judgement:
6 etc.
Civil Appeal No. 1527 from the Judgment and Order dated 7.8.1984 of the Andhra Pradesh High Court in Writ petition No. 8173 of 1984.
A.K. Ganguly.
M.B. Shetye, A. Subha Rao, B, Kanta Rao, T.V.S.N. Chari, Ms. Bharathi Reddy and Ms. Promila for the appearing parties.
as amended by Act 24 of 1994, providing for imposition of entertainments tax it) respect of entertainments held in cinema theatres located in the State of Andhra Pradesh.
The Act has been enacted to provide for the levy of taxes on amusements and other attainments.
Prior to January 1. 1984, Section 4 of the Act provided for levy of entertainment tax at a rate fixed on the basis of percentage of the payment made by a person for admission to any entertainment.
In addition, there was a provision in Section 4 A for levy of a fixed amount, by way of "show tax", for each show.
By Act 59 of 1976, Section 4 C was introduced in the Act and Section 5 of the Act was substituted.
under Section 4 C, it was provided that in respect of entertain 623 ments held within tile jurisdiction of any local authority whose population did not exceed 25,000, a tax for every entertainment show would be levied, not on the basis of each payment for admission, but at a certain percentage of the gross collection capacity per show.
The percentages for such levy were fixed according to the population of the local authority within the jurisdiction of which the entertainments were held. 'Gross collection capacity per show was defined in the Explanation to Section 4 C to mean the notional aggregate of all payments for admission the proprietor would realise per show, if all the seats or accommodation as determined by the licensing authority under the Andhra Pradesh Cinemas (Regulation) Act, 1966 in respect of the place of entertainment are occupied, and calculated at the maximum rate of payments for admission as determined by the said licensing authority.
The levy of tax in the manner as prescribed under Section 4 C could be dispensed with if the proprietor of the theatre opted for the composition scheme contemplated by Section 5 whereunder it was open to a proprietor to enter into an agreement with the prescribed authority to compound the tax payable under Section 4 C for a fixed sum which was to be arrived at in accordance with the formula prescribed under Section 5.
According to this formula, the tax was payable on the basis of a percentage of the gross collection capacity per show for the fixed rounds of shows for the whole year and the number of shows was fixed on the basis of the number of shows exhibited in the previous year.
This arrangement continued till December 31, 1983, whereafter the provisions of Sections 4.4 A and 5 were amended by Act No. 24 of 1984.
The provisions of Sections 4,4 A and 5, as amended by Act 24 of 1984, were as follows "Section 4.
(1) There shall be levied and paid to the State Government a tax on the gross collection capacity on every show (hereinafter referred to as the entertainments tax) in respect of entertainments held in the theatres specified in column (2) of the table below and located in the located areas specified in the corresponding entry in column (1) of the said table, calculated at the rates specified in the corresponding entry in column (3) thereof.
THE TABLE __________________________________________________________ Local Area.
Theatre Rate of tax on the gross collection ca pacity per show _________________________________________________________ (1) (2) (3) _________________________________________________________ 624 (a) Municipal corporations (i)Air conditioned 29 per cent and the Secunderabad Cantonment area and (ii) Air cooled 28 per cent the contiguous area (iii)Ordinary 25 per cent thereof.
(other than air conditioned and air cooled) (b) Selection grade muni (i) Air conditioned 28 per cent cipalities and contiguors area of (ii)Air cooled 27 per cent two Kilometres (iii)ordinary (other 24 per cent thereof.
than air conditioned 27 per cent and air cooled) (c) Special tirade munici (i) Air conditioned 27 per cent palities and contiguous (ii) Air cooled 26 per cent area of two Kilometres (iii) Ordinary 23 per cent thereof.
(other than air conditioned and air cooled) (d) First grade munici palities and conti. (i) Air conditioned 26 per cent guous area of two (ii) Air cooled 25 per cent Kilometres thereof.
(iii) Ordinary (other 22 per cent than air conditioned and air cooled) (e) Second grade munici All categories 21 per cent palities and contiguous area of two Kilometres thereof.
(f) Third grade municipalities, All categories 20 per cent and contiguous area of two Kilometres thereof.
(g) Gram panchayats, selec (i) Permanent and 19 per cent tion grade gram panchayats, semi permanent 20 per cent townships and any other (ii) Touring and local areas.
temporary Explanation.
For the purpose of this section and section 5, the term 'gross collection capacity per show ' shall mean the notional aggregate of all payments for, admission, the proprietor would realise per show if all the seats or accommodation as determined by 625 the licensing authority under the Andhra Pradesh Cinemas (Regulation) Act, 1955, in respect of the place of entertainment are occupied and calculated at the maximum rate of payments for admission as determined by the said licensing authority.
The amount of tax under sub section (1) shall be payable by the proprietor on the actual number of shows held by him in a week." "Section 4 A. (1) In addition to the tax under Section 4, there shall be levied and paid to the State Government in the case of entertain ments held in the local areas specified in column (1) of the Table below, a tax calculated at the rates specified in the corresponding entry in column (2) thereof; THE TABLE Local Areas Rate of tax for every show (a) Municipal Corporation and the Six rupees Secunderabad cantonment area and contiguous area of two Kilometers thereof.
(b) Selection grade, Special grade and the Six rupees first grade municipalities and contiguous area of two kilometers thereof.
(c) Second grade and Third grade Four rupees municipalities and contiguous area of two kilometers thereof.
(d) Gram Panchayats, selection grade Two rupees.
gram panchayats, townships and any other local areas.
(2) The tax leviable under sub section (1) shall be recoverable from the proprietor.
(3) The provisions of this Act other than Sections 4, 6 and 13 shall, so far as may be, apply in relation to the tax payable under subsection (1) as they apply in relation to th e tax payable under Section 4 " 626 "Section 5.
( 1) In lieu of the tax payable under section 4.
in the case of the entertainments held in the theatres specified in column (2) of the table below and located in the local areas specified in the corresponding entry in column (1) of the said table, the proprietor thereof may, at his option and subject to such conditions as may be prescribed, pay the amount of tax to the State Government every week as specified in the corresponding entry in column (3) thereof : THE TABLE Local Area Theatre Amount of tax (1) (2) (3) (a) Municipal corpora (i) Air conditioned 24 per cent tions and the of the gross Secunderabad canton collection capacity ment area and the per show multi contiguous area of plied by 22 two kilometrers thereof.
(ii) Air cooled 23per cent of the gross collection capacity per show multiplied by 22.
(iii) Ordinary 20 per cent of the (other than air gross collection conditioned and capacity per show air cooled) multiplied by 22 (b)Selection grade muni (i) Air conditi 23 per cent of the cipalities and contiguous aned gross collection area of two kilometrers show multiplied by thereof.
(ii) Air cooled 22 per cent of the gross collec tion capacity per show multiplied by 22.
(iii) Ordinary 19 per cent of the (other than air gross collection conditioned and capacity per air cooled show multiplied by 22.
(c)Special grade munici (i) Air conditi 22 per cent of the 627 palities and contiguous oned gross show multi area of two kilo lied by 21.
metrers thereof.
(ii) Air cooled 21 per cent of the gross collection capacity per show multiplied by 21.
(iii) Ordinary 18 per cent of the (other than air gross collection conditioned and capacity per show air cooled) multiplied by 21.
(d)First grade municipali (i) Air conditi 21 per cent of ties and contiguous oned gross show area of two kilo multilied by 21.
metrers thereof.
(ii) Air cooled 20 per cent of the gross collection capacity per show multiplied by 21.
(iii) Ordinary 17 per cent of the (other than air gross collection conditioned and capacity per show air colled) multiplied by 21.
(e) Second grade muni All cate ores 16 per cent of the cipalities and conti gross collection guors area of two capacity per Kilometres there of show.
(f) Third grade muni All categores 15 per cent of the cipalities and gross Collection contiguous area of capacity per show two Kilometres multiplied by 17.
thereof.
(g) Gram panchayats, (i) Permanent 15 per cent of the selection grade gram and semi gross collection panchayats, townships permanent capacity per and any other show multi local areas.
plied by 14.
(ii) Touring 14 per cent of the and temporary gross collection capacity per show multiplied by 7. 628 Explanation.
For the purposes of computing the gross collection capacity per show in respect of any place of entertainment, the maximum seating capacity or accommodation and the maximum rate of payment for admission determined by the licensing authority under the Andhra Pradesh Cinemas (Regulation) Act, 1955, as on the date when the proprietor is permitted to pay tax under this section shall be taken into account.
(2)The amount of tax under sub section (1) shall be payable by the proprietor irrespective of the actual number of shows held by him in a week.
(3)Any proprietor who opts to pay tax under this section shall apply in the prescribed form to the prescribed authority to be permitted to pay the tax under this section.
(4)On being so permitted, such proprietor shall pay the tax for every week as specified in sub section (1).
(5)The option permitted under this section shall continue to be in force till the end of the financial year in which such option is permitted.
(6)It shall be lawful for the prescribed authority to vary the amount of tax payable by the proprietor under sub section (1) during the period of option permitted under this section any time, if there is an increase in the gross collection capacity per show in respect of the place of entertainment by virtue of an upward revision of the rate of payment for admission therein or of the seating capacity or accommodation thereof or where the local area in respect of which permission is granted is upgraded or if it is found for any reason that the amount of tax has been fixed lower than the correct amount.
(7)Every proprietor who has been permitted to pay the tax under this section shall intimate to the prescribed authority forthwith such increase in the gross collection capacity per show in respect of the place of entertainment, failing which it shall be open to the pre scribed authority by giving fifteen days notice to cancel the option so permitted.
