1966 Supreme(MP) 61

High Court Of Madhya Pradesh
P. V. Dixit, C. J. , Shiv Dayal and K. L. Pandey, JJ.
AMALGAMATED COALFIELDS LTD - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Misc. Petn. 298 Of 1965
Decided On : 05/03/1966

Headnote:(1) Koyala Upkar (Manyatakaran) Adhiniyam, 1964 (M.P.) - S. 3 - Local Self-Government Act, 1920 (C.P. & Berar) - S. 51 - nature of the provisions of the Validating Act-it does not validate the notifications enhancing the rate of cess on coal-the Validating Act, does not revive the Act of 1920 - General Clauses Act, 1957 (M. P.) - S. 12.

       Per Dixit, C.J. - The validating Act is a futile attempt to cover a lost ground and to cure the infirmity on the basis of which the Supreme Court struck down as invalid the increase in the rate of coal cess from three pies to 9 pies per ton and for that reason S. 3 of the Validating Act is ineffective and invalid.

       The Validating Act does not, on its own authority and under its own sanction, impose coal cess at the rates mentioned in the notifications dated 22nd December 1943, 29th July 1946 and 19th July 1947 retrospectively from the date of these notifications quite independently of the provisions of the Act of 1920. Nor does it validate the imposition made by the Mining Board under the aforesaid notifications by giving to the Board the power to impose the cess without obtaining the previous sanction of the Government at the time the imposition was made. [Para 11]

       What has been attempted to be done by section 3 is not the imposition of a coal cess at enhanced rates from a past date independently of any provision of the Act of 1920 or of any notification issued thereunder, but the validation of the coal cess as imposed by the notifications issued under the Act and specified in the Schedule to the Act. [Para 12]

       On the language of section 3 it is impossible to read it as a provision imposing coal cess from a date in the past quite independently of the provisions of the Act of 1920 or of the notifications issued thereunder and specified in the Schedule. [Para 13]

       The increase in the coal cess rate having been struck down by the Supreme Court on the ground that the previous sanction of the Government was not obtained to it, the notifications mentioned in the Schedule to the Act could not be validated unless and until the Mining Board could be and had been retrospectively invested with the power to make the imposition without obtaining the previous sanction of the Government. Section 3 of the impugned Act utterly fails to make the conferment of this power, and for that reason it is utterly ineffective for validating the impositions made pursuant to the notifications mentioned in the Schedule.

       The Act of 1920 ceased to exist except for a limited purpose when the Act of 1948 came into force and on the date on which the Validation Act was passed it was in no sense and in no manner alive. Now, it is axiomatic that there cannot be any amendment of an enactment which is not in existence. If the Act is not in existence, it cannot be amended unless it is first revived. The only manner in which a repealed enactment can be revived is by enacting a fresh statute or by enacting a statute expressly saying that the Act is herewith revived. In this connection it could be pertinent to refer to section 12 of the Madhya Pradesh General Clauses Act, 1957, which lays down that in any Madhya Pradesh Act, it shall be necessary for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose. Here, there was no revival of any provision of the Act of 1920 which section 3 of the impugned Act purported to amend. From the mere fact that section 3 purported to amend the Act of 1920 in a certain respect, it cannot be held that the provision of the Act of 1920 intended to be amended was revived. AIR 1949 FC 176 relied on. 19 MPLC 525, 26 MPLC 492, 1963 JLJ 917, 1964 JLJ 263 referred to. [Para 16]

       Per Shivdayal, J. (agreeing with C.J.) - It is well settled that within its competence a legislature has the power to make a retroactive law and thereby effectuate the doing of a thing as it desires that it should have been done. It is equally well established that subject to any limitation imposed by the Constitution, a competent legislature has the power to make a law imposing a tax retrospectively. The legislative power conferred on the Legislature includes the subsidiary or auxiliary power to validate laws, which have been found to be invalid. If Courts strike down a law as being invalid for one infirmity or another, the appropriate Legislature is competent to cure that infirmity and make the law effective, retrospectively, by making a validating law. AIR 1963 SC 1667, AIR 1961 SC 1486, AIR 1958 SC 468 & AIR 1941 FC 16 relied on.

       The Legislature was competent to make a new law imposing coal cess at the rate of 9 pies per ton, or at any other rate and for such period or periods retrospectively as it thought fit. This could be done by enacting a provision independent of any other law. That would have rendered unnecessary to amend the then existing law which, for a certain lacuna, could not produce the desired effect. But that is not what has been done in the present case.

       Section 3 of the Validating Act empowers the Board to issue the three notifications by introducing a fiction that the enactment, under which they were issued (C.P. Local Self-Government Act, 1920), stood amended at all material times. The Validating Act does not contain an independent charging section imposing coal tax at four pies, seven pies and Line pies retrospectively with effect from the dates on which the notifications were issued by the Board. To put it differently, section 3 of the Validating Act is not an independent charging section; it does not by itself impose any tax.

