MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD, ETC. versus NEW SHOROCK SPG. & WVG. CO., LTD., ETC.

288

MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD, ETC.

V. NEW SHOROCK SPG. & WVG. CO., LTD., ETC.

Aprfl 17, 1970 (J. C. SHAH AND K. S. HEGDE, JJ.J

Bombay Provincial Municipal Corporation Act (59 of 1949), s. 152A

Scope of-Constitutional validity of s: 152A (3).

The appellant Corporation assessod the immovable properties of

the for the year1964-65 and. 1965-66 on the rcsponden.ts to property-tax basis of the 'fl.at rate' method under· the Bombay Provincial Municipal Corpcration Act, 1949. The ass"'smen.ts were challenged in the High Court but the petitions \\-'ere 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 challeng_ cd tk attachement proce<din.gs but their petitions were ,again dismissed. Jn appeals against those orders in this Court the respondents prayed for the appellant interim stay, but this Court did not grant stay because undertock to return the amounts if the1 respondents succeeded. This Coull 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, whe·n, the respondents demanded re.fund of the amounts illegally collected from them the appellant did not comply and hence; the respondrnts moved the High Court again. Those petitions were allowed and the appellant appealed to this Court. While the appeals were pending, tho Bombay Provincial Municipal Corporation (Gujarat Amen.dment and Validity Provisions) Ordinance, 1969, was passed and sub-s. (3) was intrnduced in s. !52A.

HELD: (!)Under s. !52A 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 asse'Ssment orders· in ac cordance 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 Corpo ration to .retain amounts illegally collected. [293 G; 294 DJ

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(2) Sub-Section (3) of s. l52A commands the Corporation to refuse to refund the amount illegally collected despite the orders of this Court It markes a direct inroad into the judicial powers and the High Court. of the State. Thet Legislatures under the Constitution have, within pres cribed limits, powers to make laws prospectively as well as retrospectively. By exercise of those powe:rs the legislature can. remove the basis of a decision rendered by a competent court thereby rendering the decision ineffective. But, no legislature in the instrumentalities of the State to disobey or disregard the decisions l!iven by courts. Therefore s, 152A(3), introduced by the Ordi"'1nce is re pugnant to the Constitution. f294 H; 295 A-C; 297 F]

this Country has power to ask

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Shri Prithvi'Co/lorr Mill• Ltd. v. Broach Borough Municipality {1970] I S.C.R. Mahal Chand Sethia v.·State of West Bengal Cr. A. No. 75/69 di.

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MUNI. CORP., AHMEDABAD v. NEW SHOROCK co. (i-Jezde, J.) 289

10-9-69 and Janpada Sabha, Ch!!indwara v. Ce'ntral Provinces Syndical 'Ltd. and- State of Madhya Pradesh v. An1alga111aled .lll ·(1970] 3·s.C.R. 745, followed.

c:oal Fields

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The apart it authorises tlic Corp:Jration to retain the am·ounls illej!,"3.l!y ·collectetl and treat them as loans, that is, authorisCs the collection or ···,rccJ Joans which is impermissible under the Constitution.

State of M"dhya Pradesh v. '-R.anbjirao Shinde, [1968] 3 S.C.R. 489,

followed.

CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appea\5

Nos. 2062 to 2064, 2072 and 2251 of 1968.

_Appeals from the',judgment and order aated July 3, 4, 1969 of the Gujarat High O~urt in Special Civil Applications Nos. 52 of 1969 etc.

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and

Writ I'etitions Nos·. 5-1., 52 a;nd 57 to 60 of 1970.

Petitions under Art. 32 of the Constitution of. India for the

enforcement of fundamental right~.

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B. Sen and I. N. Shroff, for the appellants (in .C.A. Nok206~ ot 1969) and resp'ondent Nos. 2 to 4 (in W.P. Nos: 59 and 60 of 1970). . M. c. Seta/vad and l. N. Shroff, for the ~ppel!ants (in C.A. No. 2063 of 1969) and respon9ents 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 Nqs. 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 respond6,nts· (in all the appeals) and the petitioners (in all the petitions).

