TaxTMI 
TaxTMI 
1970 (9) TMI 115
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.... registered under the Indian Companies Act, 1913. The said company owns a factory, namely, a textile mill, which has 628 looms including 100 automatic looms and is running about 28,000 spindles. This company is found to be employing about 1,700 workers at its factory. The petitioner firm is having business with the third respondent and as such it had some dealings with it. It is found that on 23rd August, 1968, respondent No. 3 - the company - purchased 100 bales of cotton from the petitioner firm on condition of 80% of cash payment. In fulfilment of this agreement a cheque for the amount of Rs. 62,500 was given by the third respondent to the petitioner-firm. This cheque was dishonoured and subsequent cheques with were issued were also dishonoured. The petitioner-firm claim that its total dues under the above referred transactions amount to Rs. 78,308.65. 3. It is an admitted position that on 11th November, 1968, the textile mill run by the third respondent ultimately closed down. 4. So far as Spl. C.A. No. 638/69 is concerned, there also the petitioners is a partnerships firm. Its claim is that it has been supplying cotton bales to the above referred New Manekchowk Spinning ....
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....Parliament. Explanation. - The power to authorise a body of persons under this section to take over the management of an industrial undertaking which is a company includes also a power to appoint any individual, firm or company to be the managing agent of the industrial undertaking on such terms and conditions as the Central Government may think fit." 6. By the notification which is issued by the Central Government under this section on 14th February, 1969, the Gujarat State Textile Corporation Ltd. is appointed as the authorised controller to take over the management of the whole undertaking of the New Manekchowk Spinning and Weaving Co. Ltd. This notification is in the following terms : "Ministry of Industrial Development and Company Affairs (Department of Industrial Development). Order New Delhi, the 14th February, 1969. S. No. 620/18/A/IDRA/69. - Whereas the Central Government is of the opinion that the New Manekchowk Spinning and Weaving Co., Ltd., Ahmedabad, an industrial undertaking in respect of which an investigation has been made under section 15 of the Industries (Development and Regulation) Ac....
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....ent, handicraft or industrial occupation or vocation of workman, and the word 'industrial' shall be construed accordingly." 10. Sections 3 and 4 of this Act are in the following terms : "3. (1) If at any time it appears to the State Government necessary to do so, the State Government, may by notification in the official gazette, declare that an industrial undertaking specified in the notification, whether started, acquired or otherwise taken over by the State Government and carried on or proposed to be carried on by itself or under its authority, or to which any loan, guarantee or other financial assistance has been provided by the State Government shall, with effect from the date specified for the purpose in the notification, be conducted to serve as a measure of preventing unemployment or of unemployment relief and the undertaking shall accordingly be deemed to be a relief undertaking for the purposes of this Act. (2) A notification under sub-section (1) shall have effect for such period not exceeding twelve months as may be specified in the notification; but it shall be renewable by like notifications from time to time for further periods....
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....ch it was suspended under clause (a) (iv) shall be excluded notwithstanding anything contained in any law for the time being in force. (2) A notification under sub-section (1) shall have effect from such date, not being earlier than the date referred to in sub-section (1) of section 3, as may be specified therein, and the provisions of section 21 of the Bombay General Clauses Act, 1904, shall apply to the power to issue such notification." 11. The Schedule which is referred to in section 4(1)(a)(i) mentions two Central Acts, namely, "The Industrial Employment (Standing Orders) Act, 1946 (XX of 1946) "and" The Industrial Disputes Act, 1947 (XIV of 1947)", the Bombay Acts, namely, "The Bombay Industrial Relations Act, 1946 (XI of 1947)" and "The Bombay Shops and Establishments Act, 1948 (LXXIV of 1948)" and one Saurashtra Act, one Hyderabad Act and two Madhya Pradesh Act with which we are not concerned in this petition. Under the provisions of section 3 and 4 of the State Act, which are quoted above, the State Government has issued two notification on 21st February, 1969. The notification issued under section 3 of the State Act says that with effect from 21st Februa....
