Civil Misc. Writ Petition No. 328 of 1999
M/s Trade Links Ltd. vs. State of U.P. and others.
Civil Misc. Writ Petition No. 232 of 1999
M/s Trade Links Ltd. vs. State of U.P. and others.
Civil Misc. Writ Petition No. 370 of 1999
Sita ram Sheoharey & others. vs. State of U.P. and others. and
Civil Misc. Writ Petition No. 896 of 1999
Hon’ble R.K.Agrawal, J.
Hon’ble Rakesh Sharma, J.
(Delivered by R.K.Agrawal,J.)
In all these four petitions two of which have been filed by M/s Trade Links Ltd. and the remaining two have been filed by Sita Ram Sheoharey and others, the validity of the Uttar Pradesh Excise (Amendment) Act, 1998 (U.P. Act No.7 of 1998) has been challenged. As the controversy involved in all these writ petitioners are the same, the writ petition filed by M/s Trade Links Ltd., being Civil Misc. Writ Petition No. 328 of 1999 is being treated as the leading writ petition and its facts are given below: M/s Trade Links Ltd.(hereinafter referred to as the petitioner) is a company duly incorporated under the provisions of the Companies Act, 1956 having its registered office at 17 Rajendra Place, New Delhi. The Excise Commissioner, U.P. Allahabad vide notification dated 15th October, 1982 issued under Section 41 of the U.P. Excise Act, 1910 (hereinafter referred to as the Act) had fixed the wholesale price of foreign liquor and beer. The State Government took a decision to discontinue the wholesale vend in foreign liquor after 31st March, 1983 and directed that subsequent to 31st March, 1983 licences for wholesale vend of foreign liquor shall be 2
issued on Punjab pattern. It was accordingly decided that for the excise year 1983-84 wholesale licencee will be issued on payment of fixed fee furnishing security to any distiller or to authorised agent of the distillery. However, on 23rd March, 1983 the State Government issued a notification under Section 75 of the Act amending the notification dated 30 th September, 1982 and directed that wholesale vend of foreign liquor to licencees in Form F.L.5, F.L.6, F.L.7 and F.L.8 shall be exempt from the operation of the present rule under Section 41 of the Act and necessary directions were issued to the Excise Commissioner to take requisite steps. The Excise Commissioner asked the various distillers to obtain licences for wholesale vend of foreign liquor in Form F.L.2 fulfilling certain conditions. The petitioner after being appointed as an Agent of a distillery, applied for grant of separate licence in Form F.L.2 in respect of twelve districts. The licence was granted on deposit of licence fee as also on furnishing security. The licence fee and assessed fee was also demanded. The fixed fee and assessed fee for whole sale licence was fixed vide notification dated 25th May, 1983 issued under Section 30 of the Act. Feeling aggrieved with the fixed fee and the assessed fee the petitioner as also several other persons challenged the same before this Court. All the writ petitions were allowed by a Division Bench of this Court vide judgment and order dated 23rd November, 1983. The operative portion of the order dated 23rd November, 1983 is reproduced below:
“In the result, all the petitions succeed and allowed. The respondents are directed not to realise any assessed fee from the petitioners who are granted licences in Form F.L.2 prior to 25th of May, 1983 on the basis of the sale mentioned either in paragraph 642 of the U.P. Excise Manual or that mentioned in the notification under section 30 of the U.P. Excise act issued by the state Government on 25 th of May, 1983. The security furnished by various petitioners in this Court are discharged. We direct the parties to bear their own costs. Dt. November, 23, 1983. Sd. H.N.Seth,J. Sd. A.Banerji,J.”