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B. D. Sharma and R. N. Sachthey, for 'respondent No. 1 (in all

the petitions).

T1'e Judgmeint of the Court was delivered, by

Iiegde, J. These are connected proceedings. Herein the \"3lidity at well as the interpretation of some of the ·provisions of the Eombay Provincial Municipal Corporation Act, 1949 (Act 59 of J 949) (to be hereina'fter r~ferred to as the Act) as amer dd from time to time by the Gujarat State comes up for considera rion. bad are ranged against the Sfate·o.f Gujarat as well as the Munici pal Corporation of the City of Ahmedabad. They are seeking to get refund of some amount~ paid as proper!~· tax, by them, which annocmr~ according to them were illegally collected from them.

In these proceedings--s9me of the Textile Mi!ls of Alimeda-.

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290

SUPREME COURT REPORTS

(1971] l S.C.R.

referred to as the

In order to understand the controversies involved in these proceedings, it is best to set out the course of events leading upto t!Jese proceedings. Various Textile Mills which are involved in ti1ese cases will hereafter be "companies".· These companies own immovable properties coasisting of lands and buildings in th~ city of Ahmedabad. · The Municipal Corpo ration of the City of Ahmedabad (which will hereinafter be re ferred to as the "Corporation") in the purported exercise of its power under the Act and the rules framed thereun.ier 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 ra1e" meil'od. According to that method in valuing the lands, the value of plants and machinery were also taken into consideration. The buildings were assessed on •he 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 Weav ing 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. !33(1) of the Constitution. But the concerned com panies 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 10 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 succeedt.'<i in the writ petitions before this Court. By its judgment dated February 21, 1967, this Court struck down the rules fram ed 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

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MUNI. CORP., AHMEDABAD v. NEW. SHOROCK co. (Hegde, J.) 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 Comt Reports p. 679 (New Manek Chowk Spinning and Weaving Mills Co. Ltd. and ors. v. Municipal Cor-· In view of that poration of the City of Alimedabad and ors. 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 judg ment was delivered, the appeals filed by some of the companies in respect of the asse~sment 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 came up for hearing on April 15, 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 «either 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 Gujarar under Art. 226 of the Constitution seeking writs of Mandamus against the Corporation and its Officers directing them to refund the amo\ints illegally collected from them and for a declaration that s. l 52A of the Act newly introduced by the amending Act is ultra vires the Constitution. The High Court of Gujarat allow ed those petitions. That Court did not go into the vires of s. l 52A but on a construction of that provision, it came to the con clusion 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 pendinQ; disposal of those appeals. Th.ose applications came up for hearing on November 5. 1969. On that date, this Court stayed the operation of t!-e judgment of the High Court of Gujarat on the Corporation under tal-ing to pay interest on the amounts i!l questior, at 6% per annum from the date on which they were collected till the date of refund in the event of the ~nneq]s failing. A few dav< there after, the Corporatiou moved this Court to mcdify that order. It wanted to resile from the undertaking given by it. Hence this

SUPREME COURI Rf PORl;S

[1971] I S.::.R.

.( ourt 111odilied its earlier order and dismissed the stay appli~a­ •ions on December 9, J 969. On 'Or about December 2J. 1959 the Governpr of' Gujarat promulgated an Ordinance und~r Ari. .213 of the Constitution entitled Bombay Provincial Municj;ial ·Corporation (Gujarat Amendment and Validating Provis;~--,, Ordinance. 1969. This Ordinance will bt herein•':"' referrd to as "the Ordinance". Th_at Ordinance cal'~~ ,into effect im111e diately. By means of that Ordinance. :.'new sub-section nan;ely .'l1b-s. (3) was introduced into s. l52A. The effect of the insertio.: of sub-s. ( 3) in s. I 52A is ,fo authorise the Corporation and i<s Officers to rcf'llse to refund 'the amount of tax illegally collectd despite the <;>rders of this Court as wel) as the Gujarat High Court till the assessment or re<i~sessment ·of prqperty t?X is made in .accordance ·with, the provision·s of_the Act as amended, But unde!· its provisions, the Corporation is required to pay interest at (,'.~ on the amount ultimately found liable to be re.funded, In lhe wrif petitions under consideration the vajidity of the aforem~n­ ·1oined provision is challenged. This,. in brief is _the history ''' 1hese. c~ses'.".

