TaxTMI 
TaxTMI 
1996 (9) TMI 536
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....eneral or special order and for just and sufficient reason to be recorded therein, remit in whole or in part, the assessment payable under this Act in respect of any non-agricultural land in a local area." Section 11 confers upon the Government the power to exempt any class of non-agricultural lands from the levy. Since it is this section which falls for consideration in this appeal, it would be appropriate to set it out in full: "11. Power to exempt.-(1) The Government may, by order, published in the Andhra Pradesh Gazette, setting out the grounds therein, exempt either permanently or for a specified period, any class of non-agricultural lands from the levy of assessment under this Act, subject to such restrictions and conditions as the Government may consider necessary to impose. (2) Every order made under sub-section (1) shall, immediately after it is made be laid on the table of the Legislative Assembly if it is in session, and if it is not in session, in the session immediately following, for a total period of fourteen days which may be comprised in one session or in two successive sessions and if, before the expiration of the session in which it is so laid or the ses....
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...., (i) exemption from sales tax on purchase of raw material, machinery, etc.; (ii) a total exemption from stamp duty; (iii) fifty per cent exemption in the charges for water used for industrial purposes drawn from sources maintained at the cost of Government or any local body; and (iv) exemption from non-agricultural assessment. It says, "according to the orders issued in G.O. Ms. No. 377, Revenue dated June 16, 1965, the entrepreneurs who have established industries whether before or after July 1, 1963 are required to pay half the assessment payable under the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 in respect of non-agricultural land in the entire areas of the industrial undertakings for a period of five years from the date of establishment or up to the date of production of rated capacity of such undertakings, whichever is earlier. "In the case of industries set up in the scheduled areas, it is hereby ordered that the usual land revenue be levied on the extent of land instead of non-agricultural assessment". It is stated that the orders issued in the said G.O. shall come into force with immediate effect. The Director of Information and Public Relatio....
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....venue be levied on the extent of land instead of Non-Agricultural Lands Assessment as per rules. The above concession shall be applicable for a period of 5 years from the date of establishment of the industry or till the industry reaches its rated capacity in its production whichever is earlier and thereafter full assessment under Non- Agricultural Land Assessment Act should be levied and collected from such undertakings/entrepreneurs. This notification shall be deemed to have come into force with effect from December 17, 1976. A.N. TIWARI Secretary to Government". 5. The appellant, Bhadrachalam Paper Boards Limited, established a factory on an extent of about 507 acres 10 guntas of land in Sarapaka Village in the scheduled areas of Khammam District. The land was acquired by the State for the purpose of the appellant. The appellant says that it completed the construction of the factory in 1979 and commenced production on and from October 1, 1979. When a demand was made by the Tehsildar in the year 1980 for payment of NALA in respect of the said land, the appellant submitted that by virtue of G.O. Ms. No. 201 dated December 17, 1976, it is not liable to pa....
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....and are not mandatory. It must be held that the said G.O. is an order of exemption validly issued under section 11 of the Act. (2) Though not published in the Gazette, the G.O. itself directs the several authorities of the Government to give it wide publicity and we must presume that it was so given. Having regard to the fact that the object of giving publicity is to acquaint the people of the issuance/existence of such an order, the publicity given must be deemed to be sufficient. The mere non-publication in the Gazette is not fatal. (3) G.O. Ms. No. 201 does not infringe upon or curtail the rights of anyone. It does not create any liability of tax nor does it create any other charge upon anyone. It embodies the policy of the Government granting incentives to new industries set up in scheduled areas of the State. It is an invitation, an assurance and a promise to potential entrepreneurs to establish industries in the scheduled areas of the State. (4) The appellant has no control over the Andhra Pradesh Government. It was the duty of the Andhra Pradesh Government to have published the said G.O. in the Gazette. It is well-settled that where the prescriptions of a statute....
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....r enforceable since it was not published in the Gazette nor was it laid before the Legislature as required by section 11. The requirement of publication in the Gazette is mandatory and not directory. The power of exemption is not a species of delegated legislation; it is an instance of conditional legislation. The power under section 11 can be exercised only in the manner and in accordance with the requirements of section 11 and in no other manner. It does not take effect and become enforceable until and unless it is published in the manner prescribed, i.e., in the Gazette. The power of exemption should be strictly construed. The order which is not in conformity with the requirements of section 11 cannot be treated as an order thereunder, nor can it give rise to or form a foundation for the pleas of promissory/equitable estoppel or to legitimate expectations. It is already held by this Court that no exemption notification is effective until and unless it is published in the Gazette as required by the Act. Public interest demands strict compliance with the said requirement. Moreover, G.O. Ms. No. 386 has been validly issued and the retrospective effect given to it on and from Dec....
