State
of Bihar & Ors Vs. Bihar Distillery Ltd. [1996] INSC 1546 (3 December 1996)
B.P.
Jeevan Reddy, K.S. Paripoornan B.P. Jeevan Reddy, J.
ACT:
HEAD NOTE:
The
BRD DAY OF DECEMBER, 1996 Present:
Hon'ble
Mr. Justice B.P. Jeevan Reddy Hon'ble Mr. Justice K.S. Paripoornan S.B. Sanyal,
Sr. Adv. and B.B. Singh, Adv. with him for the appellants. Y.V. Giri, Sr. Adv.,
Jyoti Saran, Praveen Kumar, Advs. with him for the Respondents.
The
following Judgment of the Court was delivered:
Leave
granted.
The
distribution and sale of country liquor in the State of Bihar is regulated by the Bihar Excise
Act, 1915 and the rules made thereunder. It was a two-tier system. The
wholesale dealers (contractors) were lifting the liquor from the distilleries
and supplying it to the retailers. Both the wholesale dealers and retailers
were selected on the basis of auction/tender process. The price at which the
wholesale supplied the country liquor from the warehouse to the retailer was
fixed by the Government either statutorily or on the basis of negotiations
between the wholesalers (contractors) and the Government. The price so
determined was known as the cost price of country liquor which was payable by
the retailer at the time of taking delivery from the concerned warehouse. The
maintenance of warehouse was the responsibility of the wholesale supplier
(Contractor).
In the
year 1989, a batch of writ petitions, C.W.J.C. No. 4722 of 1989 and others,
were filed in the Patna High Court. The High Court made interim orders in those
writ petitions directing that till the contract is settled and until further
orders from the Court, the supply of country liquor to the retailers shall be
made directly by the State through its officers. In view of the said orders the
Government was obliged to undertake the supply of country liquor from the
warehouses maintained by it to the retailers. Even after the said batch of writ
petitions were disposed of, the practice of the Government undertaking
wholesale supply of country liquor to retailers continued for some time. This
happened during the period commencing on July 1, 1989, and ending with March 31, 1992. (These facts are taken from the
preamble to the impugned Amendment Act being Bihar Act 9 of 1995.) On December 15, 1989, a meeting was held between the
Excise Officers of the State and the representatives of the distilleries to
determine the cost price of country spirit/liquor. The representatives of the
distilleries pleaded that since the cost of price of rectified spirit has been
increased by the Government of India under Ethyl Alcohol (Price Control) Order,
the cost price of country liquor should also be increased. They also pleaded
that in view of the levy of sales tax at the rate of 16% on the rectified
spirit earmarked for country spirit/liquor, with effect from December 1, 1989, and the rise in price index over
the years, the cost price of country liquor should be enhanced. The Government
side at the said meeting agreed that in view of the enhancement of the price of
ethyl alcohol and levy of sales tax on rectified spirit and other incidentals,
the price of country-liquor deserves to be enhanced. The last para of the
minutes of the meeting reads thus:
"As
per discussion between representatives of the Distillers and Departmental
representatives, the Member, Board of Revenue suggested certain components for
proper consideration and fixation of cost price of spirit by following
ways:......" On February 19, 1990 the Excise Commissioner, Bihar addressed
a letter to all the distilleries fixing the cost price of country liquor. having
regard to the crucial relevance of this letter it would be appropriate to
extract the letter in full.
"Patna, dated 19th February, 1990 Sub: Meeting between Excise Officers and
representatives of Distilleries on 15.12.1989 presided by Member, Board of
Revenue: regarding refixation of cost price of country spirit/liquor.
Sir,
Your attention is drawn towards the subject noted above, and to state that the
Government has taken a decision to fix the cost price of rectified spirit to be
supplied as country spirit/liquor from the country spirit warehouses with
immediate effect @ Rs.3.42 (Rupees three and paise forty-two only) for L.P. Litre
by following components:-
(i)
Cost of spirit Rs.1.72 per L.P.L.