629 (8)Where a proprietor fails to pay the amount of tax on the due date, such amount of tax shall be recoverable with interest calculated at such rate as may be prescribed.
(9) The amount of tax due under this section shall be rounded of to the nearest rupee and for this purpose, where such amount contains part of a rupee consisting of paise, then if such part if fifty paise or more it shall be increased to one rupee and if such part is less then fifty paise, it shall be ignored.
" As a result of the said amendments, the earlier mode of levy of tax on the basis of the percentage of each payment for admission prescribed in Section 4 was replaced by a mode similar to that provided in Section 4 C, i.e., on the basis as prescribed percentage of the gross collection capacity per show.
In the table appended below sub section (1) of section 4 rates were fixed on the basis of a percentage of the gross collection capacity per show varying with the category of the local area in which the theatre was situated as well as on the nature of the theatre, viz. air conditioned and air cooled or ordinary (other than air conditioned and air cooled) or permanent, semi permanent including touring and temporary theatres.
In the Explanation to sub section (1) of section 4, the term gross collection capacity per show ' was defined in the same terms as in the Explanation to Section 4 C, to mean the full collection per show if all the seats in the theatre are occupied.
In sub section (2) of section 4, it was specifically provided that the amount of tax under sub section (1) shall be payable by the proprietor on the actual number of shows held by him in a week.
Section 5 gave an option to the proprietor to pay a weekly consolidated amount irrespective of the number of shows actually held by him and the said amount was fixed on the basis of the prescribed number of shows per week.
The number of shows varied with the nature of the theatre as well as the category of the local area in which it was situate.
In section 4 A, a fixed amount was leviable by way of show tax on each show.
A number of writ petitions were filed in the High Court to challenge the validity of sections 4, 4 A and 5 of the Act, as amended by Act 24 of 1984.
The said writ petitions were decided by a division bench of the High Court by judgment dated July 19, 1984.
The constitutional validity of the provisions was challenged on three grounds, viz. : (i) the levy of entertainment tax on the basis of gross collection capacity without reference to the actual amount collected or the actual number of tickets sold or the number of persons admitted was ultra vires the legislative power 630 conferred on the State Legislature under entry 62 of List II of the Seventh Schedule; (ii) section 4 was hit by Article 14 of the Constitution inasmuch as by treating unequals as equals, it gave rise to discrirmination amongst different theatres situate within the same local area; and (iii) the levy of entertainment tax under section 4 being exproprietory amounts to an unreasonable restriction on the right guaranteed to the petitioners by Article 19 (1) of the Constitution, and was not saved by clause (6) of Article 19.
Relying upon the decisions of this Court in Western India Theatres vs Contonment Board, 1959 Supp. 2 SCR 63, Y. V. Srinivasamurthy vs State of Mysore, AIR 1959 SC 894, and State of Bombay vs R.M.D. Chamarbaugwala, ; , the High Court has held that the State Legislature was competent to levy the impugned tax under entry 62 of list 11 of the Seventh Schedule to the Constitution since the said head of legislative power empowers imposition of tax upon entertainments and amusements and not on the persons entertained or the persons provided amusement and it has to be paid by the persons who provides the entertainment or amusement.
The High Court further held that so long as the tax levied retains the character of entertainment tax, the Legislature is competent to adopt such basis or such measure, or such method of levy, as it thinks appropriate.
The High Court rejected the contention that the only method in which Legislature can levy the entertainment tax is that prescribed in the old Section 4, i.e., on the basis of the payment of admission.
The challenge on the around of Article 14 was negatived by the High Court on the view that wide discretion is allowed to the Legislature in the matter of classification and in the matter of selection of persons to be taxed and that the two fold classification made by section 4 could not be said to be either discriminatory or arbitrary much less could it be said that it metes out hostile discrimination to certain theatres.
The High Court also observed that since it was not possible to predicate absolute equality between two theatres, and also because the situation and economics of each theatre are different, it is impossible to expect, or call upon the Legislature to evolve such classification which would meet every conceivable case and which would not result in prejudice even to a single theatre.
It was observed that different rates have been prescribed for different local areas and for different types of theatres, i.e. ordinary, air cooled and air conditioned and the Legislature took note of the fact that rate of occupancy in villages will be lower compared to towns, and similarly, in bigger towns there will be greater rate of occupancy, and finally in cities, the rate of occupancy would be even higher and it could not be said that this expectation was unrealistic, or seunreasonable as to call for interference by the court.
As regards the challenge based on Article 19 (1) (g), the High Court has taken note of the letter dated July 26, 1983 addressed by the Andhra Pradesh Film Chamber of Commerce, to the Hon 'ble Chief Minister of Andhra Pradesh wherein the exhibitors not only asked 631 tax which suggestion was accepted by the Government with certain modifications varying from 2 to 4% over the rates suggested by the Association.
The High Court observed that the rates of tax that were prescribed under section 4 based on an average expected occupancy rate of less than 50 per cent to 66 per cent, could not be said to be either unreasonable or exproprietory.
The High Court, however, held that the agreements which had already been entered into by the proprietors of cinema theatres under section 5, as it stood prior to January 1, 1984, would be effective and valid for the period for which they were entered into.
The High Court has also observed that merely because the form for exercise of option, as contemplated under sub section (3) of section 5, had not been prescribed, it could not be said that section 5 had not come into operation or was unenforceable and that it was open for the proprietor to send an intimation on an ordinary paper and the authority would be bound to treat it as proper intimation.
The High Court rejected the contention that section 5 was discriminatory inasmuch as it did not provide for reduction of the composition amount in case of reduction of seating capacity of a theatre, during the period of one year for which the option was exercised although under sub section (6) of section 5 the provision had been made for enhancement of the composition amount in case the seating capacity/accommodation or the rates of payment for admission were enhanced.
The High Court observed that section 5 was only optional and no one was compelled to be governed by it or to opt for the composition scheme contained in section 5 and that according to the said scheme the option once exercised was in force till the end of the financial year in which such option was permitted and that if a person opts to be governed by section 5 he does so with his eyes open and he must be deemed to have accepted all the conditions and features of the scheme and it was not open to him to say that he would avail of the beneficial provisions of the scheme, while rejecting those features which are not advantageous to him.
C.A.Nos.
4642 47/84,193 221/85,222/85, 223/85,224 28/85. 229, 232 34/ 85, 1468/85 and 1469 70/85 have been filed against the said decision of the High Court dated July 19, 1984.
C.A. Nos. 5722/85, 1527/86, and SLP (C) No. 3127/ 85 have been filed against the decision of the High Court dated August 7, 1984 which is based on the earlier decision dated July 19, 1984 and similarly C.A. Nos.
1858/89 and 4798/89 are directed against the decisions dated February 12, 1986 and March 30, 1998 based on the earlier decision dated July 19, 1984.
During the pendency of these appeals, the Act was amended by A.P. Act 23 of 1988 and A.P. Act 16 of 1991 whereby the Tables below Sections 4,4 A and 5 were substituted and sub Section (6 A) was inserted in Section 5 whereby 632 provision was made for reduction of the amount of tax payable by the proprietor during the financial year if there is a reduction in the seating capacity or in the accommodation of the place of entertainment at any time during the period of six months commencing from the 1st day of April and ending with 30th day of September or from the 1st day of October and ending with 31st day of March of any financial year.
The learned counsel appearing for the appellants have assailed the constitutional validity of sections 4 and 5 on two grounds, viz. : (1) that the impugned provisions do not fall within the ambit of the legislative power conferred on the State Legislature under Entry 62 of List II of the Seventh Schedule of the Constitution , and (2) that the impugned provisions were violative of the right to equality guaranteed under Article 14 of the Constitution inasmuch as they treated unequals as equal by imposing tax at a uniform rate on a particular class of cinema theatres irrespective of their location and occupancy.
While considering the question as to legislative competence of the State Legislature, it is necessary to bear in mind that the impugned provisions provide fir imposition of a tax and a tax has two distinct elements, viz., subject of the tax and the measure of the tax.
The subject of the tax is the person, thing or activity on which the tax is imposed, and the measure of the tax is the standard by which the amount of tax is measured.
The competence of the Legislature to enact a law imposing a tax under a particular head of the legislative list has to be examined in the context of the subject of the tax.
If the subject of the tax falls within the ambit of the legislative power conferred by the head of legislative entry, it would be within the competence of the Legislature to impose such a tax.
It is, therefore, necessary to examine the scope of the legislative entry, viz., Entry 62 of List II, which is invoked in support of the competence of the State Legislature to impose the tax and ascertain whether the subject of the tax imposed by the impugned provisions falls within the ambit of the said entry.
Entry 62 of List 11 is as follows "62.
Taxes on luxuries, including taxes on entertainments, amusements, betting and gambling The said entry is in pari materia with entry 50 of the Provincial List in the Seventh Schedule to the Government of India Act, 1935.
Construing the said entry, this Court, in the Western India Theatres vs Cantonment Board (supra), has rejected the contention that the entry contemplates a law imposing taxes on persons who receive or enjoy the luxuries or the entertainments or the amusements 633 and has held "The entry contemplates luxuries, entertainments and amusements as objects on which the tax is to be imposed. . .
The entry, a,,, we have said, contemplates a law with respect to the matters regarded as objects and law which imposes tax on the act of entertaining is within the entry whether it falls on the giver or the receiver of that entertainment." (p.69) In that case, the Cantonment Board had imposed entertainment tax of Rs. 10 per show on the cinema houses of the appellant in the said appeal and Rs. 5 per show on others.
