25 November 1975
Supreme Court


Case number: Appeal Civil 2221 of 1972








CITATION:  1976 AIR  714            1976 SCR  (2) 785  1976 SCC  (2) 953  CITATOR INFO :  D          1980 SC1866  (11)  D          1990 SC 560  (31,32,33)  RF         1991 SC1117  (11)

ACT:      Union Territories (Laws) Act, 1950, s. 2-Bengal Finance (Sales Tax)  Act,  1941,  extended  to  Delhi  with  certain modification by  1951-Notification-Notification more  than 6 Years later inserting further modification of the Bengal Act in the 1951 Notification-Validity-Section 6(2) of the Bengal Act requiring  3 months  notice before withdrawing exemption from tax-If mandatory-If period of notice could be curtailed by  Central   Government  by   Notification-Legislation   by reference, when  can be  inferred-Government,  if  can  take advantage of  its lapse-General  Clauses Act  (10 of  1897), s. 21, applicability.

HEADNOTE:      Section  2   of  the  Part  States  (Laws)  Act,  1950, empowered the  Central Government  to extend by notification in the official gazette, to any Part C State, or to any part of it, with such restrictions and modifications as it thinks fit, any  enactment in force in a Part A State. In 1951, the Central Government, in exercise of this power, extended by a Notification the  Bengal Finance  (Sales Tax)  Act, 1941, to the then  Part State  of Delhi with certain modifications in s. 6.  The section, after such extension with modifications, provided:           6(1) No tax shall be payable under this Act on the                sale of  goods specified  in the first column                of the  Schedule subject  to  the  conditions                etc: and            (2)  The State  Government  [Amended  as  Central                Government   in   1956]   after   giving   by                notification in the official gazette not less                than 3  months notice  of its intention to do                so, may  by like  notification add to or omit                from or  otherwise  amend  the  Schedule  and                thereupon  the   Schedule  shall  he  amended                accordingly      A modified Schedule of goods exempted from tax under s.



6 was  also substituted  for the  original Schedule  in  the Bengal Act, by the Notification.      After the  passing of  the States  Reorganisation  Act, 1956, the  Part States  (Laws) Act  became Union Territories (Laws) Act, 1950. with necessary adaptations.      In 1957,  the Central  Government issued a Notification in purported  exercise of the powers under s. 2 of the 1950- Act,  amending   the   1951-Notification.   By   the   1957- Notification an  additional modification  of  s.  6  of  the Bengal Act  was introduced  in the 1951-Notification, namely the words  "such previous notice as it considers reasonable" were substituted  for the  words "not  less than  3  months’ notice" in s. 6(2).      In 1959,  Parliament  passed  the  Bengal  (Sales  Tax) (Delhi Amendment)  Act,  1959,  making  some  amendments  in various sections of the Bengal Act but left s. 6 untouched.      By various  notifications, exemption from sales tax was granted  to   several  commodities.  but  subsequently,  the exemption was  withdrawn by other notifications after giving notice of less than 3 months.      Dealers in those commodities, who were aggrieved by the withdrawal of the exemption, challenged the validity of’ the withdrawal. The High Court dismissed their petitions. On the main ground that Parliament, while enacting the Amending Act of 1959,  had put  its seal  of approval  to  the  curtailed period of  notice in s. 6(2) and as such, it should be taken to have  keen provided  by Parliament  itself in  the Bengal Act. 786      Allowing the appeals to this Court, ^      HELD: The  1957-Notification purporting  to  substitute the words  "such previous notice as it considers reasonable" for the words ’not less than 3 months’ notice" in s. 6(2) of the  Bengal  Act,  is  beyond  the  powers  of  the  Central Government,  conferred   on  it,   by  s.  2  of  the  Union Territories  (Laws)  Act,  1950;  and  in  consequence,  the various  notifications,   in  so   far  as  they  with  drew exemptions from tax with respect to the several commodities, are invalid  and ineffective, as the exemption was withdrawn without complying with the mandatory requirement of not less than 3 months’ notice enjoined by the section. [808-D-E]      (1) (a) The primary power bestowed by s. 2 of the Union Territories (Laws)  Act, 1950,  on the Central Government is one of  extension, that  is,  bringing  into  operation  and effect, in  a Union Territory, an enactment already in force in a  State. The discretion conferred by the section to make "restrictions and  modifications" in the enactment sought to be extended,  is not a separate and independent power, which can be  exercised apart  from the power of extension, but is an integral  constituent of  the power of extension. This is made clear  by the use of the preposition "with" one meaning of which  (which accords  with the  context) is "part of the same whole". [801 E-F]      (b) There  are 3 limits on the power given by s. 2. (i) The power  exhausts itself on extension of the enactment. It can  be   exercised  only   once,  simultaneously  with  the extension  of   the  enactment,   but  cannot  be  exercised repeatedly or subsequently to such extension. (ii) The power cannot be  used for  a purpose other than that of extension. In the  exercise of  the power,  only such  restrictions and modifications can  be validly  engrafted  in  the  enactment sought to  be extended, which are necessary to bring it into operation and  effect in  the Union Territory. Modifications which are not necessary for, or ancillary and subservient to



the purpose  of extension,  are not  permissible. And.  Only such modifications  can be  legitimately necessary  for such purpose, as  are required  to adjust,  adapt, and  make  the enactment suitable  to the  peculiar local conditions of the Union Territory  for carrying  it into operation and effect. (iii) The  words "restrictions  and  modifications"  do  not cover such  alterations as involve a change in any essential feature of  the enactment  or the  legislative policy  built into it. [801G-H, 802A]      (c) If  the words  "such restrictions and modifications as it  thinks fit" are given the wide construction of giving an unfettered  power of amending and modifying the enactment sought to  be extended,  as contended by the respondent, the validity of the section itself becomes vulnerable on account of the  vice  of  excessive  delegation.  Moreover.  such  a construction would  be repugnant  to the context and content of the section, read as a whole. [802 B-C]      Rajnarain Singh  v. The  Chairman Patna  Administration Committee Patna  [1955] 1 S.C.R. 291 and Re: Delhi Laws Act, [1951] S.C.R. 747, referred to.      (2) The  1957-Notification transgresses these limits in two respects :      (a) The  power has not been exercised contemporaneously with the  extension or  for the purposes of the extension of the Bengal  Act to Delhi but 6.6 years thereafter. The power of  extension   with  restrictions   and  modifications  had exhausted itself  when the  Bengal Act was extended to Delhi with some alterations by the 1951-Notification. [802D-E]      The power  given under  s. 2 of the 1950-Act, cannot be equated to  the "Henry  VIII clause"  of  the  Acts  of  the British Parliament because while the power under s. 2 can be exercised only  once when  the Act  is extended,  the  power under a  "Henry VIII  clause" can  be invoked,  if there  is nothing contrary  in the  clause,  more  than  once  on  the arising of a difficulty when the Act is operative [802F-H]      Observations of  Fazal Ali,  J. at  p. 850 in Re: Delhi Laws Act case explained. 787      (b) The  alteration sought  to be introduced in s. 6(2) by the  1957-Notification  goes  beyond  the  scope  of  the "restrictions and  modifications" permissible  under s. 2 of the 1950-Act,  because, it  purports to change the essential features of  s. 6(2)  and the  legislative  policy  inherent therein. [803F]      Section 6(2) before the issue of the 1957-Notification, requiring the  Government to  give "not  less than 3 months’ notice" of its intention to add to or omit from or otherwise amend   the   Schedule   to   the   1950-Act,   embodies   a determination of  legislative policy  and its formulation as an absolute  rule of’  conduct could  be diluted, changed or amended only  by the  legislature, in  the exercise  of  its essential legislative function, which could not be delegated to the Government. [803G-804E, F, G]      (i) The  language of  the sub-section  as it  stood  is emphatically prohibitive  and it  commands the Government in unambiguous negative  terms that the period of the requisite notice must  not be  less than  3 months,  showing that  the provision was mandatory and not directory. [804-A-B]      (ii) The scheme of the Bengal Act is that the tax is to be quantified  and assessed  on the  quarterly turnover. and the period of not less than 3 months, notice conforms to the scheme and  ensures that  the imposition  of a  new  tax  of exemption does not cause dislocation or inconvenience either to the dealer or the Revenue. [804B]      (iii) By  fixing the  period at not less than 3 months,