       All that it endeavours to do is to retrospectively amend law which existed at the relevant time, by introducing a fiction : "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". It merely empowers the Board with retrospective effect to issue those notifications which it had actually issued under that law, that is the C. P. Local Self-Government Act, 1920, and the Rules thereunder. [Para 59]

       To nullify the defect of the Supreme Court decision and to resurrect the notifications and the acts of the Board in pursuance of them, the only thing which was required to be done was to retrospectively dispense with the sanction of the local Government. But this is not what the Validating Act does. The result is that inspite of the Validating Act, the imposition of coal cess by issuance of notification, could not be effective until and unless the local Government sanctioned it as required under section 51(2) of the Act. In other words, the Validating Act is futile. [Para 60]

       In the first place, the Validating Act did not contain a provision under the sanction and on the authority of which, independently of the provisions of the C.P. Local Self-Government Act, 1920, coal cess at the rates of four pies, seven pies and nine pies was imposed, nor was the requirement contained in S. 51(2) of the C. P. Local Self-Government Act, 1920, dispensed with as regards the three notifications issued by the Board on 22 December 1943, 29 July 1946 and 9 July 1947. Either of these measures would have made the said notifications effective and effective from the dates on which they were issued. But the Validating Act does not do either. On this analysis, the Validating Act was a useless attempt to cover a lost ground and does not cure the defect.

       [Para 66]

       Per Pandey, J. (Contra) - It is not always necessary to amend the law with retrospective effect with a view to authorising the doing of those acts at the time when they were actually done without such authority. It is well settled that diverse methods are available to the Legislature for effecting validation of past acts and anyone of them is as efficient and sufficient to achieve the object as any other. One of them is simple validation effected by employing an appropriate enacting clause without amending the law with retrospective effect. Another is the making of a retrospective amendment and this is usually adopted when it is desired to change the law. A third may well be a combination of two or more methods. 30 MPLC 350, AIR 1941 FC 16, AIR 1956 Nag. 167, AIR 1961 SC 1486, AIR 1957 Bom.266 & AIR 1955 Nag. 49 referred to. [Para 23]

       In section 3 of the Adhiniyam of 1964, the Legislature had, for certain purposes, introduced a legal fiction. In doing so, it has enacted, not that the notifications notices specified in the Schedule shall be valid as having been issued under an actually amended Act but that they shall be treated as valid as they would be treated if the enactment had stood amended and they had been issued under the amended enactment. When certain acts done under an enactment are required to be regarded as valid "as if the enactment..................stood.........amended...............", the only meaning possible from the clear and unmistakable sense of the words is that, although the enactment is not in reality amended, it is required to be treated as if it were so amended, 30 MPLC 350 relied on.

       [Para 34]

       The principle that an expired or repealed Act cannot be amended without re-enacting or reviving it has no application to a legal fiction because, in such a case, no factual amendment is made or contemplated. AIR 1964 SC 1230, AIR 1954 Pat. 97, AIR 1949 FC 175 relied on. [Para 34]

       The object of the Act can be carried into effect by section 51 of the Central Province Local Self Government Act, 1920, being treated as so amended that the requirement of previous sanction of the Provincial Government for a first imposition of tax is regarded as dispensed with.

       The words employed in section 3 of the Adhiniyam are sufficiently wide in amplitude to permit that course. It is no doubt true that the meaning would have been clearer and more explicit if the words "without previous sanction of the Provincial Government" were inserted at an appropriate place in section 3(1) but, even as it stands, such a construction is not only possible but also necessary for carrying the object of the Act into effect.

       [Para 47]

       (2) Letters Patent (Nag.) - Cl. 26 - difference of opinions between judges of Division Bench-power of the referee judge.

       Per Shivdayal, J.- The. language of clause 26 of the Letters Patent, Nagpur, make it undoubted that the Judge to whom the matter is referred in consequence of the difference of opinion between the Judges constituing the Division Bench, shall not hear the case upon any other point, because his opinion on such other points will not itself be the decision of the Court; his opinion on the point or points on which the Judges constituting the Division Court have differed will be the decision of the Court. AIR 1943 Lah. 84, AIR 1933 All. 861 and AIR 1960 Pat. 400, relied on. [Para 58]

       (3) Interpretation of Statutes-power of the Courts-cannot add words or take out words from a statute.

       Per Shivdayal, J:- Doubtless, it is not given to the Court, through the process of interpretation, to add words which are not there in an enactment or to substract from it words which are there. That amounts to legislation in the garb of interpretation. The making of law is a matter for the Legislature and not for the Courts and the Courts do not base the construction of a statute on their view of what the legislature ought to have done.

       [Para 69]