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....ated, the following are the main points which are raised on behalf of the petitioners by their learned advocate in these petitions : (1) According to them sections 3 and 4 of the State Act are ultra vires articles 245 and 246 of the Constitution of India inasmuch as they encroach upon the legislative powers of Parliament. In other words, the competency of the State Legislature to enact these sections is challenged by them. (2) They have further contended that the impugned sections 3 and 4 of the State Act are ultra vires the Constitution inasmuch as they delegate in favour of the State Government wide and excessive powers without fixing any guidelines and they thus enable the State Government to discriminate between persons falling within the same classification, thereby infringing the fundamental rights of equal protection contemplates by article 14 of the Constitution. (3) Further, according to the petitioners, these two impugned sections of the State Act also infringe the fundamental rights to hold property contemplated by article 19(1)(f) of the Constitution; and (4) If was alternatively contended on behalf of the peti....
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....lso drawn to section 20 of the Central Act, which is in the following terms : "20. After the commencement of this Act, it shall not be competent for any State Government or a local authority to take over the management or control of any industrial undertaking under any law for the time being in force which authorises any such Government or local authority so to do." 19. Pointing to the provisions of this section, the learned advocate of the petitioners contended that it was not open either to the State Legislature or to the State Government to take over the management and control of the industry conducted by New Manekchowk Spinning and Weaving Co. Ltd. and, therefore, also the State Act should be struck down as ultra vires and void. 20. In reply to these contentions, the learned advocates of the respondents contended that the State Act really falls within entries 22, 23 and 24 of the List III (Concurrent List) of 7th Schedule and neither under entry 52 of the List I nor entry 24 of the List II. In order to appreciate the contentions of the respondents, it would be proper to know what these three entries of the Concurrent List provide. These entries are in the f....
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....tification which the State Government is expected to make should declare that the industrial undertaking in question shall, with effect from the specified date, be conducted to serve "as a measure of preventing unemployment". It is thus evident that the main burden of the different provisions of the State Act including its long title and preamble points out clearly that it is enacted with a view to relieve or to prevent unemployment. Thus, on the one hand, it is found that the statute is enacted with a view to prevent unemployment or to relieve the same, and on the other had some of the provisions of the stature do provide for the subject of "industry". It cannot be disputed that the industry conducted by the New Manekchowk Spinning and Weaving Co. Ltd. in industry covered by entry 52 of the List I. Thus, there is undoubtedly some overlapping on the subject of "industry" contemplated by entry 52 of the List I. But overlapping of this type is inevitable in a federal constitution. In this connection, we may refer to the following observations of Sir Maurice Gwyer C.J. in the United Provinces v. Mst. Atiqa Begum : "The subjects dealt with in the three legislative lists ....
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....has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its pith and substance, or its true nature and character, for the purpose of determining whether it is legislation with respect to matters in this list or in that." 26. In Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna, a contention was raised that, though the doctrine of pith and substance may apply to Canada and Australia it is not application in India as in our country difficulty in dividing the legislative powers has been foreseen and that is why three lists instead of two lists have been prepared with a view to cover the whole field of legislation with clear-cut demarcations. Their Lordships of the Privy Council have rejected this contention by making the following observations : "No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars, and the existence of the Concurrent List has made it easier to distinguish between those matters which are essential in determining to which list particular provisions should be attributed and those which are merely incidental. But the overlapping of subject matte....
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....e approach the provisions of the State Act, we find it quite evident from its long title and preamble that the Act is enacted for three main purposes, namely : (i) to make temporary provisions for industrial relations, (ii) to enable the State Government to provide loan, guarantee or financial assistance for the conduct of the industrial undertakings in question, and (iii) to do the above, as a measure of preventing unemployment or of unemployment relief. 28. We have already pointed out how section 3 provides for the conduct of the undertaking in such a manner as to serve the prevention of unemployment. As will be evident from the discussion which follows, we are of the opinion that even the provisions of section 4 of the Act are made to subserve the main purpose of the Act, namely, prevention of unemployment. It after having issued the notification contemplated by section 3, the Government finds that it is not feasible to run that undertaking economically without putting curbs contemplated by section 4, the Government would put these curbs by issuing a notification contemplated by section 4. Therefore, it is clear to us that even the....
