LawDistill
Supreme Court of India

KRISHNA CHANDRA GANGOPADHYAYA ETC vs UNION OF INDIA & ORS on 18 April, 1975

Cites 3 provisionsCites 7 judgmentsCited by 10
Official PDFBench Ajit Nath Ray (presiding), Kuttyil Kurien Mathew, Vaidyanathapuram Rama Krishna Iyer
PETITIONER:
KRISHNA CHANDRA GANGOPADHYAYA ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT18/04/1975
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
RAY, A.N. (CJ)
MATHEW, KUTTYIL KURIEN
CITATION:
1975 AIR 1389 1975 SCR 151
1975 SCC (2) 302
CITATOR INFO :
RF 1975 SC2299 (606)
D 1976 SC 714 (74)
ACT:
Constitution of India-Seventh Schedule, List I Item 54, List
II Item 23. Mines and Minerals (Regulation and Development)
Act, 1957-Section 15--Bihar Land Reforms Act 1950 [Section
10(2)]-Bihar Minor Minerals Concession Rules, 1964 [Rule
20(2)].
Interpretation of Statutes-Validation Act-Retrospective
effect-Delegated Legislation-Legislation by incorporation.
HEADNOTE:
This Court in the case of Baij Nath Kedia declared the
second proviso to section 10(2) of the Bihar Land Reforms
Act, 1950 unconstitutional on the ground that the Bihar
Legislature had no jurisdiction to enact it and that
Parliament alone was competent to legislate. This Court
also held that rule 20(2) framed by the Bihar Government as

ORIGINAL JURISDICTION : Writ Petitions Nos. 357 to 359 of 1970. Petitions under Art. 32 of the Constitution of India. A. K. Sen, P. K. Chatteriee and G. S. Chatterjee for the petitioners. L. N. Sinha, Solicitor General of India, S. N. Prasad, R. N. Sachthey, and M. N. Shroff, for respondent no. 1. S.K. Sinha and K. K. Sinha, for respondent Nos. 2-5 (in W.P. No. 359/70). L. N. Sinha, Solicitor General of India and U. P. Singh, for respondent no. 2. (in W.P. No. 357/70. L.N. Sinha, Solicitor General of India add D. Goburdhan, for respondent Nos. 2-4. The Judgment of the Court was delivered by KRISHNA IYER, J.-The central issue in these petitions deals with the question whether a statute and a rule earlier declared by the Court unconstitutional or otherwise invalid, can be retroactive through fresh validating legislation enacted by the competent Legislature. More pointedly, the constitutionality of. r. 20(2) framed by the Bihar Government under s. 15 of the Mines and Minerals (Regulation and Development) Act, 1957 (Act LXVII of 1957) (for short, the Central Act) and the second proviso to S. 10 (2) of the Bihar Land Reforms Act, 1950 (for brevity, the Bihar Act) has been challenged on various grounds in the petitions, a validating statute by Parliament transforming them into Central legislation, as will be presently explained. The subject of the litigation is minor minerals, and the right of the petitioners adversely affected by the impugned legislation, is-to quarry stones etc., on the strength of leases granted to them by erstwhile proprietors whose ownership vested in the State by virtue of the Bihar Act. By the combined operation of the second proviso to S. 10(2) of the Bihar Act and r. 20(2) (framed by the State Government) of the Bihar Miner Mineral Concession Rules, 1964 (hereinafter called the Rules) the petitioners were called upon to pay certain rents and royalties in respect of mining operations, but the power of the State, clothed by these provisions, was put in issue in the first round of litigation by lessees of quarries, which culminated disastrously against the State in Baij Nath Kedia v. State of Bihar(1). This Court, in that case, held that the Bihar Legislature had no jurisdiction to enact the second proviso to S. 10(2) of the Bihar Act, because it went further to hold that s. 15 of the Central Act, read with s. 2 thereof, had appropriated the whole field relating to minor minerals for Parliamentary legislation. This Court proceeded to lay down that the second sub-rule, added by the Notification dated December 10, 1964 to r. 20 of the rules did not affect leases in existence prior to the enactment of the rules. The upshot of the decision was that the action taken by the Bihar Government, in modifying the terms and conditions of the leases which were in existence anterior to the rules and the levy sought to be made on the strength of the amended Bihar Act and rule were unsustainable. Thereupon the State persuaded Parliament to enact the validation Act of 1969 with a view to remove the road-blorks which resulted in the decision in Kedia’s Case(1). The preamble and the short Act (now impugned) provide thus

"An Act to validate certain provisions

contained in the Bihar Land Reforms Act, 1950,

and the Bihar Minor Mineral Concession Rules,

1964, and action taken and things done in

connection therewith."

