judgement:
ivil Appeal Nos.
527 & 528 of 1986.
From the Judgment and Order dated 12.7.1985 of the Delhi High Court in L.P.A. No. 8 of 1978.
G.L. Sanghi, K.C. Dua, S.K. Mehta, Dhruv Mehta, S.M. Sarin and R.J. Goulay for the Appellants.
V.M. Tarkunde, (N.P.) E.C. Agarwal, Atul Sharma and Vijay Pandita for the Respondents.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
These two appeals by leave are from the judgment of the Delhi High Court dated l2 July, 1985 in L.P. No. 8 of 1978.
The first appellant in the first appeal is the Delhi Water Supply and Sewage Disposal Undertaking (the "Undertaking") The appellants in the next appeal are some of the Executive Engineers in the Undertaking.
The common case of the appellants is that the inter se seniority In the cadre of Executive Engineers after their regularisation should reflect the corresponding rankings in the feeding cadre of Assistant Engineers.
But the contesting respondents PG NO 636 who are also Executive Engineers contend to the contrary.
There case is that the continuous officiation in the post till regularisation should be the basis for determining the seniority.
These rival contentions are required to be decided in the appeals.
The facts leading to the appeals are not in dispute and may briefly be stated thus: The Municipal administration of the Union Territory of Delhi is governed by an Act called the Delhi Municipal Corporation Act (the "Act").
The Act came into force on 7 April, 1958.
Section 92 of the act provides power to the Undertaking to appoint certain categories of officers.
But that power is not absolute.
No appointment to any category of 'A ' post shall be made except after consultation with the Union Public Service Commission (the "Commission").
That is the constraint in section 9.
Such consultation, however, is not required if the appointment is for a period not exceeding one year, or to such ministerial posts as may be specified in consultation with the Commission.
The consultation with the Commission is required to he made in accordance with the regulation framed under Section 97.
The Regulation framed by the Commission has a long title called "The Union Public Service Commission (Consultation) by Delhi Municipal Corporation Regulation 1959".
It provides procedure for promotion as well as direct recruitment of officers in the Corporation.
Section 98 confers power to the Corporation to make regulations with regard to conditions of service of officers and other employees appointed by the Corporation and other incidental matters.
Section 480(2) states that no Regulation made by the Corporation shall have effect until it has been approved by the Central Government and published in the Official Gazette.
Section 480 [1] gives interim power to the Central Government to make regulation which the Corporation could have made under Section 98.
In exercise of the power under Section 480(1) the Central Government has framed what is termed as the Delhi Municipal Corporation Service Regulation 1959.
In 1964 four additional posts of Executive Engineers were created in the Undertaking.
The Commissioner after considering the eligibility and suitability of the Assistant Engineers then available in the Undertaking recommended three names: J.P. Gupta, Mahbood Hussain and R.K. Kashyap for being appointed as Executive Engineers.
He also intimated that there was nothing in record against PG NO 637 those officers.
On 17 April, 1964 they were appointed as Executive Engineers for a period of one year or till the posts are filled up in consultation with the Commission.
These are respondents 1 to 3 in C.A.No. 527/86.
Shri S.S. Ramrakhyani (Respondent 4) and P.T. Gurnani (Respondent 6) were not then in the Undertaking.
They were working as Assistant Engineers in the general wing of the Corporation.
It appears they were selected as Executive Engineers in the Undertaking on 9 April, 1965.
They reported as Executive Engineers in the Undertaking on 12 April, 1965 after they were relied from the general wing of the Corporation.
They were also appointed for one year in the first instance.
On 5 February, 1969 their lien was cancelled in the general wing.
They were, however, given the benefit of their service rendered as Assistant Engineers for all purposes.
The other respondents were also appointed on ad hoc basis on like terms on different dates.
section Parkash respondent No. 5 was appointed on 21 August 1965.
A.V. Panat respondent No. 7 was appointed on 21 December 1965.
Respondents Nos. 10 and 11 in 1966, respondent 12 in 1967 and respondents 8 and 9 were appointed in 1969.
They worked continuously in their respective posts till their services were regularised by the Commission.
The Commission.
The Commission regularised their services with effect from 8 January 1971.
The list of names of officers whose services were regularised by the Commission evidently did not reflect their inter se seniority in the cadre.
The Commissioner, therefore. was asked to prepare their seniority list.
But there is nothing on record indicate that the Commission did anything of the kind.
He, however. appears to have followed the seniority in the cadre of Assistant Engineers for the purpose of posting the Executive Engineers on current duty charge of the post of Superintendent Engineers.
Some of the officers thereupon moved the High Court with Writ Petition No. 237/1973 seeking a direction to the Undertaking to prepare a proper seniority list of Executive Engineers.
The High Court accepted the Writ Petition and directed the Undertaking to prepare a seniority list of Executive Engineers (Civil).
Accordingly, the Undertaking prepared a seniority list.
The services rendered on ad hoc appointments were excluded for the purpose.
The seniority was determined reflecting the respective rankings in the feeding cadre.
The aggrieved officials challenged the validitY of that seniority list before the Delhi High Court in C.W. No. 1339 of 1973.
The PG NO 638 learned single judge before whom the Writ Petition came for disposal dismissed the same.
He held that Rule 6 of the Delhi Administration Seniority Rules 1965 would govern the determination of seniority of the officers.
He also held that that seniority should be in the order of regularisation and not on the basis of original ad hoc appointments.
But the Division Bench upon appeal took a different view.
The learned judges held that the determination of seniority of officers is not governed by any statutory rule and continuous officiation in the post should be the basis.
To be more specific, the learned judges observed: "The normal rule is that seniority is governed by the period of continuous officiating service in the absence of any other seniority rule.
The period of continuous officiating in the case of the present petitioners will, therefore, be the governing principle.
" xxxxx xxxxx xxxxx "The reason we have found is that the delay in making recruitment rules and making regular appointment in accordance with the procedure envisages by the Act really been the result of a conflict between the Corporation and the Union Public Service Commission.
In the result, for years on, the persons have continued on an ad hoc basis.
This has happened even in cases where the appointment was not on ad hoc basis initially.
In such cases, the period of continuous ad hoc service cannot be treated as a stop gap arrangement.
This is, infact a regular appointment, which is held in abeyance because the recruitment rules were not settled and the procedure not finalised.
These appointments have eventually been regularised after the recruitment rules had been settled and the procedure laid down.
" The correctness of the view taken by the High Court has been challenged in these appeals.
We have heard the counsel on both sides and examined the various contentions carefully.
The first question for consideration is whether the Delhi Municipal Corporation Service Regulation 1959 is applicable to employees of the Undertaking.
As earlier noticed, the Regulation was framed by the Government of lndia under Section 480(1) of the Act.
Regulation 3 provides: PG NO 639 "3.
Unless otherwise provided in the Act or these regulations, these regulations shall apply to all Municipal Officers and other Municipal employees whose pay is chargeable to the "General Account" of the Municipal Fund; Provided that nothing in these regulations shall apply to such Municipal Officers and other municipal employees as are appointed under any contract or render part time service or are in receipt of daily wages.
" As is obvious significantly from Regulation 3, the regulations shall apply only to Municipal Officers and other Municipal employees whose pay is chargeable to the "General Account" of the Municipal Fund.
Section 99 of the Act provides for establishment of the "Municipal Fund".
It consists of three different accounts: (i) Electric Supply Account; (ii) Water Supply and Sewage Disposal Accounts; and (iii) General Account.
General Account is only one of the three accounts.
The Undertaking has a separate account of its own.
It is called "Water Supply and Sewage Disposal Accounts".
It is said that the income and expenditure or the accounts of the Undertaking is separate from and independent of the `General Account" of the Municipal Fund.