(ii)
Transport/Working Wastage, etc. Rs.0.08 -do-
(iii)
Sales Tax Rs.0.27 -do-
(iv)
Transportation Charges of spirit Rs.0.45 -do-
(v)
Maintenance charge of spirit/liquor warehouses (expenses on coolies wages/
house-rent/electric charges/ expenses on communications/ Water taxes, etc.)
Rs.0.70 -do- (vi) Dividend Rs.0.20 -do- Total: Rs.3.42 per L.P.L.
(Rupees
three and paise forty-two only)
2. If
you are ready to supply the rectified spirit/ to the country spirit/liquor
Warehouses from your distilleries, then please give your written consent at
once accordingly.
Thereafter
necessary orders will be issued, so that the payment be made after recovery
from the retail vendors.
Yours
faithfully, Sd/-Illegible (Mehesh Prasad) Excise Commissioner, Bihar, Patna"
(The break-up of the cost price of Rs.3.42 paise per L.P.L. mentioned in the
above letter is the very break-up which is said to have been mentioned at the
end of the Minutes of the Meeting dated 15.12.1989.) This letter shows that
pursuant to the discussion and negotiations held at the meeting held on 15th
December, 1989, the Government fixed the cost price of "rectified spirit
to be supplied as country spirit/liquor from the country spirit
warehouses" at Rs.3.42 paise per L.P.L. The break-up of the said price was
also mentioned in the letter which includes, "maintenance charge of
spirit/liquor are houses (expenses on coolies wages/house-rent/electric
charges/expenses on communications/water taxes, etc.)" at Rs.0.70 paise
per L.P.L.
On
20th February, 1990 the Commissioner of Excise, Bihar intimated all the
Collectors/Deputy Commissioners of the State about the said fixation of the
price. The letter reads:
"Patna
- Dated 20th February, 1990 Sub: Fixation of the Cost Price of Country Liquor
supplied from Warehouses Dear Sirs, With regard to the subject stated above I
have been directed to inform you that the matter regarding fixation of the Cost
Price of Country liquor supplied form Warehouses was under consideration of the
Government.
After
thorough discussions, the State Government decided that the cost price of the
Country Liquor supplied from the Warehouses shall be fixed at Rs.3.42 (Rupees
Three and paise forty two only) per L.P. Litre. This cost price of Country
Liquor will be collected from the retail vendors of Country liquor from the
date of issue of this order.
As per
Board Notification No.23- 17/89-5, dated 19.12.89 for the amendment in Clause
No. 15 of Licence Form No. 27, a separate order is being sent to the non-
contracted distilleries for payment of the aforementioned Cost price for their
supply of Spirit to the Warehouses for manufacture of Country Liquor.
Yours
faithfully, Sd/- Illegible Commissioner of Excise, Bihar" Evidently,
supplies were being made by the distilleries as per the letter dated 19th
February, 1990.
On
26th July, 1990, the Excise Commissioner, Bihar addressed a letter to all the
Collectors/Deputy Commissioners in the State directing them to deduct 70 paise
per L.P.L. from the cost price of Rs.342 paise per L.P.L. and remit it to the
Government account. para 2 of the letter which alone is relevant reads thus:
"2.