The State Government, feeling aggrieved by the aforesaid judgment and order filed Special Leave to Appeal before the Hon'ble Supreme Court 3
being Civil Appeal Nos. 1312, 1320, 1323, 1335, 1340, 1341, 1342, 1343, 1344, 1374, 1375 and 1378 of 1984. An interim order was granted on 1 st March, 1984 wherein the licencees were directed to furnish bank guarantee. On an application being filed by the petitioner herein that it may be permitted to deposit the assesseed fee in place of furnishing bank guarantee with a condition that in the event the appeal is dismissed the amount be refunded along with interest @ 18%, the Hon'ble Supreme Court vide order dated 27th March, 1984 granted the permission. The petitioner deposited a sum of Rs. 39, 94,782.50 by various challans between 9.5.1984 to 3.3.1986. The aforementioned civil appeals filed by the State Government have been dismissed by the Hon'ble Supreme Court vide judgment and order dated 17th September, 1996. The State Government was directed to refund the amount deposited by the licencees along with interest @ 18% within two months. Instead of complying the direction given by the Hon'ble Supreme Court a review application was filed by the State of U.P. on 16th November, 1996 along with another application dated 22nd November, 1996. The aforesaid applications were filed by the State of Uttar Pradesh relying upon the Amending Act No. 23 of 1984 as enforced on 15th October, 1984 in which provision has been made to the effect that the notification dated 25th May, 1983 made by the State Government in exercise of power under section 30 shall have effect and to be deemed always to have effect from 1st April, 1983 and, therefore, there is no question of refunding the amount. The review applications were dismissed by the Hon'ble Supreme Court vide order dated 28th January, 1997. Another application was filed on 28th May, 1997 purporting to be under Article 142 of the Constitution of India which was declined to be registered by the Registry of the Hon'ble Supreme Court. Thereafter, the Governor of U.P. promulgated an Ordinance NO. 13 of 1997 which has since been replaced by U.P. Act No. 7 of 1998 (hereinafter referred to as the Amendment Act). A new sub-section 3 has been inserted in Section 30 of the Principal Act with retrospective effect from 1st April, 1983. As the order dated 17th September, 1996 passed by the Hon'ble Supreme 4
Court has not been complied with, the petitioner filed contempt petition before the Hon'ble Supreme Court. A stand was taken by the State of U.P. that in view of the provisions of the Amendment Act the amount cannot be refunded. The Hon'ble Supreme Court vide order dated 10th November, 1998 while directing to refund the amount along with interest to the petitioner granted liberty to the State to take all steps permissible under law for recovery of the amount of assessed fee in view of the Amendment Act with an equal remedy to the petitioner to challenge the provisions of the said amendment. The Excise Commissioner vide order dated 2nd January, 1998 asked the Collectors of the respective districts to ensure that necessary recovery of the assessed fee along with interest thereon is made from the licencees in view of the Amendment Act. The Excise Commissioner also send fax message to various licencees to come and collect the necessary bank drafts towards refund of the assessed fee in compliance of the judgment and order of the Hon'ble Supreme Court dated 17th September, 1996. The petitioner collected the Bank draft on 9th March, 1999 along with interest @ 18%. However, on 19th March, 1999 the petitioner has been served with recovery certificates issued by the Collector, Allahabad and Collector, Kanpur Nagar demanding assessed fee for the year 1983-84 plus interest. The recovery certificates have been forwarded to the Assistant Collector, Karol Bagh, Delhi. The said recovery certificates have been challenged in Civil Misc. Writ Petition No. 232 of 1999 in which this Court has been pleased to stay the recovery proceedings. Thereafter fresh demand notice has been issued on 1st April, 1999 which has been challenged in Civil Misc. Writ Petition No. 328 of 1999. The validity of the Uttar Pradesh Excise (Amendment) Act, 1998 (U.P. Act NO.7 of 1998) has been challenged in the present writ petition on the ground that by means of the aforesaid Act an attempt has been made to negate the order of the Hon'ble Supreme Court which has become final between the parties and raise a demand from the petitioner to pay assessed fee which is not permissible under law. However, the amendment made by the U.P. Act No. 23 of 1984 5
and U.P. Act No. 7 of 1998 did not bring any change in the legal position and cannot be relied upon by the respondents to raise any demand of assessed fee from the petitioner. It is arbitrary and violative of Article 14 of the Constitution of India and is an effort to wriggle out from the liability of refund of the assessed fee.
