of 1955 and 1963), imposing the tax or cess,\talso
\nremained  operative during the period in question,. till  it
\nwas  replaced by another notification issued on January\t 12,
\n1968  under  the  Ordinance 3 of  1968.\t  It  is  therefore,
\nincorrect  to  say that there was any period, much  less  in
\nJanuary\t 1968, during which the tax. was levied without\t the
\nauthority of law.\n<\/p>\n
Mr. Chatterjee, however, contended that the Patna High Court
\nhad in A. K. Jain’s case (supra) struck down the Bihar Act 7
\nof  1937 in its entirety and that decision was\taffirmed  in
\nappeal by this Court.  In this connection he has invited our
\nattention  to  the observations of the High Court in  A.  K.
\nJain’s case and in Belsand Sugar Company’s case (supra).
\nThe observations in question in A. K. Jain’s case are
\n\t      “Assuming\t here that Bihar Act 7 of  1937\t ‘is
\n\t      severable\t and  can  be  bifurcated  into\t two
\n\t      parts,  one dealing with the control of  sugar
\n\t      industry,\t a topic falling under Entry  52  of
\n\t      List I and the other dealing with sugarcane, a
\n\t      topic,  as  held by me  above,  falling  under
\n\t      Entry  33\t of List III, it  follows  that\t the
\n\t      Central Parliament was competent under Article
\n\t      246 to repeal law in relation to sugarcane and
\n\t      thus  the Bihar Act and the Rules in  relation
\n\t      to   sugarcane  stood  repealed\tand   became
\n\t      unenforceable    in   accordance\t with\t the
\n\t      provisions    of\t  Article   372\t   of\t the
\n\t      Constitution.”\n<\/p>\n
\t      The  above remarks were reechoed by  the\tsame
\n\t      High Court Belsand Sugar Co’s case thus :
\n\t      “The   State  Legislature……….  was\t not
\n\t      competent\t to enact…… and. to\t extend\t the
\n\t      life of even the severable part of Bihar Act 7
\n\t      of 1937, without taking recourse to the proce-
\n\t      dure  prescribed in clause (2) of Article\t 254
\n\t      of the Constitution, but, unfortunately, Bihar
\n\t      Act  7 of 1955 did not receive the  assent  of
\n\t      the President, and, therefore, being repugnant
\n\t      to  certain provisions of the Central Act,  it
\n\t      could not have any effect, and it was void  on
\n\t      this ground as well.”\n<\/p>\n
319<\/span><\/p>\n
The   observations  extracted  above,  though  very   widely
\nexpressed,  must  be  confined to, the\tprecise\t points\t for
\ndetermination  that  had  arisen  in  those  cases.    These
\nobservations  were apparently made in the context  of  those
\nmatters\t in  the Bihar Act which were  either  referable  to
\nEntry  52,  Union  List or Entry 33,  Concurrent  List.\t  In
\nneither\t of those cases, the High Court, was concerned\twith
\nthe  validity  of the taxing provisions of  the\t Bihar\tAct,
\ncovered by Entry 52 of the State List.\tIn A. K. Jain’s case
\n(supra), the only question that fell for determination\twas,
\nwhether Sections 3 and 7 of the Central Act IO of 1955,\t and
\nClause 3 (iii) of the Sugar Control Order 1955 issued  under
\nthat  Act, were valid and within the legislative  competence
\nof  Parliament.\t  It was contended that\t the  regulation  of
\nprice  of sugarcane was expressly dealt with by Bihar Act  7
\nof 1937 and the action taken against the petitioners by\t the
\npolice and the Magistrate was without jurisdiction being  in
\ncontravention of Bihar Act and the rules framed\t thereunder.
\nThus   only  that  part\t of  the  Bihar\t Act  came  up\t for
\nconsideration  which related to Entry 33 of  the  Concurrent
\nList  and which only could be said to be  inconsistent\twith
\nthe Central Act.  No question of the validity of the  taxing
\nprovisions of the Bihar Act arose in that case.
\nEven  the  High Court found that the  matters  relatable  to
\nEntry  33,  Concurrent List were severable  from  the  other
\nprovisions  of\tthe Act.  Before us also, it  has  not\tbeen
\nseriously urged that the taxing provisions of the Bihar\t Act
\nwere  so  interwoven  and inextricably\tconnected  with\t the
\nprovisions  referable to Entry 33 List III, that  the  whole
\nAct would stand or fall together.  There was no\t competition
\nor collision between the taxing provisions of the Bihar\t Act
\nand,  those of the Central Act.\t The two exist side by\tside
\nand each remains operative in its own distinct field without
\ninterfering with the other.\n<\/p>\n
It  will bear repetition that the taxing provisions  of\t the
\nBihar Act were advisedly kept out of the purview of s. 16(1)\n<\/p>\n
(b) of the Central Act which repealed the State laws only in
\nso  far\t as  they controlled or authorised  control  of\t the
\nproduction,  supply  and  distribution\tof  sugarcane.\t The
\ntaking\tprovisions of the Bihar Act therefore  were  neither
\nrendered  inoperative  by Article 254(1),  nor\trepealed  or
\naltered\t  by   the   competent\t Legislature   within\t the
\ncontemplation of Article 372 of the Constitution.