In this context, this is to state that the earmarked component for meeting the
expenses of maintenance of warehouses e.g. wages to coolies (engaged n the
warehouses), house-rent etc. be deposited under budget head - "8433 -
Civil deposit - 800 - other deposit - cost price of country spirit/liquor,
ganja, etc." after recovering from distilleries or deducting @ Rs.0.70 paise
per L.P.L. form the cost price (Rs.3.42) so fixed for the rectified spirit
which is meant for country spirit/liquor to be supplied from the country spirit
warehouses. Payment for the expenditure on day-to-day expenses, e.g. wages to
coolies, electricity charges, expenses on communications, water supply tax,
etc. has to be made twice in a month from the deposited sum by withdrawing the
same as per need and its account has to be kept as per rule. Payment for the
maintenance of the warehouses, e.g. house-rent, construction of the building,
erection of the Vats, etc. shall be made by withdrawing from the balanced
amount after obtaining sanction order from the Excise Commissioner and its
account of such expenses shall be kept separately." Until the receipt of
the Commissioner's letter dated 26th July, 1990, the distilleries were being paid at the rate of Rs.3.42 paise
per L.P.L. for the spirit supplied by them. On receipt of the said letter the
Collectors/Deputy Commissioners not only started deducting 0.70 paise from the
price payable to the distilleries but also called upon the distilleries to
refund the excess amount paid to them on that account. The distilleries
thereupon approached the Patna High Court by way of a batch of writ petitions
challenging the communication/letter of the Commissioner of Excise, Bihar dated 26th July, 1990 and the communications issued pursuant to it. The
distilleries submitted that though they demanded the cost price of Rs.4.00 per
L.P.L., the State Government on its own fixed the price at Rs.3.42 paise per
L.P.L. as per their letter dated 20th February, 1990. They submitted that the distilleries are entitled to
receive at least the said cost price of Rs.3.42 paise, if not more. They
submitted that they are not concerned with the maintenance of warehouses which
is the responsibility of the Government and that no amount can be deducted from
out of the said cost price on account of maintenance of warehouses. The
Government opposed the writ petitions submitting that the aforesaid cost price
was fixed in the joint meeting held on 15th December, 1989, that the writ
petitioners were party to the said decision including the break-up of the said
cost price and that, therefore, they are not justified in opposing the
deduction of 0.70 paise on account of the maintenance charges of the
warehouses. The High Court allowed the writ petitions on the following
reasoning; under Section 90(2) of the Bihar Excise Act, the Board of Revenue is
given the power to fix maximum and minimum price of country liquor but the
Board has not chosen to excise that power; instead of doing that the
Commissioner of Excise has chosen to issue Annexures 5,6 and 7 (Annexure 5 is
the communication dated 26.7.1990 and Annexures 6 and 7 are the consequential
directions/demands made by the Superintendents of Excise); the Commissioner
"cannot be said to have exercised the jurisdiction, if any, vested in the
Board of Revenue."* Annexures 5 to 7 are not backed by any authority of
law and are therefore, unforceable. The High Court quashed the said
orders/communications with the observation that "the Government or the
respondents cannot force the petitioners for the refund of the amount already
paid to the petitioner and as a logical conclusion, they are bound to carry out
the obligations created earlier by the interim orders of the said Court."
For some unexplained reasons, the Government of Bihar and its Officials did not
choose to appeal against the said judgment, with the result the judgment became
final.
Contempt
petitions were taken out by the distilleries against the Government and its
Officials for disobedience to the judgment of the High Curt. The Governor of
Bihar then came forward with an Ordinance amending the Bihar Excise Act seeking
to provide statutory basis to the aforesaid price fixation and the deduction of
70 paise per L.P.L. In other words, the Governor of Bihar sought to remove the
defect pointed out by the High Court viz., that the price fixation by the
Commissioner was without jurisdiction and that that power belonged to the Board
of Revenue alone. By amending the Act itself, the Ordinance sought to validate
the saio price fixation by treating it as fixation by the Legislative itself.
It is stated that one after the other, ordinances were issued to the same
effect, until the enactment of the Bihar Excise (Amendment and Validating) Act,
1995 being Act 9 of 1995 in the same terms. The Amending Act was given
retrospective effect from 20th February, 1990. The long Preamble to the Amending Act sets out the circumstances in
which the Government was obliged to undertake supply of country liquor from the
warehouses pursuant to the interim orders of the High Court, the fixation of
cost price of country liquor at Rs.3.42 paise per L.P.L. by agreement between
the government and the distilleries, the break-up of the price into several
components and the developments leading to the enactment of the Amending Act.