Section I gives the title of the Act.

Section 2 of the Act runs thus

"2. Validation of certain Bihar State laws and

action taken and things done connected

therewith.

(1)The laws specified in the Schedule shall

be and shall. be deemed’ always to have been,

as valid as if the provisions ID contained

therein had been enacted by Parliament.

(2)Notwithstanding any judgment, decree or

order of any court, all actions taken, things

done, rules made, notifications issued or

purported to have been taken, done, made or

issued and rents or royalties realised under

any such laws shall be deemed to have been

validly taken, done, made, issued or realised,

as the case may be, as if this section had

been in force at all material times when such

action was taken, things were done, rules

were, made, notifications were issued, or

rents or royalties were realised, and no suit

or other proceedings shall be maintained or

continued in any court for the refund of rents

or royalties realised under any such laws.

(3)For the removal of doubts, it is hereby

declared that nothing in sub-section (2) shall

be construed as preventing any person from

claiming refund of any rents or royalties paid

by him in excess of the amount due from him

under any such laws."

In the Schedule, section 10 of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950), as amended by the Bihar Land Reforms (Amendment) Act, 1964 (Bihar Act IV of 1965) and by the Bihar Land Reforms (Amendment) Act, 1965 (Bihar Act VI of 1965), and two other sections, namely, sections 10-A and 31, of the Bihar Land Reforms Act, 1950, as amended by the various amending Acts, are mentioned. Sub-rule (2) of Rule 20 of the Bihar Minor Mineral Concession Rules, 1964, as inserted by the Bihar Minor Mineral Concession (First Amendment) Rules, 1964, published under the Bihar Government Notification No. A/MM-109964 (pt.) 7700/M, dated the 19th December, 1964, in the Gazette of Bihar (Pt. 11), dated the 30th December, 1964 is also mentioned therein. The legal question canvassed before us is as to whether the Amending Act in question has been an exercise in futility because of an unconstitutional essay and foggy drafting or has achieved the purpose I set by Parliament which is transparent from the legislative history Shri A. K. Sen, counsel for the petitioner, has turned the focus mainly on one or two deficiencies in the enactment of the Act by Parliament. Shri Sen’s submission is that notwithstanding the validating measure the right claimed by the State to alter the terms of the lease or to impose a new levy has not validly acquired. Case History Mines and minerals, as topics of legislation, fall under the Union and the State Lists. Under our scheme of distribution of legislative powers, particularly when subjects of national and provincial concern ,arc involved, an interlocking arrangement is provided whereby the Union has a dominant say and the States a lesser role, the present case of mines and minerals being an instance in point. The relevant entries in the VII Schedule are item 54 of List I and item 23 of List II. The latter is expressly made subject to the provisions of List I with respect to regulation and development under the control of the Union arid the Union’s powers extend to regulation and development of mines and minerals ’to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest’. In the exercise of the above power, the Union Parliament passed the Central Act which covered not merely the field of major minerals but also occupied the area of minor minerals, as is evident from ss. 15 and 16 of the Act. (The necessary declaration visualised in Entry 54 of List I is made by sec. 2 of the Central Act). Although the legislation was made by Parliament, 15 conferred power on the State Government as its delegate to make rules in respect of minor minerals. The Bihar State which had on its statute book a land reforms law, sought to acquire control over mines and minerals and in that behalf added a second proviso to s. 10(2) which reads thus (Bihar Act 4/65)