Upholding the said imposition this Court has held "It is a tax imposed on every show, that is to say, on every instance of the exercise of a particular trade, calling or employment.
If there is no show, there is no tax. .
The impugned tax is a tax on the entertainment resulting in a show".
(p. 69 70) Similarly, in Y. V. Srinivasamurthy vs State of Mysore (supra), upholding the provisions of the Mysore Cinematograph Shows Act, 1951 enacted under the Constitution, which authorised levy of tax on conematograph shows at rates prescribed in a rising scale according to the seating accommodation and the cities where the cinematograph show was held, this Court following the decision in Western India Theatres case (supra) held that the said Act was validly enacted in exercise of the legislative power conferred by entry 62 of List II.
In the instant case, we find that prior to the enactment of Act 24 of 1984, Section 4 provided for levy of entertainment tax on the basis of each payment for admission to the cinema theatre and under Section 4 C, in respect of entertainments held within the jurisdiction of a local authority whose population did not exceed 25,000 the tax was levied on the basis of the prescribed percentage of the gross collection capacity per show.
In other words, there were two modes for levy of the tax, one on the basis of the actual number of persons admitted to each show and the other on the basis of the percentage of the gross collection capacity per show.
As a result of the amendments introduced by Act 24 of 1984, the system for levy of tax on the basis of number of persons actually admitted to each show was dispensed with and the tax was to be levied on the basis of the percentage of the gross collection capacity per show and different percentages were prescribed depending on the type of the theatre and the nature of the local area where it was situated.
Under section 5, an option was given to pay a tax on the basis of the 634 prescribed percentage fixed for a fixed number of shows in a week irrespective of the number of shows actually held.
It is not disputed that the tax as it was being levied prior to January 1, 1984, i.e, before the amendment of Section 4 by Act 24 of 1984, was a tax on entertainment falling within the ambit of entry 62 of List 11.
The question is whether the alteration in the said mode of levy of tax by Act 24 of 1984 has the effect of altering the nature of the tax in a way that it has ceased to be a tax on entertainments and falls beyond the field of legislative competence conferred on the State Legislature by Entry 62 of List 11.
In our view, the said question must be answered in the negative.
The fact that instead of tax being levied on the basis of the payment for admission made by the persons actually admitted in the theatre it is being levied on the basis of the gross collection capacity per show calculated on the basis of the notional aggregate of all the payments for admission which the proprietor would realise per show if all the seats or accommodation in respect of the place of entertainment are occupied and calculated at the maximum rate of payments for admission, would not, in our opinion, alter the nature of the tax or the subject matter of the tax which continues to be a tax on entertainment.
The mode of levy based on 'per payment for admission ' prescribed under Section 4(1) prior to amendment by Act 24 of 1984 necessitated enquiry into the number of shows held at the theatre and the number of persons admitted to a cinematheatre for each show and gave room for abuse both on the part of proprietor as well as other officers incharge of assessment and collection of tax.
The mode of levy or measure of the tax prescribed under section 4(1), and substituted by Act 24 of 1984, is a more convenient mode of levy of the tax inasmuch as it dispenses with the need to verify or enquire into the number of persons admitted to each show and to verify the correctness or otherwise of the return submitted by the proprietor containing the number of persons admitted to each show and the amount of tax collected.
Prior to the enactment of Act 24 of 1984, tax was leviable on the basis of either of the two modes under Section 4(1) and4 C.
On an examination of the rates prescribed under both the modes, the High Court found that under the system of consolidated levy prescribed under Section 4 C the proprietor could break even if the average rate of occupancy was 40%.
As regards the rates prescribed under Section 4 and 5 as amended by Act 24 of 1984, the High Court has observed that the said rates are based on an average expected occupancy rate of less than 50% or 66% depending upon the area in which the theatre is situated.
This would mean that the entertainment tax that would be collected over and above the average occupancy rate would constitute the profit of the proprietor.
In the circumstances, it cannot be said that the adoption of the system of consolidated levy in Section 4(1) as amended by Act 24 of 1984 alters the nature of tax and it has ceased to be a tax on entertainments.
635 It has been urged that since both the modes of levy of tax were prevalent prior to the enactment of Act 24 of 1984, an option should have been given to the proprietor of a cinema theatre to choose between either of the two modes and that under the impugned provisions the choice is confined to two modes of assessment under the same system of consolidated levy based on the gross collection capacity per show, one on the basis on the gross collection capacity per show, under Section 4(1) and other on the basis of gross collection capacity per show for a prescribed number of shows per week under section 5.
We find no substance in this contention.
Once it is held that tax on entertainment could be levied by either of the two modes, viz., per payment of admission or gross collection capacity per show, it is for the legislature to decide the particular mode or modes of levy to be adopted and whether a choice should be available to the proprietor of the cinema theatre in this regard.
The legislature does not transgress the limits of its legislative power conferred on it under Entry 02 of List 11 if it decides that consolidated levy on the basis of gross collection capacity per show shall be the only mode for levy of tax on entertainments.
We are, therefore, unable to accept the contention urged on behalf of the appellants that the impugned provisions contained in Section 4 and 5 as amended by Act 24 of 1984 are ultra vires the legislative power conferred on the State Legislature under Entry 62 of List II.
The challenge to the impugned provisions on the basis of Article 14 is grounded on the principle that discrimination would result if unequals are treated equally are reliance is placed on the decision of this Court in K. T Moopil Nair vs The State of Kerala & Anr, ; It has been urged that under section 4, as substituted by Act 24 of 1984, a uniform rate has been prescribed for cinema theatres of a particular class situate in different parts of the same local area although the average rate of occupancy in the cinema theatres located in different parts of the same local area is not the same and a cinema theatre which is located in the central part of the local area would have better rate of occupancy as compared to a theatre located in a remote part and further that the occupancy in the theatre depends on various of the factors which have not been taken into account.
We find it difficult to accept the contention.
Article 14 enjoins the State not to deny to any person equality before the law or the equal protection of the laws.
The phrase "equality before the law" contains the declaration of equality of the civil rights of all persons within the territories of India.
It is a basic principle of republicanism.
The phrase "equal protection of laws" is adopted from the Fourteenth Amendment to U.S. Constitution.
The right 636 conferred by Article 14 postulates that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
Since the State, in exercise of its governmental power, has, of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its policies, it is recognised that the State must possess the power of distinguishing and classifying persons or things to be subjected to such laws.
It is, however, required that the classification must satisfy two conditions namely, (i) it is founded on an intelligible differentia which distinguishes those that are grouped together from others; and (ii) the differentia must have a rational relation to the object sought to be achieved by the Act.
It is not the requirement that the classification should be scientifically perfect or logically complete.
Classification would be justified if it is not palpably arbitrary.
[See: Re Special Courts Bill, at pp.
534 5361.
It there is equality and uniformity within each group, the law will not be condemned as discriminative, thou oh due to some fortuitous circumstance arising out of a peculiar situation some included in a class get and advantage over others, so long as they are not singled out for special treatment.
[See: Khandige Sham Bhat vs Agricultural Income Tax Officer, ; at p. 8 171 Since in the present case we are dealing with a taxation measure it is necessary to point out that in the field of taxation the decisions of this Court have permitted the legislature to exercise an extremely wide direcretion in classifying items for tax purposes, so long as it refrains from clear and hostile discrimination against particular persons or classes.
[See: East India Tobacco Co. vs State of A.P., 19631 1 SCR 404, at p. 411, P.M. Ashwathanarayanan Shetty vs State of karnataka, 1988, Supp.
3 SCR 155, at p. 188, Federation of Hotel & Restaurant Association of India vs Union of India, , at p. 949, Kerala Hotel & Restaurant Association vs State of Kerala, ; , at p. 530, and Gannon Dunkerley and Co. vs State of Rajasthan, , at p. 3971.
Reference, in this context, may also be made to the decision of the U.S. Supreme Court in San Antonio Independent School District vs Bodrigues, 41 at p. 41, wherein Justice Stewart, speaking for the majority has observed "No scheme of taxation, whether the tax is imposed on property, income or purchases of goods and services, has yet been devised which is free of all discriminatory impact.
In such a complex arena in which no perfect alternatives exist, the court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.
" 637 Just a difference in treatment of persons similarly situate leads of discrimination, so also discrimination can arise if persons who are unequals, i.e. differently placed, are treated similarly.
In such a case failure on the part of the legislature to classify the persons who are dissimilar in separate categories and applying the same law, irrespective of the differences, brings about the same consequence as in a case where the law makes a distinction between persons who are similarly placed.
A law providing for equal treatment of unequal objects, transactions or persons would be condemned as discriminatory if there is absence of rational relation to the object intended to be achieved by the law.
In K T Moopil Nair vs State of Kerala (supra), this Court was dealing with a law providing for imposition of uniform land tax at a flat rate without having regard to the quality of the land or its productive capacity.
The law was held to be violative of Article 14 of the constitution of the ground that lack of classification had created inequality.
The said decision in K. T Moopil Nair 's case (supra) has been explained by this Court is Jalan Trading Co. (Pvt.) Ltd. vs Mill Mazdoor Union, ; , in the context of challenge to the validity of section 10 of the providing for payment of a minimum bonus of 4% by all industrial establishments irrespective of the fact whether they were making profit.
This Court held that the judgment in Moopil Nair 's case (supra) has not enunciated any broad proposition that when persons or objects which are unequals are treated in the same manner and are subjected to the same burden or liability discrimination inevitably results.
It was observed : "It was not said by the Court in that case that imposition of uniform liability upon persons, objects or transactions which are unequal must of necessity lead to discrimination.
