LexRAFIQUENNESSA versus LAL BAHADUR CHETRI (DEAD) THROUGH ITS REPRESENTATIVES AND OTHERS
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SUPREME COURT REPORTS [rg64) 1964 taxing entries in the legislative Lists I and II of the Seventh R. Ab~uad., Schedule &re entirely separate from other entries. Entry 26 S I T v. Offi of List II deals with trade and commerce and has nothing a 81 aJ: ca to d · h · · I' gl _ o wit taxIJJg or recovermg amounts rea 1sed wron y Wanchoo J. as tax. It is said that s. 11 (2) regulates trade and com- merce and the State legislature therefore was competent under Entry 26 of List II to enact it. We have not been Ahle to understand what such a provision has to do with the regulation of trade and commerce; it can only be justified as a provision ancillary to a taxing statute. If it cannot be so justified-as we hold that it cannot-we are unable to uphold it as regulating trade and commerce under Entry 26 ot List II. There is in our opinion no element of regulation of trade and commerce in a provision like s. 11 (2). 1961 February 24. We are therefore of opinion that the State legislature was Incompetent to enact a provision likes. 11 (2). We may also add that the provision contained in s. 20(c), being consequen· tial to s. 11 (2) will fall along with it. In consequence it was not open to the Sales Tax Officer to ask the appellant to make ov~ what he had collected from the purchasers wrongly as sales tax. It is not disputed, as appears from the final assessment order of the Sales Tax Officer, that the appellant was not liable to pay the amount as sales tax for the relevant period. We therefore allow the appeal and quash the assessment order dated s~ptember 27, 1956 insofar as it is based on s. 11 (2). Th~ appellant will get his costs in this Court as well as in the High Court. Appeal allowed. RAF1QUENNESSA v. LAL BAHADUR CHETRI (DEAD) THROUGH HTS REPRESENTATIVES AND OTHERS (P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J. c. SHAH, N. RAJAGOPALA AYYANGAR ANDS. M. S!KRI JJ.) Retroactivity-Enactment of the A.ct pcndinr: apptal-Apptal if governed by the A.ct-Allam Non·Agricultural Urhan Arecu Ttnanq Act, 19SS (Assam Act No. 12 of 19SS), •· S. - 6 S.C.R. SUPREME COURT REPORTS 877 The appellant sued the lessee, the predecesoor of the respondents. for ojcctment on the latter's failure to deliver possession of a leased land at the expiration of the stipulated period. Under the covenant the lessee was entitled to build a house for residential purposes. The trial Court decreed the appellant's claim whereupon the· lessee filed an appeal. While the appeal was pending the Assam Non-Agricultural Urban Areas Tenancy Act was passed, and thereafter the lessee prayed for permis· sion to take an additional ground under •· S of the Act. Before lhat date, the High Court" had taken the view that this provision of the Act was applicable to pending procee'dings. The lower appellate court allow .. ed the lessee's plea and ultimately allowed the appeal and set oside ,ho decree passed by the trial Judge in favour of the appellant, concluding that the two houses had been constructed by the lessee within five years after the taking of the lease and that entitled the lessee to claim the benefit of s. S of the Act. The High Court on appeal. following its earlier decision about the applicability of the provisions of •· 5 to pend- ing proceedings, summarily dismissed the appeal, but granted a certifi~ cate for leave to appeal to this Court. Held: (i) A statutory provision is retroactive either when it is so declared by express terms. or the intention to make it retroactive clear1y follows from the relevant words and the context in which they O"..cu1. Re. Athlumney Ex parte Wilson, (1898) 2 Q.B.D. 541, referred to. (ii) The provisions of the Act clearly indicate that the legislature wanted the beneficient provisions enacted by it to take within their protection not only leases executed after the Act came into iorce, but also leasei executed prior to the operation of the Act. The plain object of s. 5 is to protect tho tenants who have built a permanent structure either for business oi' for residence, provided it bu been built within S years from the date of contract of tenancy, even though those constructions had been malle before the date of tho AcL (iii) A suit which was pending when the Act came into force would be governed by s. S(I) (a) and an appeal arising from a suit which had been decided before the Act came into force, would likewise bo governed by s. S(I) (a
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