"Provided further that the terms and

conditions of the said lease in regard to

minor minerals as defined in the Mines and

Minerals (Regulation and Development) Act,

1957 (Act LXVII of 1957) shall, in so far as

they are inconsistent with the rules of that

Act, stand substituted by the corresponding

terms and conditions by those rules and if

further ascertainment and settlement of the

terms will become necessary then necessary

proceedings for that, purpose shall be

undertaken by the Collector." The apparent legal result was that the State Government could ’shape the terms and conditions of the leases granted by the quondam proprietors and this was done by framing rules under s. 15 of the Central Act as the delegate of Parliament. Faced with a demand for higher levyput forward by the State which had been armed by the amendmentof the Land Reforms law and the rules under s. 15 of the CentralAct, mineral prospectors and quarries moved petitions under Art. 226 of the Constitution in the Patna High Court, Although those petitions were dismissed, appeals were carried to this Court which, as earlier stated, ended in success. It is important to note the reasons which weighed with this Court in striking down the two pieces of legislation, one amending the Bihar Act and the other, adding a sub-rule under the Central Act, so that an insight into the infirmities of the said legislations may be gained and the need and object of the validation appreciated. Hidayatullah, C. J. in Baij Nath Kedia(1), speaking for the Court, pointed out that the declaration contemplated by Entry 54 of List I was contained in s. 2 of Act 67/57 and thus the Central Government assumed control over regulation of mines and mineral development to the extent provided in the Central Act. Since s. 15 of the Central Act went on to state that the State Government may make rules for regulating the grant of prospecting licences and mining leases in respect of minor minerals and for purposes connected therewith, the whole subject of legislation regarding minor mineral was also covered by the Central Act and, to that extent, the powers of the State Legislature stood excluded. No scope was therefore left for the enactment of the second proviso to s. 10(2) of the Bihar Act which related to mining and minerals and was for that reason ultra vires. The fate of sub-rule 20(2) was no better, according to the learned Chief Justice. Vested interests cannot be taken away except by law made by a competent Legislature. Since the Bihar Legislature had lost power to legislate about minor minerals, Parliament was the sole source of power in this behalf. Rule 20(2) of the Bihar Minor Minerals Concession Rules, 1964 was ineffective for modifying leases granted earlier. It could not derive sustenance on the second proviso to s. 10(2) of the Bihar Act which had been held ultra vires not could legislative support be derived from s. 15 of the Central Act since the rulemaking power conferred by that provision did not contemplate alteration of terms of leases already in existence before the Act was passed. The direct lessons from Kedia(1) were drawn by Parliament and suitable legislative action taken, according to the Solicitor General, resulting in the present validation Act. So much so the purpose of the enactment was obvious, the law laid down by this Court was obeyed and the resultant referential legislation must therefore be interpreted to further and fulfil-not to frustrate or foil-the intendment of retroactive validation of earlier inoperative legislative and executive action taken by the Bihar State. Statutory conspectus and meaning Substantially this history of the impugned Act is not under serious challenge. The vital conflict is as to whether, whatever may have been in the mind of Parliament, the Court can speculate on presumed intent (1) [1970] 2 S.C.R.100. and read that object with implicit sense, According to Sri Sen, what has been legislated has to be judged on the language used which, in his view, was hardy adequate to create power to vary the leases or cast liability to pay largr and royalties retrospectively. We listen largely to the language of the statute but where, as here,, clearing up of marginal obscurity may make interpretation surer if light from dependable sources were to beam in, the Court may seek such aid. What has been described as the sound system of construction, excluding all but the language of the text and the dictionary ad the key, hardly holds the field especially if the enactment has a fiscal or other mission, its surrounding circumstances speak and its history unfolds the mischief to be remedied. The Court, in its comings with the Legislature, strives reasonably to give meaningful life and avoid cadaverous consequence We have set out the story of the rebirth, as it were, of the law of minor mineral royalty levy to drive home, the propriety of this method of approach. No doubt, there is some remissness in the drawing up of what professes to be a validating law and the neglected art of drafting bills is in part the reason for subtle length of submissions where better skill could have make the sense of the statute luscious and its validity above-board. Informed by a realistic idea of shortfalls in legislative drafting and of the social perspective of the statute but guided primarily by what the Act has said explicitly or by necessary implication we will examine the meaning and its impact on counsel’s contentions. The main Propositions of law Kedia’s Case(1) has held void both proviso 2 to s. 10 of the Bihar Act and Rule 20 (2) made under the Central Act. Shri A. K. Sen did not dispute the legislative competence of Parliament, by specific enactment, to validate retroactively otherwise invalid legislation or incorporate into a Central Act a void State legislation since mines and minerals, minor and major, had been taken over by the Centre. His chief submission was that the well-known legislative mechanics to resurrect statutorily earlier Acts or rules declared dead by Court had not been adopted here, so much so the fiction introduced by the deeming provision has failed to achieve what is being claimed by the State as the legislative object. Mr. Sen’s proposition, shortly stated, is

"If a law is void as being passed by an

incompetent Legislature, validation by a

subsequent Act passed by a competent

Legislature can only be effected by the subse-

quent law enacting the provisions of the old

Act expressly or by incorporation. It cannot

be done by a competent Legislature laying down

in the subsequent Act that the former Act

passed by the incompetent Legislature is

deemed to be What is moot is not the proposition but its application to our legislative situation. Relaince for this proposition was placed, inter alia on Jaora Sugar Mills v. State(1) ; Jawaharmal v. State of Rajasthan(2) ; Shama Rao v. Pandicherry(3) and Gwalior Rayon Mills v. Asstt. Commissioner, S.T.(1). To take the last case first, we may state that the problem tackled there related to excessive delegation and abdication of legislative power and did not bear upon the issue of legislation by reference or incorporation. Of course, there is consideration of Shama Rao(3) in the judgment of Mathew J., but it is difficult to make out how the observations to which our attention was invited bear upon the issue before us. The learned Judge’s containment of the principle in Shama Rao(:’) with which we respectfully concur, may be set out here (p. 1679)