Having regard to the contentions urged before us and the findings recorded by
the High Court in the order under Appeal, it is necessary to set out the entire
Preamble to the Act. It reads:
"Preamble.-
WHEREAS, it is necessary in public interest that out of the cost price of
Country Spirit the amount of money earmarked for the maintenance of warehouse
be regulated;
AND,
WHEREAS, the price of country spirit to be supplied to the retailer by the Contractor
(Wholesale supplier) from the Warehouse belonging to the Contractor or the
State or another person, is fixed by the Government of Bihar, on the basis of
negotiations between the Contractor and the Government and such price being
known as the cost price of country spirit payable by the retailer at the time
of taking or issue of Country liquor from the warehouse concerned;
AND,
WHEREAS, as a regulatory measure the maintenance of warehouse is the
responsibility of the contractor;
AND,
WHEREAS, in the year 1989 in C.W.J.C. No.4722 of 1989 and other similar cases a
situation arose whereby and whereunder the Patna High Court ordered that till
contract is settled and till further order from the Court, the supply of
country liquor shall be made to the retailers directly by the State through its
Officers:
AND,
WHEREAS, in pursuance to the said direction the country liquor had to be
supplied from different warehouses situated in the State, by the State
Government through its Officers:
AND,
WHEREAS, after the Final Order of the High Court in the above writs in the year
1990 the situation emerged that in certain areas of the State the supply of
country liquor to the retailers continued to be made by the State Government
through its Officers due to non-functioning of the concerned Contractors;
AND,
WHEREAS, during this period the warehouses were required to be maintained by
the State;
AND,
WHEREAS, in fixing the price of country liquor to be supplied by the Contractor
holding exclusive privilege licence the State Government had taken into account
the cost of spirit, the cost of transportation of such spirit, the cost of
maintenance of warehouses, sales tax and dividend;
AND,
WHEREAS, while fixing the price of country liquor to be supplied to the
retailer, the following components of cost were included in the cost price:- Rs.
Costofspirit
1.72 Transit/Working wastages 0.08 Warehouse maintenance charges 0.70
Transportation charges 0.45 Sales Tax .. 0.27 Dividend... 0.20 Total .. 3.42
AND, WHEREAS, in February 1990 the Government had decided that country spirit
would be supplied at the rate of Rs.3.42 per L.P. Litre which include Rs.0.70 Per
L.P. Litre as maintenance charge of warehouses;
AND,
WHEREAS, the amount deposited by the retailers as price of country spirit was
to be deposited in Treasury through Bank draft and thereafter the Distillers
(Suppliers) were to be paid the amount after deduction of the component of
price meant for maintenance of warehouse, that is Rs.3.42-0.70 = 4 Rs.2.72;
AND,
WHEREAS, in some cases by mistake the entire amount of Rs.3.42 was paid to the
Distillers (Suppliers);
AND,
WHEREAS, some of the Distillers (Suppliers) challenged the authority of the
State regarding deduction of warehouse maintenance charges from the cost price
fixed for supply of country spirit to warehouses;
AND,
WHEREAS, in C.W.J.C. no. 6863/90 and in other similar writ petitions the Court
held that in the absence of Rules the State Government is not authorised to fix
the price of country spirit and to make deductions of maintenance of warehouse
charges therefrom;
AND,
WHEREAS, it has become necessary to levy and validate the deduction/realisation
of warehouse maintenance charges from the cost price of the country spirit
fixed by the State in the year 1990;
BE it
enacted by the Legislature of the State of Bihar in the forty sixth year of the Republic of India as follows.
Section
2 of the Amending Act added Section 22-A to the Excise Act. Section 22-B
contains the validation clause while Section 22-C gives overriding effect to
the Amending Act over any judgment, decree and order of the Court or any other
law for the time being in force. The said Sections read as follows:
"22-A.
The Fixation of cost price of country liquor, by the State Government.- (1) The
State Government, while granting exclusive privilege of manufacturing supplying
wholesale or of selling wholesale or retail of country liquor may fix the cost
price which includes the price of the spirit, the transportation charges,
warehouse maintenance charges, taxes, if any, and other charges, such as
bottling, packing etc. and dividend.