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....rule is the official irrefutable affirmation that a particular order or rule is made, is made on a particular day (where the order or rule takes effect from the date of its publication) and is made by a particular authority; it is also the official version of the order or rule. It is a common practice in courts to refer to the Gazette whenever there is a doubt about the language of, or punctuation in, an Act, rule or order. Section 83 of the Evidence Act says that the court shall presume the genuineness of the Gazette. The court will take judicial notice of what is published therein, unlike the publication in a newspaper, which has to be proved as a fact as provided in the Evidence Act. If a dispute arises with respect to the precise language or contents of a rule or order, and if such rule or order is not published in the Official Gazette, it would become necessary to refer to the original itself, involving a good amount of inconvenience, delay and unnecessary controversies. It is for this reason that very often enactments provide that Rules and/or Regulations and certain type of orders made thereunder shall be published in the Official Gazette. To call such a requirement as a ....
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....nate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication." The above decisions of this Court make it clear that where the parent statute prescribes the mode of publication or promulgation that mode has t....
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....lity of the imposition of tax. Reliance was placed on the decision of this Court in Harla v. State of Rajasthan [1952] 3 SCR 110 and State of Kerala v. P.J. Joseph AIR 1958 SC 296. The Constitution Bench did not say that the requirement of publication in the Official Gazette is not mandatory or that it is directory. It merely held that section 38(1) cured the said defect/irregularity. Section 39(1) provides that "no act done or proceeding taken under this Act shall be questioned merely on the ground..........(b) of any defect or irregularity in such act or proceeding not affecting the merits of the case". The Constitution Bench held that the provision in section 38(1)(b) is "unambiguous and clear and it validates any defect in any act done or proceedings taken under the Act and makes it immune from being questioned on the ground of defect or irregularity in such act or proceedings not affecting the merits of the case". The court referred to the fact that the said resolution was published in the newspapers and was also communicated to those affected by it and was thus well-known. The court held that the failure to publish it in the Government Gazette did not affect the merits of ....
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.... objection, it was held that though the publication was not in the prescribed form, yet the omission was a mere irregularity and since the object of publication under section 131(3) is to inform the inhabitants of the proposal and to enable them to file objection, that object was achieved by publication in the local daily "Rashtra Sandesh". With respect to the second objection, it was held that since the local inhabitants did have the notice of the proposal and did indeed submit their objections, no prejudice is caused by not inviting fresh objections to the modified proposals. The court also pointed out that the modified proposals raised the exemption limit and reduced the rate of tax and was thus in no way prejudicial to the inhabitants. With respect to the third objection, the court observed that the special resolution did not require to be published in accordance with section 94. Even if it is assumed that it required to be so published, the court held, the non-publication was a mere irregularity for the reason that the inhabitants had no right to file any objections to the special resolution. The court also observed that the inhabitants had clear notice of the imposition of th....
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.... passed by a board at a meeting shall, as soon thereafter as may be, be published in a local paper published in Hindi and where there is no such local paper, in such manner as the State Government may, by general or special order, direct.". The majority held that having regard to the object underlying the provision for publication, it must be held that while the first part is mandatory, the second part is not. In that case, it was held, the first part was complied with but that there was an irregularity in complying with the second part inasmuch as instead of publishing in a local newspaper published in Hindi, the proposals were published in a local paper published in Urdu though the publication itself was in Hindi language. It was also found that there was no regularly published local Hindi newspaper in Rampur. It was held that there was substantial compliance with section 94(3) in the circumstances of the case and further that section 135(3) which created a conclusive presumption that the tax had been imposed in accordance with the provisions of the Act, excludes any complaint of defect in procedure. We are unable to see how this decision helps the appellant's contention. There w....
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....scribe any particular form for expressing the decision of the Government confirming the detention. Even if it is assumed that the said decision being an executive decision, has to be expressed and authenticated in the manner laid down in article 166, the court held, the omission to comply with those provisions does not render the executive action as nullity. Where such a decision has in fact been taken by the appropriate Government, it was held, there is no further requirement of law which has to be complied with. It is in this connection that the aforesaid principle was invoked and relied upon. There is a qualitative difference between the situation dealt with in Dattatraya Moreshwar [1952] SCR 612 and the situation before us. There the Preventive Detention Act did not require that the decision of the Government should be expressed or authenticated in a particular manner. Since it was a decision of the Government, it was argued that it had to be expressed and authenticated in the manner prescribed by article 166. Thus, the defect pointed out in that case merely related to the form in which the decision was communicated. Whereas in the case before us, the requirement relates to the....