"We think that the principle of the ruling in

[1967] 2 SCR 650 (viz., Shama Rao) must be

confined to the facts of the case., It is

doubtful whether there is any general

principle which precludes either Parliament or

a State legislature from adopting a law and

the future amendments to the law passed

respectively by a State legislature or

Parliament and incorporating them in its

legislation. At any rate, there can be no

such prohibition when the adoption is not of

the entire corpus of law on a subject but only

of a provision and its future amendments and

that for a special reason or purpose. The kernel of Gwalior Rayon (4) is the ambit of delegation by Legislatures, and the reference to legislation by adoption or incorporation supports the competence and does not contradict the vires of such a process-not an unusual phenomenon in legislative systems nor counter to the plenitude of powers constitutional law has in many jurisdictions conceded to such instrumentalities clothed with plenary authority. The Indian legislatures and courts have never accepted any inhibition against or limitation upon enactment by incorporation, as such. The dispute is not whether Parliament can legislate into validity State Act which is outside the State List. If s. 2 of the impugned Act merely validates invalid State law by Parliament’s action, it is doomed to fail. It is for the Constitution, not Parliament, to confer competence on State Legislatures. The observations in Jaora Sugar Mills(1) on which Shri A. K. Sen laid great stress, silence the question

"... . . . If it is shown that the impugned

Act purports to do nothing more than validate

the invalid State statutes’, then of course,

such a validating Act would be outside the

legis-

(1) [1966] 1 S.C.R. 523, 531.

(2)[1966] 1 S.C.R. 890, 901, 904.

(3)[1967] 2 S.C.R. 650, 662.

(4)A.I.R. 1974 S.C. 1660, 1681.

lative competence of Parliament itself Where a

topic is not included within the relevant List

dealing with the legislative competence of the

State Legislatures, Parliament, by making a

law, cannot attempt to confer such legislative

competence on the State Legislatures." It is a far constitutional cry from this position to the other proposition that where Parliament has power to enact on a topic actually legislates within its competence but, as an abbreviation of drafting, borrows into the statute by reference the words of a State Act not qua State Act but as a convenient shorthand, as against a longhand writing of all the sections into the Central Act, such legislation stands or falls on Parliament’s legislative power, vis -a-vis the subject viz., mines and minerals. The distinction between the two legal lines may sometimes be fine but always is real. Jaora Sugar Mills (supra) illumined this basic difference with reference to s. 3 of the Act challenged there, by observing :

"...... What Parliament has done by enacting

the said section is not to validate the

invalid State statutes, but to make a law

concerning the cess covered by the said Statu-

tes and to provide that the said law shall

come into operation retrospectively. There is

a radical difference between the two

positions. Where the Legislature wants to

validate an earlier Act which has been

declared to be invalid for one reason or

another, it proceeds to remove the infirmity

from the said Act and validates its provisions

which are free from any infirmity. That is

not what Parliament has done in enacting the

present Act. Parliament knew that the

relevant Statutes were invalid, because the

State Legislatures did not possess legislative

competence to enact them. Parliament also

knew that it was fully competent to make an

Act in respect of the subject-matter covered

by the said invalid State Statutes.