(2)
Any person to whom the State Government has granted exclusive privilege of
manufacturing, supplying wholesale or selling wholesale or retail country
liquor during the year 1990 wherein the cost price of the country liquor was
fixed by the State Government taking different components into account
including warehouse maintenance charges at the rate of 70 paise per L.P. Litre
shall be deemed to have been fixed under this Section.
22-B.
Validating of cost price of country liquor and realisation of warehouse
maintenance charges.- (1) Notwithstanding any judgment, decree or order of any
court, Tribunal or Authority the price of country spirit, including the
warehouse maintenance charges at the rate of 70 paise per L.P. Litre fixed
during the year 1990 shall be deemed to have been fixed under this Act and any
amount collected from the retailer as a cost price of country liquor per L.P. Litre
shall be paid to or payable to the Contractor (Distiller/Supplier) after
deducting at the rate of 70 paise per L.P. Litre as the maintenance charges of
the warehouses and the said amount shall not be payable and the said amount
shall not be payable to the Contractor (Distiller/Supplier).
(2) The
amount so collected shall be deemed to have been collected under the provision
of this Act and the said amount of warehouse maintenance charges shall not be
refundable and no Court, Tribunal or Authority shall order for refund of such
amount;
Provided
that where the amount collected from the retailer has been paid to the
Contractor (Distiller)/Supplier, the State Government shall realise such amount
form the Contractor shall be required to refund the said amount to the State
Government;
Provided
further, that the State Government may adjust, the said amounts from any
amounts from any amount due or payable to the Contractor by the Government;
Provided
also that the said amount shall be spent by orders of the Excise Commissioner
under administrative instructions issued for the maintenance of warehouses;
Provided
further also, that any amount realised on account of warehouse maintenance
charges but refunded to the supplier, under the order of any Court, Tribunal or
Authority shall be refunded by the Supplier and the State Government shall
recover the same from the Contractor (Distiller)/Supplier as arrears of
revenue.
22-C.
Overriding effect of the Act.- Notwithstanding anything tot he contrary
contained in any judgment, decree or order passed by any Court and in any other
law for the time being in force, the provisions of this Act shall have the
effect." (emphasis supplied) The portions underlined by us clearly bring
about the scope and intendment of the Amending Act. To repeat, it is to vest
the price fixation done by the Commissioner of Excise, under his letters dated
17th and 20th February,
1990 with the
legislative authority; that fixation shall be deemed to have been done by the
Legislature itself.
Another
batch of writ petitions was filed by the distilleries challenging the validity
of the Ordinance and the Amending Act. This batch of writ petitions have also
been allowed by the Patna High Court under the judgment and order impugned
herein. The basis upon which the High Court has allowed the writ petitions,
without declaring the Amending Act as invalid, is better set out in their own
words. The High Court said:
"12.
It will be evident from Section 22-A aforesaid that the same relates to
manufacture/sale of `country liquor'. So far as Section 22-B is concerned,
therein the words `country liquor' have not been mentioned, nor the words
`rectified spirit'/Commercial spirit' has been mentioned, rather the `country
spirit' has been mentioned therein. When query was made from the learned
Advocate General, as to what is `country spirits', learned Advocate General
submitted that the same is, in fact, `country liquor' and not `rectified
spirit' from which the `country liquor' is prepared. It was accepted at the Bar
by the learned Advocate General that the Hindi version of the Act 9/95 is the
original one, wherein the words `DESHI SARAB' has been mentioned, which means
`country liquor' and not the rectified spirit.
13.
From the aforesaid plain reading of the provisions of Act 9/95, particularly,
the Hindi version, it will be manifest and clear that the Act in question has
been promulgated with respect to the manufacturers/dealers of `country liquor'.
No provision has been laid down therein with respect to manufactures of
`rectified spirit'/commercial spirit', which is the original raw material
manufactured by the petitioners and supplied to the Respondents. No rate has
been fixed by the State Government with respect to such `rectified spirit' be
the impugned Act 9/95 and/or earlier ordinances.