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....obvious that these provisions are enacted with a view to give a sort of moratorium to the undertaking which is declared a "relief undertaking" under section 3. This moratorium would be available to the undertaking only if the State Government issues a notification under section 4. If, therefore, the authorised controller fails to conduct the undertaking so as to serve the purpose mentioned in section 3(1), the State Government would be at liberty to review the situation at the end of every twelve months. 30. We thus find that there are ample safeguards in the Act to see that the authorised controller carries out the object of preventing unemployment. We, therefore, see no substance in the contention that the idea of preventing unemployment is merely incidental. In our opinion, it is the main object which determines the true nature and character of this legislation. If this be so, that State Act clearly falls within entry 23 of the Concurrent List of the 7th Schedule. 31. Further argument which was advanced on behalf of the petitioners in this connection was that if a reference is made to sections 15, 16 and 18 of the Central Act, it would be found that the management of an "i....
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....are complementary to the provisions of the Central Act inasmuch as unemployment cannot be prevented unless the undertaking is helped to be on sound financial basis by exercising some of the powers under the State Act. 32. It was then contended that, if a reference is made to sub-clause (iv) of section 4(1)(a) of the State Act, it will be found that it provides for the suspension of all rights, privileges, obligations and liabilities, accrued or incurred before the undertaking was declared a relief undertaking as well as the remedy for the enforcement thereof. The contention of the learned advocate for the petitioners was that by making this provision, even the rights, liabilities and obligations which have arisen under different statutes which may fall under the List I of the 7th Schedule are liable to be suspended and if that is so, the said suspension would amount to a legislation with respect to the subjects mentioned in the List I of the 7th Schedule. This argument is fallacious because provisions for suspending rights, liabilities and obligations are not tantamount to legislation on a topic which is covered by the subject-matters enumerated in the List I of the 7th Schedule....
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....necessary consequence of the stoppage of the industry. We thus find that all the provisions which the Act makes with respect to the subject of industry are merely incidental and, if that is so, they cannot touch the intrinsic nature and character of the enactment. 34. Before leaving this point we would consider one more contention of the petitioners, viz., that section 3 and 4 of the State Act are in conflict with the above quoted provisions of section 20 of the Central Act. If a reference is made to section 20 it will be found that what it prohibits is "taking over of the management or control" of the industrial undertaking contemplated by that section. The question is whether section 3 provides for "taking over of the management or control" of the industry in question. We have already referred to the provisions of section 3 above. These provisions nowhere provide for taking over of the management and control of the industry in question. What it provides for is merely a declaration that the industry in question shall "be conducted to serve as a measure of preventing employment or of unemployment relief". This requirement of conducting the industry to serve as a measure to preve....
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....that, even though the undertakings, which are neither run nor assisted by the Government, are in need of some protection, the legislature does not intend to cover them by the protection which is contemplated by the Act. According to the learned advocate of the petitioners, therefore, the election for the purpose of making the declaration contemplated by section 3 leaves out other similarly situated undertakings for the only reason that these undertakings have not preferred to avail of State assistance. Thus, according to the petitioners, the classification contemplated by section 3 is discriminatory and irrational and has not got a proper nexus with the object of providing employment or relief against unemployment. 37. So far as section 4 is concerned, the argument was that this section gives very wide and blanket powers to the Government for making discrimination. It was pointed out that section 4 is enacted with a view to suspend certain rights, liabilities and obligations which have arisen before the undertaking is declared a "relief undertaking". It was further pointed out that it also seeks to suspend certain very substantive and valuable rights of labour inasmuch as some o....