O.P. Kalkar Deputy Commissioner (Water) in his affidavit filed in C.A. No. 527/1986 has also expressly stated so.
The salary of the employees in the Undertaking is paid out of the account of the Undertaking and not from the "General Account ' of the Municipal fund.
The Service Regulation 1959 do not apply to those who are paid out of other accounts.
It applies only to those who are paid out of "General Account.
" In view of the stand taken by the undertaking and also in the light of the said provisions of the Act it must be held that the Service Regulation 1959 has no application to the category of officers with whom we are concerned in these appeals.
It was, however, argued for the appellants that the officer memorandum of the Home Ministry of the Government of India dated 22 December, 1959 could be called into aid for the purpose of determining the seniority of officers in the PG NO 640 Undertaking.
Reference was made to General Principle 5(i) with the Explanatory memorandum thereunder which directs that where promotion is made on the basis of selection by Departmental Promotion Committee, the seniority of such promotes shall be in the order in which they are recommended for such promotion by the Committee.
But there is hardly any substance in this contention too.
It is basically faulty.
The office memorandum proprio vigore does not apply to employees of the Undertaking.
It could be applied if it could fall within the scope of "Rules" as defined in Regulation 1959.
Since Service Regulation 1959 itself is not attracted to employees of the Undertaking it would be futile to contend that the office memorandum would govern their seniority.
The real question to be considered is what should happen to the valuable service rendered by officers in ad hoc appointments? Should it be excluded altogether while determining their seniority.
If not, what should be the method to be employed in the absence of any rule or order providing for any procedure.
It was argued that since the Commission regularised the services of all Executive Engineers with effect from a common date i.e. 8 January, 1971, the inter se seniority in the lower cadre should be the proper basis in the higher cadre also.
As otherwise, it was urged that a senior in the lower cadre might be junior in the higher cadre which would be contrary to all concepts in service jurisprudence.
In this context, we were referred to a large number of authorities on either side.
Most of the authorities involved the question of applicability of the quota rule linked up with the seniority of direct recruits and promotes.
We are not concerned with that question.
We may, however, refer to some of the decisions which have some bearing on the question before us: In Baleshwar Dass & Ors. etc.
V. State of U.P., [1981] 1 SCR 449 at 469 Krishna Iyer, J., had this say: "If a public servant services for a decade with distinction in a post known to be not a casual vacancy but a regular post known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under the time honoured classification, can it be that his long officiation turns to ashes like a Dead Sea fruit because of a label and his counterpart equal in all functional respects but with ten years less of service steals a march over him because his recruitment is to a temporary vacancy? We cannot anathematize officiation unless there are reasonable differentiations and limitations." PG NO 641 xxxxx xxxxx xxxxx xxxxx xxxxx "The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exists.
We see nothing in the scheme of the Rules contrary to that principle.
Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes, have been regularised and are fit to be absorbed into permanent posts as and when they are vacant." In A. Janardhan vs Union of India, ; = ; D.A. Desai J., said (At 960): "It is a well recognised principle of service jurisprudence that any rule of seniority has to satisfy the test of equality of opportunity in public service as enshrined in Article 16.
It is an equally well recognised canon of service jurisprudence that in the absence of any other valid rule for determining inter se seniority of members belonging to the same service, the rule continuous officiation or the length of service or the date of entering in service and continuous uninterrupted service thereafter would be valid and would satisfy the tests of Article 16." In G.P. Doval vs Chief Secretary, Government of U.P. & Ors., ; Desai, J., following Baleshwar Dass reiterated (at 85 87): "Now if there was no binding rule of seniority it is well settled that length of continuous officiation prescribes a valid principle of seniority.
The question is from what date the service is to be reckoned? It was urged that any appointment of a stop gap nature or pending the selection by Public Service Commission cannot be taken into account for reckoning seniority.
In other words, it was urged that to be in the cadre and to enjoy place in the PG NO 642 seniority list, the service rendered in a substantive capacity can alone be taken into consideration.
We find it difficult to accept this bald and wide submission.
Each case will depend upon its facts and circumstances.
If a stop gap appointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, we see no justification for ignoring his past service.
At any rate, there is no justification for two persons selected in the same manner being differently treated.
That becomes crystal clear from the place assigned in the seniority list to petitioner No. 1 in relation to respondent No. 7.
In fact if once a person appointed in a stop gap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he has to be assigned seniority accordingly unless a rule to the contrary is made.
That has not been done in the case of all the petitioners.
The error is apparent in the case of petitioner and respondent No. 7.
These errors can be multiplied but we consider it unnecessary to do so.
In fact a fair rule of seniority should ordinarily take into account the past service if the stop gap arrangement is followed by confirmation.
This view which we are taking is borne out by the decision of this Court in Baleshwar Dass and Ors.
vs State of U.P. and Ors.
xxxxx xxxxx xxxxx xxxxx xxxxx It is thus well settled that where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list.
Again in G.S. Lamba v Union of India, ; DesaI, J., likewise commented (at 459 60): "In the absence of any other valid principle of seniority it is well established that the continuous officiation in the cadre, grade of service will provide a valid principle of seniority.
The seniority lists having not been prepared on this principle are liable to be quashed and set aside.
" PG NO 643 Counsel for appellants, however, placed strong reliance on the decision in Ashok Gulati and Ors.
vs B.S. Jain and Ors., ; and in particular the following observations of Sen, J., (at 438): "That in the absence of any other valid principle of seniority, the inter se seniority between direct recruits and promotes should as far as possible be determined by the length of continuous service whether temporary or permanent in a particular grade or post (this should exclude periods for which an appointment is held in a purely stop gap or fortuitous arrangement).
No doubt, there are certain observations in the two cases of G.P. Doval ; and Narender Chadha; , which seems to run counter to the view we have taken, but these decisions turned on their own peculiar facts and are therefore clearly distinguishable and they do not lay down any rule of universal application.
" We do not consider that this observation is of any assistance to the appellants in this case.
It must be read in the context in which it appears and against the background of the facts of that case.
It has been said more often and we repeat here that the judgments of Courts or observations made thereon are not to be read as statutes.
They are made in the setting of facts obtained in a particular case.
It is no exception in Ashok Gulati case.
There this Court was concerned with the service rendered by certain officers in a purely stop gap or fortuitous arrangement.
In the Public Works Department of the State of Haryana, certain persons were appointed as temporarily engineers (ad hoc) for a period of six months.
Some of them were drawn from the Employment Exchange.
The appointment was not made in accordance with the cadre rules of the department.
In the order of appointment given to each individual it was specified that their appointment was purely on ad hoc basis on a fixed salary of Rs. 400 + allowances.
It was also notified that their services would be terminable without notice.
It was further stated that the service rendered would not enure to their benefit under the cadre rules.
Later on, those posts were advertised by the Public Service Commission for regular recruitment.
Some of those persons applied and were also selected.
They were appointed regularly in the cadre.
Then they claimed that their antecedent service in the ad hoc appointment should be taken into consideration for determining their seniority.
This Court said "No." The reason was obvious.
The terms of their ad hoc appointment did not allow them any benefit therefrom.
It was a stop gap arrangement contrary to the cadre rules.
PG NO 644 They were, therefore, not entitled to count that service for determining the seniority.
If it were allowed to them, it would have impaired the rights of persons ranked above them in the merit list of the Public Service Commission.
It was in that context, the learned Judge made the aforesaid observation.
It was not intended to be a discordant note against the normal rule of determining seniority as laid down in Baleshwar Dass case.
In fact, the learned judge in a later decision in G.C. Gupta vs N.K. Pandey, ; has approved the rule laid down (i) in Baleshwar Dass vs State of U.P, (ii) N.K. Chauhan vs State of Gujarat, ; and (iii) section B. Patwardhan vs State of Maharashtra. ; It has been consistently held in these cases that in the absence of seniority rule, the continuous officiation in the post should be the guiding factor for determining the seniority.