Parliament, however, decided that rather than

make elaborate and long provisions in respect

of the recovery of the, cess, it would be more

convenient to make a compendious provision

such as is contained in S. 3. The plain

meaning of Section 3 is that the material and

relevant provisions of notifications, orders

and rules issued or made thereunder are

included in Section 3 and shall be deemed to

have been included at all material times in

it. In other words, what section 3 provides

is that by its order and force, the respective

cesses will be deemed to have been recovered

because the provisions in relation to the

recovery of the said cesses have been

incorporated in the Act itself. The command

under which the cesses would be deemed to have

been recovered would, therefore, be the

command of Parliament, because all the

relevant sections, notifications, orders and

rules have been adopted by the Parliamentary

statute itself." No Parliamentary , omnipotence to re-draw. Legislative Lists in the VII Schedule can be arrogated to confer on the State competence to enact on a topic where it is outside its Lists. But if parliament has the power to legislate on the topic, it can make an Act on the topic by any drafting means, including by referential legislation. The learned Solicitor General, in the course of his submissions made it clear that he did not want to vindicate the levy by any validation of the invalidated portion of s. 10 of the Bihar Act. He based his case on the success with which Parliament had legislated for itself, although adopting a shorthand form of incorporation referentially of a State Act and subordinate legislation given in the Schedule to the validation Act. He also made it clear that r.20(2) had nothing to do with the Bihar Legislature but was the product of Parliamentary legislation by delegation in favour of State Government. Thus, in his view, the Parliament legislated for itself and statutorily adopted for itself the second proviso to s. 10 of the Bihar Act and the otherwise ultra vires sub-rule (2) of r. 20. If the reenacting technique adopted for the referential or incorporating legislation was insufficient in law, he failed. Otherwise, the Act and rules referred to in the Schedule to the validation Act revived and became operational, retroactively. There is force in the submission that taking a total view of the circumstances of the validation Act Parliament did more than simply validate an invalid law passed by the Bihar Legislature but did reenact it with retrospective effect in its own right adding an amending Central Act to the statute book. Shri A. K. Sen pressed passages from Jawaharmal (supra), but some care in scrutiny will reveal that Jawaharmal (supra) does not clash with Jaora Sugar Mills (supra). We may briefly deal with that decision and explain it. Art, 255 of the Constitution insists on Presidential assent for certain Acts of the State Legislature, although subsequent assent is curative of the infirmity caused by absence of previous assent. In Jawaharmal (supra), one of the points that fell for decision was the efficacy of a Legislative declaration that an earlier invalid Act (for want of Presidential assent) be deemed to be valid by reenactment and subsequent assent of the President to the second Act. This would virtually mean that by the re-enacting device, Presidential assent could be by-passed by the Legislature, Negativing this submission, the Court observed, with reference to the Rajasthan Act which attempted this unconstitutional exercise :

"In other words, the Legislature seems ’to say

by Section 4 that even though Article 255 may

not have been complied with by the earlier

Finance Acts, it is competent to pass Section

4 whereby it win prescribe that the failure to

comply with Article 255 does not really

matter. and the assent of the President to the

Act amounts to this that the President also

agrees that the Legislature is empowered to

say that the infirmity resulting from non-

compliance with Article 255 does not matter.

In our opinion, the Legislature is incompetent

to declare that the failure to comply with

Article 255 is of no consequence; and, with

respect, the

assent of the President to such declaration

also does not serve the purpose which

subsequent assent by the President can serve

under Article 255 . . ."

x x x x

we have tried s.4 as favourably as we can

while appreciating the argument of the learned

Advocate General; but the words used in all

the three parts of Section 4 are clear and

unambiguous; they indicate that the

Legislature thought that it was competent to

it to cure, by its own legislative process,

the infirmity resulting from the non-

compliance with Article 255 when it passed the

earlier Finance Acts in question, and it was

probably advised that such a legislative

declaration would be valid and effective

provided it received the assent of the

President.In our opinion, the approach

adopted by the Legislaturein this case

is entirely misconceived. The Legislature,no

doubt, can validate an earlier Act which is

invalid byreason of non-compliance with

Article 255 and such an Act may receive the

assent of the President which will make the

Act effective. The Legislature cannot,

however, itself declare by a statutory

provision that the failure to comply with

Article 255 can be cured by its own enactment

even if the said enactment received the assent

of the President. In our opinion, even the

assent of the President cannot alter the true

constitutional position under Art. 255. The

assent of the President cannot, by any

legislative process, be deemed to have been

given to an earlier Act at a time when in fact

it was not so given. In this context there is

no scope for a retrospective deeming in regard

to the assent of the President. It is somewhat

unfortunate that the casual drafting of

Section 2 leaves the period covered by Act 11

of 1962 and the notification issued thereunder

as unenforceable as before, and the omnibus

and general provisions of Section 4 are of no

help in regard to the said period." In dismissing a similar contention based on Jawaharmal (supra), to challenge the identical statute with which we are here concerned, the Patna High Court observed, in Dhabhum T & I Ltd. v. Union of India (1) ;

