- (1.) OM Prakash, J. This petition filed by the petitioner-a Govt. of India Undertaking owned and controlled by the Central Government through the Ministry of Petroleum and Natural Gases, Govt. of India and engaged in the business of manufacture, sale and distribution of motor spirit, diesel oil and other petroleum products all over the country including the State of U. P.- raises a short but an interest ing question.
(2.) CHARGING Section 3 of the U. P. Sales of Motor Spirit, Diesel Oil and Alcohol Taxation Act, 1939 (briefly, the Parent Act) states that the tax on retail sales of motor spirit and diesel oil shall be paid at such rate as may be notified not exceeding 9 paise in the case of motor spirit and 7 paise in the case of diesel oil per litter on such sales. The petitioner admittedly, a dealer is liable to pay tax on the sales of motor spirit and diesel oil. Section 3 of the Parent Act was so amended by Section 2 of the U. P. Sales of Motor Spirit, Diesel Oil and Alcohol Taxation (Amendment) Act, 1994 (hereinafter referred to as the Amending Act) as to sub stitute the words "fourteen percent" in clause (a) of Section 3 (1) for the words "ten percent" and the words "sixteen percent" in clause (b) of Section 3 (1) for the words "eight percent and from the date notified by the State Government for the purpose at the rate of twelve percent". The effect of the Amending Act was that the petitioner be came liable to pay tax at the enhanced rate. It is not disputed that the petitioner had become liable to pay enhanced tax right from the date when the Amending Act be came operative. The assent of the Governor to the Amending Act was received on 22-4-1994 and that was published in the official gazette on 23-4-1994. The contention of the respondents is that the Amending Act had come into operation with effect from 23-4-1997, when the assent of the Governor was published in the official gazette and, there fore, the petitioner is liable to pay tax at the enhanced rate right from 23-4-1994. The case of the petitioner is that though the Amending Act came to be published in the official gazette on 23-4-1994 but the gazette could not be made available either to the petitioner or to other dealers until 9th May, 1994 and, therefore, the liability of the petitioner to pay tax at the enhanced rate commenced only from 10-5-1994. So the dispute is confined only for the period from 23-4-1994 to 9th May, 1994. In para 12 of the writ petition, it is stated that publication of an Act is complete only when the gazette in which that was published, becomes avail able to the public and that the liability to pay enhanced tax would arise only when the gazette became available to the public. This is how the petitioner contended that it was liable to pay enhanced tax only with effect from 10-5-1994 and not from 23-4-1994. In short, the submission of Sri Bharat Ji Agarwal, learned counsel for the petitioner before us is that the Amending Act may have been printed on 23-4-1994 but that can be said to have been published only when the gazette became available to the petitioner and other dealers and such date was 9th May, 1994 and not prior to that. So according to him the Amending Act can be said to have been published on 9th May, 1994 and, therefore, it is said that the petitioner is liable to pay enhanced tax only with effect from 10-5-1994.
(3.) UNDOUBTEDLY, the Amending Act is a post Constitutional law. Section 5 sub-sec tion (1) clause (b) of the U. P General Clauses Act, 1904 (for short, the Act of 1904) provides that where any United Provinces Act is not expressed to come into operation on a particular day, then in the case of an Uttar Pradesh Act made after the commencement of the Constitution, it shall come into operation on the day on which the assent thereto of the Governor or the Presi dent, as the case may require, is first publish ed in the officials gazette. The assent of the Governor to the Amending Act was received on 22-4-1994 and that came to be published in the official gazette on 23-4-1994 and, therefore, in view of Section 5 (1) (b), the Act can be said to have come into operation on 23-4-1994 itself. The question is that when the point of time of commencement of the Act is specified in the Act of 1904 whether it is open to the Court to resort to some other manner to deter mine the point of time of operation of the Amending Act. The Amending Act does not specify the date of its operation and, there fore, the point of time of its operation has to be determined under Section 5 (1) (b) of the Act of 1904 and in no other manner. Section 5 (1) (b) does not state that the Act shall come into operation on the date when the gazette in which the assent was first publish ed, became available to the public. Sri Bharat Ji Agarwal submits that the publica tion was complete only when the gazette became available to the petitioner and to other dealers and not before that. No case law has been shown by Sri Bharat Ji Agarwal to show that the publication of an Uttar Pradesh Act is not complete until the gazette in which the assent of the Governor was first published, was made available to the public. In Mis. Haji Lal Mohd. Bin Works, Allahabad v. The State of U. P. and Others, AIR 1973 SC 2226, the question arose as to when U. P. Act No. 3 of 1964 came into force. This Act received the assent of the President on 25-1-1964, but that was published in the official gazette on 1-2-1964. Reiterating Section 5 (1) (b), the Court held that where any Uttar Pradesh Act is not expressed to come into force on a particular day, then in the case of an Uttar Pradesh Act made after the commencement of the Constitution, it shall come into operation on the day on which the assent thereto of the Governor is first published in the official gazette. The conclusion of the Court, therefore, was that the publication was complete when the Act was published in the U. P. Gazette on 1-2-1964. It was not hinted by the Court that to complete the publication of the Act, two conditions, namely, (i) that the Act has been published in the official gazette; and (ii) that the gazette is made available to the public, are to be concomitantly established.;