purchasers on  whom the  incidence of  tax really falls have adequate notice of taxable items. [804-C]      (iv) Dealers  and others  likely to  be affected  by an amendment of  the  Schedule  get  sufficient  time  to  make representations and adjust their affairs. [804-D]      The  span  of  notice  was  thus  the  essence  of  the legislative mandate. The necessity of notice and the span of notice both  are integral to the scheme of the provision and it cannot  be split  up  into  essential  and  non-essential components, the whole of it being mandatory. [804-E-F]      Raza Buland  Sugar Co. Ltd. v. Municipal Board, Rampur, [1965] 1 S.C.R. 970, distinguished.      (3)(a) Pt.  Benarsi  Das  Bhanot  v.  State  of  Madhya Pradesh [1959]  2 S.C.R. 427 does not assist the respondent. That was  a case  where the  contention that  5. 6(2) of the C.P. &  Bihar Sales Tax Act, 1947, was invalid on the ground of excessive  delegation, was rejected, by the Court. In the present case, it is the validity of a Notification purported to be issued under s. 2 of the 1950-Act that is impeached as beyond the  powers of modification conferred by the section. [804H, 805A]      (b) In the present case, the Central Government did not directly  amend  s.  6(2).  More  than  6  years  after  the extension of  the Act  by the  1951-Notification, it amended the   sub-section   indirectly   by   amending   the   1951- Notification. But  on the extension of the Act to Delhi, the 1951-Notification  had   exhausted  its   purpose,  and  the purported amendment,  through the  medium of  such a  "dead" Notification  is   an  exercise   in  utility.  Further,  an amendment which  was not  directly permissible  could not be done indirectly. [805-B, C]      (4) The  High  Court  was  in  error  in  holding  that Parliament had  validated or  re-enacted referentially, with retroactive effect,  what was sought to be done by the 1957- Notification when it passed the Amending Act, 1959. [807C]      The Amending  Act leaves s. 6(2) untouched. It does not even  indirectly  refer  to  the  1957-Notification  or  the amendment purportedly made by it in s. 6(2). Nor does it re- enact or  validate what  was sought  to be  achieved by that notification. No  indication of referential incorporation or validation of  the 1957-Notification or the amendment sought to be  made by it, is available either in the Preamble or in any other  provision of the Amending Act. Parliament despite its presumed  awareness of  the 1957-Notification,  has said nothing in  the Amending  Act indicating  that it has in any manner incorporated, re-enacted or 788 validated the  1957-Notification or  the amendment sought to be made thereby, while passing the Amending Act, 1959. [805- E-F, 807-B-C]      Krishna Chandra  v. Union  of India,  A.I.R. 1975  S.C. 1389, referred to,      (5)  A   mere  amendment  of  an  Act  by  a  competent legislature does  not amount  to re-enactment  of the parent Act. [807D]      Venkatarao Esajirao  Limberkar’s case  [1970] 1  S.C.R. 317, explained.      (6)  The   respondent  cannot   contend  that   if  the withdrawal of  exemption without giving 3 months" notice was illegal, then  the  grant  of  exemption  without  giving  3 months’ notice was also void. [808-A]      (a) Some  of the  goods were  granted exemption  by the 1951-Notification itself and, hence, there is no question of giving notice for giving those exemptions. [807-G]      (b)  The   validity  of   the  notifications   granting



exemptions after the extension of the Act to Delhi is not in issue  in  the  writ  petitions.  and  whether  or  not  the requisite notice  was given  before granting  exemption is a question of fact depending on evidence. [807G]      (c) To  allow the  respondent to take such a plea would be  violative   of  the  fundamental  principle  of  natural justice, according  to which  a party  cannot be  allowed to take advantage of his own lapse or wrong. [807--H]      (7) The  respondent cannot  also rely  on s.  21 of the General Clauses  Act, because,  the source  of the  power to amend the Schedule to the 1950-Act. is s. 6(2) of the Bengal Act and  not s. 21 of the General Clauses Act, and the power has to be exercised within the limits of s. 6(2) and for the purpose for which it we conferred. [808-B]      Gopichand v.  Delhi  Administration,  [1959]  Suppl.  2 S.C.R. 87, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeals Nos. 2221- 2225, and 2524 of 1972.      From the  Judgment and orders dated the 18-11-71, 29-3- 1972 and  5-2-1972 of the Delhi High Court in L.P. No. 53/71 and Civil  Writ Petitions  Nos. 612,  640, 643  and  649/71, 281/72 and 1052 of 1971 respectively.      A.K. Sen,  Sarjoo Prasad  Balram Senghal  and C. P. Lal for the Appellants in CAs 2221-2225/72      B. Sen, S.P. Nayar and M.N. Shroff for Respondents 2-3, (In CAs. 2221-2225/72) for Respondents 1-4 in. C.A. 1801).      S.V. Gupte,  Mrs. Leila  Sait and  U.  K.  Kaithan  for Interveners (In  CAs. 2221-2225/72)  and Appellants (In CAs. 2524/72).      M. C.  Bhandare, Sardar  Bahadur Saharya,  B. N. Kirpal and V. B. Saharya for the Appellant in CA 1801/72.      The Judgment of the Court was delivered by      SARKARIA, J.  Whether the  Notification  No.  SRO-2908, dated December  7, 1957  issued by the Central Government in purported exercise  of its  powers under  s. 2  of the Union Territories (Laws) 789 Act, 1950,  is ultra  vires the  Central Government  is  the principal question  that arises  in these appeals which will be disposed of by a common judgment.      The question has arisen in these circumstances:      Section  2   of  the  Part  States  (Laws)  Act,  1950, empowered the  Central Government  to extend by notification in the official Gazette to any Part State, or to any part of such State,  with such  restrictions and modifications as it thinks fit,  any enactment  which is  in force  in a  Part A State. In  exercise of this power, the Central Government by a Notification  No. SRO  615  dated  the  28th  April  1951, extended to the then Part State of Delhi, the Bengal Finance (Sales-Tax) Act,  1941 (for  short, the  Bengal Act),  with, inter alia, these modifications:      "In sub-section (2) of Section 6,-           (a) . . .           (b) for the words "add to the Schedule", the words      "add to  or omit or otherwise amend the Schedule" shall      be substituted "      For the  Schedule of  the Bengal Act, this Notification substituted a modified Schedule of goods exempted under   s. 6. The  relevant items  in the  modified  Schedule  were  as follows:           "8.   Fruits, fresh and dried (except when sold in



              sealed containers).           11.  Pepper, tamarind and chillies.           14.  Turmeric.           16.  Ghee.           17.  Cloth of such description as may from time to                time be  specified  by  notification  in  the                Gazette costing less per yard than Rs. 3/- or                such other sum as may be specified. .           21A. Knitting wool."      Section 6  of the  Bengal Act  after its  extension  to Delhi, as modified by the said Notification, reads thus :           "6(1)No tax shall be payable under this Act on the                sale of  goods specified  in the first column                of the Schedule subject to the conditions and                exceptions   if    any   set   out   in   the                corresponding  entry  in  the  second  column                thereof.           (2)     The  State   Government  after  giving  by                Notification in the official Gazette not less                than 3  months’ notice of its intention so to                do may by like notification 790                add to  or omit  from or  otherwise amend the                Schedule and  thereupon the Schedule shall be                deemed to  be amended accordingly." (emphasis                supplied)      By a  Notification, dated  1-1-1951, in sub-section (1) of s.  6, the  words "the  first column of" were omitted and for the  words "in  the corresponding  entry in  the  second column thereof" the word "therein" was substituted.      By a  notification country  liquor was  included in the Schedule as  item No.  40 of exempted goods with effect from 19 1 1952.      On 1-11-1956,  as a  result of the coming into force of the States  Reorganization Act,  1956, and  the Constitution (Seventh Amendment)  Act, 1956,  Part States were abolished. Part State  of Delhi  became a Union Territory and the Delhi Legislative Assembly,  was also  abolished.  In  1956,  Part State (Laws) Act, 1950 (hereinafter referred to as Laws Act) also became  me Union  Territories (Laws)  Act,  1950,  with necessary adaptations.      On 1-12-1956,  Parliament  passed  the  Bengal  Finance (Sales-Tax) (Delhi  Amendment)  Act  1956  which  introduced amendments in  different  sections  of  the  Bengal  Act  as applicable to  Delhi. It  made only  two  changes  in  s.  6 Firstly, the  word ’Schedule’,  wherever  it  occurred,  was replaced by  the words "Second Schedule". Secondly the words "Central Government"  were substituted  for the words "State Government".      On  December   7,  1951,   in  the   Gazette  of  India Extraordinary there  appeared a notifications which reads as below:           "S.R.O.. 3908-In  exercise of the powers conferred      by section  2 of the Union Territories (Laws) Act, 1950      (30 of  1950), the  Central Government hereby makes the      following  amendment   in  the   notification  of   the      Government of India in the Ministry of Home Affairs No.      S.R.O.. 615,  dated the  28th April, 1951 (extending to      the Union  Territory of  Delhi and  the Bengal  Finance      (Sales   Tax)    Act,   1941,    subject   to   certain      modifications) namely :-           In the  said notification, in the modifications to      the Bengal  Act aforesaid,  in item 6 (relating to sub-      section (2)  of section  (6), after  sub-item (a),  the      following sub-item shall be inserted, namely :-