Ordinarily it may be predicated of unproductive agricultural land that it is incapable of being put to profitable agricultural use at any time.
But that cannot be so predicated of an industrial establishment which has suffered loss in the accounting year, or even over several years successively.
Such an establishment may suffer loss in one year and make profit in another. " (p.35) It was further observed "Equal treatment of unequal objects, transactions or persons is not liable to be struck down as discriminatory unless there is simulta 638 neously absence of a rational relation to the object intended to be achieved by the law." (p.36) The limitations of the application of the principle that discrimination would result if unequals are treated as equal, in the field of taxation, have been pointed out by this Court in Twyford Tea Co. Ltd. & Anr.
vs The State of Kerala & Anr., [1970] 3SCR 383, wherein tax at a uniform rate was imposed on plantations.
Hidayatullah, CJ, speaking for the majority, while upholding the tax, has observed "It may also be conceded that the uniform tax falls more heavily on some plantations than on others because the profits ,ire widely discrepant.
But does that involve a discrimination ? If the answer be in the affirmative hardly any tax direct or indirect would escape the same ensure for taxes touch purses of different lengths and the very uniformity of the tax and its equal treatment would become its undoing.
The rich and the poor pay the same taxes irrespective of their incomes in many instances such as the sales tax and the profession tax etc." (pp.
389 390) It was further observed : "The burden is on a person complaining of discrimination.
The burden is proving not possible 'inequality ' but hostile 'unequal ' treatment.
This is more so when uniform taxes are levied.
It is not proved to us how the different plantations can be said to be hostilely or unequally treated.
A uniform wheel tax on cars does not take into account the value of the car, the mileage it runs, or in the case of taxis, the profits it makes and the miles per gallon it delivers.
An ambassador taxi and a fiat tasi give different out turns in terms of money and mileage.
Cinemas pay the same show fee.
We do not take a doctrinaire view of equality." (p.393 94) In the instant case, we find that the legislature has prescribed different rates of tax by classifying theatres into different classes, namely, air conditioned, air cooled, ordinary (other than air conditioned and air cooled), permanent and semipermanent and touring and temporary.
The theatres have further been categorized on the basis of the type of the local area in which they are situate.
It cannot, therefore, be said that there has been no attempt on the part of the legislature to classify the cinema theatres taking into consideration the differentiating circum 639 stances for the purpose of imposition of tax.
The grievance of the appellants is that the classification is not perfect.
What they want is that there should have been further classification amongst the theatres falling in the same class on the basis of the location of the theatre is each local area.
We do not think that such a contention is well founded.
In relation to cinema theatres it can be said that the attendance in the various cinema theatres within a local area would not be uniform and would depend on factors which may very from time to time.
But this does not mean that cinema theatres in a particular category of local area will always be at a disadvantage so as to be prejudicely affected by a uniform rate as compared to cinema theatres having a better location in the local area.
It is, therefore, not possible to accept the contention that the impugned provisions are violative of right to equality guaranteed under Article 14 of the Constitution on the basis that unequals are being treated equally.
Another contention that has been urged on behalf of the appellants is that while provision was made under sub section (6) of section 5 for enhancement of the amount of tax in the event of increase in the amount of gross collection capacity, there was no corresponding provision for reduction for the amount of tax in the event of reduction in the gross collection capacity.
The said provision for enhancement contained in sub section (6) of section 5 relates to the cases where the proprietor of a cinema theatre opts for payment of weekly consolidated amount.
Since the proprietor has the option to opt for the said scheme he cannot complain that the scheme suffers from inequality on account of absence of a corresponding provision for reduction of amount of tax.
In any event the said grievance has how been removed by the introduction of sub section (6 A) in section 5 by amendments, introduced in the Act by A.P. Act 23 of 1988 and A.P. Act 16 of 199 1.
In the result, we find no merit in these appeals and the special leave petition and they are accordingly dismissed.
The parties are, however, left to bear their own costs.
V.P.R. Appeals dismissed.

summary/full:
Prior to January 1, 1984, the Andhra Pradesh Entertainment Tax Act, 1989, in Section 4, provided for levy of entertainment tax at a rate fixed on the has is of percentage of payment made by a person for admission to any entertainment.
In section 4 C, in respect of entertainments held within the jurisdiction (if any local authority where population did n(it exceed 25, 000.
tax was levied at a certain percentage of the gross collection capacity per show and the percentage for such levy were fixed according to the population of the local authority within the jurisdiction of which the entertainment held.
The Amending Act 24 of 1984, replaced the earlier mode of levy of tax prescribed in Section 4 and introduced a mode of levy of tax on the has is of a prescribed percentage of the gross collection capacity per show.
The rates 617 were fixed on the basis of a percentage of the gross collection capacity per show varying with the category of the local area in which the theatre was situated as well as on the nature of the theatre, viz. air conditioned air cooled or (other than air conditioned and air cooled)or permanent,semi permanent including touring and temporary the atres.
The proprietor was given an option to pay a weekly consolidated amount irrespective of the number of shows actually held by him and the said amount was fixed on the basis of the prescribed number of shows per week.
The number of show. .
varied with the nature of the theatre as well as the category of the local area in which it was situate.
A fixed amount was also leviable by way of show tax on each show.
Before the High Court, a number of writ petitions were filed challenging the validity of sections 4,4 A and 5 of the Andhra Pradesh Entertainments Tax Act, 1939, as amended by Act 24 of 1984, on the grounds that (i) the levy of entertainment tax on the basis of gross collection capacity without reference to the actual amount collected or the actual number of tickets sold or the number of persons admitted was ultra vires the legislative power conferred on the State Legislature under Entry 62 of List 11 of the Seventh Schedule of the Constitution; (ii) section 4 was hit by Article 14 of the Constitution, as it gave rise to discrimination amongst different theatres situate within the same local area; and that (iii) the levy of entertainment tax under section 4 being exproprietory amounted to an unreasonable restriction on the right guaranteed to the petitioners by Article 19(1) (g) of the Constitution and was not saved under Article 19(6).
Relying upon the decisions in Western India Theatres vs Cantonment Board. [1959] Supp. 2 SCR 63; Y.V. Srinivasamurthy vs State of Mysor.
AIR 1959 SC 894 and State of bombay vs R.M.D. Chamarbaugwala.
A. I. R. the High Court dismissing the writ petitions held that the State Legislature was competent to levy the tax under Entry 62 of List 11 of the Seventh Schedule; that as the tax levied retained the character of entertainment tax, the Legislature was competent to adopt such basis or such measure, or such method of levy; that wide discretion was allowed to the Legislature in the matter of classification and in the matter of selection of persons to be taxed and that the two fold classification made by section 4 was neither discriminatory nor arbitrary or it did not mete out hostile discrimination to certain theatres; that the rates of tax that were prescribed under section 4 based on an average expected occupancy rate of less than 50 per cent to 66 per cent, was neither unreasonable nor expropriatory; that section 5 was only optional and no) one was compelled to be governed by it or to opt for the composition scheme and if a person opted to be governed by section 5, he must be deemed 618 to have accepted all the conditions and features of the scheme.
During the pendency of these appeals Special leave petition in this court the Act of 1939 was amended by A.P. Act 23 of 1988 and A.I. Act 16 of 1991, whereby the Tables below sections 4, 4 A and 5 were substituted and subsection (6A) was inserted in section 5.
Before this Court the appellants and the petitioners reiterated two contentions raised before the High Court while assailing the constitutional validity of sections 4 and 5 of the Act, namely, (1) that the impugned provisions did not fall within the ambit of the legislavite power conferred on the St .Ate Legislature under Entry 62 of List 11 of the Seventh Schedule of the Constitution; (ii) that the impugned provisions were violative of Article 14 of the Constitution, as they provided for imposing tax at a uniform rate (in a particular class of Cinema theaters irrespective of their location and occupancy.
Dismissing the appeal and the Special Leave petition, this Court, HELD: 1.1.
While considering the question as to legislative competence of the State Legislature, it is necessary to bear in mind that the impugned provisions provide for imposition of a tax and a tax has two distinct elements viz., subject of the tax and the measure of the tax.
The subject of the tax is the person, think or activity on which the tax is imposed, and the measure of the tax is the standard by which the amount of tax is measured.
(632 1)) 1.2.
The competence of the Legislature to enact a law imposing a tax under a particular head of the legislative list has to be examined in the context of the subject of the tax.
It the subject of the tax falls within the ambit of the legislative power conferred by the head of legislative entry, it would be within the competence of the Legislature to impose such as tax.
(632 E) 1.3.
Prior to the enactment of Act 24 of 1984, there were two modes for levy of the tax, one on the basis of the actual number of persons admitted to each show and the other on the basis of the percentage of the grows collection capacity per show.
As a result of the amendments introduced by Act 24 of 1984, the system for levy of tax on the basis of number (of persons actually admitted to each show was dispensed with and the tax was to be levied on the basis of the percentage of the gross collection capacity per show and different percentages were prescribed depending on the type of the theatre and the 619 nature of the local area where it was situated.
(633 F H) 1.4.
The question whether the alteration in the said mode of levy of tax by Act 24 of 1984 has the effect of altering the nature of the tax in a way that it has ceased to he a tax on entertainments and falls beyond the field of legislative competence conferred (in the State Legislature by Entry 62 of List 11, must he answered in the negative. 'The fact that instead of tax being levied on the basis of the payment for admission made by the persons actually admitted in the theater it is being levied on the basis of the gross collection capacity per show calculated on the basis of the notional aggregate of all the payments fair admission which the proprietor would realise per show if all the seats or accommodation in respect of the place of entertainment are (occupied and calculated at the maximum rate of payments for admission, would not alter the nature of the tax or the subject matter of the tax which continues to he a tax on entertainment.