Thereby,
I hold that the impugned Act 9/95 is not applicable to the petitioners, who
supplied `rectified spirit' to the State in their Warehouses.
It is
for the said reason, the question of declaring the impugned Act as ultra vires
does not arise, in the present case, and for similar reason, there is no
necessity of giving any specific finding with respect to the first three issues
raised by the counsel for the petitioners." The High Court also made
certain observations as to the quantity of the rectified spirit required for
obtaining 1 L.P.L. of country liquor, the cost structure of the country liquor
as well as to the absence of the power in the State to fix the price of
rectified spirit.
Mr.
S.B. Sanyal, the learned counsel for the State of Bihar assailed the judgment of the High
Court on various grounds. He submitted that since the warehouses belong to and
are maintained by the State Government, the State Government was fully
justified in seeking to deduct 0.70 paise per L.P.L. on account of the
maintenance of warehouses. Counsel submitted that the break-up of the cost
price of the country liquor was agreed to between the two parties and that one
of the components of the said cost price was the item of 0.70 paise per L.P.L.
on account of maintenance charges of warehouses, which fixation has now been
validated by the Amending Act removing the defect pointed out by the High Court
in its first judgment. In this view of the matter, he submitted, the
distilleries cannot legitimately resist the deduction of 0.70 paise. Counsel submitted
that the High Court has not really appreciated the true nature and character of
the price fixation done by the Commissioner of Excise and the amending Act and
has allowed the writ petitions adopting a highly technical approach and on a
totally erroneous basis. Mr. Y.V. Giri, learned counsel for the respondents
distilleries, however, supported the reasoning and conclusion of the High
Court. He submitted that the distilleries have nothing to do with the supply of
country liquor to the retailers. According to him, the distilleries manufacture
only the rectified spirit and that alone is sold by them to the Government.
Counsel submitted that for obtaining one litre of country liquor, 1/4th litre
of rectified spirit is required and that the price of Rs.3.42 paise per L.P.L.
represents the cost of said quantity of rectified spirit required for obtaining
1 litre of country spirit and that, therefore, the claim for deduction of 0.70 paise
on account of maintenance charges is wholly untenable and illegal. Counsel
submitted that the distilleries have nothing with the warehouses or their
maintenance which was the responsibility of the Government during the relevant
period. The cost of 1 litre of rectified spirit, he submitted, is much more
than Rs.4.00 and, therefore, the distilleries cannot be asked to supply country
liquor at the rate of Rs.2.72 per L.P.L. (i.e., Rs.3.42 minus 70 paise). The
learned counsel submitted that there was no agreement between the distilleries
and the Government with respect to the price of country liquor at the joint
meeting held by 15.12.89 and that the distilleries were unaware of the
Commissioner's letter dated 19.2.1990 as well as the Commissioner's
communication dated 20th
February, 1990
referred to above.
We
have already set out the substance of the minutes of the meeting held on 15.12.89,
the letter dated 19.2.90 (which was issued on the basis of the discussions held
at the said meeting) as well as to the letter of the Commissioner dated
20.2.90. The minutes of the meeting dated 15th, December, 1989 speak of
fixation of the cost price of country liquor. The letter dated 19th February, 1990 speaks of "cost price of
rectified spirit to be supplied as country spirit/liquor from the country
spirit warehouses" while the letter dated 20th February, 1990 speaks of "cost price of country liquor
supplied from the warehouses." This mix up of the expressions of
"rectified spirit to be supplied as country spirit/liquor" and
"country liquor" in the said proceedings/letters may perhaps be for
the reason that all that it takes to convert the rectified spirit into country
spirit, it is said, is adding of water to rectified spirit.
May be
or may not be. That is not material for our purposes.
What
is material is that the price of Rs.3.42 per L.P.L.
said
to have been agreed upon at the meeting held on 15th December, 1989, and
referred to in the said letters and which cost price has now been legislatively
validated, all give the break-up of the said price which includes the figure of
70 paise per L.P.L. on account of "warehouse maintenance charges".