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....s and liabilities to be suspended under that section. This contention is, therefore, a part of their general contention that both the sections 3 and 4 of the State Act should be struck down on the ground of excessive delegation. We shall, therefore, first consider the position of law on the question of excessive delegation of legislative power. 40. It is found that in the pre-Constitution days the decision given by the Privy Council in R. v. Burah held the field. In that case wide powers of delegation were upheld on the principle that the legislature, when it exercises its will unequivocally and clearly, should be presumed to have exercised its judgment "as to place, person, laws and powers", and that the result of that judgment is to legislate conditionally as to all things which have been delegated. After the Constitution of India came into force, there was a reference to the Supreme Court in In re Delhi Laws Act, 1912, where the authorisation of the executive authority over a wide range of subjects was upheld by the Supreme Court for different reasons given by different judges. This decision has been explained and its ratio has been crystallised in Rajnarain Singh v. Chairman....
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....dard to guide the officials or the body in power to execute to law'." 42. These observations may of course, be read with a note of caution recorded by Subba Rao J. (as then he was) in this dissenting judgment against an attempt "to discover a dormant or latent legislative policy to sustain an arbitrary power". These observations of Subba Rao J. held the field a few years later in Devi Das Gopal Krishnan v. State of Punjab, wherein the delegation found in section 5 of the Punjab General Sales Tax Act, 1948 (46 of 1948), as it originally stood, was under challenge and was found excessive for want of proper guidance. But there also it was conceded that the expression of clear legislative policy and guidelines would save the delegation. This is clear from the following observations found at page 1901 : "The minimum we expect of the legislature is to lay down in the Act conferring such a power of fixation of rates clear legislative policy or guidelines in that regard. As the Act did not prescribe any such policy, it must be held that section 5 of the said Act, as it stood before the amendment, was void." 43. However, it is found that in Delhi Municipality v. Bir....
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....e classification must be reasonable and intelligible. The classification thus formed must not leave out any person or thing falling within the class thus formed. Leading case on this subject is Ram Krishna Dalmia v. Justice Tendolkar, wherein some important propositions are formulated by Das C.J. The following are the relevant propositions for the purpose of these petitions : (1) The classification should satisfy two conditions, namely : (i) It must be founded on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and, (ii) The differentia must have a rational relation to the object sought to be achieved by the statute in question. As stated in Northern India Caterers Ltd v. State of Punjab, when an enactment is challenged on the ground of discrimination the court must first ascertain the objects sought to be achieved by the legislature and then apply the above stated two tests. It is held in that case that if these two tests are satisfied then the classification cannot be held to be violative of article 14. (2) It must be presumed that the legisl....
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....is an important distinguishing feature between a State undertaking and a private undertaking. It is obvious that in State undertakings, what is involved is public interest and public finance. But that is not so in case of a private undertaking. Wherever public finance is involved, it is many a time found necessary to give it a special treatment for the protection of public interest which is therein involved. This principle is found recognised in various Acts including Revenue Recovery Acts, Rent Acts and various other socio-economy enactments. The principles is so well established that it is not found necessary to refer to case law on this point in detail. We may, however, refer to Baburao Shantaram More v. Bombay Housing Board and Lachhman Dass v. State of Punjab. Having thus once found that the industrial undertakings wherein a State's interest in involved either directly or indirectly can form a "class" by itself the next question to be considered is whether this classification has any nexus with the object of the Act. While discussing the question as regards the pith and substance of the Act, we have already pointed out that the main object of the State Act is the preventio....
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....sonable, intelligible and valid classification which are given in Dalmia's case are clearly satisfied, and even the three questions which we have referred to above, the satisfactorily answered. In our opinion, therefore, which section 3 of the Act cannot be successfully attacked on the ground that it contemplates unreasonable classification having no nexus with the object of the Act. 49. This takes us to the provisions contained in section 4 of the State Act. So far as this section in concerned, we have already referred to its provisions and the impact of these provisions on various rights and liabilities. If again a reference is made to this section, it would be found that clause (a) of sub-section (1) thereof contemplates four sub-clauses, which are relevant for the purpose of deciding this point. Out of these four sub-clauses, the first three sub-clauses relates to the rights and liabilities arising out of the industrial relations of the undertaking with its workers. Sub-clause (i) contemplates the suspension or modifications of the industrial Acts referred to in the Schedule. Sub-clause (ii) contemplates the suspension of all or any of the agreements, settlements, awards....