In a more recent decision in Vasant Kumar Jaiswal vs State of M.P., Sabyasachi Mukherji, J., has also reiterated the same principle.
The learned Judge said that in the absence of any statutory rule or executive memorandum or order for determination of seniority in a grade, the normal rule would be to determine the seniority on the basis of length in service.
Our attention was drawn to the decision of this Court in Dr. S.D. Choudhury vs State of Assam, in support of the contention that the order in which the Commission regularised the services of the Engineers should be the basis for determining their seniority.
In that case the appellants and respondent Nos. 4 to 6 were initially appointed as Assistant Professors under Regulation 3(e) of the Assam Public Service Commission Regulations on an officiating basis.
It was obligatory, in terms of that Regulation to consult the Service Commission, as soon as possible.
Their services were eventually regularised by the Service Commission in one batch and their inter se seniority list was fixed on the recommendations of the Commission.
The Commission recommended that it should be fixed as per the instructions of the Government under notification dated February 5, l964.
That notification provided among others that if the appointments of a number of persons are regularised in one batch then the inter se seniority of those persons should be according to the merit list of the Service Commission.
Even if the Service Commission does not give any merit list the appointing authority should request the Service Commission to indicate the order of preference of those persons.
Accordingly, the inter se seniority of the persons were fixed after consulting the Commission and in accordance with the rankings assigned to them in the merit PG NO 645 list of the Commission.
The High Court said that the seniority list was correctly prepared.
This Court dismissed the appeal against the judgment of the High Court.
In the course of the judgments, this Court observed (at p. 285): "5.
It is not in dispute that the appellants and respondents Nos. 4, 5 and 6 were initially appointed Assistant Professors under Regulation 3(e) of the Regulations, on an officiating basis to avoid delay, and it was obligatory, in terms of that regulation, to consult the Service Commission as soon as possible.
The appointments were thus defeasible, and could not give rise to any legal right in favour of the parties.
It is therefore futile to contend that as the appellants joined as Assistant Professors on an earlier date, they were entitled to rank senior to respondents Nos. 4, 5 and 6 irrespective of the result of the final recruitment through the Service Commission.
" This Court could not have taken into consideration the officiating service of the persons therein in view of the Government notification dated February 5, 1964 which specifically provided the principles for determining the seniority of persons whose services were regularised by the Service Commission.
Since all of them were regularised in one batch after reference to the Service Commission their inter se seniority had to be determined according to the merit list of the Commission.
The decision as to seniority in that case, therefore, rested on the specific notification of the Government.
We may also mention that in regard to officers of Delhi Municipal Corporation where there was ad hoc appointments followed by regularisation of service, the Delhi High Court has taken a consistent view that such persons should get their service in the ad hoc appointment for determining seniority in the absence of any specific rule to the contrary.
(See Municipal Corporation of Delhi vs K.K. Bhatta, AIR 1986 (LAB) I.C. 1489 at 1492.
So much as regards to general principle governing seniority in service jurisprudence.
There is, however, one other important and fundamental principle which should not be forgotten in any case.
The principle of counting service in favour one should not be violative of equality of opportunity enshrined in Article 14 and 16 of the Constitution.
If ad hoc appointment or temporary appointment is made without considering the claims of seniors in the cadre, the service rendered in such appointment should not PG NO 646 be counted for seniority in the cadre.
The length of service in ad hoc appointment or stop gap arrangement made in the exigencies of service without considering the claims of all the eligible and suitable persons in the cadre ought not be reckoned for the purpose of determining the seniority in the promotional cadre.
To give the benefit of such service to a favoured few would be contrary to the equality of opportunity enshrined in Article 14 and 16 of the Constitution.
But if the claims of all eligible candidates were considered at the time of ad hoc appointments and such appointments continued uninterruptedly till the regularisation of services by the Departmental Promotion Committee or the Public Service Commission there is no reason to exclude such service for determining the seniority.
Of course, if any statutory rule or executive order provides to the contrary, the rule or order will have supremacy.
In the absence of any rule or order the length of service should be the basis to determine the seniority .
This takes us to the last contention urged for the appellants in Appeal No. 528/1986.
The learned counsel tried to impeach the method by which the ad hoc appointments were made and in particular the ad hoc appointment of R.K. Kashyap respondent No. 3.
It was urged that on the date on which he was posted as Executive Engineer he did not have the required experience of five years in the Undertaking.
It was made good by taking into consideration his past service in other establishment before he joined the Undertaking.
The Undertaking then had no cadre rules of its own providing for such requirements.
It was, therefore, argued that it was wrong on the part of the Undertakings to have counted his past service before he joined the Undertaking to make good the deficiency in his service.
It is true that on the date on which respondent 3, and some others were initially considered and appointed as Executive Engineers, the Undertaking had no cadre rules of its own.
It however, followed the cadre rules of the general wing of the Corporation.
That cadre rules provided for counting such past service.
In our judgment, there was nothing wrong in following that cadre rules pending approval of its own cadre rules.
Those cadre rules were uniformly applied to all the then available candidates for considering them for ad hoc appointment.
The Undertaking made no discrimination.
There is indeed no dispute on this aspect.
Before the High Court, it was a common case of parties that ad hoc appointment was necessary pending finalisation of the cadre rules and approval by the Commission.
It was also a common case of parties that for the purpose of making ad hoc arrangements, the suitability of all the eligible officers was considered.
Moreover, the Undertaking was repeatedly requesting the PG NO 647 Commission to regularise the appointments by convening meeting of the Departmental Promotion Committee.
It is, therefore, not proper to find fault with those ad hoc appointments at this stage.
From the foregoing discussions and in the light of the decisions to which we have called attention, we have no hesitation in holding that the conclusion reached by learned judges of the Division Bench of the Delhi High Court is correct and does not call for any interference.
In the result, these appeals fail and are dismissed, but no order as to costs.
R.P.D. Appeals dismissed.

summary:
Section 92 of the Delhi Municipal Corporation Act empowers the appellant Undertaking to make appointments to category 'A ' posts after consultation with the I .P.S.C. However.
such consultation is not required if the appointment is for a period not exceeding one year.
In the absence of any regulation made by the Corporation with regard to the conditions of service of its employees, the Central Government has framed Delhi Municipal Corporation Service Regulation 1959.
Regulation 3 of which provides that these Regulations shall he applicable to all Municipal Officers and other Municipal employees whose pay is chargeable to the `General Account ' of the Municipal Fund.
The appellants as well as respondents, who were working as Assistant Engineers, were appointed as Executive Engineers on different dates for a period of one year or till the posts are Filled up in consultation with the Commission.
They all worked continuously in their respective posts till their services were regularised by the Commission with effect from 8 january, 1971.
Their seniority in the cadre of Executive Engineers was determined reflecting the respective rankings in the feeding cadre.
i.e., Assistant Engineer excluding the services rendered on ad hoc appointments.
The learned Single Judge of the Delhi High Court dismissed the writ petition, challenging the validity of seniority list, filed by the aggrieved officials.
On appeal the Division Bench of the High Court allowed the appeal holding that the determination of seniority of PG NO 633 PG NO 634 officers is not governed by any statutory rule and continuous officiation in the post should be the basis.
In the appeal by special leave before this Court it was argued by the appellants that since the Commission regularised the services of all Executive Engineers with effect from a common date, the inter se seniority in the lower cadre should be the proper basis in the higher cadre also.
On the contrary the respondent Executive Engineers contended that the continuous officiation in the post till regularisation should be the basis for determining the seniority.
The applicability of the Delhi Municipal Corporation Service Regulation 1959 to the employees of the Undertaking was also questioned.