\nIt  is important to recall that when A. K. Jain’s case\tcame
\nup  in\tappeal,\t this Court, did not  endorse  the  sweeping
\nproposition sought to be spelled out by the petitioners from
\nthe  wide  language used by the High Court in  the  extracts
\nabove.\t The only reference to the Bihar Act, made  by\tthis
\nCourt, was as follows
\n\t      “…..  Sub-rule (3) of Rule (3)\tspecifically
\n\t      provides\tthat unless there is an I  agreement
\n\t      in writing to the contrary between the parties
\n\t      the  purchaser  shall pay to  the\t seller\t the
\n\t      price  of\t the sugarcane purchased  within  14
\n\t      days  from  the date of the  delivery  of\t the
\n\t      sugarcane.   This is a specific  mandate.\t  If
\n\t      the   Bihar  Act\tprovides  anything  to\t the
\n\t      contrary\tthe same must be held to  have\tbeen
\n\t      altered\tin  view  of  Article  372  of\t the
\n\t      Constitution (emphasis added)
\n320<\/span>
\nSince the taxing provisions of the Bihar Act do not  contain
\n“anything  contrary” to the Central Act, they could  not  in
\nthe light of the observations of this Court, be held to have
\nbeen altered in view of Article 372.  Indeed, as pointed out
\nalready,  the  Court in that case was not at  all  concerned
\nwith the taxing provisions of the Bihar Act.
\nIn   view  of  the  above  discussion  the   conclusion\t  is
\ninescapable that the taxing provisions of the Bihar Act 7 of
\n1937,  as  re-enacted permanently by Bihar Act\t7  of  1955,
\ncontinued  to  be  operative and validly  in  force  at\t all
\nmaterial times, even after the enactment of the Central Act.
\nFurther,  the  successive  Ordinances  promulgated  by\t the
\nGovernor  validated by way of abundant caution those  taxing
\nprovisions or anything done thereunder.
\nIt is well-settled that within its competence, a Legislature
\nhas the, power to make a law imposing a tax  retrospectively
\nor  validate  defective laws by subsequent  legislation,  or
\neven  past  unlawful collections, the  power  of  validation
\nbeing ancillary to and included in the power to legislate on
\na particular subject.\n<\/p>\n
We have extracted earlier in this judgment, such  validating
\nprovisions in s. 66 of the Bihar Ordinance 4 of 1969 and  s.
\n66(1)  of  the President’s Act 8 of 1969.  The\tlanguage  of
\nthese provisions is of the widest amplitude; and, even if it
\nis  assumed  that the Central Act had cast any doubt  on  or
\nintroduced  any\t infirmity in the taxing provisions  of\t the
\nState Act, the same had been removed or cured by s. 66(1) of
\nthe President’s Act which not only nullifies the effect,  if
\nany,  of  the  judgment\t of the High  Court  on\t the  taxing
\nprovisions  of the Bihar Act 7 of 1937, but  also  validates
\nthe  imposition, assessment or collection of all cesses\t and
\ntaxes imposed under any state law with retrospective  effect
\nas if the President’s Act had been in force at all  material
\ntimes including the period in question i.e. of January 1968.
\nThe  validity of the impugned notification and the cess\t and
\ntax  imposed thereunder has to be judged with  reference  to
\nthe  successive\t Ordinances and finally to  the\t President’s
\nAct.   By  virtue  of the legal fiction\t introduced  by\t the
\nvalidating provision in s. 66(1), the impugned\tnotification
\nwill be deemed to have been issued not necessarily under the
\nOrdinance  No.\t3  of 1968 but under  the  President’s\tAct,
\nitself, deriving its legal force and validity directly\tfrom
\nthe latter.\n<\/p>\n
For  the foregoing reasons, we negative the  contentions  of
\nthe petitioners and dismiss this petition with costs.\n<\/p>\n
V.P.S.\t\t\t     Petition dismissed.\n321<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. S. K. G. Sugar Ltd vs State Of Bihar And Ors on 26 April, 1974 Equivalent citations: 1974 AIR 1533, 1975 SCR (1) 312 Author: R S Sarkaria Bench: Ray, A.N. (Cj), Mathew, Kuttyil Kurien, Alagiriswami, A., Goswami, P.K., Sarkaria, Ranjit Singh PETITIONER: M\/s. S. K. G. SUGAR LTD. Vs. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-62453","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. S. K. G. 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