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CASE NO.: Appeal (civil) 4093  of  1991

PETITIONER: M/S SOMAIYA ORGANICS (INDIA) LTD.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ANR.

DATE OF JUDGMENT:       17/04/2001

BENCH: RUMA PAL

JUDGMENT:

WithC.A.  No.  2853 of 2001 (@ SLP(C) No.  20018 of 1991) L...I...T.......T.......T.......T.......T.......T.......T..J

J U D G M E N T

RUMA PAL, J

   While  I  respectfully  concur with  the  reasoning  and conclusions reached by my learned brother Kirpal, J., I wish to   add  my  views  on  an  aspect  of   the   prospective over-ruling which was sought to be effected by the decision of  the  Constitution Bench of this Court in Synthetics  and Chemicals  Ltd.   and Others vs.  State of U.P.  and  others 1990 (1) SCC 109.

   One  of  the arguments of the appellant as noted  by  my learned  brother was that the Court in the Synthetics  case by resorting to prospective over-ruling had in a fact sought to  uphold  a law upto the period of the judgment which  law had  held  to  have been passed without competence.   It  is submitted  that  the  finding  that   the  States  were  not competent  to levy tax on industrial alcohol meant that  the State  Acts  were  non est and that the Court could  not  by giving  prospective effect to its judgment breathe life into a  dead statute up to the date of the judgment.  It was also contended  by the appellant that even under Article 142, the Court  could  not whittle down or act in derogation  of  any constitutional provision.  By declaring that the statute was valid  up  to  the date of the judgment,  according  to  the appellant,  the specific constitutional provisions,  namely, Articles  246 and Article 245 were infringed.  Reliance  has been placed on the decision of this Court in Prem Chand Garg vs.   Excise Commissioner, U.P., Allahabad 1963 (1) SCR  885 and  Supreme  Court Bar Association V.  Union of  India  and Another 1998 (4) SCC 409.

   The   argument   of   the   appellant  proceeds   on   a misunderstanding  of the effect of prospective  over-ruling. As  has  been  elaborately stated in  my  learned  brothers judgment,  by  prospective  over-ruling the Court  does  not grant  the  relief  claimed  even   after  holding  in   the

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claimants  favour.   In this case, the Court held that  the statutory provision imposing vend fee was invalid.  Strictly speaking, this would have entitled the appellant to a refund from the respondents of all amounts collected by way of vend fee.   But  because,  as stated in the  Synthetics  decision itself,  over  a period of time imposts and levies had  been imposed  by  virtue  of the earlier decision  and  that  the States  as  well  as the petitioners and  manufacturers  had adjusted  their  rights and their positions on  that  basis, this  relief was denied.  The Court did not, by denying  the relief,  authorise or validate what had been declared to  be illegal  or  void  nor  did it imbue  the  legislature  with competence upto the date of the judgment.