Dismissing the appeal, this Court, HELD: (1) The Service Regulation 1959 applies only to those who were paid out of 'General Account ' and it has no application to the category of officers of the appellant Undertaking as the salary of the employees in the Undertaking is paid out of the account of the Undertaking and not from the 'General Account ' of the Municipal Fund.
[639E F] [2] In the absence of any rule or order the length of service should be the basis to determine the seniority.
[646D] (3) The judgments of Courts or observations made thereon are not to be read as statutes.
They are made in the setting of facts obtained in a particular case.
[643D] The principle of counting service in favour of one should not be violative of equality of opportunity enshrined in Articles 14 and 16 of the Constitution.
If ad hoc appointment or temporary appointment is made without considering the claims of seniors in the cadre, the service rendered in such appointment should not be counted for seniority in the cadre.
The length of service in ad hoc appointment or stop gap arrangement made in the exigencies of service without considering the claims of all the eligible and suitable persons in the cadre ought not be reckoned for the purpose of determining the seniority in the promotional cadre.
To give the benefit of such service to a favoured few would be contrary to the equality of opportunity enshrined in Articles 14 and 16 of the Constitution.
But if the claims of all eligible candidates were considered of the time of ad hoc appointments and such appointments continued uninterruptedly till the regularisation of services by the Departmental Promotion Committee or the Public Service Commission there is no PG NO 635 reason to exclude such service for determining the seniorlty.
Of course, if any statutory rule or executive order provides to the contrary, the rule or order will have supremacy.
[645G H; 646A C] Baleshwar Dass & Ors.
vs State of U.P, [1981] 1 SCR 449 at 469; A. Janardhan vs Union of India, ; = ; ; G.P. Doval vs Chief Secretary, Government of U.P. & Ors, ; ; C.S. Lamba vs Union of India, L1985] 3 SCR 431; G.C. Gupta vs N.K. Pandey, [1988] l SCC 316; N.K Chauhan vs State of Gujarat, [l977] l SCR 1037; S.B. Patwardhan vs State of Maharashtra, ; , referred to.
Ashok Gulati and Ors.
vs B.S. Jain and Ors, ; ; Dr. S.D. Choudhury vs State of Assam [l976] I SCC 283, distinguished.
Vasant Kumar Jaiswal vs State of M.P .
[l987] 4 SCC 450.
relied on.


judgement:
vil Appeal Nos. 207 208 (NT) of 1979.
From the Judgment and Order dated 10th August, 1977 of the Kerala High Court in T.R.C. Nos. 61 and 62 of 1976.
P.S. Poti and K.R. Nambiar for the Appellants.
T.S. Krishnamoorthy Iyer, S.B. Sawhney and V.B. Saharya for the Respondents.
The Judgment of the Court was delivered by section RANGANATHAN, J.
1.
A very interesting question as to the principles of interpretation of legislation by incorporation or references arises for consideration in these appeals arising out of certain assessments to sales tax in Kerala.
Section 9 of the Kerala General Sales Tax Act 1963 which came into force on 1.4.1963 granted exemption from sales tax on goods specified in the third Schedule to the said Act.
These included the following: 5.
Sugar as defined in item 1 of the First Schedule to the : 6.
Tobacco as defined in item 4 of the First Schedule to the and 7.
Cotton fabrics, silk fabrics woollen fabrics and rayon or artificial silk fabrics as defined in item Nos.
19. 20, 21 and 22 respectively of the First Schedule to the .
The question before us is whether, in respect of the assessment years 1971 72 and 1972 73, with which we are concerned, the exemption given to `cotton fabrics ' under item 7 above should be restricted to `cotton fabrics ' as defined in the Central Excises & Salt Act, 1944 (`the 1944 Act ') as it stood on 1.4.1963 or whether it would also cover goods falling under the said definition after its amendment in 1969.
Though we are concerned only with the interpretation of the Kerala General Sales Tax Act, 1963, it is necessary PG NO 605 to refer back to the earlier history of some Central as well as State legislations: (i) We start with the 1944 Act.
By this Act, excise duty was levied on the manufacture or production of various types of goods enumerated in the First Schedule to the Act.
Item 19 (originally item 12) of the First Schedule, as it stood on 1.4.1963, defined `cotton fabrics ' thus: "cotton fabrics `Cotton Fabrics ' mean all varieties of fabrics manufactured either wholly or partly from cotton and include dhoties, sarees, chadars, bed sheets, bed spreads, counter panes and table cloths, but do not include any such fabric xxx xxx xxx xxx Item 19 was amended by the Finance Act, 1969.
After amendment, it reads thus: "Cotton Fabrics `Cotton Fabrics ' means all varieties of fabrics manufactured either wholly or partly from cotton and includes dhoties, sarees, chaddars, bed sheets, bed spreads, counter panes, table cloths, embroidery in the piece, in strips or in motifs and fabrics impregnated or coated with preparations of cellulose derivatives or of other artificial plastic materials but does not include xxx xxx" (Underlining ourS ) The question set out earlier assumes importance because the respondents assessees deal in "P.V.C. Cloth", an item of goods which is clearly covered by the amended definition but perhaps, not by the original one.
(ii) In 1957, there were certain legislations of Parliament affecting the levy of sales tax and excise duty.
The first of these was the (C.S.T. Act) passed in pursuance of Article1e 286 (3) of the Constitution of India which reads thus: "Any law of a State shall, in so far as it imposes or authorises the imposition of, a tax on the sale or purchase PG NO 606 of goods declared by Parliament by law to be of special importance in inter state trade or commerce, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify.
" The C.S.T. Act received the assent of the President on 24.12.56.
section 14 of the Act declared certain goods to be goods of special importance in inter state trade or commerce.
(hereinafter referred to as `declared goods '.) These included, as on 1.4.1963, the following: "(ii a) cotton fabrics, as defined in Item No. 19 of the First Schedule to the Central Excises and Sait Act, 1944; xxx xxx xxx (vii) rayon or artificial silk fabrics, as defined in Item No. 22 of the First Schedule to the Central Excises and Salt Act, 1944(1 0f 1944) (viii) sugar, as defined in Item No. 1 of the First Schedule to the ( 1 of 1944) (ix) tobacco, as defined in Item No. 4 of the First Schedule to the ( 1 of 1944) (x) woollen fabrics, as defined in Item No. 21 of the First Schedule to the (xi) silk fabrics as defined in Item No 20 of the First Schedule to the .
The definitions of the above goods were thus related to their definitions under the 1944 Act.
section 15 of the Act imposed certain restrictions and conditions in regard to tax on sale or purchase of declared goods within a State.
It may be mentioned that this section, as originally enacted in 1956, had been amended w.e.f. 6.6.1957.
by Act 16 of 1957 and, again, by Act 31 of 1956, w.e.f.
1.10.1958.
(iii) About the same time as the C.S.T. Act, Parliament also enacted the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (`the 1957 Act ').
The statement of objects and reasons of this Act reads as follows: PG NO 607 " The object of this legislation is to impose additional duties of excise in replacement of the sales tax levied by the Union and the States on sugar, tobacco and mill made tex tiles and to distribute the net proceeds of these taxes, except the proceeds attributable to Union Territories, to the States.
The distribution of the proceeds of the additional duties broadly followed the pattern recommended by the Second Finance Commission.
Provision has been made that the States which levy a tax on the sale or purchase of these commodities after 1st April, 1958 to not participate in the distribution of the net proceeds.