The State of U.P. has sought to justify the amendment on the ground that the licencee is liable to pay the assessed fee under sub-section 3 of Section 30 of the Act as amended by the amending Act with effect from 1st April, 1983 in view of Section 3 of the amending Act. The assessed fee realised from 1st April, 1983 shall be deemed to have been validly realised under the Principal Act and there is no question of refund. The matter came up before this Court and all the writ petitions were allowed vide judgment and order dated 20th January, 2000. Thereafter the matter was taken up before the Hon'ble Supreme Court in appeals preferred by the Excise Commissioner, U.P. being Civil Appeal Nos. 4975-4977 of 2000. The Hon'ble Supreme Court vide judgment and order dated 24th August, 2006 has been pleased to set aside the judgment and order dated 20 th January, 2000 and had remanded the matter to this Court to consider afresh and dispose of the matter in accordance with law.
We have heard Sri Naveen Sinha, learned Senior counsel assisted by Sri Anurag Khanna in Civil Misc. Writ Petition Nos. 328 of 1999 and 232 of 1999 and Sri Pradeep Kumar learned counsel assisted by Sri Swapnil Kumar in Civil Misc. Writ Petition No. 370 of 1999 and 896 of 1999 and Sri Zafar Nayyar, learned Additional Advocate General assisted by Sri B.K.Pandey on behalf of State- respondents.
Sri Naveen Sinha submitted that by the Amendment Act Section 30(1) of the Act has not been amended and, therefore, there is no question to impose assessed fee by the State Government. He further submitted that the Amendment Act is nothing but a device to get over the judgment passed by this Court and Apex Court and the recovery of the amount of assessed fee is 6
not permissible under law. In support of his submission he has relied upon the following decisions:
(1) Shri Prithvi Cotton Mills Ltd. and another vs. Broach Borough
Municipality and others ( 1969 (2) SCC 283);
(AIR 1984 SC 1989);
(3) Delhi Cloth & General Mills Co.Ltd and another vs. State of
Rajasthan and others (AIR 1996 SC 2930);
(4) Satchidananda Misra vs. State of Orissa and others (2004) 8 SCC
Sri Pradeep Kumar while adopting the arguments advanced by Sri Naveen Sinha referred to the letter dated 3rd February, 1999 send by the Excise Commissioner, U.P., a copy of which has been filed as Annexure 4 to the Writ Petition No. 370 of 1999 (Sita Ram Sheoharey and others vs. State of U.P. and others) and submitted that the Excise Commissioner on the one hand directed the concerned Collector to refund the amount of assessed fee along with interest and simultaneously directed for recovery of the said amount along with interest under the Amendment Act which shows the mala fide action of the respondents.
Sri Zafar Nayyar, learned Additional Advocate General submitted that the amendment was necessitated to prevent the unjust enrichment by the licencees and it was always the intention of the State Government to charge assessed fee from the licencees after 1st April, 1983 and the insertion of sub- section (3) of Section 30 of the Act by the Amendment Act made the position amply clear. He further submitted that it does not negate or over rule the decision/judgment of the Apex Court and it is only to remove the lacuna which is otherwise permissible. He further submitted that there is a presumption about the constitutionality of the Statute and its validity can be challenged only on very limited grounds which the petitioners have failed to do. In support of his submission, he has relied upon the following decisions: 7
(1997) 5 SCC 536;
another (2000) 2 SCC 705 and
(3) Greater Bombay Coop. Bank Ltd. vs. United Yarn Tex (P) Ltd.
and others (2007) SCC 236.
In rejoinder, Sri Naveen Sinha, learned counsel submitted that the defect pointed out by this Court has not been removed by the Amendment Act and further the plea of unjust enrichment is not available in the present case as the Hon'ble Supreme Court has specifically directed for the refund of the entire amount of assessed fee deposited by the petitioners along with interest.