In th~{e proceeclings three questions of law arise fpr decisit'n nanlely (I) What is the true scope of s. l 52A (2) ls that pr"· vision ult'ra vires any of the provisions of the-Constitution and 13) ls sub-s. (3 i of s. I 52A' ( introduced"by th~ o·rdinance) violative of the Constitution?

Section I 52A reads as follows :

"(I) in tbc City of Ahmedabad i( in respec.t of · premises included in the assessment book relating to Spedal Property Sect:on, the levy, assessment, collec tion or recovery,..of any of the property taxes for any ·Official year preceding. the official year commencing on the I st ~pril 1968 is affected by a decree or order of a cpurt on the ground that the determination of' tlle rate able 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 con tained in Ch?pter VI I I of Schedule A to this Act were 'invalid, then it sl)all be lawful for the Municipal Corpo rntion 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 rule> as amended by ihe Bombay Pr0vincial Municipal Cor porations, (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 accord 'ingly 1he rateable -..alne of lands aflq huildings in such

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MUNCPL. CORP., AHMEDABAD v. NEW SHOROCK co. (Hegde, J.)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, col lection 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 caUed in question on the ground that the same were in any way inconsistent with the pro visions 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 exccds t.he amount of tax which but for the decree or order of the court as aforesaid could have been assessed for that year in re>pect of the premises, then the amount of tax to be levieJ for· that year in respect of the premises in uccortlance with the provisions of this section shall be an amount arrived at after deducting from the ainount of tax so assessw or reassessed such amount as may b~ equal to the amount as so in excess.

assessed or

reaS>essed under

(2) Where any such property tax in respect of any su.:h premises is sub section ( 1) for any official year and in respect of the same premises, the property tax for that year has al ready 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 col lected under sub-section ( 1) and if the amount already collected or recovered exceeds the amount to be so levied and collected, the excess shall be refunded in ac cordance 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 Corpora tion 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 Cocpora tion to assess or reassess the premises concerned in thme d~c sion, to property tax for the concerned assessment years at the rate, applicable for those years in accordance with the provisions of the Act and the rules as amended by the amending Act as if the soid Act has been in force during the years for which such tax is to be assessed or reassessed and accordingly fix the rateable value of

L 12 Sup Cl 70-5

SUPREME COURT REPOJl.f.~,

[1971] l S.C.R.

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those collection,s.

lands an~. buil.d_ings of those premises. .~nd assess or reassess the tax payable and when the tax is so assessed or reassessed, tax so assesse.d, !Ilay .Pe leyied, · co)l!"cted and. recovered the by the. Corporation and for that purpose the provision~ of the amending Act and the rule's §hall, so far as. may, be apply to such collection and proceedings preceding , That provision further says that.the fixation of,rateable. value so.made" B and the collection and ~ecove!"Y of sucjl tax shall: be valid and. shall not be ,called in questipn on the ground t!iat ihe same were in any way incoqsis\ent with the provisions of tqe di.ct and the rules in force prior to the commencement 9f the, amending Act. The section also authorises the Corpor!ltion.to dedudt from, the amounts earlier illegally collected the tax 'asse~sed according to law. All that the proviso to that s~ction says is that the Corporation shall pay simple interest at ·the rate of,six pe.r' centum for annum on the amount of exces.s Iiabl'e to be:refun'ded 'under sub-s. (2) from !he date of the decree 'or ord~r of the court referred to in sub-s. ( 1) to the date on which such~excess is refunded. At this ~fage it may be noted that there had b~n -no assessment orders even when these appeals ivere' heard. In view of our .above conclusion that :s. I 52A does not ~uthonsy the Corporation to retain the amounts illegally collected, it is unnecessary for !Js to examine the validity .of that section.