         "(aa) for  the words  "not less than three months’      notice,"  the   words  "such   previous  notice  as  it      considers reasonable" shall be substituted".      The vires  of this  notification dated 7-12-1957, is me subject of  primary challenge  in these appeals (hereinafter it will be referred to as the impugned notification). 791      Item 17  in the  Second Schedule  of the Bengal Act was amended with  effect from  December 14, 1957 by Notification No. SRO 3958, as under :           "17. All  varieties of  cotton, woollen,  rayon or      artificial silk  fabric but  not  including  real  silk      fabrics".           "Conditions subject  to which  tax  shall  not  be      payable:           In respect  of tobacco-cotton  fabrics,  rayon  or      artificial silk  fabrics and woollen fabrics as defined      in item  9, 12,  12A, 12B  at the First Schedule to the      Central Excises and Salt Act, 1944 (I of 1944) included      in entries  (a) and  (c) above, no tax under the Bengal      Finance (Sales  Tax) Act  1941, shall be payable in the      Union Territory  of Delhi  only if additional duties of      excise have  been levied  on them  under the Additional      Duties of  Excise (Goods  of  Special  Importance)  Act      1957".      The aforesaid  condition was  withdrawn by Notification No. GSR 203, dated 1-4-1958.      By  Notification  No.  GSR  202,  dated  1-4-1958,  the Central Government  withdrew the exemption of country liquor from tax by omitting item No. 40 from the Second Schedule.      By Notification  No.  GSR  1076  dated  19-9-1959,  the Central Government withdrew the exemption from tax of Items, 8, 11,  14 and 21A by omitting them from the Second Schedule with effect from 1-10-1959.      On 1-10-1959,  the Bengal.  (Sales-Tax Delhi Amendment) Act,  1959   (Act  XX  of  1959)  came  into  force  whereby Parliament made some amendments in different sections of the Bengal Act but left s. 6 untouched.      By a  Notification No.  GSR 964 dated 16-6-1966, notice was given  that item  17 of  the Second  Schedule  would  be substituted with effect from 1-7-1966, as follows:           "Item-17-All varieties,  cotton,  woollen,  nylon,      rayon,  pure   silk  or  artificial  silk  fabrics  but      excluding Durries, Druggets and carpets".      The proposed  amendment was  given effect  to from 1-7- 1966, by Notification No. GSR 1061 dated 29-6-66. One result of this amendment was that exemption of Durries from tax was withdrawn, while,  such exemption was among others, extended to ’pure-silk’.      By a Notification GSR 1038, dated 14-7-1970, notice was given  that   item  17  in  the  Second  Schedule  would  be substituted with effect from 1-8-1970, as follows:           "17. All  varieties of  cotton fabrics,  rayon, or      artificial silk  fabrics and  woollen fabrics  but  not      including Durries, Druggets and carpets". 792      Such substitution  of item 17 was made with effect from 1-8-70 by  Notification GSR 1119 dated 31-7-1970. one result of this  notification was  that the exemption of ’pure-silk’ from tax was withdrawn.      The appellants  in Civil  Appeal No.  2221 of  1972 are dealers in  durries. They feel aggrieved by the Notification GSR 1061  dated 29-6-1966  whereby exemption of Durries from sales-tax was withdrawn.      The appellants  in Civil Appeals 2222, 2223 and 2225 of



1972 deal in knitting wool. Their cause of action arose when exemption of  knitting wool  was withdrawn  by  Notification dated 19-9-1959,  w.e.f. 1-10-1959.  The appellants in Civil Appeals 2524  of 1972 deal inter alia in pure silk. They are aggrieved  by   Notification,  dated   31-7-1970  by   which exemption of ’pure-silk’ was withdrawn w.e.f. 1-8-1970.      The appellants  in Civil  Appeal No.  2224 of 1972 is a Kiryana dealer. He feels aggrieved by the Notification dated 19-9-1959 whereby  items 8,  11 and 14 were deleted from the Second Schedule with effect from 1-10-1959.      The appellants  in Civil  Appeal No.  1801 of  1972 are licensed vendors  of country  liquor.  They  feel  adversely affected by  Notification GSR  1076, dated 19-9-1959 whereby exemption of  country liquor  from tax  was  withdrawn  with effect from 1-10-1959.      Several writ  petitions were filed in the High Court to question the  validity of  the Government action withdrawing the exemptions  with notice  far less  than three  months. A learned Judge  of the  High Court  allowed  eight  of  these petitions by  a common judgment recorded in Civil Writ 574-D of 1966, Lachmi Narain v. Union of India and others. Against that judgment,  the Revenue  carried appeals under Clause 10 of the.  Delhi High  Court Act, 1966, to a Bench of the High Court. In  the meanwhile  more writ petitions (C. Ws. 593 to 652, 792  to 806  of 1971) were instituted in which the same question was  involved. The  Division  Bench,  by  a  common judgment,  allowed   the  appeals  and  dismissed  the  writ petitions.      The writ  petitioners have  now come  in appeal to this Court on  the basis  of a  certificate granted  by the  High Court under Article 133 (1) (a) and (c) of the Constitution.      In the High Court the validity of the withdrawal of the exemptions was challenged on these grounds :           (I)   The power  given by  s. 2 of the Laws Act to                the Central  Government to  extend enactments                in force in a State to a Union Territory with                such restrictions  and  modifications  as  it                thinks fit,  could be  exercised only to make                such modifications  in the  enactment as were                necessary  in  view  of  the  peculiar  local                conditions. The  modification in  s. 6(2)  of                the BengaI Act made by SRO 3908, dated 793                7-10-1957,  was   not  necessitated  by  this                reason. It was therefore, ultra vires s. 2 of                the Laws Act;           (2)   Such a  modification could be made only once                when the  Bengal Act was extended to Delhi in                1951. No  modification could  be  made  after                such extension.           (3)   The modification could not change the policy                of the  legislature reflected  in the  Bengal                Act. The  impugned modification  was contrary                to it, and           (4)   The modifications  giving notice to withdraw                the exemptions  and the  notifications issued                pursuant thereto  withdrawing the  exemptions                from sales-tax with respect to Durries, Ghee,                (and other items relevant to these petitions)                were void as the statutory notice of not less                than three  months as  required  by  s.  6(2)                prior to  its modification  by  the  impugned                notification of  7th December,  1957 had  not                been given.      Finding on  all the  four grounds in favour of the writ