Provision is made in the Act for including these goods in the category of goods declared to be of special importance in inter state trade or commerce so that, following the imposition of uniform duties of excise on them, the rates of sales tax, if levied by the State are subject from 1st April, 1958 to the restrictions in s 15 of the section 3 of this Act originally levied an additional excise duty on sugar tobacco, cotton fabrics, rayon or artificial silk and woollen fabrics and section 2(c) defined the above goods as having the meanings respectively assigned to them in item Nos. 8, 9, 12, 12A and 12B (subsequently changed as item 1, 4,19,12 and 22 respectively) of the First Schedule to the 1944 Act.
It ma be mentioned here that the Finance Act 1961 had amended section 14 of the C.S.T. Act by including, as item (xi): "silk fabrics as defined in item 20 of the First Schedule of the 1944 Act".
It also simultaneously amended the 1957 Act by adding a reference to `silk fabrics ' in section 3 (1), in the definition clause section 2 (c) as well in the Schedule.
However, in 1968 when the was amended against by deleting the reference to `silk fabrics '; there was no corresponding amendment in the 1957 Act.
The Finance (N0. , substituted the word "man made fabrics" for the words "rayon or artificial silk fabrics": w.e.f. 8.8.1977 and included a definition of he new expression in item 22 of the Schedule to the 1944 Act and the 1957 Act.
section 7 of the Act, as originally enacted, declared that the goods declared to by of special importance would, from 1.4.1968, be subject to the restrictions and conditions specified in section 15 of the .
This section was omitted, w.e.f. 1.10.1958.
by Act 31 of 1958 which also amended section 15 of the (iv) The levy of sales tax in Kerala was formerly governed by the (Act XI of 1125) PG NO 608 Malayalam Era 1125 corresponds to 1950 of the Gregorian Calendar.
This Act was amended by the General Sales Tax (Amendment) Ordinance, (No. 8 of 1957) w.e.f.
14.12.57, the Ordinance being replaced by the General Sales Tax (Amendment) Act VII of 1958 with retrospective effect from the same date.
This amendment Act inserted section 5A in the 1125 Act which exempted certain goods from the levy of sales tax.
Sub section (1) of this section read thus: "5A. Exemption of the tax on the sale of mill made textile (other than pure silk), tobacco and sugar: (1) The sale by any dealer of (i) mill made textile, other than pure silk, (ii) tobacco, and (iii) sugar; other than stock of such goods in his possession, custody or control immediately before the 14th day of December, 1957, shall, as from that date, be exempt from taxation under s . 3, sub s .
" Thus Act was replaced by the Kerala General Sales Tax Act, 1963 (`the 1963 Act '), as already mentioned w.e.f. 1.4.63.
(v) We have already referred to section 9 and item 7 of the Third Schedule to the 1963 Act.
The Kerala General Sales Tax (Second Amendment) Act, (Act 16 of 1967) amended item 7 of 1963 Act to reads as follow w.e.f. 1.9.1967; "7.
Cotton fabrics, woollen fabrics and rayon or artificial silk fabrics as defined in item nos.
19, 21 and 22 respectively of the First Schedule to the Central Excises & Salt Act, 1944.
In other words, the exemption granted to `silk fabrics ' was taken away mention may also be made that by reason of a later amendment, `silk fabrics ' was included as one of the items on which single point tax was leviable under the 1963 Act.
This item, in the First Schedule to the Act as it stood on 1.4.1980.
read: PG NO 609 "101 `Silk fabrics ', that is to say, all varieties of fabrics manufactured either wholly or partly from silk including embroidery in piece, in strips or in mofits, but not including such fabrics on which duty of excise is leviable under sub section (1) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act (Central Act 58 of 1957)".
(vi) Reference may also be made to one more enactment, though it has no direct bearing on the issue before us.
This is the (Central Act 40 of 1978).
This Act charged an additional duty of excise in respect of various goods specified in the Schedule to the Act over and above the duty chargeable on them under the 1944 Act.
These goods included "cotton fabrics" "silk fabrics", "woollen fabrics ,"man made fabrics" and "wool tops" as defined in items 19,320,21,22 and 43 of the First Schedule to the 1944 Act.
These are the relevant statutory provisions.
On these the question to be considered is: What is the effect of the mention of the definition of "cotton fabrics" given in the 1944 Act in the Schedule to the 1963 Act? Does it attract only the said definition as on 1.4 1963 or also the subsequent amendments thereto? To appreciate the contentions urged, it is necessary to make a brief reference to the principles of interpretation of an enactment which for purposes of convenience.
refers to or incorporates a provision of another.
These have been discussed in various earlier decision viz, Secretary of State vs Hindustan Cooperative Insurance Society Ltd., [1931] 58 I .A. 259, Collector of Customs vs Nathella Sampathu Chetty & another; , , Ram Sarup vs State, Ram Kirpal vs State.
[1970] 3 S.C.R, New Central Jute Mills Co. Ltd. vs The Assistant Collector. ; , State of Madhya Pradesh vs Narasimhan, , Bhajva vs Gopikabai, ; , Mahindra & Mahindra Ltd. vs Union, and Western Coal Fields vs Special Area Development Authority. ; It unnecessary to make a detailed reference to these decisions.
It is sufficient to say that they draw a distinction between referential legislation which merely contains a reference to or citation of, a provision of another statue and a piece of referential legislation which incorporates within itself a provision of another statute.
In the former case, the provisions of the second statue, along with all its amendments and variations from time to time, should be read into the first statute.
In the later case, the position will be as outlined in Narasimhan, [1976] 1 S.C.R. where after PG NO 610 referring to Secretary of State vs Hindustan Cooperative Insurance Society Ltd., [1931] 58 I.A. 259, this Court summed up the position thus: "On a consideration of these authorities, therefore, it seems that the following proposition emerges: Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act.
This principle, however, will not apply in the following cases: (a) where the subsequent Act and the previous Act are supplemental to each other; (b) where the two Acts are in pari materia; (c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and (d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act." Applying the above principles to the facts of the present case, the High Court in its judgment on a reference made to it under the 1963 Act (and reported in 4 1 S.T.C. 1) observed: "In the light of the principles thus formulated, it seems unnecessary for us to labour the point whether we are confronted in these cases with a "reference" or "citation" on the one hand, or an "incorporation" on the other, of the definition of `cotton fabrics ' in item 19 of the Schedule 1 of the Central Excise and Salt Act, into the provisions of Section 9 read with item No. 7 of the III Schedule of the General Sales Tax Act, 1963.
If the definition was merely by way of `reference or 'citation ', the referred or cited provision grows and shrinks with the changes in the parent.
Even in the case of an incorporated definition while the general principle is that the incorporated definition PG NO 611 remains static and is unaffected by the developments or fluctuations of the parental source from which it was incorporated, two of the well recognised exceptions formulated by the Supreme Court in State of M.P. vs M. V. Narasimhan; , seem to apply here, that is, exceptions (a) and (c), xxx.
The concept of `cotton fabrics ' in the seems to be integrally linked with the provisions of the General Sales Tax Act and we do not think that we would be justified in regarding the latter Act as unaffected by the growing concept of the term `cotton fabrics ' in the .
We feel too, that unless the extended definition of the is imported into the Sales Tax Act, the latter Act would become unworkable and ineffectual.
Sri Potti, learned counsel for the State of Kerala, submitted that the P.V.C. cloth manufactured by the respondents in this case was not entitled to exemption from sales tax if the earlier definition of the 1944 Act, before the amendment, were to apply.
He submitted that the 1963 Act has incorporated in its third schedule the definition of the 1944 Act as it stood at the time of its enactment and that this incorporation is unaffected by subsequent changes in the contested the correctness of the High Court 's observations that the concept of `cotton fabrics in the 1944 and 1963 Acts were integrally linked and that, unless the extended definitions of the former were imported into the latter, the latter Act would become unworkable and ineffectual.