Having given our thoughtful consideration to the various pleas raised by the learned counsel for the parties, we find that in view of the order passed by the Hon'ble Supreme Court the amount of assessed fee has been refunded along with interest to the various licencees. Liberty has also been given to the licencees to challenge the validity of the Amendment Act. The State Government has also been permitted to recover the assessed fee in accordance with law. It may be mentioned here that this Court in earlier series of litigation decided on 23rd November, 1983 (which order has been upheld by the Hon'ble Supreme Court while dismissing the civil appeals filed by the State of Uttar Pradesh vide order dated 17th September, 1996) has held that in view of the notification dated 25th May, 1983 the assessed fee could have been charged from the licence issued after 25th May, 1983 as there is no enabling provision under Section 30 of the Act to charge assessed fee prior to that date. The relevant portion of the judgment dated 23rd November, 1983 is reproduced below:
“Section 30 of the U.P. Excise Act under which the said notification has been issued is merely an enabling provison which enables the State Government to instead of or in addition to any duty leviable 8
under Chapter V of the Act, accept the demand of a sum in accordance of the grant of licence for any exclusive privilege under section 24-A of the Act. This Section does not authorise the State Government to, after accepting a particular consideration and granting licence in respect of an exclusive privilege, either alter the terms of the licence or require to licencsee to pay any consideration in addition to the consideration for which it has already granted the said licence. Viewed in this light, the notification dated 25th May, 1983 merely enables the Excise Commissioner to, with immediate effect, and while granting licence in respect of state's exclusive privilege under section 24 or Section 24A of the Act after the date accept in addition to fixed fee of Rs. 25,000/-, assessed fee calculated in the manner mentioned therein. The notification will have no effect on the privileges already granted before 25th May, 1983.
In the result, we find that at the time when the petitioners made applications for licences in Form F.L.'2' and respondents granted the same, there neither was any agreement between the parties to pay assessed fee in addition to the fixed fee of Rs. 25,000/- nor has, any statutory provision or rule, been brought to out notice according to which the additional assessed fee is payable by the petitioners. The only provisions in this regard relied upon by the learned counsel for the respondents were those contained in Paragraph '642' of the U.P. Excise Manual and the notification dated 25th of May, 1983 issued by the State Government in exercise of its powers under Section 30 of the U.P. Excise Act. As has already been explained neither the provisions contained in paragraph '642' in terms apply to the facts of the case, nor has the Notification dated 25th of May, 1983 any effect on the licenees which the petitioners had obtained on payment of Rs. 25,000/- as consideration for the same.”
This Court had, therefore, held that the assessed fee cannot be levied and charged in respect of the licences granted prior to 25th May, 1983. as 9
there is no statutory provision enabling the Excise Commissioner of the State of U.P. to charge such a fee. The provisions of Section 30 of the Act does not contain any such provision. By the Amendment Act a new provision, namely, sub-section (3) of Section 30 of the Act has been inserted w.e.f. 1st April, 1983 which provides for charging of assessed fee from the licencees and by section 3 of the Amendment Act a deeming provisions has been made to validate the levy and demand of the amount of assessed fee charged from 1st April, 1983. For ready reference the provisions of the Amendment Act are reproduced below:
“ 1. Short title and commencement.--(1) This Act may be called the Uttar Pradesh Excise (Amendment) Act, 1998.
(2) It shall be deemed to have come into force on April,1, 1983.
2. Amendment of Section 30 of U.P. Act No. IV of 1910—In Section 30 of the United Provinces Excise Act, 1910, hereinafter referred to as the principal Act, after sub-section (2), the following sub-section shall be deemed to have been inserted on April 1, 1983, namely:--
“(3) For the financial year commencing on April 1, 1983 apart from the sum fixed for grant of licence under Section 24-A, the sum assessed, called as assessed fee, on the basis of sales under the licence shall be payable, at the rate of rupees five per reputed quart bottle of all kinds of spirit, wine, liquor and Cordial and at the rate of paise sixty per reputed quart bottle of beer, stout and other fermented liquors by the wholesale vendors of foreign liquor.”
