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Report No. 96

14. Oriental Gas Company Act, 1857 (5 of 1857)

The Act creates a joint stock company with limited liability for certain gas undertakings, limit of rupees fifty did not previously apply, thus establishing uniformity for all provinces in the matter. The Act of 1949 amends and validates provisions of the Act of 1941.

Action to be taken.-The Act of 1941 has since been repealed. The question then arises whether the Act of 1949 should continue.

Now, it may be stated that while section 2 of the Act of 1949 merely amends the Schedule to the Act of 1941, it is section 3 which is more important for the present purpose. That section validates the imposition of tax on professions before the commencement of the Act and further provides that no court shall entertain any claim for the refund of any portion of the tax now validated. In essence, it is a validating provision.

Validating Acts-Legislative Practice.-In this context, it may be noted that the legislative practice in India in general has been not to repeal validating Acts. Some examples of validating Acts which are still in force are given below:-

(1) The Marriages Validation Act, 1892 (2 of 1892).

(2) The Arya Marriage Validation Act, 1937 (19 of 1937).

(3) The Part 'B' States Marriage Validation Act, 1952.

(4) The Sales Tax Laws Validation Act, 1956 (7 of 1956).

(5) The Hindu Marriages (Validation of Proceedings) Act, 1960 (19 of 1960).

(6) The Himachal Pradesh Legislative Assembly (Constitution and Proceedings) Validation Act, 1958 (56 of 1958).

The subject-matter of the Act does not fall within the State List, Entry 60, "Tax on Professions", but within Union List, Entry 97, (residuary entry), since the Act is intended to give protection against the supposed violation of an erstwhile prohibition of a constitutional character. The subject-matter of the Act falls within the Union List, Entry 43, "Incorporation, regulation and winding up of trading corporations". It may be stated that State List, Entry 25, "gas and gas works" would not be appropriate for this particular legislation, in which the focus is on the aspect of incorporation.

Reasons for recommending repeal.-Government may consider if this Act, and also the analogous later Act of 1867, are needed at all. After verification of the factual position, further action may be taken.1

1. This is subject to verification of the factual position.

Repeal of Certain Obsolete Central Acts Back

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