petitioners, lie  learned Single  Judge declared  "that  the purported modification  of S.  6(2) of  the  Bengal  Finance (Sales-Tax)  Act   1941  by   the  Government   of   India’s notification No.  SRO 3908,  dated 7th  December, 1957,  was ineffective and  s. 6(2)  continues to be the same as before as if  it was  not so  modified at  all." In  consequence he quashed the  Government notifications  GSR 964,  dated 16-6- 1966 and  GSR 1061  dated 29-6-1966 because they were not in compliance with  the requirement  of s.  6(2) of  the Bengal Act.      The contentions  canvassed before  the  learned  Single Judge were  repeated before  the appellate Bench of the High Court. The  Bench did not pointedly examine the scope of the power of  modification given  to the  Central Government  by s. 2  of the Laws Act with specific reference to the purpose for which  it was  conferred and its precise limitations. It did not  squarely dispel the reasoning of the learned Single Judge that  the power of modification is an integral part of the power  of extension  and "cannot  therefore be exercised except for  the purpose  of the  extension". It  refused  to accept that  reasoning with  the  summary  remark-"from  the extracts  quoted  by  the  learned  Single  Judge  from  the judgment of the Supreme Court in Re: Delhi Laws Act and from the Judgment  in  Rajnarain  Singh  v.  The  Chairman  Patna Administration  Committee   Patna  and  Anr.  the  principle deduced by  the learned  Judge does not appear to follow. We are therefore not inclined, as at present advised to support the above observations". The Bench however hastened to add :           "However, since the matter was not argued at great      length  and   the  appellants’   Counsel   rested   his      submissions on  the other aspects of the case, we would      not like to express 794      any definite  opinion on the question as to whether the      power of  making any  modifications or  restrictions in      the Act  can only be exercised at the time of extending      the Act  and that it cannot be done subsequently by the      Central Government in exercise of its power."      Seeking support  from the observations of this Court in Raza Buland  Sugar Co.  Ltd. v.  Municipal Board, Rampur,(1) the Bench  held that  what is  mandatory in  s. 6(2)  is the requirement as  to the  giving of  reasonable notice  of the Government’s intention  t(! amend  the second  Schedule, for the  information   of  the  public,  and  that  "no  special significance or  sanctity is attached to the span of time of three months  provided in subsection (2) of s. 6." The Bench found that  since  the  withdrawals  of  the  exemptions  in question, had  been made  after reasonable  notice, the same were not invalid.      However, the  main ground  on which the decision of the Bench rests  is that  the infirmity, if any, in the impugned notification dated  7-12-1957, had  been cured and rectified when "Parliament while enacting the Amendment Act, 1959 (Act No. ’70  of 1959)  put its seal of approval to the curtailed period of  notice. As  such the  curtailed period  of notice shall be  taken to  have been  provided by Parliament on the ratio of  Supreme Court’s  decision  in  Venkatrao  Esajirao limberkar’s case".      Apart from  the grounds  taken in their writ petitions, the learned  Counsel for  the appellants have tried to raise before us another ground under the garb of what they styled. as  merely   an  additional  argument".  They  now  seek  to challenge the  vires of  the Notification SRO 615, dated the 28th April, 1951 in so far as it relates to the insertion in sub-section (2)  of s. 6 of that Act, between the words "add



to" and  "the Schedule",  of the words "or omit or otherwise amend". It  is argued  that this  insertion was  beyond  the power of modification conferred on the Central Government by s. 2  of the  Laws Act.  The point  sought to be made out is that if  the insertion  made by the Notification dated 28-4- 1951, in sec. 6(2) was ineffective and non est in the eye of law, the  Central Government  would have  no power to "omit" anything from  the exempted  goods itemised in the Schedule. It is  argued that  under s.  6(2) sans  this insertion, the Central Government  was empowered  only to  "add to" and not "omit" from  the exempted  items enumerated in the Schedule, and  consequently,  the  withdrawal  of  the  exemptions  in question was ultra vires the Central Government.      The entertainment of this Plea at this stage is stoutly opposed by Shri B. Sen, learned Counsel for the Revenue.      We are  not inclined to permit the appellants to add to the list  of impugned  Notifications, now in section appeal. In their  writ petitions,  the appellants  did not challenge the validity  of the  Notification dated 28-4-51. They never raised this point before the learned 795 Single Judge.  Of course,  before the  appellate  Bench,  an argument was addressed on this point, but it does not appear to have been pressed. The Bench noted:           "In the present appeal, the Bengal Act as extended      by SRO  615, dated  the 28th April 1951, did not suffer      from any  infirmity. It  is  conceded  by  the  learned      Counsel  for  the        respondent  that  the  Central      Government at  the time  it extended  e the Bengal Act,      was  competent   to  introduce  such  modification  and      restrictions as it thought fit." The certificate  under Art.  133  of  the  Constitution  was neither sought,  nor granted  on  any  ground  touching  the validity of  the Notification,  dated 28-4-1951. In the face of all this, it is now too late for the appellants to commit a volte  face. Accordingly, we decline to entertain this new ground of challenge.      The learned Counsel for the parties have, more or less, reiterated the  same contentions  which they had advanced in the High Court.      On behalf  of the  appellants, it is contended that the power of modification conferred on the Central Government by s. 2 of the Laws Act is not an unfettered power of delegated legislation but a subsidiary power conferred for the limited purpose of  extension and  application to a Union Territory, an enactment in force in a State. It is maintained that only such modifications  are permissible  in the exercise of that power which are necessary to adapt and adjust such enactment to local conditions.      According to Shri Ashok Sen, the power given by s. 2 is a power  of conditional  legislation which is different from the power  of delegated legislation. It is submitted that it is not  a recurring  power; it exhausts itself on extension, and in  no case  this power  can be used to change the basic scheme and  structure of  the enactment  or the  legislative policy ingrained  in it. The submission is that the impugned notification, dated  7-12-1957, is  bad because  it has been issued more than 61 years after the extension of Bengal Act, and it  attempts to  change the re- rquirement of s. 6(2) as to "not  less than  three months  notice"  which  P  is  the essence of the whole provision.      Reference has  been made to this Court’s opinion in Re: Delhi Laws  Act (supra) and the decision in Raj Narain Singh case (supra).      Shri Ashok Sen further submits that by the amending Act



20 of  1959, parliament  did not put its seal of approval on the impugned  notification or  the changes sought to be made by it  in s.  6 of  the Bengal  Act. It is stressed that the amending Act  of 1959,  did  not  touch  s.  6  at  all  and therefore  it   could  not  be  said  with  any  stretch  of imagination, that  Parliament had referentially or impliedly incorporated or  approved the  purported change  made by the impugned notification, in the Bengal Act.      As against  the above, Shri B. Sen, the learned Counsel for the  Revenue submits that the impugned notification does not change the essential structure or the policy embodied in s. 6(2) of the Bengal Act. 796 According to  Counsel, the policy underlying s. 6(2) is that reasonable notice of the Government’s intention to add to or omit anything  from the  Second Schedule  must be  given  by publication in  the official  Gazette. It is maintained that the requirement  as to  "not less than three months’ notice" in the  section was not a matter of policy but one of detail or expedience;  it was  only directory, and the modification made  by   the  impugned  notification  did  not  go  beyond adjusting and  adapting it to the local conditions of Delhi. Bengal, it  is pointed  out, is a big, far-flung State while the  Territory  of  Delhi  is  a  small,  compact  area  and therefore, it would not be necessary or unreasonable to give a notice  of less  than three  months for every amendment of the Schedule.  Reliance has  been  placed  on  this  Court’s dictum in Raza Buland Sugar Co.’s case (supra). It is argued that the  power to  add or  omit from  the  Second  Schedule conferred on  the  Government  is  in  consonance  with  the accepted practice  of the  Legislature; that it is usual for the legislature  to leave  a discretion  to the executive to determine details  relating to the working of taxation laws, such as  the selection  of persons  on whom the tax is to be levied or  rates at  which it is to be charged in respect of different classes  of goods and the like. Reference has been made to  the observations  of this  Court in Pt. Benarsi Das Bhanot v.  State of Madhya Pradesh in the context of s. 6(2) of the Central Provinces and Berar Sales Tax Act 1947.      Shri  B.   Sen  further  contends  that  the  power  of modification given by s. 2 of the Laws Act, does not exhaust itself  on   first  exercise;   it  can  be  exercised  even subsequently if  through oversight or otherwise, at the time of extension  of the  enactment the Central Government fails to adapt  or  modify  certain  provisions  of  the  extended enactment for  bringing it  in accord with local conditions. In  this   connection  support  has  been  sought  from  the observations of  Fazal Ali J. at p. 850 of the Report in Re: Delhi Laws  Act (supra). Our attention has also been invited to s.  21 of  the General  Clauses Act  which  according  to Counsel, gives  power to  the Central  Government to add to, amend, vary or rescind any notification etc. if the power to do so  does not run counter to the policy of the legislature or affect any change in its essential features.      Learned  Counsel  has  further  tried  to  support  the reasoning of  the appellate  Bench of  the High  Court, that whatever  infirmity   may  have   existed  in  the  impugned notification and  the modification made there by in s. 6(2), it was  rectified and cured by Parliament when it passed the Amendment Act  20 of  1959. It  is urged that the Bengal Act together with the modifications made by notifications, dated 28-4-51, and  7-12-1957, must  have been  before  Parliament when it considered and passed the Amendment Act of 1959. Our attention has  been invited  to its preamble which is to the effect: "An  Act further to amend the Bengal Finance (Sales-



