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1965 Supreme(Cal) 4
HIGH COURT OF CALCUTTA
B. N. Banerjee
BALAI CHAND SEAL - Appellant
Versus
K. M. CHAKRAVARTI - Respondent
Civil Revn. Case 923 (W) Of 1961
Decided On : JANUARY 05, 1965
Important Points
Subject
Constitutional Law - Validity of Legislation
Act Referred
Headnote
BENGAL FINANCE (SALES TAX) (SECOND AMENDMENT) ACT, 1955 - VALIDITY - ARTICLE 207 OF THE CONSTITUTION - RECOMMENDATION OF THE GOVERNOR - ARTICLE 255 OF THE CONSTITUTION - CURING DEFECTS - ARTICLE 212 OF THE CONSTITUTION - IMMUNITY FROM JUDICIAL INTERFERENCE - IRREGULARITY IN LEGISLATIVE PROCEDURE.
Fact of the Case:
The petitioner, a bullion merchant, challenged the validity of the Bengal Finance (Sales Tax) (Second Amendment) Act, 1955, which imposed a tax on bullion and specie. He argued that the Act was invalid because it was introduced without the recommendation of the Governor, as required by Article 207 of the Constitution.
Finding of the Court:
The court held that the Act was valid because the Governor's assent to the Act cured the defect of lack of recommendation. The court also held that Article 212 of the Constitution, which provides immunity from judicial interference for irregularities in legislative procedure, did not apply because the Legislature had violated a mandatory provision of the Constitution by acting beyond its legislative competence.
Issues: 1. Whether the Bengal Finance (Sales Tax) (Second Amendment) Act, 1955 was invalid for want of recommendation of the Governor under Article 207 of the Constitution? 2. Whether Article 212 of the Constitution barred judicial review of the Act's validity?
Ratio Decidendi: 1. Article 255 of the Constitution cured the defect of lack of recommendation by the Governor. 2. Article 212 of the Constitution did not bar judicial review of the Act's validity because the Legislature had violated a mandatory provision of the Constitution by acting beyond its legislative competence.
Final Decision: The court discharged the rule and upheld the validity of the Bengal Finance (Sales Tax) (Second Amendment) Act, 1955.
DEBESH CHANDRA MUKHERJI, N.C.CHAKRAVARTI, S.K.ACHARYA, Samarendra Nath Dutt
( 1 ) THE petitioner was a bullion merchant and vised to carry on business under the trade name Messrs. Balai Chand Seal. The said business stands closed with effect from Chaitra 25, 1363 (corresponding to April 8, 1957 ).
( 2 ) WHILE he was in the business, the petitioner obtained, on December 18, 1942 his registration as a dealer under Section 7 of the Bengal Finance (Sales Tax) Act, 1941. The certificate of registration specified the following classes of goods as saleable to the petitioner free of sales tax, namely, gold, silver and specie. Subsequently, two more items, namely guineas and monurs, were added to the specification. The specification was, however, of little utility to the petitioner because up to September 24, 1955, bullion and specie were exempted from sales tax under item 22 of schedule of exempted goods read with the provisions of Section 6 of the Bengal Finance (Sales Tax) Act, 1941.
( 3 ) ON August 18, 1955, there was a Bill published in the Calcutta Gazette, Extraordinary, entitled the Bengal Finance (Sales Tax) (Second Amendment) Bill, 1955, of which Clause 13 was couched in the following language: "in the Schedule to the said Act,-- (a) in item 8 the word "sugar" shall be omitted; and (b) the following items shall be omitted, namely:
(2)
"23. Gold ornaments manufactured from bullion or specie.
When sold by the manufacturer who charges separately for the value of the gold and the cost of manufacture.
44. Matches . . . . . . . . . . . . . . . . . . "
(1)
( 4 ) WHILE the Bill was being debated in the West Bengal Legislative Assembly, on September 12, 1955, Shri Gopika Bilas Sen Gupta, M. L. A. , who happened to be the Chief whip of the Congress Party at that time, moved an amendment to Clause 13 of the Bill in the following language:"sir, I beg to move that in Clause 13 of the Bill, for Sub-clause (b) the following sub-clause be substituted, namely: (b) the following item shall be omitted, namely: 22. Bullion and specie' " (Vide Assembly Proceedings official Report twelfth Session august-October, 1955 ). The amendment was passed by the West Bengal Legislature and Sections 1 and 13 of the Bengal Finance (Sales Tax) (Second Amendment) Act, 1955 read as follows:"1. (1) This Act may be called the Bengal Finance (Sales Tax) (Second Amendment) Act, 1955 (2) This section shall come into force at once; Sections 3 and 14 shall be deemed to come into force immediately on the Bengal Finance (Sales Tax) (Amendment) Ordinance, 1955, ceasing to operate and the remaining sections shall come into force on such date or dates as the State Government may, by notification in the Official Gazette, appoint. "13. In the Schedule to the said Act: (a) in item 8 the word "sugar" shall be omitted; and (b) the following item shall he omitted, namely,
(1) (2) "22. Bullion and specie. . . . . . . . . "
( 5 ) BY a notification No. 2052 F. T. , dated September 25, 1955, (published on the same day in the Calcutta Gazette Extraordinary) Sections 2, 4 and 5 to 13 were brought into force with effect from September 25, 1955.
( 6 ) THE legislation was, it is alleged, disliked by the bullion merchants and some sort of agitation was set on foot. It is alleged that the State Government partially responded to the agitation and promulgated an Ordinance, on October 18, 1955, known as Bengal Finance (Sales Tax) (Second Amendment) Ordinance, 1955, whereby, inter alia, the rate of tax on sale of gold bullion or specie was reduced from Rs. 4/11 as. per cent, to 8 as. per cent, and exemption of taxes on gold ornaments was withdrawn, as had been originally intended by the Bengal Finance (Sales Tax) (Second Amendment) Bill, 1955. The provisions of the Ordinance were subsequently enacted in the Bengal Finance (Sales Tax) (Third Amendment) Act, 1955, which was published in the Calcutta Gazette, Extraordinary, on January 11, 1956.
( 7 ) FURTHER, in order to minimise the hardship of the bullion merchants, not registered as de