According to him, the provisions of the CST Act and the 1957 Act have been unnecessarily brought into the discussion in order to forge a connection between the various enactments and in an attempt to lend strength to an argument that the exemption of an item of goods from the levy of sales tax by the State was correlated to the existence of a levy of additional excise duty in respect of those very goods under the 1957 Act.
He submits that this argument is not tenable and that there is no connection between the 1944 Act, the CST Act, the 1957 Act and the 1963 Act.
His submissions are these: (a) When the Kerala Act of 1125 M.E. was amended by Act VII of 1958 w.e.f. 14.12.1957, the Kerala State Legislature was fully alive to the proposals to introduce the CST Act and the 1957 Act; nevertheless, the description of items granted exemption from sales tax was worded differently and not correlated to the definitions of the 1944 Act; PG NO 612 (b) Silk fabrics were not eligible for exemption under the 1125 Act as amended in 1957 and remained liable to sales tax till 3 1.3.1963 though additional excise on them had been introduced w.e.f. 1.4.1963.
The exemption from sales tax was conferred only on 1.4.1963 by the 1963 Act.
Again, this exemption was taken away w.e.f.
1.9.1967 although such fabrics continued to be subject to additional excise duty.
Thus, though it is true that, between 14.12.1957 and 31.3.1961 there was sales tax but no additional excise duty on pure silk textiles and between 1.4.1863 and 31.8.1967 there was additional excise duty but no sales tax on silk fabrics, it is equally true that between 1.4.1961 and 31.3.1963 and again after 1.9.1967 they are liable to both sales tax and additional excise duty.
It is thus not possible to view the two levies as supplementary to, or inter dependent on, each other.
(c) The 1963 Act only incorporates a definition contained in the 1944 Act.
The 1957 Act is an independent Act, applicable to some of the goods to which the 1944 Act are applicable.
It has its own schedule, the descriptions in which need not be though they generally are identical with those in the schedule to the 1944 Act.
The 1944 and 1957 Acts may be somewhat inter linked but there is no justification to import that connection also for the purposes of the 1963 Act.
(d) The objects and reasons of the 1957 Act explicitly state that the levy of additional excise duty on goods thereunder does not preclude the State legislatures from levying any sales tax on only, such levy will be subject to the restrictions contained in the CST Act.
(e) It should not also be overlooked that the 1963 Act is an enactment of a State legislature.
To construe entry in its Schedule as authorising the applicability, not merely of the then current definition of the 1944 Act but its future amendments as well, will render it subject to the vice of excessive delegation.
In this context, our attention is drawn to the decisions of the Supreme Court in Shama Rao, Gwalior Rayon, 11974] 2 SCR 345 and International Cotton, To avoid such an infirmity we are asked to place a restrictive interpretation on the 1963 Act.
even assuming for purposes of argument that it may be capable of a wider interpretation .
PG NO 613 5.
There is some force in these contentions, but, after hearing both counsel, we are of opinion that the conclusion of the High Court should be upheld.
In the first place, we think it would be correct to say that the 1963 Act brings in the definitions of the 1944 act by way of reference or citation and not by way of incorporation.
For, a reading the Act shows that the Act intended to confer exemption on a number of goods set out in the Schedule.
Of these, since items 5 to 7 are defined in the 1944 Act, the Act refers to those definitions to ascertain the scope of these items.
There are no express words used by the statute which will justify an inference that the intention was to incorporate those definitions, as standing on that date, into the 1963 Act.
That apart, as pointed out by the High Court, the question whether it is an instance of reference or citation as contrasted with incorporation pales into significance if all the Central and State enactments referred to at the outset are really part of an integrated scheme evolved to achieve a particular purpose.
In this context, Sri Krishnamurthy Iyer, invited our attention to a passage from Hind Engineering Co. vs CST, [1973] 31 STC 115, dealing with an identical entry in regard to `cotton fabrics ' in Schedule of the Bombay Sales Tax Act, 1959, where a deivision bench of the Gujarat High Court traced the genesis of the exemption of `cotton fabrics ' from the liability to sales tax.
We do not think it necessary to extract the whole of it here, particularly as the provisions of the Bombay legislations in this context and their history are not identical with those of the Kerala statute.
It is clear, however, that the provisions of exemption from sales tax on the items with which we are concerned here and certain others cannot be understood in isolation but should be read in the background of certain historical developments pertaining to sales tax levy.
These may now be briefly referred to.
Article 286 of the Constitution of India imposed certain restrictions on the legislative powers of the States in the matter of levy of sales tax on sales taking place outside the State, sales in the course of import or export, sales in the course of interstate trade or commerce and sales of declared goods.
The Sales Tax Acts in force in several States were not in conformity with the provisions of the Constitution and attempts to bring those laws to be in conformity with these provisions gave rise to a lot of litigation.
This led to an amendment of Act.
Clause (2) of the article, as it stands, since 11th September, 1956, authorised Parliament to formulate principles for determining when sale or purchase of goods can be said to take place in the course of import or export or in the course of inter State trade or commerce Clause (3) was amended, in terms already set out to restrict the powers of PG NO 614 a State to impose sales or purchase tax on declared goods.
The C.S.T. Act, 1956 which came into force on 5:1.1957 formulated the principles referred to in Article 286(2).
As already mentioned, this Act was amended, alia, by Act 16 of 1957 w.e.f.
6.6. 1957 and by Act 31 of 1958 w.e.f.
1.10. 1958.
section 14 listed the goods which are considered to be of special importance in inter state trade or commerce which included the six items set out earlier.
section 15 of the Act, as originally enacted, was brought into force only w.e.f. 1.10.1958.
It stipulated that levy of sales tax on declared goods should not be at a rate exceeding 2% or be levied at more than one point in a State.
Before this section came into force, it was amended by Act 16 of 1957 which retained the first restriction and, so far as the second is concerned, provided that the tax should be levied only on the last sale or purchase inside the State and even that should not be levied when that last sale or purchase is in the course of inter state trade or commerce as defined.
Act 31 of 1958 amended section 15 to impose certain modified restrictions and conditions with the details of which we are not here concerned.
These restrictions clearly entailed loss of revenue to the States and it was considered expedient and desirable to compensate the State for the proportionate loss of sales tax incurred by them.
Thus, even before section 15 was brought into force, the Central Government decided to pass an Act to provide for the levy and collection of additional duties of excise on certain goods and for the distribution of a part of the net proceeds thereof among the State in pursuance of the principles of distribution recommended by the Second Finance Commission in its report dated 30.9.1957.
This proposal to levy additional duties of excise on certain special goods was a part and parcel of an integrated scheme under which sales tax levied at different rates by the States on certain goods was ultimately substituted by the levy of additional duties of excise on such goods and the States were compensated by payment of a part of the net proceeds of the said additional levy on such goods.
That this clearly was the genesis and object of the 1957 Act also appears from its objects and reasons set out earlier.
Some of the items liable to excise duty were picked out from the Schedule to the 1944 Act.
They were listed among the declared goods of section 14 of the CST Act and also made liable to additional excise duty under the 1957 Act.
A perusal of the lists under these three enactments show that out of the items listed in the Schedule to the 1944 Act, sugar, tobacco, cotton fabrics, rayon or artificial fabrics and woollen fabrics were categorised as declared goods and subjected to additional excise duty.
When the numerical order of these items in the 1944 Act (originally 8, 9, 12, 12A, 12B) came to be changed in 1960 (as 1, 4, 19, 22, 21) a corresponding change was effected in the 1957 Act.
PG NO 615 `Silk fabrics ' as defined in item 20 of the 1944 Act was included in 1961 in the CST Act and the 1957 Act.