3. Validation and consequential provision.--Notwithstanding anything to the contrary contained in any contract, judgment, decree or order of any court or acceptance of any fixed sum for grant of licence under Section 24-A by the State Government or on its behalf by the Excise Commissioner for the financial year commencing on 10
April 1, 1983, the assessed fee realized, over and above the said fixed sum, from the licensees at the rates mentioned in sub-section (3) of Section 30 of the principal Act shall be deemed to have been validly realized under the said sub-section as if the provisions of this Act were in force at all material times and no licensee shall be entitled to refund of such fee and if any licensee has not paid the said assessed fee the same shall be recoverable from him.
4..Repeal and savings.--(1) The Uttar Pradesh Excise (Amendment) Ordinance, 1997 (U.P. Ordinance No.13 of 1997) is hereby repealed. (2) Notwithstanding such repeal anything done or any action taken under the provisions of the principal Act as amended by the Ordinance referred to in sub-section (1) shall be deemed to have been done or taken under the corresponding provisions of the principal Act, as amended by this Act as if the provisions of this Act were in force at all material times.”
From a reading of the aforesaid provisions of the Amendment Act we find that by the Amendment Act the lacuna pointed out by this Court in its judgment and order dated 23rd November, 1983 has been removed and a provision has been made by insertion of sub-section 3 in Section 30 of the Act with retrospective effect from 1st April, 1983 for charging the assessed fee. Therefore, it cannot be said that it over rules the decision of this Court or negates the view expressed by this Court as affirmed by the Hon'ble Supreme Court.
We may mention here that nobody has a fundamental right or any vested interest to deal in intoxicants or liquor except the State Government. The assessed fee which was charged in view of the notification dated 25th May, 1983 was held to be invalid on the ground of lack of statutory provisions enabling the same which defect has been removed by the State Legislature by the Amendment Act and that too with retrospective effect from 1st April, 1983.
In the case of Shri Prithvi Cotton Mills Ltd. (supra) the Apex Court has held that when a legislature sets out to validate a tax declared by a Court to be illegally collected under ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A Court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a Court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon Courts. The legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the Court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject- matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. 12
The validity of a Validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the Courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax.
In the case of D.Cawasji & Co., Mysore (supra) the Apex Court was considering the validity of Sections 2 and 3 of the Mysore Sales Tax (Amendment) Act (17 of 1969). The Apex Court has held as follows: “The impugned amendment has been passed, as the Statement of objects which we have earlier set out clearly indicates to override the judgment of the High Court and to enable the State to hold on to the amount collected as sales tax on excise duty, health cess and education cess, if any, on Arrack or special liquor. It has to be noted that the said judgment of the High Court in the earlier case had become final and conclusive inasmuch as the special leave petition filed against the judgment by the State was withdrawn. The State instead of seeking to test the correctness and effect of the judgment and order of the High Court thought it fit to have the judgment and order nullified by introducing the impugned amendment. The amendment does not proceed to cure the defect or the lacuna by bringing in an amendment providing for exigibility of sales tax on excise duty, health cess and education cess. The impugned Amending Act may not, therefore, be considered to be a Validating Act. A Validating Act seeks to validate the earlier Acts declared illegal and unconstitutional by Courts by removing the defect or lacuna which led to invalidation of the law. With the removal of the defect or lacuna resulting in the validation of any Act held invalid by a competent Court, the Act may become valid, if the Validating Act is lawfully enacted. But the question may still arise as to what will be the fate of acts done before the Validating Act curing the defect has been passed. To meet such a situation and to provide that no liability may be 13
imposed on the State in respect of such acts done before the passing of the Validating Act making such act valid, a Validating Act is usually passed with retrospective effect. The retrospective operation relieves the State of the consequences of acts done prior to the passing of the Validating Act. The retrospective operation of a Validating Act properly passed curing the defects and lacuna which might have led to the invalidity of any act done may be upheld, if considered reasonable and legitimate.”