Tax) Act,  1941, as  in force  in  the  Union  Territory  of Delhi," and  also to  the words  "as in  forcer in the Union Territory of  Delhi" in s. 2 of the amending Act. :Reference has  been  made  to  this  Court’s  decisions  in  Venkatrao Esajirao’s case  (supra), and Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. The Assistant Commissioner of Sales-tax and ors. 797      An alternative argument advanced by Shri B. Sen is that if in  s. 6(2)  the requirement  as to  "not less than three months’ notice"  was mandatory  and a  matter of legislative policy, then  the exemptions  from tax  granted to  Durries, pure silk  etc. after  the issue o the impugned notification must be  treated non est and void ab initio, inasmuch as the amendments of  the Second  Schedule whereby those exemptions were  granted,   were  made   without  complying   with  the requirement of  not less  than three  months’ notice". It is argued that  if this  requirement was  a sine  qua  non  for amendment of  the Second  Schedule, it  could not be treated mandatory in  one situation  and directory in another. If it was mandatory  then compliance  with it  would be absolutely necessary both  for granting an exemption and withdrawing an exemption from tax. In this view of the matter, according to Shri B.  Sen, the  withdrawal of  the exemption  through the impugned   notification    was   a   mere   formality;   the notifications simply  declared the  withdrawal of  something which did  not exist  in the  eye of  law. Appellants cannot therefore have  any cause  of grievance  if the  invalid and still-born  exemptions  were  withdrawn  by  the  questioned notifications.      In reply to this last argument, learned Counsel for the appellants submit  that  this  ground  of  defence  was  not pleaded by  the Revenue  in its affidavit before the learned Single Judge. This, according to the Counsel, was a question of fact  which required  evidence for its determination, and was therefore  required to be pleaded. Since the Respondents did not  do so, they should not have been allowed to take it for the first time at the time of arguments. Even otherwise- proceeds the  argument-the Respondents  are not competent to take this  stand which  is violative  of the  basic canon of natural justice,  according to which no party can be allowed to take  advantage of its own wrong. It is stressed that the object of  the requirement  of not  less than  three months’ notice, was to afford an opportunity to persons likely to be adversely affected  to raise objections against the proposed withdrawal or  curtailment of  an exemption  from tax.  That being the  case, only  the persons  aggrieved could have the necessary locus  standi to complain of a non-compliance with this requirement.      In  Re:  Delhi  Laws  (supra)  this  Court  inter  alia examined the constitutional validity of s. 2 of the Laws Act in the  light of  general principles relating to the nature, scope and limits of delegated legislation.           Section 2 as it then stood, was as follows:           "The Central  Government may,  by notification  in      the official  Gazette, extend  to any Part State (other      than Coorg  and the  Andaman and Nicobar Islands) or to      any part  of such  State  with  such  restrictions  and      modifications as  it thinks  fit any enactment which is      in force  in  a  Part  A  State  at  the  date  of  the      notification and provision may be made in any enactment      so  extended  for  the  repeal  or  amendments  of  any      corresponding law  (other than  a Central Act) which is      for the time being applicable to that Part State."      The Court  by a  majority held  that the  first part of this section which empowers the Central Government to extend



to any  Part State  or to  any part  of such State with such modifications and restrictions as it 798 thinks fit  any enactment  which is  in force  in a  Part  A State, is  intra vires,  and that  the latter  part of  this section  which  empowers  the  Central  Government  to  make provision in  any enactment  extended to  a Part  State, for repeal or  amendment of  any law  (other than a Central Act) which is  for the  time being applicable to that Part State, is ultra  vires. Consequent  upon this  opinion, the  latter part of the section was deleted by s. 3 of the Repealing and Amending Act,  195 (Act  XLVIlI of  1952) with  effect  from 2-8-1951.      The majority  opinion in  upholding the validity of the first portion  of s. 2 of the Laws Act drew a good deal from the observations  of the  Privy Council  in Queen  v.  Burah wherein it was said:           "If what  has been  done is legislation within the           general scope  of the affirmative words which give           the power  and if it violates no express condition           or restrictions  by which  that power is limited..           it is  not for  any court  of justice  to  enquire           further  or   to  enlarge   constructively   those           conditions and restrictions".           x                x                 x           "Where plenary  powers of  legislation exist as to           particular subjects,  whether in an Imperial or in           a  Provincial  Legislature,  they  may  (in  their           Lordships  judgment)  be  well  exercised,  either           absolutely    or     conditionally.    Legislation           conditional on the use of particular powers, or on           the exercise of a limited discretion, entrusted by           the legislature  to  persons  in  whom  it  places           confidence, is  no uncommon  thing;  and,  in  any           circumstances it may be highly convenient."           (emphasis supplies)      Before proceeding  further, it  will be proper to say a few words in regard to the argument that the power conferred by  s.  2  of  the  Laws  Act  is  a  power  of  conditional legislation and not a power of delegated legislation. In our opinion, no  useful purpose  will be  served to  pursue this line of  argument because the distinction propounded between the  two   categories  of   legislative  powers   makes   no difference, in principle. In either case, the person to whom the power  is entrusted  can do  nothing beyond  the  limits which circumscribe the power; he has to act-to use the words of  Lord   Selborne-"within  the   general  scope   of   the affirmative  words   which  give   the  power"  and  without violating any  "express conditions  or restrictions by which that power is limited". There is no magic in a name. Whether you call  it the power of "conditional legislation" as Privy Council called  it in  Burah’s case  (supra)  or  ’ancillary legislation’ as  the Federal  Court termed it in Choitram v. Commissioner   of    Income-tax,   Bihar    or   ’subsidiary legislation’  as  Kania  C.J.  styled,  it  or  whether  you camouflage it  under the  veiling name of ’administrative or quasi-legislative  power’-as  Professor  Cushman  and  other authorities have done it-necessary for 799 bringing into  operation and  effect an  enactment, the fact remains  that   it  has   a  content,  howsoever  small  and restricted of  the law  making power  itself. There is ample authority in  support of  the proposition  that the power to extend and  carry into operation an enactment with necessary modifications and adaptations is in truth and reality in the



