TaxTMI 
TaxTMI 
2022 (2) TMI 1253
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.... of a Minister of State. Section 7 of the 2012 Act stipulated that a Parliamentary Secretary shall be entitled to such salary and allowances as are admissible to a Minister of State under the Manipur Parliamentary Secretary (Salary and Allowances) Act, 1972. Appellants in Civil Appeals arising out of SLP (C) Nos. 2386-2390 of 2021 were appointed as Parliamentary Secretaries in 2017. 2. The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 (hereinafter referred to as the "Assam Act, 2004"), which had provisions similar to that of the 2012 Act, was the subject matter of challenge before the Gauhati High Court. The writ petition filed before the Gauhati High Court was transferred to this Court. On 26.07.2017, this Court in Bimolangshu Roy v. State of Assam and Anr. (2018) 14 SCC 408 declared that the Legislature of Assam lacked competence to enact the Assam Act, 2004. The Manipur Assembly passed the Manipur Parliamentary Secretary (Appointment, Salary and Allowances and Miscellaneous Provisions) Repealing Act, 2018 (hereinafter referred to as the "Repealing Act, 2018") which was notified on 04.04.2018. It was mentioned in pream....
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....der the 2012 Act. 5. We have heard Dr. Rajeev Dhawan, learned Senior Counsel appearing for the Appellants in Civil Appeals arising out of SLP (C) Nos. 2386-2390 of 2021, learned Additional Advocate General appearing for the State of Manipur in Civil Appeals arising out of SLP (C) Nos. 2001-2005 of 2021 and Mr. Narender Hooda, learned Senior Advocate appearing for the Respondents in Civil Appeals arising out of SLP (C) Nos. 2001-2005 of 2021. 6. Dr. Dhawan submitted that the Appellants resigned as Parliamentary Secretaries on 04.08.2017, while remaining members of the Assembly, due to which PIL Nos. 7, 9 and 10 of 2017 filed before the High Court became infructuous. The declaration of the Assam Act, 2004 as unconstitutional does not per se render the 2012 Act invalid. He argued that Bimolangshu Roy (supra) was wrongly decided and should be held to be per incuriam for not considering the relevant entry in List II of the Seventh Schedule of the Constitution while declaring that the Assam Legislature lacked competence to enact the Assam Act, 2004. In any event, according to Dr. Dhawan, striking down of the Repealing Act, 2018 should not result in invalidation of all the decisions tak....
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....th Schedule are as below: 39. Powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof, and if there is a Legislative Council, of that Council and of the members and the committees thereof; enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State. 40. Salaries and allowances of Minister for the State. 9. There does not appear to be any dispute on the factual front. The Assam Legislature enacted the relevant statute in 2004, providing for appointment of members of the Assam Legislative Assembly as Parliamentary Secretaries. The Assam Act, 2004 and the 2012 Act are undoubtedly in pari materia. This Court in Bimolangshu Roy (supra) struck down the Assam Act, 2004 as unconstitutional. The appointments of Parliamentary Secretaries were discontinued by the Chief Minister of Manipur around the time the judgment in Bimolangshu Roy was delivered. Thereafter, the Repealing Act, 2018 was enacted and notified with effect from 04.04.2018. The 2012 Act and the Repealing Act, 2018 were challenged before the High Court of Manipur. 10. The first submission of Dr. Rajeev ....
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....tained in Articles 164(5), 186, 194, 195 etc. Therefore, any interpretation on legislative power sought to be given to these entries which is not contemplated by the corresponding Article, was considered to be repugnant to the scheme of the Constitution, as the Article expressly conferring legislative authority is the source of legislating power. Noticing that the text of both Articles 194(3) and the relevant portion of entry 39 are substantially similar, this Court was of the firm opinion that creation of new offices by legislation would be outside the scope of Article 194(3). The powers, privileges and immunities contemplated by Article 194(3) and entry 39 are those of the legislators qua legislators, as concluded by this Court in Bimolangshu Roy (supra). In view of the said finding, the Court did not find it necessary to examine the other issues that had been identified. 12. Dr. Dhawan submitted that the relevant entry empowering the Manipur Legislature to make the 2012 Act is entry 40 of List II, which was not considered in Bimolangshu Roy (supra). Placing reliance on the judgment of this Court in Ujagar Prints and Ors. (II) v. Union of India and Ors. (1989) 3 SCC 488, he argu....
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....tries 38, 39 and 40 of List II. The stand of the State of Assam before this Court in Bimolangshu Roy (supra) was that the Legislature had the competence to make the law in view of entry 39, which has to be given the broadest possible interpretation. In its affidavit, the State of Assam contended that the legislative entry should not be read in a narrow or pedantic sense but must be given its fullest meaning and widest amplitude. It was further stated that the making of law providing for creation of the post of Parliamentary Secretary was within the competence of the State Legislature as a Parliamentary Secretary is a member of the Legislative Assembly. It is no doubt true that this Court in Ujagar Prints (II) (supra) held that the State Government can always resort to more than one entry to defend the legislation, when it is challenged on the ground of legislative competence. However, it is to be noted that the State of Assam did not seek to take the support of any other entry, apart from entry 39, to substantiate its legislative competence before this Court in Bimolangshu Roy (supra). 14. The Appellants in the present matter contended that this Court did not appreciate the releva....