"In that case, the validating law merely

declared that the original invalid legislation

was valid in spite of the contravention of

Article 255 of the Constitution. In the

instant case, Parliament has not sought to

declare that the failure to comply with the

requirements of Article 255 of the

Constitution is of no consequence." The crucial demarcation between Jaora Sugar Mills (supra) and Jawaharmal (supra) is important and cannot be overlooked. The latter (1) AIR 1972 Pat. 364, 373 case dealt with a State Legislature ineffectually overcoming invalidity caused by absence of Presidential assent. Validation by a legislature must necessarily be of what it could validly have done and not of what someone else had to do. The assent of the President could not be made up for by the validating process adopted by the legislature. So it was that Jawaharmal (supra) suffered from legislative incompetence a second time. It is important to notice, however, that the alleged vice of the legislation in the present case relates to a radically different area. What is within the competence of Parliament it seeks to do-validation by incorporation of a legislation on a topic within its purview. The device adopted of reenacting by validation is familiar to the Indian draftsman as to his Anglo-American counterpart. We have no doubt that incorporation of Acts is permissible in the absence of other disabling factors. It is one thing to say that retroactive validation by a competent legislature is impermeable; it is another to contend that there has not been a valid execution of this process or rather Parliament has not, in the present case, done what the draftsman ought to have done to effectuate the ostensible purpose of creating a new power to levy royalty and to alter the terms of the mining cases andthen to give such newly created liability anterior effect. The controversy now shifts to the effectiveness or otherwise of the legislative device in achieving retroactive validation. We have already noticed that the second proviso to s.10(2) of the Bihar Act and sub-r.(2) of r.20 of the Mineral Concession Rules, 1964 were void, as held by this Court. We have therefore to treat them as non est. We have already held that the Bihar Act qua Bihar nation could not be resuscitated by Parliament conferring such power through a law. The position may be different so far as rule 20(2) is concerned since that is a rule framed by Parliament through its delegate, the State Government, although the rule itself being in excess of the power conferred by s.15 of the Central Act was ultra vires. In this invalidatory situation, Parliament passed an Act to validate the void provision of the Bihar Land Reforms Act, 1950 and the ultra vires sub-rule of r.20 of the Mineral Concession Rules as well as the action taken and things done in connection therewith. ’The Act is itself short and consists of two sections, of which the ,latter is the only important one. It validates the laws specified in the schedule by a deeming device. Secondly, it brings into force, back-dating it, all action taken, rents and royalties realised and rules made ’notwithstanding any judgment, decree or order of any Court’. The problem before us is whether the Act has achieved its purpose of creating retrospective liability for rents, royalties etc., and validating retrospectively the impugned provisions of the Bihar Act and the Mineral Concession Rules. Shri A. K. Sen’s criticism has to be noticed in this background; for he urges that in the light of the rulings of this Court no liability to levy rent or royalty can be created retroactively without two clear stages or steps : firstly, a law must be enacted creating the liability-, next, such provision should be made retrospective. This two-stage procedure is absent in the statute tinder attack and therefore the purpose, whatever it be, has misfired,. argues Mr. Sen. In plain terms the present case raises the question of enactment by reference and incorporation. It is correct to contend that curative-statutes and validating exercises, unless the process is explicit enough and permissible otherwise, cannot be given ex post facto effect by courts. What is the intention of Parliament is mainly to be gathered from the language used, tested by approved canons of construction. The profusion of precedents touched upon at the Bar leaves us with a few which were stressed as having direct pertinence to the points in debate. The power of a legislature to pass a law obviously includes the power to pass it retrospectively. Minor minerals, as explained already, being a topic withdrawn and confided to Parliament for legislation, the validating Act cannot fail for incompetence. But before a levy expost facto is made, the legislation must first create the fiscal liability and then project it retrospectively. This is the broad trend of Sri A. K. Sen’s submission. He relies heavily on Kamrap(1) to urge that a legislation cannot by a simple ’deeming’ device render valid what is unconstitutional. The following observations were emphasized by counsel (p. 580 of the report) :

"It is to be seen that the core of Assam Act

21 of 1960 is the deeming provision of s.2

under which certain lands are deemed to be

acquired under the earlier Act. As this

deeming provision is invalid, all the other

ancillary provisions fall to the ground along

with it. The later Act is entirely dependent

upon the continuing existence and validity of

the earlier Act. As the earlier Act is

unconstitutional and has no legal existence,

the provisions of Act No. 21 of 1960 are

incapable of enforcement and are invalid." The ratio is apt to be misunderstood for, in its essence, the judgment merely holds that where the later Act isentirely dependent upon the valid continuance of the earlier Act, which has been held unconstitutional, the deeming provision cannot produce the desired effect. The learned Solicitor General, however, argues that the situation in the present case is altogether different. The earlier Bihar Act or the rules framed by the State Government under the Act do not have to be valid for sustaining the amending Act made by Parliament. The constitutionality of the earlier law has not to be posited for the survival of the Central amending Act. In this submission the learned Solicitor General is right and so the proposition in Kamrup(1) is inapplicable here. In Hari Singh(2), Kamrup(1) was approved but there is no quarrel over the correctness of the proposition there, its application being inept in the context of the present case. However, Ray J. (as he then was), made certain observations which were pressed before us by Mr. Sen

