R C JALL PARSI Vs. AMALGAMATED COALFIELDS LTD

JUDGEMENT

(1.) THE following Judgment of the court was delivered by :

(2.) THESE two appeals by certificates are filed against the judgment and decree of the High court of Madhya Pradesh, Jabalpur, by the two defendants in Civil Suit No. 1 of 1957, a suit filed by the Union of India, owing and representing the central and Western Railways Administrations, Now Delhi; against the said defendants for the recovery of coal cess amounting to Rs. 81-4-0 and costs.

(3.) THE next contention raises the question of validity of the levy. THE argument of the learned counsel may be summarized thus: Ordinance 39 of 1944 was a temporary Ordinance, and that it was repealed by Ordinance 6 of 1947; that the saving clause in the latter Ordinance applying s. 6 of the General Clauses Act to the repealed Ordinance fell with the expiry of the repealing Ordinance on 1/01/1947, with the result that there was no law when the Constitution came 'into force so as to be continued 'under Art. 372 thereof and, therefore, the duty, if any, payable under Ordinance 39 of 1944 could neither be levied nor recovered after the Constitution came into force, as there was no longer any authority of law to sustain the said tax within the meaning of Art. 265 of the Constitution. To appreciate the contention it would be necessary to read the material parts of the relevant provisions. Ordinance 39 of 1944 Section 2. Imposition and Collection of excise and Customs duties. (1) With effect from such date is the central government may, notification in the Official Gazette, appoint in this behalf, there shall be levied and collected as a cess for the purposes of this Ordinance, on all coal and coke despatched from collieries in British India a duty of excise at such rate, not exceeding one rupee and four annas per ton, as may from time to time be fixed by the central government by notification in the Official Gazette. THE Repealing ordinance. Ordinance 6 of 1947. Section 2. THE Coal Production Fund Ordinance shall be repealed, and for the avoidance of doubts it is hereby declared that the provisions of Section 6 of the General Clauses Act, 1897 (X of 1897) shall apply in respect of such repeal. General Clauses Act, 1897 (X of 1897). Section 6. Where this Act, or any central Actor Regulation made after the commencement of this Act, repeals any enactment hitherto, made or hereafter to be made, then unless a different intention appears, the repeal shall not : (c) affect any right privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. (e) affect any legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and any such legal proceedings or remedy may be instituted, continued or enforced as if the Regulating Repealing Act or Regulation had not been passed. Section 30. In this Act, the expression central Act, wherever it occurs shall be deemed to include an Ordinance made and promulgated by the governor-General Constitution of India Article 372. (i) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediatel before the commencement of this Constitution shall continue in force therein Until altered or repealed or amended by a competent Legislature or other competent authority. On 26/08/1944, the governor-General of India, in exercise of the powers vested in him under a. 72 of the Ninth Schedule to the government of India Act, 1935, read 'with India and Burma (Emergency Provisions) Act, 1940 promulgated the Coal Production Fund Ordinance 1944 (39 of 1944). to constitute a fund for the financing of activities for the improvement of production, marketing and distribution of coal and coke. This court in Hansrdi Moolji v. THE, State of Bombay(1) held that the deletion of the words 'for the space of not more than six months from its promulgation' from s. 72 of the 9th Schedule of the government of India Act, 1935, by s.1(3) of THE India and Burma (Emergency Provisions) Act, 1940, had the effect of equating Ordinances which were promulgated between 27/06/1940, and 1/04/1946, with Acts passed by the Indian Legislature without any limitation of time as regards their duration, and therefore continuing in force until they were repealed. It follows from this decision that the Ordinance promulgated on 26/08/1944. was a permanent one and would continue to be in fore till it was repealed. THE second Ordinance, that is repealing, Ordinance, was promulgated on 26/04/1947, and the repeal took effect from 1/05/1947. But in express term it declared that the provisions of s.. 6 of the General Clauses Act, 1897 (X of 1897) shall apply in respect of the repeal. Without the said express provision, s.6, read with s.30, of the General Clauses Act, might have achieved the said result, but ex abundanti cautela and to place the matter beyond any controversy. s.6 of the General Clauses Act was expressly made applicable to the repeal. Under s.6 of General Clauses Act, so far it is material to the present case, the repeal did not affect the right of the railway to recover the freight or the liability of the defendants to pay the same, and the remedy in respect of the said right and liability. THE result was that Ordinance 39 of 1944 and the rules made thereunder must be held to continue to be in respect of the said right and liability, accrued or incurred before the said Ordinance was repealed and the remedies available thereunder. But the life of the repealing Ordinance had expired on 1/11/1917. What was the effect of the expiry of the repealing Ordinance on the said liability continued after repeal in respect of past transactions? THE repealing Ordinance, being a temporary one, expired after it fulfilled its purpose. As it had continued the lift, of the original Ordinance, which was a permanent one, in respect of past transactions, the expiry of its life could not have any effect on that law to the extent saved. THE decisions relating to the repeal of a temporary Ordinance with a saving clause have no bearing in the present Context, for in that case the repealed Ordinance, in so far as it was kept alive, could not have a larger lease of' life than the repealed and the repealing Ordinances possessed. If so, it follows that the repealed Ordinance, to the extent saved, continued to have force under the Art. 372 of the Constitution until it was altered, repealed or amended by competent Legislature. It cannot, therefore, be said that the coal cess was levied or collected without the authority of', law.