Now, it is admitted - indeed, it is the positive case of Mr. Y.V. Giri - that
the distilleries have nothing to do with maintenance of warehouses and that
they were being maintained by the Government itself during the said period. The
preamble to the Amending Act and the amended provisions expressly speak of the
said cost price and its break-up. The Amending Act further provides expressly
for deduction of the said 70 paise per L.P.L.
component
for being credited to the government's account. In the fact of all these facts,
it is difficult to understand on what basis can the distilleries say that the
said component of 70 paise should not be deducted. The Amending Act is not
taking away anything from the distilleries; it is merely affirming and
validating the acts and orders already issued in view of, and with a view to
remove, the defect pointed out by the High Court in its first judgment. It
cannot be disputed, at this stage, by the distilleries that they were not
parties to the meeting held on 15th December, 1989 or that they did not receive the letter of the Commissioner dated 19th February, 1990. If this were so, it is
un-understandable on what basis and at whose request or order, they were
supplying the spirit to the distilleries.
It
cannot but be held in the circumstances that the distilleries accepted the
offer contained in the Commissioner's letter dated 19th February, 1990 and were
making supplies on the basis of the said letter and the orders placed pursuant
to that letter and their acceptance of it.
Now
coming to the reasoning in the impugned judgment, we must say with all respect
that we have not been able to appreciate it. The approach of the Court, while
examining the challenge to the constitutionality of an enactment, is to start
with the presumption of constitutionality. The Court should try to sustain its
validity to the extent possible. It should strike down the enactment only when
it is not possible to sustain it. The Court should not approach the enactment
with a view to pick holes or to search for defects of drafting, much less
inexactitude of language employed. Indeed, any such defects of drafting should
be ironed out as part of the attempt to sustain the validity/constitutionality
of the enactment. After all, an Act made by the Legislature represents the will
of the people and that cannot be lightly interfered with. The
unconstitutionality must be plainly and clearly established before an enactment
is declared as void. The same approach holds good while ascertaining the intent
and purpose of an enactment or its scope and application. Now, the result of
the impugned Judgment is that the Amending Act has become an exercise in
futility - a purposeless piece of Legislation.
And
this result has been arrived at by pointing out some drafting errors and some
imperfection in the language employed. If only the High Court had looked into
the minutes of the meeting dated 15th December, 1989 and the two letters of the
Commissioner aforementioned, it would have become clear that the Amending Act
was doing no more than repeating contents of the said letters and placing the
legislative imprimatur on them. As the impugned judgment itself suggests, part
of the imperfection of language is perhaps attributable to translation from
Hindi to English. Indeed, it is surprising that the Court has not even referred
to the long preamble to the Act which clearly sets out the context and purpose
of the said enactment. It was put in at such length only with a view to aid the
interpretation of its provisions. It was not done without a purpose. To call
the entire exercise a mere waste is, to say the least, most unwarranted besides
being uncharitable. The Court must recognize the fundamental nature and
importance of legislative process and accord due regard and deference to it,
just as the Legislature and the Executive are expected to show due regard and
deference to the Judiciary. It cannot also be forgotten that our constitution
recognizes and gives effect to the concept of equality between the three wings
of the State and the concept of `checks and balances' inherent in such scheme.
Though
the above propositions are well settled, it may not be out of place to refer to
a few decisions. In Charanjit Lal Chowdhary v. Union of India [A.I.R. 1951 S.C.