"The ratio is that the 1960 Act has no power

to enact that an acquisition made under a

constitutionally invalid Act was valid. The

1960 Act did not stand independent of the 1955

Act. The deeming provision of the 1960 Act

was that land was deemed to be acquired under

the 1955 Act. If the 1955 Act was

unconstitutional, the 1960 Act could not make

the 1955 Act constitutional." With great respect we agree with the position but, as earlier stated, the statutory complex confronting us is something different. In the present case, the Bihar Legislature is not legislating into validity, by a deeming provision, what has been declared ultra vires by the Court. It is Parliament, whose competency to legislate on the topic in question is beyond doubt, that is enacting the ’deeming’ provision. It follows that Hari Singh (supra) also cannot salvage the appellant. We reach the twilight of legislative area when we move into West Ramnad Electric Distribution Co. Case(1) which also dealt with a validating Act. The Madras Electricity Supply Undertakings Act. 1949 clothed the State with power to acquire Electricity Supply Undertakings. The validity of the said Act was challenged and this Court held the law ultra vires. In consequence, the Madras Legislature passed Madras Act 29/54 which incorporated the impugned provisions of the earlier Act of 1949 and purported to validate the action taken under the earlier Act. The affected appellant assailed the new Act to the extent to which it purported to validate acts done under the earlier Act of 1949 which had been declared inoperative by the Court. The facet of that decision which relates to the point under discussion before us establishes that validation, with retrospectively superadded, is perfectly competent for the Legislature. Gajendragadkar, J. (as he then was), observed :

"The argument is that there is no specific or

express provision in the Act which makes the

Act retrospective and so, s.24, even if it is

valid, is ineffective for the purpose of

sustaining the impugned order by which

possession of the appellant concern was

obtained by the respondent."

x x x x

"Before dealing with this argument, it would

be necessary to examine the broad features of

the Act and understand its general scheme.

The Act was passed because the Madras

Legislature thought it expedient to provide

for the acquisition of undertakings other than

those belonging to and under the control of

the State Electricity Board constituted under

section 5 of the Electricity (Supply) Act,

1948 in the State of Madras engaged in the

business of supplying electricity to the

public. It is with that object that appro-

priate provisions have been made by the Act to

provide for the acquisition of undertakings

and to lay down the principles for paying

compensation for them. It is quite clear that

the scheme of the Act was to bring within the

purview of its material provisions

undertakings in respect

(1) [1963] 2 S C.R. 747.

of which no action had been taken under the

earlier Act and those in respect of which

action had been so taken."

x x x x

"It is thus clear that the Act, in terms, is

intended to apply to undertakings of which

possession had already been taken, and that

obviously means that its material and opera-

tive provisions are retrospective. Actions

taken under the provisions of the earlier Act

are deemed to have been taken under the

provisions of the Act and possession taken

under the said earlier provisions is deemed to

have been taken under the relevant provisions

of the Act. This retrospective operation of

the material provisions of the Act is thus

writ large in all the relevant provisions and

is an essential part of the scheme of the Act.

Therefore, Mr. Nambiar is not right when he

assumes that the rest of the Act is intended

to be prospective and so, section 24 should be

construed in the light of the said prospective

character of the Act. On the contrary, in

construing s.24, we have to bear in mind the

fact that the Act is retrospective in

operation and is intended to bring within the

scope of its material provisions undertakings

of which possession had already been taken."

x x x x

"The third part of the section provides that

the statutory declaration about the validity

of the issue of the notification would be

subject to this exception that the said

notification should not be inconsistent with

or repugnant to the provisions of the Act. In

other words, the effect of this section is

that if a notification had been issued

properly under the provisions of the earlier

Act and its validity could not have been

impeached if the said provisions

were themselves valid, it would be deemed to

have been validly issued under the provisions

of the Act, provided, of course, it is not

inconsistent with the other provisions of the

Act. The section is not very happily worded,

but on its fair and reasonable construction,

there can be no doubt about its meaning or

effect. It is a saving and validating

provision and it clearly intends to validate

actions taken under the relevant provisions of

the earlier Act which was invalid from the

start. The fact that s. 24 does not use the

usual phraseology that the notifications

issued under the earlier Act shall be deemed

to have been issued under the Act, does not

alter the position. that the second part of

the section has and is intended to have the

same effect."