In the case of Delhi Cloth & General Mills Co.Ltd (supra) the Apex Court has held as follows:
“17. Sections 4 to 7 remained on the statute book unamended when the Validating Act was passed. Their provisions were mandatory. They had admittedly not been followed. The defect of not following these mandatory provisions in the case of the villages of Raipura and Ummedganj was not cured by the Validating Act. The curing of the defect was an essential requirement for the passing of a valid validating statute, as held by the Constitutional Bench in the case of Prithvi Cotton Mills Ltd., (AIR 1970 SC 192). It must, therefore, be held that the Validating Act is bad in law and it must be struck down.” In the case of Satchidananda Misra (supra) the Apex Court has held as follows:
“21. The validity of the Validating Act is further assailed on the ground that it by mere declaration validates the invalid appointments without removing the basis of invalidity of the appointments made. Black's Law Dictionary (7th Edition, Page No. 1421) defines Validation Acts as
“A law that is amended either to remove errors or to add provisions to confirm to constitutional requirements".
In the case of Hari Singh and others v. The Military Estate Officer and another ((1972) 2 SCC 239) the Supreme Court held that 'The meaning of a Validating Act is to remove the causes for 14
ineffectiveness or invalidating of actions or proceedings, which are validated by a legislative measure".
The Supreme Court in the case of ITW Signode India Limited v. Collector of Central Excise ((2004) 3 SCC 48) observed that 'A Validation Act removes actual or possible voidness, disability or other defect by confirming the validity of anything, which is or may be invalid."
22. The purpose of a Validating Act is to remove the cause of ineffectiveness or invalidity. A Validating Act presupposes a positive act, on the part of the legislature of removing the cause of ineffectiveness or invalidity. In the present case nothing has been done.”
In the case of Greater Bombay Coop. Bank Ltd.(supra) the Apex Court has held as the burden of proof is upon the person who challenges the validity of the statutory provision and power to enact a law would include re-enact or validate any provision of law in the State Legislature, provided the same falls in an entry of List II of the Seventh Schedule of the Constitution with the restriction that such enactment shuld not nullify a judgment of a competent court of law.
From the principles laid down by the Hon'ble Supreme Court in the aforesaid cases when applied in the present case, we find that the defect pointed out by this Court in its judgment and order dated 23rd November, 1983 has been removed by the Amendment Act and levy of assessed fee has specifically been provided in the Act itself under Section 30. Thus, the validating Act which falls within the legislative competence of the State Legislature cannot be held to be illegal or ultra vires. In the case of Mafatlal Industries Ltd. and others (supra) the Apex Court has applied the principles of unjust enrichment while considering the case of refund.
In the case of Solar Pesticides Pvt. Ltd. (supra) the Apex Court has held that it would be a clear case of unjust enrichment and the refund is given by the Government.
We find that as the entire amount has already been refunded to the petitioner along with interest pursuant to the order of the Hon'ble Supreme Court the question of unjust enrichment would not arise. The only question remains regarding recovery of the assessed fee. By the Amendment Act the lacuna pointed out by this Court in its judgment and order dated 23rd November, 1983 has been removed and a provision has been made under sub-section 3 of Section 30 of the Act with retrospective effect from 1st April, 1983 for charging the assessed fee. With the insertion of sub-section 3 of Section 30 by the Amendment Act the State has empowered itself and well within its rights to recover the same from the FL '2' licencee. Therefore, it cannot be said that it over rules the decision of this Court or negates the view expressed by this Court as affirmed by the Hon'ble Supreme Court. We are also of the considered opinion that in the absence of any material the plea raised relating to violation of Article 14 of the Constitution of India does not hold any weight.
In view of the foregoing discussions, we do not find any merit in these petitions which are hereby dismissed. However, parties shall bear their own costs.
14th July, 2010