nature of  a power  of delegated  legislation. In  Re: Delhi Laws Act (supra) S.R. Das J. said that on strict analysis it was "nothing  but a  delegation of  a fractional legislative power".   Anglin J.  in Grays  case regarded  this  what  is called conditional  legislation’ as  "a very common instance of limited  delegation. More  or less  to the same effect is the view  taken by  Evatt J.  of Australia  in Dignams case. Prof. Kennedy  (vide his  treatise ’Constitution of Canada’, 2nd Edn.  p. 463),  is also  of  opinion  that  ’conditional legislation’ is "a form of delegation".      We do  not want  to multiply  authorities nor  wish  to carry this academic discussion to a final conclusion because it is not necessary for solution of the problem in hand.      In the instant case, the precise question with which we are faced is whether the purported substitution of the words "such previous  notice as  is considers  reasonable" for the words "not  less than three months notice" in s. 6(2) by the impugned notification  dated  7th  December,  1957,  was  in excess of  the power  of  ’modification’  conferred  on  the Central Government by s. 2 of the Laws Act.      This question  has to  be answered  in the light of the principles enunciated  by this  Court in  Re: Delhi Laws Act relating to the nature and scope of this power.      Out of  the majority  who upheld  the validity  of this provision of  s. 2  of the  Laws  Act,  with  which  we  are concerned, Fazal  Ali J.  explained the  scope of  the words "much modifications as it thinks fit" in s. 2, thus:      "These are not unfamiliar words and they are often used      by  careful   draftsmen  to   enable  laws   which  are      applicable to  one place  or object to be so adapted as      to apply to another. The power of introducing necessary      restrictions and  modifications is  incidental  to  the      power to  apply or adapt the law, and in the context in      which the provision as to modification occurs it cannot      bear  the   sinister  sense   attributed  to   it.  The      modifications are  to be  made within  the framework of      the Act  and they  cannot be  such  as  to  affect  its      identity or  structure or  the essential purposes to be      served by  it. The power to modify certainly involves a      discretion to  make suitable  changes, but  it would be      useless to  give an  authority the power to adapt a law      without giving it the power to make suitable changes."      Vivian Bose J. also observed in a similar strain, at p.      1124; 800      "The power to "restrict and modify" does not import the      power to  make essential  changes. It  is  confined  to      alterations of  a minor character such as are necessary      to make  an Act  intended for  one area  applicable  to      another and  to bring it into harmony with laws already      in being  in the State, or to delete portions which are      meant solely  for another  area. To alter the essential      character of  an  Act  or  to  change  it  in  material      particulars is  to legislate,  and  that,  namely,  the      power to  legislate, all authorities are agreed, cannot      be delegated by a legislature which is not unfettered."      Mukherjea J.  was  of  the  view  that  the  "essential legislative function" which consists in the determination or choosing of  the legislative policy and of formally enacting that policy  into a  "binding rule  of  conduct"  cannot  be delegated.  Dealing  with  the  construction  of  the  words "restrictions" and  "modification"  in  the  Laws  Act,  the learned Judge said" at pages 1004-10O6:      "The  word   "restrictions"  ..   connotes   limitation      imposed on a particular provision so as to restrain its



    application or  limit its  scope, it  does not  by  any      means involve  any change in the principle. It seems to      me that  in the  context and  used alongwith  the  word      "restriction"  the   word  "’modification"   has   been      employed also  in a  cognate sense,  and  it  does  not      involve any  material or  substantial  alteration.  The      dictionary meaning  of the expression "to modify" is to      "tone down"  or to "soften true rigidity, of the thing"      or  "to   make  partial  changes  without  any  radical      alteration". It  would be quite reasonable to hold that      the word  "modification" in  s. 7 of the Delhi Laws Act      (which is  almost identical with the present s. 2, Laws      Act) means  and signifies  changes of such character as      are necessary to make the statute which is sought to be      extended able  to the local conditions of the province.      I  do  not  think  that  the  executive  Government  is      entitled  to   change  the   whole  nature   or  policy      underlying any  particular Act  or  to  take  different      portions from  different statutes  and prepare what has      been described  before us as "amalgam" of several laws.      these things  would be  beyond the scope of the section      itself." (emphasis supplied).      S.R. Das  J. (as  he then  was) delineated the scope of the power  of "modification"  given under  s. 7 of the Delhi Laws Act,  1912 (for  short the  Delhi Act)  at p.  1089  as follows:      "It may  well be argued that the intention of section 7      of  the   Delhi  Laws  Act  was  that  the  permissible      modifications  were   to  be   such  as   would,  after      modification,  leave   the  general  character  of  the      enactment intact.  One of  the  meanings  of  the  word      "modify" is given in the oxford Dictionary Vol. I, page      1269 as  "to alter  without radical transformation". If      this meaning  is given  to the  word "modification"  in      section 7 of the Delhi Laws Act. then the modifications      contemplated 801      thereby were  nothing more  than adaptations which were      included in  the expressions  mutatis mutandis  and the      "restrictions, limitations or proviso" mentioned in the      several instances  of conditional  legislation referred      to by the Privy Council (in Burah’s case)."                      (emphasis supplied & parenthesis added)      It is to be noted that the language of s.7 of the Delhi Act was  substantially the same as that of the first portion of s. 2 of the Part C State Laws Act, as it then stood. What Das  J.   said  about   the  scope   of  "restrictions   and modifications" in  the context  of s.  7 of  the  Delhi  Act substantially applies  to the  ambit and  meaning  of  these words occurring in s. 2 of the Laws Act.      Again, in Rajnarainsingh’s case (supra), Vivian Bose J. speaking for  the Court,  summed up  the  majority  view  in regard to  the nature  and scope of delegated legislation in Re: Delhi Laws (supra), thus:      "In our opinion the majority view was that an executive      authority can  be authorised  to modify either existing      or future  laws  but  not  in  any  essential  feature.      Exactly what constitutes an essential feature cannot be      enunciated  in   general  terms,  and  there  was  some      divergence of  view about  this in the former case, but      this much  is clear from the opinions set out above: it      cannot include a change of policy".      Bearing in  mind  the  principles  and  the  scope  and meaning of  the expression  "restrictions and modifications" explained in Delhi Laws Act, let us now have a close look at



s. 2.  It will  be clear  that the primary power bestowed by the section  on the Central Government, is one of extension, that is,  bringing into  operation and  effect, in  a  Union Territory, an  enactment already  in force  in a  State. The discretion conferred  by the  Section to  make ’restrictions and modifications’  in the  enactment sought to be extended, is not  a separate  and independent power. It is an integral constituent  of  the  powers  of  extension.  It  cannot  be exercised  apart  from  the  power  of  extension.  This  is indubitably  clear   from  the   preposition  "with"   which immediately  precedes  the  phrase  "such  restrictions  and modifications" and  conjoins it  to the  principal clause of the section which gives the power of extension. According to the Shorter  Oxford Dictionary,  one  meaning  of  the  word "with", (which  accords here  with the context), is "part of the same whole".      The power given by s. 2 exhausts itself on extension of the  enactment;   it  cannot   be  exercised  repeatedly  or subsequently to  such extension.  It can  be exercised  only once, simultaneously  with the  extension of  the enactment. This  is   one  dimension  of  the  statutory  limits  which circumscribe the  power. The second is that the power cannot be used  for a  purpose other than that of extension. In the exercise  of   this  power,   only  such  "restrictions  and modifications" can  be validly  engrafted in  the  enactment sought to  be extended, which are necessary to bring it into operation and effect in the Union Territory. "Modifications" which are not necessary for, or ancillary and subservient to the purpose 802 of  extension,   are  not   permissible.  And,   only   such "modifications"  can  be  legitimately  necessary  for  such purpose as  are required  to  adjust,  adapt  and  make  the enactment suitable  to the  peculiar local conditions of the Union Territory  for carrying  it into operation and effect. In the  context of  the section, the words "restrictions and modifications" do  not cover  such alterations  as involve a change in  any essential  feature, of  the enactment  or the legislative  policy   built  into  it.  This  is  the  third dimension of the limits that circumscribe the power.      It  is  true  that  the  word  "such  restrictions  and modifications as  it thinks fit", if construed literally and in isolation,  appear to  give unfettered  power of amending and modifying  the enactment  sought to  be extended. Such a wide construction must be eschewed lest the very validity of the section  becomes vulnerable  on account  of the  vice of excessive delegation. Moreover, such a construction would be repugnant to  the context  and the  content of  the section, read as  a whole,  and the  statutory limits  and conditions attaching to  the exercise of the power. We must, therefore, confine  the   scope  of   the   words   "restrictions   and modifications" to alterations of such a character which keep the inbuilt  policy, essence  and substance of the enactment sought to  be extended,  intact,  and  introduce  only  such peripheral or  insubstantial changes  which are  appropriate and necessary to adapt and adjust it to the local conditions of the Union Territory.      The    impugned    notification,    dated    7-12-1957, transgresses the  limits which  circumscribe the  scope  and exercise of  the power conferred by s. 2 of the Laws Act, at least, in two respects.      Firstly,   the    power   has    not   been   exercised contemporaneously with  the extension or for the purposes of the extension of the Bengal Act to Delhi. The power given by s. 2  of the  Laws Act  had exhausted itself when the Bengal