41], Fazal Ali, J. stated: "......it is the accepted doctrine of the
American Courts, which I consider to be well-founded on principle, that the
presumption is always in favour of the constitutionality of an enactment, and
the burden is upon him who attacks it to show that there has been a clear
transgression of the constitutional principles". In Burrakur Coal Company
v. Union of India (A.I.R. 1961 S.C. 654 AT 963], Mudholkar, J., speaking for
the Constitution Bench, observed: "Where the validity of a law made by a
competent legislature is challenged in a court of law, that Court is bound to
presume in favour of its validity. Further, while considering the validity of
the law the court will not consider itself restricted to the pleadings of the
State and would be free to satisfy itself whether under any provision of the
Constitution the law can be sustained." We may quote the pertinent
propositions enunciated in Ram Krishna Dalmia, Etc. v. Justice S.R. Tendolkar
& Others Etc. [A.I.R. 1958 S.C. 538] to the following effect:
"(b)
that there is always a presumption in favour of the constitutionality of an
enactment and the burden is upon him who attacks it to show that there has been
a clear transgression of the constitutional principles;
(e)
that in order to sustain the presumption of constitutionality the Court may
take into consideration matters of common knowledge, matters of common report,
the history of the times and may assume every state of facts which can be
conceived existing at the time of legislation; and.." We may also refer to
the following perceptive observations in the decision of Lord Denning is
Seaford Court Estates Ltd. v. Asher [1949 (2) K.B. 481]:
"Whenever
a statute comes up for consideration it must be remembered that it is not
within human power to foresee the manifold sets of facts which may arise, and,
even if it were, it is not possible to provide for them in terms free from all
ambiguity. The English language is not an instrument of mathematical precision.
Our literature would be much the poorer if it were. This is where the draftsmen
of Acts of Parliament have often been unfairly criticized. A judge, believing
himself to be fettered by the supposed rule that he must look to the language
and nothing else, laments that the draftsman have not provided for this or
that, or have been guilty of some or other ambiguity. It would certainly save
the judges trouble if Acts of Parliament were drafted with divine prescience
and perfect clarity. In the absence of it, when a defect appears a judge cannot
simply fold his hands and blame the draftsman.
He
must set to work on the constructive task of finding the intention of
Parliament, and he must do this not only from the language of the statute, but
also from a consideration of the social conditions which gave rise to it, and
of the mischief which it was passed to remedy, and then he must supplement the writter
word so as to give `force and life' to the intention of the legislature. That
was clearly laid down by the resolution of the judges in Heydon's case, and it
is the safest guide today. Good practical advice on the subject was given about
the same time by Plowden . . . Put into homely metaphor it is this: A judge
should ask himself the question: If the makers of the Act had themselves come
across this ruck in the texture of it, how would they have straightened it out?
He must then do as they would have done. A judge must not alter the material of
which it is woven, but he can and should iron out the creases." The above
observations have been quoted with approval by this Court in a number of
decisions. We felt impelled to reproduce them only because of the kind of
approach adopted by the High Court in the Judgment under appeal. it helps to
remind ourselves of the above observations from time to time.
Now
coming to the validity of the Amending Act we are unable to see on what ground can
its validity impeached. All that it does is to provide statutory basis and
legislative imprimatur to the price fixation done by the Commissioner and its
break-up. It also provides for recovery and deduction of the 0.70 paise
component on account of maintenance charges of warehouses. It can neither be
suggested that the Bihar Legislature did not have the legislative competence to
enact the said Amending Act nor can it be suggested that the Act violates any
of the fundamental rights enshrined in para III. The general averment of Mr.
Y.V. Giri that the Act is arbitrary is too vague to merit any acceptance, apart
from the fact that an act of Legislature cannot be struck down merely saying it
is arbitrary - See this Court's Judgment in State of A.P. And Others v. Mcdowell
& Company And Others [1996 (3) S.C.C. 709 at 737 to 739.] - apart from the
fact that the charge does not appear to be justified in the facts and
circumstances of the case.
For
the above reasons, the appeals are allowed, the judgment of the High Court is
set aside and it is declared that the Amending Act 9 of 1995 being Bihar Act of
9 of 1995 is neither unconstitutional nor is it ineffective to achieve the
objective it set out to achieve - object set out in the Preamble.
The
writ petitions filed by the respondents in the High Court are dismissed. No
costs.
Back
Pages: 1 2