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.... did not survive and the High Court ought not to have considered the constitutional validity of the same. To that extent, the High Court committed an error in declaring a non-existing law as unconstitutional. It is beyond question that this Court in Bimolangshu Roy (supra), while dealing with the Assam Act, 2004 which is ad verbum to the 2012 Act, held that the Assam Act, 2004 was vitiated due to lack of legislative competence. However, the 2012 Act was not dealt with by this Court and the same continued to be valid till it was repealed. Indeed, the 2012 Act was not declared unconstitutional by any court before the High Court delivered the impugned judgment and therefore, it was well within the competence of the Manipur Legislature to repeal the 2012 Act. The High Court has committed an error in holding that the Manipur Legislature did not have the competence to enact the 2012 Act as a result of which, the Repealing Act, 2018 could not have been made. The law passed by the legislature is good law till it is declared as unconstitutional by a competent Court or till it is repealed. There is no error committed by the Manipur Legislature in repealing the 2012 Act in light of the judgme....
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....R 8 summarised the following propositions: (a) Whether the Constitution affirmatively confers power on the legislature to make laws subject-wise or negatively prohibits it from infringing any fundamental right, they represent only two aspects of want of legislative power; (b) The Constitution in express terms makes the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constitution and thereby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution; (c) It follows from the premises that a law made in derogation or in excess of that power would be ab initio void... 20. The power of a legislative body to repeal a law is coextensive with its power to enact a law. The effect of repealing of a statute is to obliterate it completely from the records of Parliament. Kay v. Goodwin (supra) While repealing a statute, the Legislature is competent to introduce a clause, saving any right, privilege, liability, penalty, act or deed duly done and any investigation, legal proceeding or remedy arising therefrom, under the repealed statute. There is a distinction ....
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....cause or matter before it. Though Golak Nath (supra) applied the doctrine of prospective overruling in the context of earlier decisions of this Court on the same issues which had otherwise become final, the doctrine of prospective overruling has been applied by this Court even where the issue was being decided by the Court for the first time. 22. While laying down the principles of prospective overruling, this Court in Golak Nath (supra) dealt with the scope of Article 142 of the Constitution of India and held that the said provision enables the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The conundrum in India Cement Ltd. and Ors. v. State of Tamil Nadu and Ors. (1990) 1 SCC 12 related to the levy of cess on royalty being within the competence of the State Legislature. A constitution bench of this Court declared the cess imposed by the State of Tamil Nadu as ultra vires. However, this Court observed that the State of Tamil Nadu shall not be liable for any refund of cess already paid or collected. Validity of levy of cess based on royalty was raised again in Orissa Cement Ltd. v. State o....
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....e Court would take that prohibition (sic provision) into consideration before taking steps Under Article 142(2) and we find no limiting words to mould the relief or when this Court takes appropriate decision to mete out justice or to remove injustice. The phrase "complete justice" engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared Under Articles 32, 136 and 141 of the Constitution and cannot be cribbed or cabined within any limitations or phraseology Each case needs examination in the light of its backdrop and the indelible effect of the decision. In the ultimate analysis, it is for this Court to exercise its power to do complete justice or prevent injustice arising from the exigencies of the cause or matter before it. The question of lack of jurisdiction or nullity of the order of this Court does not arise. As held earlier, the power Under Article 142 is a constituent power within the jurisdiction of this Court. So, the question of a law being void ab initio or nullity or voidable does not arise. 61. Admittedly, the Constitution has entrusted ....
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....t-matter of consideration by this Court in Bimolangshu Roy (supra). In the said judgment, this Court was concerned only about the validity of the Assam Act, 2004. It is well within the competence of the Manipur Legislature to repeal the 2012 Act, which had not been adjudged as unconstitutional by any Court till the Repealing Act, 2018 was enacted. Further, there can be no doubt that the Legislature has the power to include a saving provision while repealing a statute. However, we have been called upon to assess whether, in the peculiar facts of the present case, the Manipur Legislature had the competence to introduce a saving Clause in the Repealing Act, 2018. The undisputed facts are that the 2012 Act and the Assam Act, 2004 are in pari materia. The Assam Act, 2004 was declared as unconstitutional in Bimolangshu Roy (supra). Public interest litigations were filed in the Manipur High Court challenging the vires of the 2012 Act. The Manipur Legislature decided to repeal the 2012 Act "in light of the judgment of this Court in" Bimolangshu Roy (supra) and "in the process of being a responsible Government which upholds the Rule of Law", as have been categorically stated in the preamble....