(634 B D) 1.5.
The mode of levy based on 'per payment for admission ' proscribed under Section 4(1) prior to amendment by Act 24 of 1984 necessitated enquiry into the number of shows held at the theatre and the number of persons admitted to a cinema theatre for each show and gave room for abuse both on the part of proprietor as well as other officers incharge of assessment and collection of tax.
The mode of levy or measure of the tax prescribed under section 4(1),as substituted by Act24 of 1984, is a more convenient mode of levy of the tax inasmuch as it dispenses with the need to verify or enquire into the number of persons admitted to each show and to verify the correctness or otherwise of the returns submitted by the proprietor containing the number of persons admitted (A) each show and the amount of tax collected.
(634 E) 1.6.
On an examination of the rates prescribed under both the modes it is found that under the system (of consolidated levy prescribed under Section 4 C, the proprietor could break even if the average rate of occupancy was 40%.
As regards the rates prescribed under Sections 4 and 5 as amended by Act 24 of 1984 they are based on an average expected occupancy rate of less than 50% or 66% depending upon the area in which the theatre is situated.
This would mean that the entertainment tax that would be collected over and above the average occupancy rate would constitute the profit of the proprietor.
In the circumstances, it cannot be said that the adoption of the system of consolidated levy in Section 4(1) as amended by Act 24 of 1984 alters the nature of tax and it has ceased to be a tax on entertainments.
(634 F H) 620 1.7.
Once it is held that tax #in entertainment could be levied either of the two modes, viz., per payments of admission or gross collection capacity per show, it is for the legislature to decide the particular mode or modes of levy to be adopted and whether a choice should he available to the proprietor of the cinema theatre in this regard.
The legislature does not transgress the limit: of its legislative power confer red on it under Entry 62 of List 11 if it decides that consolidated levy on the basis of gross collection capacity per show shall be the only mode for levy of tax on entertainments (635 C) 1.8.
The impugned provisions contained in Sections 4 and 5 as amended by Act 24 of 1984 are not ultra vires the legislative power conferred on tile State Legislature under Entry 62 of List 11.
(635 D) Western India Theatres vs Cantonment Board, [1959] Supp. 2 SCR 63 and Y. V Srinivasamurthy vs State of Mysore AIR 1959 SC 894, explained. 2.01.
The right conferred by Article 14 postulates that all persons similarly circumstanced shall he treated alike both in privileges conferred and liabilities imposed, Since the State, in exercise of its governmental power, has, of necessity, to make laws operating differently on different groups of persons within its territory to attain particular ends in giving effect to its policies, it is recognised that the State must possess the power of distinguishing and classifying persons or things to be subjected to such laws.
It is, however, required that the classification must satisfy two conditions, namely, (i)it is founded on an intelligible different is which distinguishes those that are grouped together from others; and (ii) the differential must have a rational relation to the object sought to be achieved by the Act.
It is not the requirement that the classification should be scientifically perfect or logically complete.
Classification would be justified if it is not palpable arbitrary.
(636 A C) Re Special Courts Bill, at pp.
534 536 and Khandige Sham Bhat vs Agricultural Income Tax Officer, ; at p. 817.
followed.
In the field of taxation the legislature exercises an extremely wide discretion in classifying items for the purposes, so long as it refrains from clear and hostile discrimination against particular persons or classes.
(636 E) 621 East India Tobacco Co vs State of A.P. ; at p. 411; P.M. Ashwathanarayana Shetty vs State of Karnataka.
[1988] Supp.3 SCR 155 at p.m 188; Federation of Hotel & Restaurant Association of India vs Union of India, at p. 949, Kerala Hotel & Restaurant Association vs State of Kerala; , at p. 530: Gannon Dunkerley, and Co. vs State of Rajasthan, at 397; and San Antonio Independent School District vs Bodriques; , at p. 41, referred to.
just as a difference in the treatment of persons similarly situate leads to discrimination ', so also discrimination can arise if persons who are unequals, i.e. differently placed.
are treated similarly.
In such a case failure on the part of the legislature to classify the persons who are dissimilar in separate categories and applying the same law, irrespective of the differences brings about the same consequence as in a case where the law makes a distinction between persons who are similarly placed.
A law providing for equal treatment of unequal objects transactions or persons would he condemned as discriminatory if there is absence of rational relation to the object intended to he achieved by the law.
(637 A B) K. T Moopil Nair vs The State of Kerala & Anr.
, ; , distinguished.
Jalan Trading Co. (pvt.) Ltd. vs Mill Mazdoor Union, ; and Twyford Tea Co. Ltd. & Anr vs The State of Kerala & Anr., ; , referred to.
In the instant case, the legislature has prescribed different rates of tax by classifying theatres in the different classes, namely, air conditioned,air cooled, ordinary (other than air conditioned and air cooled), permanent and semi permanent and touring and temporary.
The theatre% have further been categorized on the basis (of the type of the local area in which they are situate.
It cannot, therefore, be said that there has been no attempt on the part of the legislature to classify the cinema theatres taking into consideration the differentiating circumstances for the purpose of imposition of tax.
(638 G H) 2.05.
In relation to cinema theatres it can he said that the attendance in the various cinema theatres within a local area would not be uniform and would depend on factors which may vary from time to time.
But this does not mean that cinema theatres in a particular category of local area will always 622 be at a disadvantage so as to be prejudicially affected by a uniform rate as compared to cinema theatres having a better location in the same local area.
The contention that the impugned provisions are violative of right to equality guaranteed under Article 14 (if the Constitution on the basis that unequals are being treated equally cannot be accepted.
(639 B C) 3.
The provision for enhancement contained in sub section (16) of section 5 relates to the cases.
There the proprietor of a cinema theatre opts for payment of weekly consolidated amount.
Since the proprietor has the option to opt for the said scheme he cannot complain that the scheme suffers from inequality.
on account of absence of a corresponding provision for reduction of amount of tax.
(639 E)


judgement:
(Civil) No. 71 of 1992.
WITH Writ Petition (Civil) No. 323 of 1993.
Under Article 32 of the Constitution of India.
J.P. Bhatacharjee, N.R. Choudhry and Somnath Mukherjee for the Petitioners in W.P.No. 71/93.
S.N. Mukherjee for the Petitioners in W.P. No. 323/93.
Ms. B. Sunita Rao for V.K. Verma for the Respondents.
The Judgment of the Court was delivered by R.M.SAHAI,J.
Casual labourers of South Eastern Railway, alleged to have been appointed between 1964 69 and retrenched between 1975 78 have approached this Court for a direction to opposite parties to include their names in the 753 live casual labourer register after due screening and give them reemployment according to their seniority.
Further prayer is to restrain the opposite parties from filling vacancies from open market.
Basis of their claim is two fold, one circulars issued by the Railway Board on 8th June and 18th June, 1981 laying guideline regarding recruitment, retrenchment and employment of the casual labourers, second Judgments delivered by this Court in 1985 and 1987 directing the opposite parties to prepare a scheme and absorb the casual labourers in accordance with their seniority.
Issuing of circulars by the Railway Board or decisions by this Court could not and has not been disputed.
Nor it is disputed that in pursuance of the orders passed by this Court the opposite parties framed a scheme in 1987 for employing retrenched casual labourers.
On 2.3.
1987 a letter was issued from the Railway Establishment addressed to the General Managers for employing casual labourer retrenched before 1981 if they satisfied the requirements mentioned therein which is extracted below: "Pursuant to directions given by the Hon 'ble Supreme Court in their order dated 23.2.1987, in W.P. No. 332 of 1986, the Ministry desire that the cases of project casual labour who had worked as such before 1. 1.81 and who were discharged due to completion of work or for want of further work, may also be considered for the purpose of implementation of the scheme contained in the Ministry 's letter of even No. dated 1.6.84 and 25.6.84 as modified in the letter dated 11.9.1986.
Representation along with documentary proof reaching the office mentioned above after 31.3.1987 of those which are incomplete and also those not made with reference to these instructions, will not be considered".
The petitioners who claim to have been retrenched due to completion of Halda project appear to have made a representation in 1990 to the authorities.
The representation runs as under "Respected sir, 1, on behalf of the Fetrenched Labour Congress Union I.O. 754 Tamluk Rly.
Station.
Midnaporoe, beg to humbly submit that the above quoted Circulars are not obeyed by DEN (Con).
TMZ DIZHA.
S.E. Rly.
KGP and they do not follow the orders of they Supreme Court, High Court of Calcutta and Central Administrative Tribunal, Calcutta Bench.
As a result of their indifference, the project casual labour who are retrenched from service on or before 1.1.1981 are in great difficulties and they are not getting scope of absorption.
All the applications deposited in the office of the DEN (CON) KGI in terms of Memo No. PD/E/A/579/A/837 in reference to CE/ C/GRC dated 25.5.1987 are to be approved.
In such circumstances, I beg to request you to intervene in the matter as expeditiously as humble.
Needless to say, if your grievances are not sympathetically admitted and the retrenched labour be not absorbed.
We shall have no alternative way except launching vigorous movement in the next stage.
Your faithfully, (BHUDEV JALUA)" The representation does not give any detail.
It is not mentioned if the scheme was given due publicity or not.
No explanation is given as to why the petitioners did not approach till 1990.
Nor it is stated if any of the casual labourer Not it is stated if any of the casual labourer of the project were reemployed or not.
It is vague and was lacking in material particulars.
Two questions arise, one, if the petitioners are entitled as a matter of law for reemployment and other if they have lost their right, if any, due to delay.
