District Board, Karnal Vs M.R. Sharma and Others <BR> M.R. Sharma and Others Vs District Board, Karnal

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14 paragraphs · 1,487 words

I.D. Dua, J.—On the 16th of December 1947 professional tax was imposed by means of a notification. No. 2105-B and C-47/10850, by the District Board, Karnal. The plaintiffs respondents filed a suit on the 18th of November 1952 for a declaration and injunction that the tax In dispute was ultra vires and void and for restraining the District Board from realising the tax. The plaintiff are the employees of the Central Government in the Daily Farm and Agricultural Research, Substation, Karnal, admittedly situated within the jurisdiction of the District Board. The two Courts below have decreed their claim holding that the notification violated the provisions of Section 31(6) of the Punjab District Boards Act (Act XX of 1883).

The District Board has preferred the present appeal and Mr. H.L. Sarin, the learned counsel for the respondents, has principally relied on the Punjab District Boards (Tax Validating) Act (No. XXVII of 1955) which has validated three notifications including the one in question. Section 2 of the amending Act reads thus:

"2. Notwithstanding anything contained in the Punjab District Boards Act, 1883 (Act XX of 1883), the taxes imposed by District Boards specified in the first column of the Schedule, the imposition of which was notified in the notifications specified in each case in the second column of the Schedule, shall be deemed to have been legally imposed with effect from the dates so specified in the third column of the Schedule in each case as the date from which such taxes were imposed or were to come into force, and to remain legally in force, until altered, repealed or amended by competent authority.

It is clear that if this provision is valid, it would cover the present case and the impugned tax would be unassailable. The learned counsel for the respondents has conceded that the Legislature was fully competent to pass the validating Act and to impose the impugned tax with retrospective effect. He has, however, contested the appeal on the ground that the validating Act violates the provisions of Article 20(1) of the Constitution. His contention is that two out of the three notifications included in the Schedule contain penal provisions; the validity of those provisions would expose citizens to penal actions for acts done which, at the time of their commission, were not offences under the law then in force. The learned counsel has, however, admitted that the notification in question, in the present appeal, does not contain any penal provisions. If that is so, then I fail to understand how it is open to the present plaintiffs respondents to assail the constitutionality of the amending Act on the ground that it validates some other notifications as well which may possibly be hit by Art. 20 of the Constitution. The true principle is, as observed by Das J., (as he then was) in Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others,

"that only a person who is directly affected by a law can challenge the validity of that law and that a person whose own right or interest has not been violated or threatened cannot impugn the law on the ground that somebody else''s right has been infringed; the same principle must prevail irrespective of the form of the proceeding in which the question of constitutionality is raised."

Article 13 of the Constitution which deals with the effect of laws which take away or abridge the fundamental rights merely declares the law to be void to the extent of its contravention or inconsistency with the fundamental rights. Where a statute is alleged only in part to offend a fundamental right, the whole of the Act is not necessarily affected. The test in such cases is whether or not the valid portion is severable from the rest. In the instant case the validating Act purports to validate three notifications.

The counsel submits, as noticed above, that the other two notifications, which admittedly have nothing to do with the respondents before me, contain some penal provisions and therefore they could not be validated with retrospective effect without offending the rule, against ex post facto legislation, contained in Art. 20 of the Constitution. Without expressing any opinion as to whether or not the other two notifications have been lawfully validated, in my opinion, the validity of the impugned notification cannot be assailed by the plaintiffs respondents on this ground;

The notification in question in the instant case and the other two notifications are not so inextricably bound up that if the other two notifications are declared to continue to be invalid and not to have been validated retrospectively, the present one cannot independently survive. I am definitely of the view that the Legislature could have, by the impugned validating Act, validated the notification now in dispute without validating the other two notifications. All that need have been done was to include only the impugned notification in the Schedule without including the other two. It is, as stated above, the inclusion of the other two notifications in the Schedule alone which, according to the contention of the learned counsel, has the effect of invalidating Section 2 of the statute in question.

As observed above, the first notification dated the 16th of December, 1947, which is being assailed, is clearly severable from the other two and it is hardly open even to argument to contend that Section 2 is inoperative with respect to the above notification merely because its operation with respect to the other two may be questionable or may even be unconstitutional, on which point I am expressing no opinion. Applying the test laid down by Kania C. J., in A.K. Gopalan Vs. The State of Madras, the impugned Act minus the other two notifications can remain unaffected and the omission of the other two notifications would not change the nature or structure or the object of the legislation (also see in this connection Attorney General for Alberta v. Attorney General for Canada 1947 A.C. 503, State of Bombay v. F. N. Balsara AIR 1951 SC 318 at P. 331 and The State of Bihar Vs. Sir Kameshwar Singh, .

The learned counsel for the respondents has relied on AIR 1946 66 (Privy Council) Romesh Thappar Vs. The State of Madras, and Indore Iron and Steel Registered Stock-holders Association, Ltd., Indore v. State of Madhya Bharat AIR 1957 MP. 83. None of these cases, however, is concerned with a statute, dealing with obviously severable and distinct notifications, such as I am called upon to consider in the instant case. The reported cases are thus clearly distinguishable.

The counsel next contended that the amending Act was hit by the principle of double taxation. Admittedly this point was not raised in the Courts below and there is no material on the record on which this plea can be substantiated. The counsel attempted to refer to some notifications (not on the present record), under which some "engine fee" is said to have been imposed on persons doing the business of oil engines, etc. In my opinion, it is not open to him to urge any plea, the adjudication of which requires further facts to be investigated. The question sought to be raised is clearly a mixed question of fact and law.

The constitutionality of the Punjab District Boards Act has recently been considered and up-held by a Division Bench of this Court in District Board, Ferozepure v. Dr. Kahan Chand, R. Section A. 614 of 1955. This decision is binding on me and indeed its correctness has not been questioned by the learned counsel for the respondents.

For the reasons given above, the appeal succeeds and is hereby allowed and the decree of the Court below set aside with the result that the plaintiffs respondents'' suit would stand dismissed. In the circumstances of this case I would have felt inclined to order the appellants though successful, to pay the costs of the respondents as the appeal has succeeded exclusively on the basis of the validating Act which was passed during the pendency of the present appeal. No attempt was made by the learned counsel for the appellants to question the correctness of the decision of the two Courts below on any ground other than the provisions of the validating Act but as the respondents tried strenuously to assail the vires of the validating Act, I would direct the parties to bear their own costs in this Court.

District Board, Karnal vs M.R. Sharma and Others <BR> M.R. Sharma and Others Vs District Board, Karnal

Judgment