MODI, J. - (1.) WE have 438 writ applications before us under Articles 226 and 227 of the Constitution, which are, broadly speaking, based on similar facts. As they raise certain common questions of law, which are of considerable importance, we propose to dispose of them by a single judgment.
(2.) TO be able to appreciate the points of law in controversy before us, we propose to give the facts of writ petition No. 60 of 1964. Vijai Singh and Kalyan Singh are owners of Bus No. RJL 5650. They are holders of a permit on the Jaipur Bikaner route for a period of three years which is due to expire on the 9th February, 1965. (Sec. Ex. 4 ). The petitioners' case is that the respondent No. 3 the State of Rajasthan, to which we shall refer as the respondent in the case for facility of reference, enacted the Rajasthan Passengers and Goods Taxation Act, 1959 (Act No. 18 of 1959, hereinafter referred to as the Act of 1959 ) with effect from the 1st May, 1959. By this Act, the State Government was empowered to levy and collect a tax on passengers and goods carried by roads in motor vehicles in this State. By section 3 of the Act it was enacted that this tax shall be levied and paid to the State on fares and freights in respect of passengers and goods carried by motor vehicles at a rate which was not to exceed 1/8th of the value of the fare or freight in the case of cemented, tarred, asphalted, metalled, gravel and Kankar roads and not to exceed one-twelfth of such value in the case of other kinds of roads, as may be notified by the State Government from time to time. The Bill leading to this Act was not introduced in the State Legislative Assembly with the previous sanction of the President, but it is admitted that his assent was subsequently obtained thereto on the 27th April, 1959. By section 4 of the Act, it is provided that the tax shall be collected by the owner of the motor vehicle and paid to the State Government in the prescribed manner. According to the first proviso to this section, the State Government is authorised to accept a lumpsum in lieu of the tax chargeable on freight on goods carried by public carriers. Under sec. 21 of this Act, the State Government is empowered to make rules consistent with the Act for securing the payment of the tax in question and also for carrying into effect the provisions of the said Act generally. Consequently, the Government of Rajasthan framed Rules known as the Rajasthan Passengers and Goods Taxation Rules, 1959 ( hereinafter referred to as the Rules ). These also came into force along with the Act on the 1st May, 1959. By Notification No. F. 15 (5)/e & T/59-11, dated the 30th April, 1959 (Ex. 1) issued under S. 3 of the Act of 1959, the State Government directed that the tax shall be charged in respect of passengers carried and goods transported by stage carriages at the rate of one-eighth of the value of the fare or freight in the case of cemented, tarred, asphalted, metalled, gravel and Kankar roads and at the rate of one twelfth of the fare or freight in other cases subject to the minimum of one Naya Paisa in any case ( the amount of tax being calculated to the nearest Naya Paisa ), these being the maximum rates which could be imposed under the Act of 1959. By sec. 8 of the Rajasthan Finance Act, 1961, S. 3 of the Act of 1959 was amended with the result that the prescribed rates of the tax in question were enhanced from 1 /8th to 15 percent, on fares and freights with respect to passengers or goods carried in case of cemented and certain other classes of specified roads which may for the sake of facility be called the superior roads, and from 1/12th to 10 per cent, of the value of the fare or freight likewise chargeable in case of the remaining kinds of roads i. e. , the inferior roads, to be levied as may be notified by the State Government from time to time. By Notification No. F. 15 (11) E & T/61, dated the 9th March, 1961, published in the Rajasthan Gazette Extraordinary Part IV-C, dated the 9th March 1961, the State Government consequently directed that the tax in question shall be charged in respect of passengers carried and goods transported by stage carriages at the rate of 15% of the value of the fare or freight in the case of cemented, tarred, asphalted, metalled, gravel and Kankar roads and 10% in the case of other kinds of reads subject to a minimum of one Naya Paisa, the amount of the tax being calculated to the nearest Naya Paisa ( See Ex. 2 ). The petitioners challenge that the Rajasthan Finance Bill 1961 had not been passed with the previous sanction of the President nor was his subsequent assent obtained thereto and consequently it was void by virtue of the provisions contained in the proviso to Article 304 (b) of the Constitution, and, that being so, the notification last-mentioned was also void and inoperative in law. Again, Sec. 3 of the Act of 1959 as amended by the Finance Act of 1961 was further amended by Sec. 9 of the Rajasthan Finance Act, 1962 by which the maximum rate of tax chargeable on the value of fare or freight in the case of cemented and other superior class of roads was raised to 20 per cent and in the case of other kinds of roads to 15 per cent of the fare or freight as may be prescribed by the State Government from time to time. By Notification No. F. 15 (5) E & T/62 dated the 26th March 1962, published in the Rajasthan Rajpatra Part IV-C of the same date, the State Government enhanced the pre-existing rates accordingly, that is, to 20% and 15% respectively. The petitioners also contend that both this amendment and the notification issued thereunder are bad because the amending legislation was not passed either with the previous sanction of the President or with his subsequent assent as provided under the proviso to Art. 304 (b) of the Constitution. The Rajasthan Finance Act of 1963 did not make any further change as to the rates of the tax in question. Now Rule 8 of the Rules provides that the tax chargeable under the Act shall be paid by affixing to the ticket a stamp issued by the State Government for the purpose of the Act. By a proviso to this rule, it was however provided inter alia that if stamps are not available, it may be paid in the manner laid down in Chapter 3 of the Rules which contains Rules 10 to 14. By rule 10 it is laid down that every owner of a motor vehicle is required to maintain with each vehicle a register in form R. P. G. T. 6 and entries in this register are required to be made separately of each trip and the tax collected is required to be deposited by the owner in the Treasury