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.... taking action under section 4 is entirely at the discretion of the Government. Therefore, the question is how far such wide and blanket powers of classification and selection found in section 4 would offend the equality principle embodied in article 14 of the Constitution and would also suggest an excessive delegation of power. 51. There is ample authority for the proposition that the mere fact that no classification is made by the statute, or that the discretion is left to the Government for making classification at a future date, would not lead to the law being struck down. In all such cases, the court is expected to proceed to inquire whether the statute contains any principle or policy for guiding the discretion to be exercised by the State Government in the matter of selection or classification. If no such guiding principles are found, then the statute becomes liable to be struck down on the ground that it confers arbitrary and uncontrolled powers on the Government to discriminate between persons and things similarly situated. In such case, the discrimination is inherent in the statute itself. But, if the guiding principles and the policy of the statute are eloquent from t....
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....e inconsistent with the policy of the enactment then the action taken by the delegate can be struck down as invalid. But that is altogether a different question. A question of this type has been considered in the United Stated in connection with the equality clause. We find that in his book in "Constitutional Law", Professor Willis has made the following observations at page 586, which are very much pertinent to the point under our consideration : "Perhaps the best view on the subject is that 'due process' and 'equality' are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom conferred. If this is the correct position, the only question that would then arisen would be the delegation of legislative power. If a statute declared a definite policy, there is a sufficiently definite standard for the rule against the delegation of legislative power, and also for equality if the standard is reasonable. if no standard is set up to avoid the violation of equality, those exercising the power must act as though they were administering a valid standard." 54. In In re Kerala Education Bill, 1957, the Supre....
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....he constitutional guarantee and the provisions of the statute or the rule in question would have to be struck down. (2) The enactment or the rule might not in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the legislature vests a discretion in an authority, be it the Government or an administrative official acting either as an executive officer or even in a quasi-judicial capacity by a legislation which does not lay down any policy or disclose any tangible or intelligible purpose, thus clothing the authority with unguided and arbitrary power enabling it to discriminate. In such circumstances the very provisions of the law which enables or permits the authority to discriminate, offends the guarantee of equal protection afforded by article 14. (3) The above rule would not apply to cases where the legislature lays down the policy and indicated the rule or the line of action which should serve as a guidance to the authority. Where such guidance is expressed in the statutory provisions conferring the power no questi....
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....e. We find that at many places it provides for sufficient guidance's and checks on the exercise of the power by the State Government while acting under section 4. To summarise briefly, this would be found as under : (1) Long title and preamble suggests a general policy for the prevention of unemployment. It shows that the real object of this enactment is to render financial assistance to sick industries with a view to relieve unemployment. (2) The declaration contemplated by section 3, which forms the basis of the declaration under section 4, is required to be issued only if the following conditions are satisfied; (i) Government should find it "necessary" to make such a declaration. (ii) Government cannot make that declaration with regard to any industry because, before making the declaration, the industry concerned should be either State controlled or State aided. This puts an obligation of a very onerous nature on the State Government before the action under section 3 is taken. (iii) The industry is required to be conducted to serve the purpose of preventing unemployment. (iv) The de....
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....nfringing the equality clause contained in article 14 of the Constitution. 58. We now proceed to the third ground of attack on these provisions. It is on the basis that sections 3 and 4 of the State Act are restrictive of the fundamental rights of the petitioners to hold property as contemplated by article 19(1)(f) of the Constitution. Like other fundamental rights contemplated by article 19 even this right as regards the property is subject to reasonable restrictions in public interest as provided by sub-article (5). Therefore, the question is whether the restrictions contemplated by section 4 are reasonable and whether they are in public interest. It is apparent from the provisions of the Act that the restrictions are contemplated only be section 4 thereof and that the notification contemplated by section 3 of the state Act is only a precursor of the notification to be issued under section 4. It is, therefore, first necessary to consider the nature of the restrictions contemplated by section 4. A bare reference to section 4 shows that the only restriction which it contemplates is that of temporary suspension of the rights and liabilities relating to the relief undertaking in q....