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This takes us to tli.e validity of sub-s. (3) of s. duced into that section by means uf the Ordinance. sion reads. :

·

!52A intro fhat provi-

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"Notwithstanding anything contained in any

judg ment, 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 re ~overed in respect of any of the property taxes to which sub-section (I) applies till assessment or reassessment of such property taxes is made, and the amount of tax to be lev;ed and collected is determi,ued under sub- ~ection (1) :

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Provided that the Corporation shall pay simple in terest at the rate of si,x per cent per annum on the amount of excess liable to be' refunded under sub section (2), from tlje date of decree or order of the <:our! referred to in sub-section ( 1) to the date on which such excess is refunded."

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This is a strange provision. Prime facie that provision appears lo command the Corporation to refuse .to refund the amount ille ga!ly collecfed despite the orders of this Court and the High Court.

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.MUNCPL. CORP., AHMEDAllAD v. NEW SHOROCK co. (Hegde, J.)295

The State of G.ujarat 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 Cons titution have within the µrescribed limits, powers to make Jaws prospectively as well as retrospectively. By exercise of those powers, ihe legislature can remove the basis of a decision ren dered by a competent court thereby rendering that decision in- . effective. But no legislature. in this country h~s 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 In Shri Ptirhvi Cotton Mills by several decisions of this Court. Ltd. and anr, v. The Broach Baro.ugh 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 legisbture sets out to validate a tax declared by a court to be ille gally collerted under an ineffective or an invalid Jaw, the cause for ineffectiveness or invalidity must be remov ed before validation can be said to take place effectiv~ly. The most important condition of course, is that the legis lature must possess the power to impose the tax, for, if it does not, the action must ever remain ·ineffective and illegal. Granted legislative competance, it is not sufficient to declare merely that the decision of the court shall not bind for that is tantamount to rever>ing the decision in exercise of judicial power which the legis lature does not possess or exercise. A court's deci>ion must always bind unless the conditions on which it is based are so fundamentally altered that the decision could net have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power tc tax is wanting or the statute or th! rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if <he grounds of illegality or invali dity are capable of being removed and are in fact re moved and the tax thus made legal. Sometime this is done by providing for j1irisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting re-trospectively a valid and legal taxing orovision and then by fiction making the tax al ready collected to stand under the re-enacted law."

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U) [!9701 I S.C.R. 388

296

SUPREME COURT REPOB,TS

[1971] l S.C.R.

In Mehal Chand Sethia v. State of West Benga/( 1

), Mitter, l.

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 re-suscitated 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 III of the Constitution. Laws can be enacted either by the Ordinance making power of a Governor or the Legisla ture of a State in respect of.the topics covered by the en tries in the appropriate List in the Seventh Schedule to the Constitution. Subject to the above !imitations laws :an be prospective as also retrospective in operation. :ourt 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 in fringed the rights enshrined in Part III of the Constitu tion .. Needless to add it can strike down or declare in valid any Act or direction of a State Government which is not authorised by law. The position of a Legislature It cannot declare any decision of is however different. 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 Madf.;a 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 notificat!ons' (!)Cr. Appeal No. 75/69 decided on 10-9-1969. (21 [19701 3 S.C.R. 1745.

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MUNCPL. CORP., AHMEDABAD v. NEW SHOROCK co. (Hegde, J.)297

notices specified in the Schedule shall, for all purposes, be deemed to be, and to have always been validly im posed, 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 noti fications/ 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 amendm~nts 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 amend ments."

Proceeding fUtther, 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 It Legislature to do under our constitutional scheme. is op~n 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 rendered in exercise of its properly constituted and 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 in troduced 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 Joans. That is an authority to collect forced Joans. Such conferment of power is impermissible under our Constitution-see State of Madh.va Pradesh v. Ranojirao Shinde and anr.(')

In the result, the above appeals are dismissed with co1ts and the writ petitions allowed ands. 152A(3) is struck down. The petitioners are entitled to their costs in those petitions-one hear ing fee both in the appeals and in the writ petitions.

Y.P.

Appeals dismissed.

(4) [1968] 3 S.C.R. 489.