Right of casual labourer employed in projects, to be reemployed in railways has been recognized both by the Railways and this Court.
But unfortunately the petitioners did not take any step to enforce their claim before the Railways except sending a vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways.
It was urged by the learned counsel for petitioners that they may be permitted to produce their identify cards etc.
, before opposite parties who may accept or reject the same after 755 verification.
We are afraid it would be too dangerous to permit this exercise.
A writ is issued by this Court in favour of a person who has some right.
And not for sake of roving enquiry leaving scope for maneuvering.
Delay itself deprives a person of his remedy available is law.
In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well.
From the date of retrenchment if it is assumed to be correct a period of more than 15 years has expired and in case we accept the prayer of petitioner we would be depriving a host of others who in the meantime have become eligible and are entitled to claim to be employed.
We would have been persuaded to take a sympathetic view but in absence of any positive material to establish that these Petitioners were in fact appointed and working as alleged by them it would not be proper exercise of discretion to direct opposite parties to verify the correctness of the statement made by the petitioners that they were employed between 1964 to 1969 and retrenched between 1975 to 1979.
The writ petitions accordingly fail and are dismissed.
But there shall be no orders as to costs.
U.R. Petitions dismissed.

dataset_name: IN-Abs

summary/full:
The petitioners claimed to he casual labourers of the South Eastern Railway appointed between 1964 69 and retrenched between 1975 78.
They prayed (1) for inclusion of their names in the live casual register and reemployment according to their seniority, and (2) for restraining the filling of vacancies from the open market.
They relied on two circulars issued by the Railway Board laying down guidelines for the recruitment, retrenchment and employment of casual labourers.
They also relied on two judgments of this court in 1985 and 1987 which directed the preparation of a scheme and absorption of casual labourers in accordance with their scheme.
A scheme was framed in 1987 for employing casual labourers retrenched before 1981 subject to demonstrating suitability before 31st March, 1987.
In 1990 the petitioners made their representation to be considered.
The questions before this court were (a) whether the petitioners were entitled as a matter of law to reemployment and (b) if they had lost their right, if any, due to delay.
752 Dismissing the petitions, this court, HELD 1.
Right of casual labourers employed in projects to be reemployed in railways has been recognised both by the Railways and this Court.
But the petitioners only sent in a vague representation, and there was absence of positive material that they were in fact appointed and working as claimed.
(754 G) 2.
A writ is issued by this court in favour of a person who has some right and not. for the sake of a roving enquiry leaving scope for manoeuver.
Delay itself deprives a person of big remedy available in law.
In the absence of any fresh cause of action of any legislation, a person who has lost his remedy by lapse of time loses his right as well.
(755 A) 4 In any event, more than 15 years have expired, and a host of others who have in the meantime become eligible and entitled to claim to be employed would he deprived if the petitioners ' claim were accepted.
(755 B)


judgement:
Appeal No. 2684 (NM) /93 etc.
From the Judgment and Order dated 2.4.
92/ 27.4.
92 of the Bombay High Court in W.P. No. 27 of 1990.
658 Harish N. Salve, R.P. Bhatt, A.K. Ganguli, Dr. Nitin Kantawala, Ms. Hemantika Wahi, T.V.S.N. Chari, Ms Tanuja Sheel, Mrs. Sheela section Rao, P. Parmeswar and E.C. Agrawala, Ranjit Kumar, R. Venkataramani, Mrs. M. Qamaruddin, Abhijat P. Medh for the appearing parties.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY,J.
Leave granted.
Heard counsel for the parties.
These appeals arise from the common judgment and order of the Bombay High Court in a batch of writ petitions.
The question is whether the photographic machinery imported by the appellants falls under Customs Tariff Heading No. 98.01.
If it falls under it, it is entitled to a concessional rate of duty.
If not, it is chargeable to a higher duty.
The was enacted by Parliament with a view to consolidate and amend the law relating to customs duties.
It repealed the Indian Tariff Act, 1934 and Indian Tariff (Amendment) Act, 1949.
Section 2 says that the rates at which duties and customs shall be levied under the are those specified in the First and Second Schedules.
Section 3 levies additional duty equal to excise duty.
Chapter 98 was introduced in the Schedule with effect from February 28, 1986.
It relates to "Project Imports; Laboratory Chemicals; Passengers Baggage, Personal Importation by air or post; Ship Stores".
Chapter 98 provides a concessional rate of duty in respect of articles and items specified therein.
Chapter Note (1) declares, "this chapter is to be taken to apply to all goods which satisfy the conditions prescribed therein, even though they may be covered by a more specific heading elsewhere in this Schedule." In other words, if a particular article mentioned in Chapter 98 also falls under some other chapter/ heading, still such item will be governed by chapter 98 and not by that other chapter/heading.
So far as photographic machinery is concerned, it is not disputed that it falls under chapter 90 where the rate of duty is far higher.
Chapter Note (2) which is of crucial relevance herein reads "Heading No. 98.01 is to be taken to apply to all goods which are imported in accordance with the regulations made under section 157 of the (52 of 1962) and expressions used in this heading shall have the meaning assigned to them in the said regulations.
(emphasis added) 659 Heading 98.01 (Sub Heading 9801.00), being relevant for our purpose, must also be set out: Heading Sub Description of Rate of duty No. heading article Standard No. Prefential Areas 98.01 98.01.00 All items of machinery 60% including prime movers, instruments, apparatus and appliance, control gear and transmission equipment, auxiliary equipment (including those required for research and development purposes, test and quality control), as well as all components (whether finished or not) or raw materials for the manufacture of the aforesaid items and their components required for the intial setting up of a unit, or the substantial expansion of an existing unit, of a specified : (1)Industrial plant, (2) irrigation project, (3) power project, (4) mining project, (5) project for the exploration or oil or other minerals, and (6) such other projects as Central Government may, having regard to the economic development of the country notify in the official Gazette in this behalf; and spare parts, other raw materials (including semifinished material) or consumable stores not exceeding 10% of the value of the goods specified.
above 660 provided that such spare parts, raw materials or consumable stores are essential for the maintenance of the plant or project mentioned in to 6 above.
" (emphasis added) The expression "industrial plant" is not defined in the or, for that matter, in the .
Chapter Note (2) of Chapter 98, which it must be emphasized is apart of statute itself, says that the expressions used in heading No. 98.01 shall have the meaning assigned to them by the regulations made under Section 157 of the and further that heading No. 98.01 shall apply to all goods which are imported in accordance with such regulations.
As contemplated by Chapter Note (2) of Chapter 98 of the , the Central Government framed the Project Imports Regulations under Section 157 of the , contained in notification No. 230/86 Cus.
dated April 3, 1986.
They came into force on the same day.
Regulation (1) of these Regulations says that they shall be called "Project Imports Regulations, 1986" and shall come into force on April 3, 1986.
Regulation (2) says that the said Regulations shall apply for assessment and clearance of goods falling under heading No. 98.01.
Regulation (3) defines certain expressions including the expression "industrial Plant".
The definition reads as follows: "Industrial Plant" means an industrial system designed to be employed directly in the performance of any process or series of processes necessary for manufacture production or extraction of a commodity, but does not include (i) establishments designed to offer services of any description such as hotels, hospitals, photographic studios, photographic film pro cessing laboratories, photocopying studios, laundries, garages and workshops; or (ii)a single machine or a composite machine, within the meaning assigned to it, in Notes 3 and 4 to section XVI of the said Firs t Schedule.
" A perusal of the definition of "industrial plant" makes it clear that it seeks to exclude industrial systems meant for "establishment designed to offer services of 661 any description".
It mentions certain service establishments by way of illustration.
Photographic studios and photographic film processing laboratories happen to be mentioned specifically as some of the establishments designed to offer services.
Once the Project Imports Regulations came into force, the Customs authorities refused to treat the photographic equipment imported by the appellants and others as "industrial plant" falling under heading 98.01 of the customs Tariff Act.
They sought to levy duty thereon under Chapter 90.
In view of the refusal of the Customs authorities to treat the photographic machinery imported by them as "industrial plant" within the meaning of Chapter 98, the appellants approached the Bombay High Court by way of the batch of writ petitions.
Their contention was that until April 3, 1986, photographic machinery was included within the expression "industrial plant" occurring in heading 98.01 as well as in tariff heading 84.66 of the old tariff.
This fact was affirmed by the Government of India when a doubt was raised in their letter bearing No.F 526/52/83 Cus.
(T.U.) dated November 4, 1988.
Even according to the normal meaning and connotation of the expression "industrial plant", photographic machinery falls within its purview.
This is the sense in which the said expression is used in the Tariff Entry 98.0 1.
If so, the ambit and field of the said expression cannot be cut down by a regulation made under Section 157 of the .
If any particular machinery or equipment is to be excluded from the purview of the "industrial plant", it can and should be done only by the Act itself but not by a subordinate legislation like regulations.
It was submitted that the 1986 regulations are outside the purview of Section 157 and are incompetent.
The contentions were negatived and writ petitions dismissed by the Division Bench.
In these appeals, S/Sri Harish Salve and Kantawaala urged the following contention : (1) A perusal of the discloses its scheme.
The Act specifies the articles and things subjected to duty as also the rate to duty.
Specification of articles is not left to be done by a delegate.
It is true that power of exemption is conferred upon the Central government under Section 25 of the , but it is relevant to notice that a notification of exemption issued under Section 25 is required to be laid on the floor of both the houses of parliament by Section 159 of the Act.
This shows the close control which the Parliament intended to exercise over the specification of articles and the rate of duty thereon.
