MISRILAL JAIN ETC. ETC. versus STATE OF ORISSA & ANOTHER

Citation: [1977] 3 S.C.R. 714 · Decided: 02-05-1977 · Supreme Court of India · Bench: M. HAMEEDULLAH BEG · Disposal: Dismissed

Cited by 4 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

714 
A 
• 
SUPREME COURT REPORTS 
MISRILAL JAIN ETC. ETC. 
v . 
STATE OF ORISSA & ANOTHER 
May 2, 1977 
(1977] 3 S.C.R. 
B 
[M. H. BEG, C.J., Y. V. CHANDRACHUD, P. N. BHAGVATI, V. R. 
KRISHNA !YER, N.1 L. UNTWALLA, S. MURTAZA FAZAL ALI ANU P. S. 
KAILASAM, JJ.} 
Orissa 1axation (On goods carried by Roads or Inland Watenvays) Act 8 
of 1968-Sections 3 and 27-Constitutlonaf validity of. 
C 
The Orissa Taxation (On goods carried by Roads or Inland Waterways) 
Act 7 of 1959 and the Orissa Taxation (On Goods carried by Road or In-
land Waterways) Validation Act 18 of 1962 were struck down by this Court 
on 10-8~1967 as invalid and it was held that the respondents were not entitled 
tQ recover any tax from the appellants under the &foresaid Acts. 
On March 
26, 1968, the Orissa Taxation (On Goods carried by Roads or Inland Water-
ways) Act 8 of 1968 was passed after obtaining the previous- sanction of 
the President under Art. 304 of the Constitution to the moving of the Bill, 
imposing the same levy which it had unsuccessfully ait:tempted to levy under 
D 
: the Act of 1959 and to validate under the Act of 1962. 
By section 1(3) of 
the 1968 Act, the Act was to be deemed to have come into force on April 
27, 1959 being the date on which the Act of 1959 had come into force. 
Section 27 ot the Act provides that notwithstanding the expiry of the Act 
of 1959 <M.ld notwithstanding anything contained in any judgment decree or 
order of any court, all assessments made, all taxes imposed or realised, any 
liability incurred or any action taken under the Act of 1959 shall be deemed 
to have been validly made, imposed, incurred or taken under the corresponding 
provisions of the Act 1968. 
The claims of some of the appellants who had 
E 
asked for refund of the tax collected under the Act of 1962 which was held 
unconstitutiona.1, having been refused by the Government, they filed wTit peti-
tions in the Orissa High Court challenging the validity of the 1968 Act. The 
Hieb Court dismissed the writ petitions. 
F 
G 
H 
In appeal to this <;;curt by special leave, the Court, 
HELD : (I) The· impugned enactment is a valid exercise of legislative power 
and is in no sense a fraud on the Constitution. 
Since it is well established 
that the povver to legislate carries with it the power to legislate retrospectively 
as much as prospectively, the circumstance that an enactment operates en-
tirely in the past and has no prospective life cannot affect the competence 
of the· Legislature; to pass the enactment if it falls with.in the list on which 
that competence can operate. 
As regards the power to pass a validating Act, 
that power is essentially subsidi:M)' to the legislative competence to pass a law 
under an appropriate entry of the relevant list. [718 B-E] 
Khyerbar! Tea Co. Ltd. v.· State of Assam [1964] 5 S.C.R. 975, applied. 
(2) In the instant case, the St:"lte Legislature passed an independent enact-
men~ in 1968. after complying with. the l.'Onstitutional requirements, but it gave 
, l 
to that enactment retrospective effect from the date. that! the 1959 Act had 
1\, 
come into force and it created a legal fiction which was permissible for it 
to do, that all attions taken under the Act of '1959 shall be deemed to 
have been taken under the Act of 1968. [717 F-G] 
Jawaharmal v. State of Rajasthan [1966] I SCR 890, not applicable. 
(3) If the vice from which an enactment suffers is cured by due com-
pliance with the legal or constitutional requirement, the Legislature has compe-
\· 
-~ 
M. L. JAIN v. ORISSA (Chandrachud, J.) 
715 
tence to validate the enactment and such validation does not constitute an en-
A 
croachment on the functions of the judiciary. The validity of a validating; taxing 
law depends upon \vhether. the legislature possesses the competence over the 
subject-matter of the· law; whether in making the validation it has removed the 
• 
defect from which the earlier enactment suffered and whether it has made due and 
adequate provision in the validating law for a va•lid imposition 
of 
the 
tax. 
(718 G·H] 
Prithvi Cotton Mills v. Broach Borough Mu11icipality [1970] 1 SCR 388; 
S 
Tirc.th Rani Rajindra Nath v. State of U.P. A.LR. 1973 SC 405 and Govern· 
nient of Andhra Pradesh v. Hindustan Mac/line Tools Ltd. (1975) Supp. SCR 
394, referred to. 
( 4) Jf any appeal challenging an order of1 assessment is filed beyond the 
period of lin1itation and the authority is satisfied that the apper.·1 could not 
be filed "Wi

Excerpt shown. Read the full judgment & AI analysis in Lexace.