Act  was  extended,  with  some  alterations,  to  Delhi  by Notification dated  28-4-1951. The impugned notification has been issued  on 7-12-1957,  more than  6 1/2-years after the extension.      There is  nothing in the opinion of this Court rendered in Re:  Delhi Laws  Act (supra)  to  support  Mr.  B.  Sen’s contention that  the power  given by  s. 2  could be validly exercised within  one year after the extension. What appears in the  opinion of  Fazl Ali  J. at  page 850,  is merely  a quotation from  the report  of the  Committee on  Minister’s Powers which  considered the  propriety of  the  legislative practice of  inserting a  "Removal of  Difficulty Clause" in Acts of  British Parliament,  empowering  the  executive  to modify the  Act itself  so far  as necessary for bringing it into operation.  This device  was adversely  commented upon. While some  critics conceded  that this  device is "partly a draftsman’s insurance  policy, in  case  he  has  overlooked something" (e.g.  Sir Thomas  Carr,  page  44  of  his  book "Concerning English  Administrative  Law"),  others  frowned upon it,  and nicknamed  it as "Henry VIII Clause" after the British Monarch  who  was  a  notorious  personification  of absolute despotism.  It was  in this  perspective  that  the Committee on  Minister’s Powers  examined this  practice and recommended: 803           ".... first,  that the  adoption of  such a clause      ought on each occasion when it is, on the initiative of      the  Minister  in  charge  of  the  Bill,  proposed  to      Parliament to  be justified  by him upto the essential.      It can  only be  essential for  the limited  purpose of      bringing  an   Act  into   operation  and   it   should      accordingly be  in most  precise language restricted to      those purely  machinery arrangements  vitally requisite      for that  purpose; and the clause should always contain      a maximum  time-limit of one year after which the power      should lapse".      It may  be seen  that the time-limit of one year within which  the  power  under  a  Henry  VIII  Clause  should  be exercisable, was  only  a  recommendation,  and  is  not  an inherent attribute of such power. In one sense, the power of extension-cum-modification given  under s. 2 of the Laws Act and the power of modification and adaptation conferred under a  usual   ’Henry  VIII   Clause,’  are  kindred  powers  of fractional legislation,  delegated by the legislature within narrow circumscribed  limits. But  there is  one significant difference between  the two.  While the power under s. 2 can be exercised  only once when the Act is extended, that under a ’Henry VIII Clause’ can be invoked, if there is nothing to the contrary in the clause-more than once, on the arising of a difficulty  when the Act is operative. That is to say, the power under  such a  Clause  can  be  exercised  whenever  a difficulty arises  in the  working  of  the  Act  after  its enforcement, subject  of course  to the  time-limit, if any, for its exercise specified in the statute.      Thus, anything  said in  Re: Delhi Laws Act (supra), in regard to  the time-limit  for the exercise of power under a ’Henry VIII  Clause’, does  not hold good in the case of the power given  by s.  2 of  the Laws Act. Fazl Ali J., did not say anything  indicating that  the power  in question can be exercised within one year of the extension. On the contrary, the learned  Judge expressed  in unequivocal  terms, at page 849:      "Once the  Act  became  operative  any  defect  in  its      provision cannot  be removed until amending legislation      is passed."



    Secondly, the  alteration sought  to be  introduced  by this Notification  (7-12-1957) in  s. 6(2),  goes beyond the scope of  the ’restrictions  and modifications’  permissible under s.  2 of  the Laws  Act; it  purports  to  change  the essential  features   of  sub-s.   (2)  of  s.  6.  and  the legislative policy inherent therein.      Section  6(2),  as  it  stood  immediately  before  the impugned notification, requires the State Government to give by Notification  in the  Official Gazette  "not less  than 3 months notice"  of its  intention to  add to or omit from or otherwise amend  the Second Schedule. The primary key to the problem  whether  a  statutory  provision  is  mandatory  or directory, is the intention of the law-maker as expressed in the law,  itself. The  reason behind  the provision may be a further aid  to the  ascertainment of that intention. If the legislative intent  is expressed  clearly  and  strongly  in imperative words,  such as  the use  of  ’must’  instead  of "shall", that will itself be sufficient to hold 804 the provision  to be mandatory, and it will not be necessary to pursue  the enquiry  further. If the provision is couched in prohibitive  or  negative  language,  it  can  rarely  be directory, the use of peremptory language in a negative form is per  se indicative of the intent that the provision is to be mandatory  (Crawford, the  Construction of  Statutes  pp. 523-24). Here  the language  of sub-section  (2) of  s. 6 is emphatically prohibitive,  it  commands  the  Government  in unambiguous negative  terms that the period of the requisite notice must not be less than three months.      In fixing this period of notice in mandatory terms, the legislature had,  it seems  taken into consideration several factors. According  to the scheme of the Bengal Act, the tax is quantified  and assessed  on the  quarterly turnover. The period of not less than three months notice conforms to that scheme and  is intended  to ensure  that imposition of a new burden or  exemption from  tax causes  least dislocation and inconvenience to  the dealer  in collecting  the tax for the Government, keeping accounts and filing a proper return, and to the Revenue in assessing and collecting the same. Another object of this provision is that the public at large and the purchasers on  whom the  incidence of  the tax really falls, should have  adequate notice  of taxable  items.  The  third object seems  to be that the dealers and others likely to be affected by  an amendment  of the  Second Schedule  may  get sufficient time  and opportunity for making representations, objections  or   suggestions  in  respect  of  the  intended amendment. The  dealers have also been ensured adequate time to arrange  their sales  adjust their  affairs  and  to  get themselves registered  or get  their  licenses  amended  and brought in accord with the new imposition or exemption.      Taking  into   consideration  all  these  matters,  the legislature has in its judgment solemnly incorporated in the statute, fixed  the period  of the  requisite notice as "not less than  three months"  and willed  this obligation  to be absolute. The  span of  notice was  thus the  essence of the legislative mandate. The necessity of notice and the span of notice both are integral to the scheme of the provision. The sub-section cannot  therefore be split up into essential and non-essential components,  the whole  of it being mandatory. The rule  in  Raza  Buland  Sugar  Co.’s  case  (supra)  has therefore no application.      Thus  section   6(2)  embodies   a   determination   of legislative policy  and its  formulation as an absolute rule of conduct  which could  be diluted, changed or amended only by  the   legislature  in  the  exercise  of  its  essential



legislative function  which could  not, as held in Re: Delhi Laws  Act  (supra)  and  Rajnarainsingh’s  case  (supra)  be delegated to the Government.      For these  reasons we  are of  opinion that the learned single Judge of the High Court was right in holding that the impugned notification  was  outside  the  authority  of  the Central Government as a delegate under s. 2 of the Laws Act.      Before proceeding  further,  we  may  mention  here  in passing that  the point for decision in Benarsi Das Bhanot’s case (supra)  relied on  by the  Division Bench  of the High Court, was different from the one 805 before us.  There, the constitutional validity of s. 6(2) of the Central   Provinces  and Berar  Sales Tax Act, 1947, was questioned on  the ground  of excessive  delegation. In  the instant case  the validity  of s. 6(2) of the Bengal Act, as such is not being impeached.      There is  yet another  facet  of  the  matter.  By  the impugned  notification,   the  Central  Government  did  not directly seek  to amend  s. 6(2). Perhaps it was not sure of its competence  to do  so more  than 6  1/2 years  after the extension of  Bengal Act  to Delhi.  It therefore  chose  to amend s.  6(2)  indirectly  through  the  amendment  of  its earlier notification dated 28-4-51, which was only a vehicle or instrument  meant for  extension of  the  Bengal  Act  to Delhi. On such extension, the notification had exhausted its purpose and  had spent  its force.  It had  lost its utility altogether as  an instrument  for modification of the Bengal Act. Therefore, the issue of the impugned notification which purported to  amend s.  6(2) through  the medium of a "dead" notification, was  an exercise  in futility. In any case, an amendment which  was not  directly permissible  could not be indirectly smuggled in through the back-door.      We now turn to the main ground on which the judgment of the appellate  Bench of  the High  Court rests. The question is, was the invalidity from which the impugned notification, dated 7-12-1957, suffered cured by the Amendment Act of 1959 ? The  Bench seems  to think  that by passing this Amendment Act, Parliament  had put  its seal of approval on the Bengal Act as it stood extended and amended by the Notifications of 1957 and 1957.      We find  no basis  for this surmise. This Amendment Act leaves s. 6(2) untouched; it does not even indirectly, refer to the  impugned notification  or the  amendment purportedly made by it in s. 6(2). Nor does it re-enact or validate what was sought  to be  achieved by the impugned Notification. No indication of referential incorporation or validation of the impugned notification  or the amendment sought to be made by it, is  available either  in the  preamble or  in any  other provision of the Amendment Act.      In Krishna Chandra v. Union of India,(1) relied upon by the learned  Counsel for  the Respondents, the central issue for consideration  was, whether R. 20(2) framed by the Bihar Government under s. 15 of the Mines and Minerals (Regulation and Development)  Act, 1957  and the  second proviso  to  s. 10(2)  of   the  Bihar   Land   Reforms   Act,   1950   were constitutionally valid.  By the  combined operation of these statutory provisions,  the petitioners  therein were  called upon to  pay certain rent and royalties in respect of mining operations. Those  demands were challenged in Baijnath Kedia v. State  of Bihar(2) wherein this Court held that the Bihar legislature had  no jurisdiction to enact the second proviso to s.  10(2) of  the Bihar  Act because s. 15 of the Central Act, read  with s.  2 thereof,  had appropriated  the  whole field  relating   to  mining   minerals  for   Parliamentary