The Regulations made under Section 157 are not subject to Parliament 's scrutiny in the sense that they are not required to be laid on the floor of the houses of Parliament under Section 159.
Evidently, Regulations were not supposed to deal 662 with any matters of substance.
(2) While enacting Section 157, Parliament could never have contemplated delegating, to the Board, the power to cut down the field and ambit occupied by the provisions of the or .
Regulations made by the Board stand on an inferior footing to the rules made by the Central Government under Section 156.
The regulation making power was intended to be utilised for the purpose of providing procedural and peripheral provisions but certainly not for making a substantive provision cutting down the content and ambit of the provisions of the Act.
(3) Even if it is held for some reason that such a power was intended to be and was delegated to the Board, it would be bad since it amounts to excessive delegation of legislative power.
Regulation (3) of the new.
Regulations which defines the expression "industrial plant" is clearly outside the province of regulation making power conferred by Section 157.
The legislative history of tariff entry 98 militates against any such power being exercised by the Board.
The Board cannot take away what the Parliament has given.
The regulation in effect have the effect of amending the provision in the Act.
They take away under the garb of defining the expression "industrial plant" ', the beneficial rate of duty provided by Parliament in the interest of industrial progress of the country.
The Regulations are inconsistent with the provisions of the .
S/Sri Ganguly and T.V.S.N. Chari, learned counsel appearing for the Central Government, on the other hand, fully supported the validity of the said regulations.
They pointed out that the validity of chapter Note (2) was not questioned before the High Court has been expressly recorded in the judgment under appeal.
They submitted that the appellants should not be permitted to do so at this stage.
Once Chapter Note (2) is taken as good, the challenge to the 1986 Regulations must fail.
The said note is not bad as amounting to excessive delegation of legislative power.
In short, they refuted each and every submission made by the learned counsel for the appellants.
and are complimentary.
to each other.
Section 157 of the confers upon the Central Board of Excise and Customs (constituted under the ) the power to make regulations "consistent with this Act and Rules, generally to carry out the purposes of this Act".
Sub section (2) particularises certain matters with respect to which regulations can be made.
The specification of certain matters in sub section (2) is without prejudice to the generality of the power conferred by 663 Sub section (1).
This is consistent with the standard legislative practice.
Section 157 reads; " 157.
Central power to make regulations.
(1) Without prejudice to any power to make regulations contained elsewhere, in this Act, the Board may make regulations consistent with this Act and the rules,generally to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power such regulations may provide for all or any of the following matters, namely (a) the form of a bill of entry, shipping bill, bill of export, import manifest, import reports, export manifest, export report, bill or transshipment, boat note and bill of coastal goods; (b) the conditions subject to which the transshipment of all or any goods under sub section (3) of Section 54, the transportation of all or any goods under Section 56 and the removal of ware housed goods from one warehouse to another under section 67 may be allowed without payment of duty, (c) the conditions subject to which any manufacturing process or other operations may be carried on in a warehouse under Section 65.
" section 156 confers upon the Central Government the power to make rules "consistent with this Act generally, to carry out the purposes of this Act".
SubSection (2) of Section 156 again Specifies certain matters with respect to which rules can be made.
The specification in sub section (2) is without prejudice to the generality of the power conferred by sub section (1).
The Parliament has appointed two authorities i.e. central government and the Board to make rules/regulations to carry out the purposes of the Act generally.
The character of Rules and of the Regulations made under Sections 156 and 157 respectively is the same both constitute delegated legislation.
The Regulations are subject to an additional limitation viz., they should not be contrary to the Rules 664 made under Section 156.
The purpose of sub section (2) in both the sections is inter alia to allocate certain matters to each of them exclusively; subject to these subsections, both the delegates can exercise the power vested in them for carrying out the purposes of the Act.
No established legislative practice of any considerable duration has been brought to our notice to read any further limitation into the regulation making power under Section 157, assuming that a legislative practice can be read as a limitation.
We cannot, therefore, accept the contention that regulation making power under Section 157 should be confined only to peripheral and/or procedural matters.
It is not necessary for the purposes of this case to emphasis the need or the growing relevance of delegated legislation.
Moreover, enactments like customs Act and are not merely taxing statues but are also potent instruments in the hands of the Government for regulating the economy and the industrial development of the country.
The 'economic ' ministries had the establishments allied to them keep a close watch on the economy, closely monitoring its behaviour.
Power of taxation is one of weapons in the Government 's armoury to regulate the economy.
A certain industry may require encouragement while another may not.
Yet another sector may require to be controlled nay, discouraged on some occasions.
In an under developed country like ours, the emphasis is bound to be more on capital goods industry rather than on consumer goods ' industry.
The domestic industry has also to be protected and encouraged in certain situations.
In 1986, the government which expression in this discussion includes the Board evidently thought that import of 'industrial systems ' meant for 'establishments designed to offer services of any description such as hotels, hospitals, photographic studios, photographic film processing laboratories ' etc.
needs no encouragement in the shape of concessional custom tariff and they said so through the said Regulations made in April 1986.
It is not for the court to question the wisdom of the government 's or for that matter, of Board 's policy.
Board is a part of the government.
It is in direct charge of the administration of the Act along with the government.
Probably, it is for this reason that the Parliament has, through Chapter Note (2), vested the power to define the expressions occurring in Chapter 98 in the Board.
In this scheme of things, we cannot accept the argument of Sri Salve with respect to some kind of an inherent limitation upon the regulation making power of the Board.
We cannot say that the said power is confined only to, what the learned counsel calls, peripheral and/or procedural matters.
There is another and perhaps more simpler answer to the attack upon the validity of the said Regulations.
They are relatable not only to Section 157 of the but more 665 particularly to Chapter Note (2) of Chapter 98 of the .
Chapter Note (2) expressly states that the expressions used in Heading 98.01 shall have the meaning assigned to them in the said regulations.
In accordance with the said Chapter Note, Project Imports Regulations have been made excluding "establishments designed to offer services of any description" from the purview of "industrial plant".
If the said regulations are good any valid, there can be no escape from what they say; the photographic equipment does not fall within the ambit of "industrial plant".
In this view of the matter, the relevance of the alleged legislative practice with respect to regulation making power, or of the situation obtaining prior to the framing of the said regulations, is very little.
The express power conferred by Chapter Note (2) of Chapter 98 cannot be curtailed or abridged with reference to alleged legislative practice relating to regulation making power, assuming that such a practice is established and is relevant.
The only question which really arises is whether Chapter Note (2) amounts to excessive delegation of legislative power.
As rightly pointed out by Thommen,J. In Supreme Court Employees Welfare Association vs Union of India ; "where the validity of a subordinate legislation (whether made directly under the constitution or statute) is in question, the court has to consider the nature, objects and scheme of the instrument as a whole, and on the basis of that examination, it has to consider what exactly was the area over which and the purposes for which power has been delegated by the governing law.
" In statutes like and one has also to keep in mind that such legislation can be properly administered only by constantly adjusting it to the needs of the situation.
This calls for a good amount of discretion to be allowed to the delegate.
As is often pointed out "flexibility is essential (in law making) and it is one of the advantages of rules and regulations that they can be altered much more quickly and easily than can acts of Parliament.
" We have pointed out hereinbefore the necessity of constant and continuous monitoring of the nation 's economy by the government (and its various institutions) and the relevance of these enactments as a means of ensuring a proper and healthy growth.
Looked at from this angle, we are unable to see any substance in the argument that Chapter Note (2) amounts to excessive delegation of the Parliament 's essential legislative function.
Chapter 98 provides a concessional tariff inter alia to industrial plant.
The expression "industrial plant" is a term of wide connotation.
All kind of industrial plants may not require to be encouraged.
Some may; others may not.
Decisions of this nature have to be made from time to time.
Parliament cannot obviously do this.
It has, therefore, left the function to the Board which, as emphasised hereinbefore, is in immediate direct charge of the administration of the Act, along with and subject to the guidance of the central 666 government.
In Vasantlal Maganbhai Sanjanwala vs State of Bombay ; , it is observed by this Court that "self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation".
At the same time, it is held, "it is for a court to hold on a fair, generous and liberal construction of an impugned statute whether the legislature exceeded such limits.
But the said liberal construction should not be carried by the Courts to the extent of always trying to discover a dormant or a latent legislative policy to sustain an arbitrary power conferred an executive authorities.
It is the duty of the Court to strike down without any hesitation any arbitrary power conferred on the executive by the legislature".
These words were quoted with approval in a subsequent decision of the Constitution Bench in Devidas vs State of Punjab ; Krishna lyer, J. emphasised this very aspect in the context of a taxing statute in Avinder Singh vs Punjab ; The learned Judge said: ". . the legislature cannot self efface its personality and make over, in terms plenary, the essential legislative functions.
The legislature is responsible and responsive to the people and its representatives, the delegate may not be and that is why excessive delegation and legislative, hara kiri have been frowned upon by constitutional law.
This is a trite proposition but the complexities of modem administration are so bafflingly intricate and bristle with details, urgencies, difficulties and need for flexibility that our massive legislatures may not get off to a start if they must directly and comprehensively handle legislative business in all their plenitude, proliferation and particularisation.
Delegation of such part of legislative power becomes a compulsive necessity for viability.
If the 500 odd parliamentarians are to focus on every minuscule of legislative detail leaving nothing to subordinate agencies the annual output may be both unsatisfactory and negligible.
The law making is not a turnkey project, readymade in all detail and once this situation is grasped the dynamics of delegation easily follow.