The fact that `cotton fabrics ' though listed as item 12 in the Schedule to the 1944 Act was not brought into the list in section 14 till 1.10.1958 or that `silk fabrics ' was dropped from the list in section 14 w.e.f. 11.6.1968 though it continues in the Schedule to the 1944 Act does not alter the position that these three acts are interconnected and that certain goods taken out from the Schedule to the 1944 Act were to be subjected to the special treatment outlined in the CST Act and the 1957 Act.
This may be so, says Sri Potti, but there is no justification to bring the 1963 Act into this group.
His short point is that the State legislature is completely free within its domain.
Its power to levy sales tax includes a power to levy a tax on sales of declared goods as well.
Nor is such power inhibited by the levy of an additional excise duty on certain goods.
The 1957 amendment to the 1125 Act made no reference even to the 1944 Act.
The 1963 Act makes no reference either to the CST Act or to the 1957 Act.
Sri Potti emphasises, pointing out to the practical effects of the two legislations (the 1963 Act and the 1957 Act) to which attention has been invited already, that it was not the policy of the Kerala State legislature to exempt from sales tax goods which suffered additional excise duty.
The sales tax exemption is conferred on a totally independent basis.
It is not linked to the fluctuations in, or variation of, the treatment under the CST Act and the 1957 Act.
The description of items 5, 7 and 8, by simply incorporating the definitions then readily available in the 1944 Act (not the CST Act or the 1957 Act), was not intended to bring about the result that these definitions should be read in the light of the changes that they may undergo for the purposes of the 1944 Act.
Sri Potti is certainly correct in saying that the wordings of the Acts do not show an exact correlation between the liability to pay additional excise duty and the exemption from the levy of sales tax under the 1963 Act.
But it would not be correct to say that the provisions of the latter can be interpreted without reference to the other two legislations.
The CST Act has a definite impact on the manner and extent of sales tax levy, in so far as declared goods are concerned for such levy cannot transgress the limitations and restrictions of section 15 thereof.
section 15 applies in respect of goods listed in section 14 which, in turn is linked to the list in the 1944 Act.
The 1957 Act also has a bearing on the sales tax levy of various States.
By levying sales tax on an item covered by the Schedule to the 1957 Act, the State will have to forego its share on distribution of the proceeds of the additional excise duty levied.
Whether it PG NO 616 should impose sales tax on an item of declared goods, limited by the restrictions in section 15 of the CST Act and at the risk of losing a share in the additional excise duty levied in respect of those very items, is for the State to determine.
As pointed out by Sri Potti, it was open to the Kerala Legislature to decide and it did so also that on some items there should be one or other of the levies or both of them and to modify these levies depending upon its own financial exigencies.
But these factual or periodical variations do not detract from the basic reality that the policy of sales tax levy on declared goods has to keep in view, and be influenced by, the provisions of the CST Act and the 1957 Act.
The reference to the 1957 Act definitions for purposes of grant of exemption in the 1963 Act as enacted originally as well as when the latter was amended in 1967 and the specific reference to the 1957 Act when the First Schedule to the 1963 Act was amended in 1980 are quite significant in this context.
We therefore, think that, though the 1963 Act referred only to the definitions in the 1944 Act, the entries in the Schedule have to be juxtaposed into the broad pattern or scheme evolved by the 1956 57 enactments set out earlier in the judgment.
Doing so, and even assuming that the reference in the items of the Schedule to the definitions in the 1944 Act is by way of incorporation and not reference, one cannot escape the conclusion that the circumstances are covered by the exceptions outlined in Narasimhan; , They certainly fall within the scope of exception (a) mentioned therein and also fall within exception (c) if we read "unworkable and ineffectual" to take in also "unrealistic and impractical".
We do not find much substance in arguments of Shri POtti based on Shama Rao This devision really concerned a delegation of power to the executive Government to decide contents of a legislation by allowing it a latitude in fixing a date for its commencement.
It cannot be understood as an authority for the proposition that a State legislature can adopt only the existing provisions of a statutes passed by another legislature but not is future amendments and modifications.
In the first place, such a proposition will strike at the very root of the concept of referential legislation as explained in the decisions referred to above and the distinction drawn by them between cases of mere reference or citation on the one hand and of incorporation, on the other.
Secondly, in Shama Rao only three of the five Judges expressed an opinion about this aspect of the case.
Their view point was presented by Shelat J. in the following words: "The question then is whether in extending the Madras Act in the manner and to the extent it did under sec.
(2)(1) PG NO 617 of the Principal Act the Pondicherry legislature abdicated its legislative power in favour of the Madras legislature.
It is manifest that the Assembly refused to perform its legislative functions entrusted under the Act constituting it.
It may be that a mere refusal may not amount to abdication if the legislature instead of going through the full formality of legislation applies its mind to an existing statute enacted by another legislature for another jurisdiction, adopts such an Act and enacts to extend it to the territory under its jurisdiction.
In doing so, it may perhaps be said that it has laid down a policy to extend such an Act and directs the executive to apply and implement such an Act.
But when it not only adopts such an Act but also provides that the Act applicable to its territory shall be the Act amended in future by the other legislature, there is nothing for it to predicate what the amended Act would be.
Such a case would be clearly one of non application of mind and one of refusal to discharge the function entrusted to it by the Instrument constituting it.
It is difficult to see how such a case is not one of abdication or effacement in favour of another legislature at least in regard to that particular matter.
" This conclusion has been explained and distinguished in the Gwalior Rayon, case ; in which Khanna J and Mathew J delivered separate but concurring judgments.
Khanna J. said: It would appear from the above that the reason which prevailed with the majority in striking down the Pondicherry Act was the total surrender in the matter of sales tax legislation by the Pondicherry Legislature in favour of the Madras Legislature.
No such surrender is involved in the present case because of the Parliament having adopted in one particular respect the rate of local sales tax for the purpose of central sales tax.
Indeed, as mentioned earlier, the adoption of the local sales tax is in pursuance of a legislative policy induced by the desire to prevent evasion of the payment of central sales tax by discouraging inter State sales to unregistered dealers No such policy could be discerned in the Pondicherry Act which was struck down by this Court.
PG NO 618 Another distinction, though not very material, is that in the Pondicherry case the provisions of the Madras Act along with the subsequent amendments were made applicable to an area which was within the Union Territory of Pondicherry and not in Madras State.
As against that, in the present case we find that the Parliament has adopted the rate of local sales tax for certain purposes of the only for the territory of the State for which the Legislature of that State had prescribed the rate of sales tax.
The central sales tax in respect of the territory of a State is ultimately assigned to that State under artcle 269 of the Constitution and is imposed for the benefit of that State.
We would, therefore, hold that the appellants cannot derive much assistance from the above mentioned decision of this Court.
" Methew J. observed: We think that the principle of the ruling in Shama Rao vs Pondicherry, (supra) must be confined to the facts of the case.
It is doubtful whether there is any general principle which precludes either Parliament or a State legislature from adopting a law and the future amendments to the law passed respectively by a State legislature or Parliament and incorporating them in its legislation.
At any rate, there can be no such prohibition when the adoption is not of the entire corpus of law on a subject but only of a provision and its future amendments and that for a special reason or purpose .
" We think that the principle of the ruling in Shama Rao vs Pondicherry, (supra) must be confined to the facts of the case.
It is doubtful whether there is any general principle which precludes either Parliament or a State legislature from adopting a law and the future amendments to the law passed respectively by a State legislature or Parliament and incorporating them in its legislation.
At any rate, there can be no such prohibition when the adoption is not of the entire corpus of law on a subject but only of a provision and its future amendments and that for a special reason or purpose .
We have attempted to show that the 1963 Act, on a proper construction, does indicate a policy that certain items which are subject to additional excise duty should be left out of sales tax levy except in cases where there is a specific indication or provision of the Act to the contrary.
The Kerala State legislature cannot be said to have attracted the 1944 Act definitions with their future amendments blindly and without application of mind.