legislation. The  upshot of  that  decision  was,  that  the action taken by the 806 Bihar Government  in modifying  the terms  and conditions of the leases which were in existence anterior to the Rules and the levy  sought to  be made  on the strength of the amended Bihar Act  and Rule, were unsustainable. Thereupon the State persuaded Parliament  to enact  the Validation  Act of  1969 with a  view to remove the road-blocks which resulted in the decision  in   Kedia’s  case   (supra).  Section  2  of  the Validation Act runs thus:      "Validation of  certain Bihar  State  laws  and  action      taken and things done connected therewith.      (1)  The laws  specified in  the Schedule  shall be and           shall be  deemed always  to have been, as valid as           if  the  provisions  contained  therein  had  been           enacted by Parliament.      (2)  Notwithstanding any  judgment, decree  or order of           any court,  all actions  taken, things done, rules           made, notification  issued or  purported  to  have           been taken,  done, made  or issued  and  rents  or           royalties realised  under any  such laws  shall be           deemed to  have been  validly taken,  done,  made,           issued or realised, as the case may be, as if this           section had  been in  force at  all material times           when such  action was  taken,  things  were  done,           rules were  made, notifications  were  issued,  or           rents or  royalties were  realised, and no suit or           other proceeding  shall be maintained or continued           in any  court for the refund of rents or royalties           realised under any such laws.      (3)  For the  removal of  doubts, it is hereby declared           that nothing in sub-section (2) shall be construed           as preventing  any person  from claiming refund of           any rents  or royalties  paid by  him in excess of           the amount due from him under any such laws."      The precise  question before  the Court  was, whether a statute or  a rule  earlier declared  by  the  Court  to  be unconstitutional or  otherwise invalid  can  be  retroactive through  fresh   validating  legislation   enacted  by   the competent  legislature.   Answering  this  question  in  the affirmative, this  Court, speaking  through Krishna Iyer, J. observed:      "where Parliament  having power  to enact  on  a  topic      actually legislates  within its  competence but,  as an      abbreviation of  drafting, borrows  into the statute by      reference the  words of  a State  Act not qua State Act      but as  a convenient  shorthand, as  against a longhand      writing of  all the sections into the Central Act, such      legislation stands or falls on Parliament’s legislative      power, vis-a-vis  the subject viz., mines and minerals.      The  distinction   between  the  two  legal  lines  may      sometimes be fine but always is real. 807      If Parliament  has the  power  to  legislative  on  the      topic, it  can make an Act on the topic by any drafting      means, including by referential legislation."      "Taking a  total  view  of  the  circumstances  of  the      Validation Act Parliament did more than simply validate      an invalid  law passed by the Bihar Legislature but did      reenact it  with retrospective  effect in its own right      adding an  amending Central Act to the statute book."      The position in the instant case is entirely different. Here, Parliament  despite  its  presumed  awareness  of  the impugned Notification,  has said nothing in the Amending Act



of 1959,  indicating that  it (Parliament) has by ’longhand’ or ’shorthand’  method incorporated, re-enacted or validated the impugned notification or the amendment sought to be made thereby,  while   passing  the   Amendment  Act,  1959.  The appellate Bench  was therefore  in  error  in  holding  that Parliament had  validated or  re-enacted referentially  with retrospective effect  what was  sought to  be  done  by  the impugned notification,  when it  passed  the  Amending  Act, 1959.      The High  Court has  tried with the aid of this Court’s decision in  Venkatrao v.  State of  Bombay (supra) to spell out the  proposition that  mere amendment  of an  Act  by  a competent legislature, amounts to re-enactment of the parent Act. We find nothing in this Court’s decision in Venkatrao’s case which warrants the enunciation of such a sweeping rule. All that was decided in Venkatrao’s case was that the assent given by  the President  to the Amending Act would be deemed to be  an assent  accorded to  the  parent  Act,  also.  The decision in  Venkatrao’s case therefore does not advance the case of Shri B. Sen.      Shri   B.   Sen’s   alternative   argument   that   the notifications whereby  the exemptions  from  tax  have  been withdrawn in  regard to  Durries, pure  silk, country liquor etc.  are  not  assailable  because  those  exemptions  were earlier granted  without giving  three  months’  notice,  is manifestly unsustainable.      Firstly, so  far as  fruits, fresh  and dried (item 8), Pepper, tamarind and chillies (item 11), Turmeric (item 14), ghee (item 16), and knitting wool, (item 21A) are concerned, they were  exempted goods in the Schedule of the Bengal Act, as modified  and extended  by the  Notification, dated 28-4- 1951, to  Delhi. No  question of  giving notice for granting these exemptions  therefore arose. Secondly, the validity of the notifications  whereby exemptions  were granted  to pure silk, liquor  etc. after  the extension of the Bengal Act to Delhi is  not in  issue. This  plea was  not set  up by  the Respondents in  their affidavits.  Whether or not notice for the requisite  period was given before issuing the exemption notifications, was a question of fact depending on evidence. Thirdly, to  allow the  Respondents to  take their  stand on such a  plea would be violative of the fundamental principle of natural  justice, according  to which,  a party cannot be allowed to  take advantage  of its  own lapse  or wrong. The statute 808 has imposed  a peremptory  duty on  the Government  to issue notice of  not less  than three  months, of its intention to amend the Second Schedule. It therefore cannot be allowed to urge that  since it had disobeyed this mandate on an earlier occasion when  it granted the exemptions it can withdraw the exemptions in  the same unlawful mode. Two wrongs never make a right.      Nor could  the  Respondents  derive  any  authority  or validity from  s. 21  of the  General Clauses  Act, for  the notifications withdrawing  the exemptions.  The source  from which the  power to  amend the  Second Schedule, comes is s. 6(2) of  the Bengal Act and not s. 21 of the General Clauses Act. Section  21, as  pointed out by this Court in Gopichand v.  Delhi   Administration(1)  embodies   only  a   rule  of construction and  the nature  and extent  of its application must be  governed by  the relevant statute which confers the power to  issue the notification. The power therefore had to be exercised  within the limits circumscribed by s. 6(2) and for the purpose for which it was conferred.      For all  the foregoing  reasons, we are of opinion that



the impugned  notification, dated  7-12-1957, purporting  to substitute the  words "such  previous notice as it considers reasonable" for  the  words  "not  less  than  three  months notice" in s. 6(2) of the Bengal Act is beyond the powers of the Central  Government, conferred on it by s. 2 of the Laws Act. In  consequence, the notification dated 1-4-1958, 19-9- 1959, 29-6-1966 and 31-7-1970 in so far as they withdrew the exemptions from  tax in  the case  of  Durries,  pure  silk, country  liquor,   kirayana  articles  etc.  were  withdrawn without complying with the mandatory requirement of not less than three  months notice  enjoined by s. 6(2) of the Bengal Act, are also invalid and ineffective.      In the  result we  allow these  appeals, set  aside the judgment of  the appellate  Bench  of  the  High  Court  and declare the Notification dated 7-12-1957, and the subsequent notifications in so far as they withdrew the exemptions from tax,  mentioned   above,  to  be  unconstitutional.  In  the circumstances of  the case,  we leave  the parties  to  bear their own costs. V.P.S.                                      Appeals allowed. 809