Thus, we reach the second constitutional rule that the essentials of legislative functions shall not be delegated but the inessentials, however, numerous and significant they be, may well be made over to appropriate agencies.
of course, every delegate is subject to the authority and control of the principal and exercise of delegated power can always be directed, corrected or cancelled by the principal.
" 667 Applying the principles aforesaid, we cannot say that the Parliament has, by empowering the Board to define the expression "industrial plant" occurring in Chapter 98, delegated its essential legislative function.
Indeed, we see no self abnegation on the part of the Parliament.
The power conferred by Chapter Note (2) is undoubtedly different from the power of exemption conferred, by Section 25.
It makes little difference in principle that while an exemption notification is required to be laid on the floor of the Parliament, Regulations made under Section 157 are not so required.
Absence of such requirement does not mean absence of control by the Parliament over the acts of the delegate.
Nor are we satisfied that by excluding the industrial systems meant for establishments designed to offer services of any description, the Board has travelled beyond its brief Reference may be had, in this connection to the decision of this court in State of Tamil Nadu vs Hind Stone Section 15 of the empowers the State Government to make rules for regulating the grant of quarry lease, mining lease and other mineral concessions in respect of minor minerals and purposes connected therewith.
In exercise of the said power, the Government of Tamil Nadu framed Tamil Nadu Minor Mineral concession Rules, 1959.
Rule 8 of the Rules prescribed the procedure for lease of quarries to private persons.
Rule 8(C), which was introduced in the year 1977, imposed a prohibition on the grant of lease of quarries in respect of black granite to private persons.
The Rule provided that notwithstanding anything to the contrary contained in the said rules, no lease for quarrying black granite shall be granted to private persons on or after7th December, 1977.
It could be ranted only to the State Government or to a corporation wholly owned by it.
The validity of Rule 8(C) was challenged on the ground that it travels beyond the purview of the Act inasmuch as the power to make rules conferred upon the State Government by Section 15 was meant for regulating the rant of quarry leases in respect of minor minerals but not for prohibiting it for creating a monopoly in itself (State Government).
It was also argued that since the decision contained in Rule 8(C) involved a major change of policy, it could be done only by the legislature and not by a subordinate legislative body.
Both these arguments were rejected.
Following observations are apposite: ".
It was pointed out by the Privy Council in Commonwealth of Australia vs Bank of New South Wales and we agree with what was stated therein that the problem whether an enactment was regulatory or something more or whether a restriction was direct or only remote or only incidental involved, not so much legal as political, social or economic consideration.
Each case, it was said, must be judged on its own facts and in its own setting of time and circumstances and it might be that in regard to some economic 668 activities and at same Stage of social development, prohibition with a view to State monopoly was the only practical and reasonable manner of regulation.
Another of the submission of the learned counsel was that the G.O.Ms.
No. 1312 dated December 2, 1977 involved a major change of policy, which was a legislative function and therefore beyond the competence of a subordinate legislating body.
We do not agree with the submission.
Whenever there is as witch over from 'private sector ' to 'public sector ' it does not necessarily follow that a change of policy requiring express legislative sanction is involved.
It depends on the subject and the statute.
For example, if a decision is taken to impose a general and complete ban on private mining of all minor minerals, such a ban may involve the reversal of a major policy and so it may require Legislative sanction.
But if a decision is taken to ban private mining of a single minor mineral for the purpose of conserving it, such a ban, if it is otherwise within the bounds of the authority Given to the Government by the Statute, cannot be said to involve any change of policy.
" The statement of law is clear and we agree with it respectfully.
We are, therefore, of the considered opinion that Chapter Note (2) cannot be faulted as an instance of excessive delegation of essential legislative function nor can the Project Imports Regulations be faulted on the ground of travelling beyond the purview of the statute.
For the above reasons, the appeals fail and are dismissed.
No costs.
Appeals failed.

summary/full:
The by its First and Second Schedules provided the rates of and custom duties to be levied under the .
Chapter 98 introduced in Second Schedule prescribed a concessional rate of duty in respect of articles and items specified therein.
As per Chapter 655 Note (1), if a particular article mentioned in Chapter 98 also fell under some other Chapter/heading, still such item would be governed by Chapter 98 and not by that other chapter/heading.
Photographic machinery was covered under Chapter 90 wherein the rate of duty was far higher, but for purposes of duty it was claimed as "industrial plant" under Chapter 98.01.
The expression "industrial plant" was defined neither in nor in .
Chapter Note (2) of Chapter 98 of the laid down that Heading 98.01 would apply to all goods imported in accordance with the regulations made under.
section 157 of the Act and the expressions used in heading 98.01 should have the meaning assigned to them in the said regulations.
Accordingly, the Project Import Regulations, 1986 were framed.
Regulation (3) of said Regulations defined "industrial plant" exduding from its purview industrial systems meant for "establishments designed to offer services of any description" such as.
photographic studios, photographic film processing laboratories etc.
On coming into force of the Project Import Regulations, the Customs authorities refused to treat the photographic equipment imported by the appellants as industrial plant falling under heading 98.01 and sought to levy duty thereon under Chapter 90 of the .
The appellant filed writ petitions before the High Court challenging the validity of the Project Import Regulations, 1986.
The writ petitions were dismissed.
Hence the appeals by special leave.
The appellant contended that regulations made by the Central Board of customs and Excise under section 157 of the , not being subject to Parliament 's scrutiny in the sense that they were not required to be laid on the floor of the Houses of Parliament under section 159 stand on an inferior footing to rules made by the Central Government under section 156, and therefore, the regulation making power was confined only to peripheral and procedural matters and not for making substantive provisions; the Act specified the articles and things subjected to duty as also the rates of duty and such A power was not left to be exercised by a delegate; the Parliament did not contemplate delegating to the Board the power to cut down the field and ambit occupied by the provisions of the or the and such a power, if delegated to the Board, would amount to excessive delegation of legislative power; Regulation (3) of the Project Imports Regu 656 lation defining "Industrial plant" was outside the purview of the regulation making power conferred by section 157 as the same took away under the garb of defining the said expression the beneficial rate of duty provided by the Parliament in the interest of industrial progress of the country.
Dismissing the appeals, this Court, HELD : 1.
The regulation making power conferred on the Central Board of Customs and Excise by section 157 of the customs Act, 1962 is not confined only to peripheral and/or procedural matters.
The Parliament has appointed the Central Government and the Board to make rules/regulations to carry out purposes of the Act.
The character of Rules and of the Regulations made under sections 156 and 157 of the Act respectively Is the same both constitute delegated legislation.
The Regulations are subject to an additional limitation viz., they should not be contrary to the Rules made under section 156.
The purpose of sub section (2) in both the sections is to allocate certain matters to each of them exclusively; subject to these sub sections, both the delegates can exercise the power vested in them for carrying out the purposes of the Act.
(662G H, 663 G H, 664 A) 2.1.
It is not for the Court to question the wisdom of the Government 'sor for that matter, of Board 's policy.
Enactments like and are not merely taxing statutes but are also potent instruments in the hands of the Government for regulating the economy and the industrial development of the country.
Power of taxation is one of the weapons in the Government 's armoury to regulate the economy.
A certain industry may require encouragement while another may not.
Such legislations can be properly administered only by constantly adjusting them to the needs of the situation.
This calls for a good amount of discretion to be allowed to the delegate.
"Flexibility is essential (in law making) and it is one of the advantages of rules and regulations that they can be altered much more quickly and easily than can Acts of Parliament".
Probably, it is for this reason that the Parliament has through Chapter Note (2) vested the power to define the expressions, occurring in Chapter 98, in the Board which is a part of the Government and is in immediate direct charge of the administration of the Act alongwith and subject to the guidance of the Central Government.
Looked at from this angle, it cannot be said that Chapter Note (2) amounts to excessive delegation of the Parliament 's essentialle legislative function.
(665 D , G).
Chapter 98 of the provides a concessional tariff to industrial plant.
The expression "industrial plant" is a term of wide 657 connotation.
All kinds of Industrial plants may not require to be encouraged.
Some may; others may not.
Decisions of this nature have to be made from time to time.
Parliament cannot obviously do this.
It has, therefore, rightly left the function to the Board.
In 1986, the Government which expression includes the Board thought that import of 'industrial systems ' meant for 'establishments designed to offer services of any description such as hotels, hospitals, photographicstudios, photographic film processing laboratories, etc need no encouragement in the shape of concessional custom tariff and they said so through the Project Imports Regulations, 1986 which cannot he said to have travelled beyond the purview of the statute.
Nor can it be said that the Board has travelled beyond its brief by excluding the "Establishments designed to offer services of any description" from the preview of "industrial plant" as defined under Regulation (3) of the Project Imports Regulations.
Accordingly, photographic equipment does not fall within the ambit of "industrial plant".
(665 G H, 666 A, 668 E) 2.3.
It cannot be said that the Parliament has, by empowering the Board to define the expression "industrial plant" occurring in Chapter 98, delegated its essential legislative function.
There is, indeed, no self abnegation on the part of the Parlimaent.
The express power conferred by Chapter Note (2) of Chapter 98 of is undoubtedly different from the power of exemption conferred by Section 25.
It makes little difference in principle that while an exception notification is required to be laid on the floor of the parliament, Regulations made under Section 157 are not so required.
Absence of such requirement does not mean absence of control by the Parliament over the acts of the delegate.
(661 G H) Supreme Court Employee Welfare Association vs Union of lndia ; Avinder Singh vs Punjab ; & State of Tamil Nadu vs Hind Stone ; , relied on.
Vasantial Maganbhai Sanjanwala vs State of Bombay, ; & Devidas vs State of Punjab ; , referred to.