x x x x

"We have no doubt that s.24 was intended to

validate actions taken under the earlier Act

and on its fair and reasonable construction,

it must be held that the intention has been carried out by the legislature by enacting

the said section. Therefore, the argument

that s.24 even if valid, cannot effectively

validate the impugned notification, cannot

succeed." The ratio of West Ramnad (supra) is clear. The Legislature can retrospectively validate what otherwise was inoperative law or action. Unhappy wording, infelicitous expression or imperfect or inartistic drafting may not necessarily defeat, for that reason alone, the obvious object of the validating law and its retrospective content. In fairness to counsel for the appellant, we must state that the proposition in Jadao Bahuji’s Case(1) about the powers of the Legislature, including within itself the power to make retrospective laws, was not canvassed. Indeed, to urge that Indian Legislatures were subject to strange and unsual prohibition against retrospective legislation’ is as late as it is presumptuous. However, Jadao Bahuji(1) itself contained some valuable observations of relevance for this case which we may here extract (p. 640) :

"Retrospective laws, it has been held, can

validate an Act, which contains some

defect in its enactment. Examples of

Validating Acts which rendered inoperative,

decrees or orders of the Court or

alternatively made them valid and effective,

are many. In Atiqux Begum’s Case [(1940) FCR

110], the power of validating defective law

who held to be ancillary and subsidiary to

the powers conferred by the En tries and to be

included in those powers." We have said enough to establish that no substantial objection to the Act in question can be pressed on the strength of incompetence of inoperative retroactivity. That is why the appellant’s submission was switched largely on the gross inadequacy of the language of s. 2 of the impugned Act to confer power on the State Government to validate the rule 20(2) or s.10 of the Bihar Act. To be precise, the highlight of Sri Sen’s arguments runs thus:

" The core of the Act on which the State

Government might issue rules is s. 15 of the

Central Act, 1957. Section 15 of the 1957 Act

did not authorise the State Government to

enact r.20 for modifying the existing leases

as was found in the earlier case. The present

s.2 does not confer any such power nor does it

enact the provisions of the Bihar Act to this

effect. It only provides that the Bihar Act

shall be considered to be valid as if it were

passed by Parliament. Section 2 being a core

of the present Act and that being invalid and

being found not to amount to any incorporation

of the Bihar Act, action taken under r.20 or

r.20 itself passed under the old Act would

still remain void and inoperative." In this connection, considerable emphasis was placed on Jawaharmal (supra) and on Shama Rao (supra). Passing reference was also made to Jagannath v. Authorized officer Land Reforms (1). The first of these decisions Jawaharmal (supra) seemingly supports Mr. Sen’s proposition, although the others fall wide off the mark. In West Ramnad (supra), referred to by counsel this Court made some observations which have relevance to the topic under discussion. There a legislative validation, retrospective in operation, was challenged. The latter legislation used the expression Thereby declared’. The observations made by this Court in that connection are instructive and may be extracted:

"The second part of the section provides that

the notifications covered by the first part

are declared by this Act to have been validly

issued ; the expression Thereby declared’

clearly means ’declared by this Act’ and that

shows that the notifications covered by the

first part would be treated as issued under

the relevant provisions of the Act and would

be treated as validly issued under the said

provisions. The third part of the section

provides that the statutory declaration about

the validity of the issue of the notification

would be subject to this exception that the

said notification should not be inconsistent

with or repugnant to the provisions of the

Act. In other words, the effect of this

section is that if a notification had been

issued properly under the provisions of the

earlier Act and its validity could not have

been impeached if the said provisions were

themselves valid, it would be deemed to have

been validly issued under the provisions of

the Act, provided, of course, it is not

inconsistent with the other provisions of the

Act. The section is not very happily worded,

but on its fair and reasonable construction,

there can be no doubt about its meaning or

effect. It is a saving and validating

provision and it clearly intends to validate

actions taken under the relevant provisions of

the earlier Act which was invalid from the

start. The fact that s.24 does not use the

usual phraseology that the notification issued

under the earlier Act shall be deemed to have

been issued under the Act, does not alter the

position that the second part of the section

has and is intended to have the same effect." It follows that, variant phraseology apart, the meaning and intent must be unmistakable. In the present case we are fully satisfied that Parliament desired to validate retrospectively what the Bihar legislation bad ineffectually attempted. It has used words plain enough to implement its object and therefore the validating Act as well as the consequential levy are good. Rule 20(2) of the Mineral Concession Rules, which has been validated by s.2 of sub-s. (1) and figures as item 4 of the Schedule to the :Impugned enactment, stands on an assured footing. This (1) (1971) 2 SCR 893. 10 SC/75-12 sub-rule is made by the Bihar Government purely as a delegate of Parliament, though beyond the scope of the delegation. Therefore Parliament could validate it and has done so. The source of the authority for rule-making being of Parliament, it is indubitable that the power to give it life retrospective exists. Thus the impugned legislation, levy and other actions are good. For the reasons set out above, we dismiss the writ petitions, but in the circumstances, without costs. Petitions dismissed. P.H.P.