On the other hand.
it has been done in pursuance of a scheme, a purpose and a policy.
It cannot, therefore, be said that there has been any abdication of its legislative functions by the Kerala legislature.
For the above reasons, we are of opinion, that the High Court was right in the view it took viz. that the scope of the exemption available under item 7 of the third PG NO 619 Schedule to the 1963 Act will vary according to the scope of the corresponding entry in the Schedule to the 1944 Act as it stands at the relevant time.
So far as assessment years 1971 72 and 1972 73 are concerned, the definition of `cotton fabrics ' in item 19 of the Schedule to the 1944 Act, as amended by the Finance Act 1969 w.e.f. 1.4.1969, will apply.
Sri Krishnamurthy Iyyer for the assessees contended that it is possible to spell out, from certain passages in the judgment of the High Court where judicial decisions are discussed, an inference that the High Court was inclined to the view that PVC Cloth would be covered even by the previous unamended definition in the 1944 Act.
He also attempted to support this view by citing certain cases.
Sri Potti contested the correctness of both these arguments.
In the view we have taken on the main issue, we consider it unnecessary to go into this question.
In any event, the High Court has returned no specific answer to this issue which was clearly an aspect of the questions posed for its consideration by the Tribunal (at page 42 of the paper book) and, even if we had accepted the contention of Sri Potti that only the definition as on 1.4.1964 works apply, we would have perhaps only left it to the High Court to consider this aspect of the matter afresh.
Sri Krishnamurthy Iyer also submitted that the certificate of fitness of appeal granted by the High Court (page l15 of the paper book) is defective inasmuch as it does not specify the substantial questions of law which, in the view of the High Court, needed consideration by this Court.
But we do not think we need go into this aspect or reject the appeal as defective.
Since the appeal does involve a substantial question of law of great importance (which we have discussed above), we have proceeded to dispose of the appeal on merits.
In the result, the appeal fails and is dismissed.
We, however make no order as to costs.
R.P.D. Appeal dismissed.

dataset_name: IN-Abs

summary:
Section 9 read with Third Schedule item 7 of the Kerala General Sales Tax Act 1963 granted exemption from sales tax to certain items including cotton fabrics.
`Cotton fabrics ' was defined as having the same meaning as assigned to it in item 19 of the first Schedule to the .
This definition of `cotton fabrics ' in 1944 Act was amended in 1969 by the Finance Act 1969.
In 1957, Parliament enacted the and Additional Duties of Excise ((Goods of Special Importance) Act, 1957 affecting the levy of sales tax and excise duty.
Definition of `cotton fabrics ' occurring in the aforesaid Acts was also related to its definition under the 1944 Act.
The respondent assessee was manufacturing PVC cloth, an item of goods which was clearly covered by the amended definition but, perhaps, not by the original one.
He claimed exemption from sales tax in respect of assessment years 1971 72 and 1972 73.
On a reference made to the High Court under the 1963 Act, it observed that the concept of `cotton fabrics ' in the seemed to be integrally linked with the provisions of the (General Sales Tax Act) the Act under which the levy of sales tax was governed, prior to enforcement of the 1963 Act), and that it would not be regarding the latter Act as unaffected by the growing concept of the term `cotton fabrics ' in the Central Excise PG NO 601 PG NO 602 and Salt Act, and that unless the extended definition of the imported into the Sales Tax Act, the latter Act would become unworkable and ineffectual.
In the appeals by certificate to this Court, it was submitted on behalf of the State appellant that the PVC cloth manufactured by respondent was not entitled to exemption from sales tax if the earlier definition of the 1944 Act, before the amendment, was to apply, and that the 1963 Act has incorporated in its Third Schedule the definition of the 1944 Act as it stood at the time of its enactment and that this incorporation is unaffected by the subsequent changes made in the 1944 Act, that the concept of `cotton fabrics ' in the 1944 and 1963 Acts were not integrally linked and that it is not appropriate to say that unless the extended definition of the former were imported into the latter, the latter Act would become unworkable and ineffectual.
On the question whether the exemption given to `cotton fabrics ' in item 7 should be restricted to `cotton fabrics ' as defined in the 1944 Act as it stood on 1.4.1963 or whether it would also cover goods falling under the said definition after its amendment in 1969.
Dismissing the appeals, this Court, HElD: ( 1 ) It would be correct to say that the 1963 Act brings in the definitions of the 1944 Act by way of reference or citation and not by way of incorporation.
For a reading of the Act shows that the Act intended to confer exemption on a number of goods set out in the Schedule.
Of these, since items 5 to 7 are defined in the 1944, Act, the Act referes to those definitions to ascertain the scope of these items.
There are no express words used by the statute which will justify an inference that the intention was to incorporate those definitions, standing on that date into the 1963 Act.
[613A C] Secretary of State vs Hindustan Cooperative Insurance Society Ltd., [1931] 58 I.A. 259; Collector of Customs vs Nathella .Sampathu Chetty & another; , ; Ram Sarup y. State; , ; Ram Kirpal vs States [ ; ; Ne Central Jute Mills Co. Ltd. vs the Assistant Collector, ; ; Bhajva vs Gopikabai, ; ; Mahindra & Mahindra Ltd vs Union, ; and Western Coal Fields vs Special Area Development, Authority, ; , referred to.
PG NO 603 (2) `Silk fabrics ' as defined in item 20 of the 1944 Act was included in 1961 in the CST Act and the 1957 Act.
The fact that `cotton fabrics ' though listed as item 12 in the Schedule to the 1944 Act was not brought into the list in section 14 till 1.10.1958 or that `silk fabrics ' was dropped from the list in section 14 w.e.f. 11.6.1968 though it continues in the Schedule to the 1944 Act does not alter the position that these three Acts are inter connected and that certain goods taken out from the Schedule to the 1944 Act were to be subjected to the special treatment outlined in the CST Act and the 1957 Act.[615A B] (3) Though the 1963 Act referred only to the definitions in the 1944 Act, the entries in the Schedule have to be juxtaposed into the broad pattern or scheme evolved by the 1956 57 enactments.
Even assuming that the reference in the items of the Schedule to the definitions in the 1944 Act is by way of incorporation and not reference, one cannot escape the conclusion that the circumstances are covered by the exceptions outlined in the decision of this Court in State of Madhya Pradesh vs Narasimhan! ; They certainly fall within the scope of exception (a) mentioned therein and also fall within exception (c) if `unworkable and ineffectual ' are read to take in also `unrealistic and impractical '.
[616D E] (3) The 1963 Act on a proper constructions does indicate a policy that certain; items which arc subject to additional excise duty should be left out of sales tax levy except in cases where there is a specific indication or provision of the Act to the contrary.
The Kerala State legislature cannot be said to have attracted the 1944 Act definition with their future amendments blindly and without application of mind.
On the other hand, it has been done in pursuance of a scheme, a purpose and a policy.
It cannot, therefore.
be said that there has been any abdication of its legislative functions by the Kerala Legislature.
[618F G] B .
Shama Rao vs The Union Territory of Pondicherry ; , distinguished.
Gwalior Rayon Silk Mfg.
(Wvg.) Co. Lnd.
vs The Asslstant Commissioner of Sale 's Tax and Ors., , referred to.
(5) The High Court was right in the view it took viz., that the scope of the exemption available under item 7 of the Third Schedule to the 1963 Act will vary according to the scope of the corresponding entry in the Schedule to the 1944 Act as it stands at the relevant time.
So far as assessment years 1971 72 and 1972 73 are concerned the definition of cotton fabrics in item 19 of the Schedule to PG NO 604 the 1944 Act, as amended by the Finance Act 1969 w.e.f. 1.4.1969, will apply.
[618H; 619A B]