SUBRAMONIAM Vs. STATE

JUDGEMENT

(1.) THESE appeals challenge the vires of S. 2 of the Kerala places of Public Resort (Validation of Levy and Collection of Licence Fee) Act, 27 of 1971. The Section in so far as it is material reads: "2. [1] Notwithstanding anything contained in sub-section [1] of S. 7 of the Kerala Places of Public Resort Act, 1963 [40 of 1963], R. 28 of the Kerala Places of Public Resort R. 1965, as it stood before the amendment issued under notification SRO. No 59/69 dated 27th January, 1969 in so far as it relates to, to the levy and collection of licence fee by the licensing authority shall be deemed to have been issued in accordance with law and the rates fixed under the said rule shall be deemed to be, and to have been, the rate of fee directed by the Government by rule under the said Act with effect on and from the first day of August, 1965, and upto and inclusive of 10th day of February, 1969. [2] Notwithstanding anything contained in any judgment, decree or order of any court to the contrary, all fees levied or collected or purported to have been levied or collected in pursuance of the rule referred to in sub-section [i] shall, for all purposes, be deemed to be and to have always been validly levied, or collected and accordingly: [a], [b] and [c]. x x x x" The Validation Act has a history. Prior to its enactment the Statute that governed the fee was the Places of Public Resort Act 1963 and the Rules framed thereunder, and. in particular, R. 28 framed under the said Act, S. 7 of the Public Resort Act 1963 enacts: 7[1] If the authority is satisfied: [a] that the enclosed place or building may safely be used for the purpose of public resort or entertainment proposed; [b] that no objection arising from its situation, ownership, possession or the purpose proposed exists; he shall give the applicant a written licence, signed by him specifying the enclosure or building and the purpose for which it is to be used. Such licence shall be in such form and subject to the payment of such fee and conditions as the Government may from time to time by rule direct. [2] If the authority is not satisfied as aforesaid he may refuse to grant a licence recording his reasons for refusal in writing. " And R. 28 thereunder provided: "28. Scale of fees chargeable on licences: [i] For every licence granted or renewed under the Act there shall be charged unless exempted by the Government a fee according to the following scale namely: [a] for the grant or renewal of licence for one year in respect of a permanent building within the Corporations, Townships and municipalities a fee of Rs. 751- for an area of 100 Sq metres or less with an additional fee of Rs. 37. 50 for every 50 Sq. metre or fraction thereof in excess of the first 100 Sq. metres. [b] for the grant or renewal of licence for one year in respect of permanent building within a Panchayat area a fee of Rs. 20/- for an area of 100 Sq metres or less with an additional fee of Rs. 10 for every 50 Sq metres or fraction thereof in excess of the first 100 Sq. metres. [vii] The licensing authority shall fix the fee under clauses [i] [ii] and [iii] with the previous approval of the local authority concerned. The validity of this Rule was challenged in O. P. Nos. 2488 of 1965 and O. P. No 3047 of 1966. The judgment sets out that the main question was about the legality of an impost called licence fee purporting to have been made under R. 28 of the Kerala Places of Public Resort R. 1965 framed under the Kerala Places of Public Resort Act, 1963. The learned judges of the full Bench who disposed of the writ petitions felt that the writ petitions could be disposed of on a very short ground. The ground considered was whether r. 28 is in accordance with S. 7 of the Act. After extracting S. 7 and R. 28, the learned judges observed: "4. From the sections it is clear that the exact fee chargeable must be as directed by Government by the rule. It is not urged before us that the rule referred to is the section is anything other than the rules prescribed under the rule-making power in the Act. Such are the rules that have been framed. The relevant rule thereof, R. 28 does not direct what fee should be levied in regard to a particular kind of place All that it stipulated is the minima and maxima within which liberty is granted to authority concerned to fix the fee with prior approval from the local authority as is seen from sub rule (vii) of R. 28 which we have extracted. In fact this sub rule in specific terms empowers the licensing authority to fix the fee with the previous approval of the local authority. This amounts to a delegation by a delegate, the State Government authorised by the Statute. This is unwarranted. The rule as framed is not in accordance with the Act and the Rule has therefore to be declared as ultra vires of the Kerala Places of Public Resort Act, 1963. We so declare. " Ultimately the Full Bench held that no demand for licence fee can be made against the petitioners in the writ petitions aid disposed of the writ petitions on the basis of the terms indicated. It was in pursuance of this judgment given on the 24th July 1968 that the Validation Act was passed.

(2.) THESE writ appeals again raise the question of the vires of the Validation Act, and, in particular, S. 2 thereof. The challenge has been mainly levied on the ground that R. 28 of the Rules under the Places of public Resort Act having been held to be beyond the purview of S. 7 of the Act, and declared ultra vires by the Full Bench, the same must be regard d as nonest, and action taken under the said Rule which was ultra vires cannot be made the foundation for a validation as has been one under S 2 of the impugned act Elaborated, the contention was this R. 28 of the Rules under the Places of public Resort Act was struck down on the ground that under S. 2 of the Places of public Resort Act, the exact quantum of the impost or the licence fee had to be fixed by the Government, and, in so far as the Government, which was the legislature's delegate, itself left the matter to be fixed by the licensing authority, there was a sub delegation, which was unconstitutional and therefore the impost must fail. In view of this reasoning, Counsel for the appellant argued that without rectifying or remedying the excess delegation, in so tar as s. 2 merely deemed, by a legislative fiction, that the fixation done under the invalidated Rule by the licensing authority, shall be deemed to be a fixation effected by the Government, the validation cannot be regarded as proper. In support of this proposition, Counsel relied on the decision in Janapada Sabha, Chhindwara etc. v. The Central Provinces Syndicate Ltd. & Another (AIR. 1971 SC. 57 ). The circumstances and the history of the litigation which led to that decision are well-known. It was an off shoot of the earlier decision of the Supreme court in Amalgamated Coalfields Ltd's case (AIR. 1964 SC 1013), by which, a certain rule framed under local Self Government Act 1920 had been struck down by the Supreme Court. That was followed by a validation Act which was challenged in the proceedings reported in AIR. 1971 SC. 57. It was pointed out by the Court that if the Validation Act does not. by the plain language used therein carry out the object of validation, the Court will not be justified in supplying the omission in the Act. In Para. 8 the Court observed: "8. The relevant words which purport 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 notifications/notices specified in the Schedule shall, for all purposes, be deemed to be, and to have always been validly imposed, 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 notifications/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 amendments 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 amendments. " In Para. 10 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 legislature to do under our constitutional scheme. It is open 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 properly constituted and rendered in exercise of its powers in a matter brought before it snail, be deemed to be ineffective and the interpretation of the law shall be otherwise than at declared by the court. " The passages that we have extracted indicate the scope and the limits of a validation legislation and the devices resorted to for effecting the said purpose. It is made clear, among other things, that it is open to the Legislature, within certain limits, to amend the provisions of an act held to be invalid, retrospectively, and to declare what the law shall be deemed to have been. That precisely appears to us to have been what has happened here. The Full Bench in the case referred to, having pointed out that the fixation of the precise rate or quantum of the licence fee bad to be effected by the Government, struck down the impost and held the rule unconstitutional. Keeping the provisions of the Act intact, the Validation Act directed that the fixation of the licence-fee, actually done by the licensing authority under the provisions of the Rule shall be deemed to have been done by the Government. The Statute deems the fixation by the licensing authority as a fixation by Government Agreeing with the learned judge, we hold that the action is within the permissible limits of validation as expounded by the Supreme court

(3.) WE dismiss these appeals with no order as to costs. Dismissed. . .