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....legislation is this that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective; Hampton & Co. v. United States [1927] 276 US 394, and the latter involves delegation of rule-making power which constitutionally may be exercised by the administrative agent. This means that the Legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the Legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend; The Queen v. Burah (1878) 3 AC 889, Charles Russell v. The Queen (1882) 7 AC 829, 835, King Emperor v. Benoarilal Sarma (1944) LR 72 I.A. 57, Sardar Inder Singh v. State of Rajasthan [1957] SCR 605. Thus when the delegate is given the power of making rules and re....
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....onable. It was submitted that the said power transfers the legislative and treaty-making power to the President and, hence unlawful. The attack was repelled holding that the President was a mere agent of the Congress to ascertain and declare the contingency upon which the will of the Congress was to take effect. The court quoted with approval the following passage from an earlier case: "The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of Government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and, must therefore, be a subject of enquiry and determination outside the hall of the Legislature." 20.. Reference may also be made to the decision of this Court in Tulsipur Sugar Co. Ltd. v. Notified Area Committee, Tulsipur [1982] 2 SCC 295 where the power conferred upon the Government by section 3 of the Uttar Pradesh Town Areas Act, 1914 to extend the limits of town area was held to be a power in the nature of c....
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....ation, appoint. In exercise of the power conferred by this section the Government surely had the power to issue the notification bringing the Act into force on any date subsequent to the passing of the Act. There can, therefore, be no objection to the notification fixing the commencement of the Act on the 22nd July, 1949, which was a date subsequent to the pass- ing of the Act. So the Act has not been given retrospective operation, that is to say, it has not been made to commence from a date prior to the date of its passing. It is true that the date of commencement as fixed by the notification is anterior to the date of the notification but that circumstance does not attract the principle disfavouring the retroactive operation of a statute. Here there is no question of affecting vested rights. The operation of the notification itself is not retrospective. It only brings the Act into operation on and from an earlier date. In any case it was in terms authorised to issue the notification bringing the Act into force on any date subsequent to the passing of the Act and that is all that the Government did." 23.. There appears no reason why the logic of the above holding shou....
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....nited Kingdom, and is binding upon us. It is brought to our notice that as early as 1956, Subba Rao, C.J., had taken the same view in Andhra Pradesh High Court vide D.K. Krishnan v. Secretary, Regional Transport Authority, Chittoor AIR 1956 Andhra 129. Accordingly, we hold that the requirement of "laying" prescribed by sub-section (2) of section 11 is not mandatory and an order of exemption under section 11 cannot be said to be ineffective or unenforceable for the reason of "non-laying" as required by section 11(2) of the Act. 25.. Sri Sorabjee next contended that even if it is held that the publication in the Gazette is mandatory yet G.O. Ms. No. 201 can be treated as a representation and a promise and inasmuch as the appellant had acted upon such representation to his detriment, the Government should not be allowed to go back upon such representation. It is submitted that by allowing the Government to go back on such representation, the appellant will be prejudiced. Learned counsel also contended that where the Government makes a representation, acting within the scope of its ostensible authority, and if another person acts upon such representation, the Government must be held....
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....andatory provision of a statute, such act can still be made a foundation for invoking the rule of promissory/equitable estoppel. Moreover, when the Government acts outside its authority, as in this case, it is difficult to say that it is acting within its ostensible authority. If so, it is also not permissible to invoke the principle enunciated by the court of appeal in Wells v. Minister of Housing & Local Government [1967] 2 All ER 1041. 26.. Sri Sorabjee, however, relied upon certain observations in the opinion of Chandresekhara Aiyer, J., in Collector of Bombay v. Municipal Corporation of the City of Bombay [1952] SCR 43. We may briefly notice the factual context in which the observations relied upon were made. In the year 1865, the Government of Bombay called upon the predecessor-in-title of the Corporation of Bombay to remove certain existing markets from a particular site and to vacate it. In consideration thereof, the Government passed a resolution approving and authorising the grant of another site to the municipality stating that the Government shall not charge any rent for the said site since it was to be used for the benefit of the community. The Corporation according....