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....ence and the undertaking would be at liberty to sell away the hypothecated goods, thus permanently annihilating the rights of the creditors in whose favour the goods are hypothecated. We find that such instances can be multiplied. 61. It is thus obvious that the legislature could not have intended to invite such absurd results. We find that the legislature has advisedly used the word "suspended" and "stayed" in sub-clause (iv) with reference to rights, remedies and proceedings. "Suspension" is not tantamount to "destruction" or "annihilation". Therefore, when the sub-clause speaks about "suspension" of a right it only means suspension of its execution of enforcement. The incidents of a right, except its executability, are, therefore, not suspended by the sub-clause. 62. It was then contended that operation of sub-clause (iv) would result in great hardship as in some cases it may result in financial ruin of a creditor. As instances of such hard cases out attention was drawn to a compensation claim by a widow of a workman or the dues of a petty merchant who is financially hard pressed in his business. It was pointed out that if such dues are suspended for a period of five years....
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....nancing the undertaking would be put to serious jeopardy. 66. It is with a view to avoid all these possible consequences that the restrictions contemplated by section 4 are envisaged by the Statute. We have, therefore, no doubt in our mind that these restrictions are in public interest. 67. Then the question which arises to be considered with regard to the fundamental rights contemplated by article 19(1)(f) of the Constitution is whether these restrictions are "reasonable". While considering this question of reasonableness of restrictions, it is difficult to avoid the temptation of referring to the following memorable observations of Ayyangar J. in the case of Jyoti Pershad v. Administrator for the Union Territory of Delhi. "The criteria for determining the degree of restriction on the right to hold property which would be considered reasonable, are by no means fixed or static, but must obviously vary from age to age and be related to the adjustments necessary to solve the problems which communities face from time to time. The tests, therefore, evolved by communities living in sheltered or placid times, or laid down in decisions applicable to them can hardly se....
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....their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representative of the people have, in authorising the imposition of the restrictions, considered them to be reasonable." 69. Thus five tests are supplied by these observations, namely : (1) Nature of the right infringed. (2) Underlying purpose of the restriction. (3) Extent and urgency of the evil sought to be remedied. (4) Disproportion of the imposition, and (5) Prevailing condition of time. 70. We may add the sixth test as provided in Dr. N. B. Khare v. State of Delhi, namely, "whether the law is temporary or permanent." Applying these tests to the facts of this case we have no doubt in out mind that all of them are fully satisfied. We have already considered the nature of the right infringed and the underlying purpose of the restrictions contemplated by the Act. The extent and urgency of the evil which these restricti....
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....uired to take under section 4 is completely guided by the policy which is so apparent from the preamble as well as section 3 of the Act. Therefore, if at any time the State is found to be making any hostile discrimination in applying these restrictions, it can be struck down as going outside the ambit of the guidelines provided by the statute. 72. Shri Vakil, the learned advocate for the petitioners drew our attention to the Supreme Court decisions given in State of Madhya Pradesh v. Ranojirao Shinde, Kartar Singh v. Chief Engineer, Irrigation, Punjab and the unreported decision of the Supreme Court in Civil Application No. 685 of 1968. We find that these decisions have no bearing on the facts of the present case because they proceed on the principle that it is not reasonable to acquire the property of a private individual for the purpose of fattening the State exchequer. So far as this case is concerned the restriction in question in not intended for the purpose of fattening the State exchequer but only for the purpose of seeing to it that a sick industry is put on proper lines and is enable to run on sound economic conditions. For achieving this object and for preventing unemp....