within seven days of the close of the month during which the tax has been collected and every owner is also required within ten days of the close of the month to submit to the Assessing Authority a return in form R. P. G. T. 7. Rule 19 then provides inter alia that an annual assessment shall be made at the end of every financial year. The petitioners' case is that the assessing authority issued a notice against them under Rule 19 (ii) of the Rules to produce evidence in support of the returns filed by them for assessment of the tax in question for the period extending from October 1962 to March 1963 and arbitrarily or by what is characterised as a best judgment assessment assessed it at Rs. 6000/. per year, and so the tax was assessed on the petitioner for the six months' period in question at Rs. 3000/ -. The petitioners had paid a sum of Rs. 797/91 np. as tax for the period in question, and, consequently, deducting this amount from the amount assessed, it called upon them to pay a sum of Rs. 2202/09 np. and it further inflicted a penalty of Rs. 100/- for delay in payment of the due tax under S. 8, vide copy off the assessing authority's order Ex. 5. A notice of demand to pay the aforesaid amount was thereafter issued against the petitioners. Thereafter they went up in appeal to the Deputy Commissioner of Excise and Taxation (Appeals) who is the appellate authorty under the Act, but without any success. See order Ex. 6 dated the 4th February, 1964. The appellate authority came to a firm conclusion in concurrence with the assessing authority that the accounts maintained by the petitioners as well as the counter foils of the tickets bore clear traces of manipulation in the sense that they were changed from being for longer distances and for higher value to lesser or lower ones and therefore he held that the Assessing Authority was justified in rejecting the same and "make a best judgment assessment". The appellate authority then on a method which appealed to him as fair went into details to which we need not refer and further held that Rs. 6000/-was a reasonable tax for the whole year for the route in question and therefore fixed Rs. 3000/- for the half year and in this view maintained the order of the Assessing Authority. He also held that the penalty of Rs. 1000/- was justified as the assessee had delayed the payment of the tax having regard to all the circumstances mentioned above. The petitioners also challenge the infliction of this penalty for reasons which will presently appear. The petitioners then filed the present writ application in this Court on the 10th February, 1964. Along with the writ application, a stay application was also filed whereupon the realisation of the tax was stayed on the petitioners' furnishing adequate security to the satisfaction of the assessing authority. While this application (along with several others) was pending in this Court, the Governor under instructions from the President of India issued the Rajasthan Passengers and Goods Taxation (Validation) Ordinance, 1964 (Ordinance No. 4 of 1964, hereinafter called the Ordinance of 1964) on the 15th May, 1964, to validate, generally speaking, the impugned sections of the Rajasthan Finance Acts and the taxes paid and payable thereunder. We consider it unnecessary to reproduce the provisions of the Ordinance as it was in due course repealed and replaced by the Rajasthan Passengers and Goods Taxation (Amendment and Validation) Act, 1964 (Act No. 22 of 1964, hereinafier called the Act of 1964), which having received the President's assent on the 8th day of September, 1964, came into force on the 9th September, 1964. We shall have occasion to deal with the content and the effect of this Act later. It would be sufficient to state for the present that in view of the enactment of this legislation, the petitioners rightly asked for and were granted an opportunity to amend their writ application and for this purpose an adjournment was granted on the 7th September, 1964, on which date this and the connected cases came before us for hearing for the first time. Time was allowed up to the 21st September, 1964, and an amended writ application was filed by the petitioners (in case No. 60 of 1964) on the same date. As the filing of similar amendment applications in the other writ applications would have taken yet more time and for no useful purpose, it was suggested to the learned Advocate General that he may accept that the amendment made in this application be treated as having been made in all the other applications also. He acceded to this suggestion and in our opinion rightly, and this is how these writ applications were taken up for hearing on the 21st of September, 1964. We felt in the course of the hearing on the 24th September, 1964 that, in the interests of justice, we should call upon the State to file a further and a better statement of particulars relating to the reasonableness of the increase in the rates of taxation, as this issue appeared to us to assume far greater importance than before as a result of the law laid down by the Supreme Court in Khyerbari Tea Co. V. State of Assam (1 ). The respondent State filed this statement in the form of an affidavit by Shri Lalwani, Secretary to the State Government in the Finance (Revenue and Economics) Department on the 29lh September, 1964. On the 30th September, 1964, learned counsel for the petitioners prayed that opportunity be allowed to them for filing a counter-affidavit. This was allowed and an affidavit was filed on behalf of the petitioners and then arguments were again resumed and were concluded in due course. The petitioners' case, put in a nut-shell, is that the Rajasthan Finance Acts of 1961 and 1962 were unconstitutional and void because the said amending Acts amounted to legislation which effected the freedom of trade and intercourse in the territory of India, and, therefore, any bill or amendment of this nature imposing restrictions thereon (even if reasonable, which the petitioners counted imposed in the present cases are not) could not be moved in the State Legislature without the previous sanction of the President by virtue of the provision contained in the proviso to Article 304 (b) of the Constitution. It was further contended in this connection that no subsequent assent of the President had even been obtained there to under Art. 255 of the Constitution and consequently the enactments in question by which S. 3 of the Act of 1959 was amended in 1961 and 1962 were void ah initio and of no legal efficacy whatsoever. It may be added that in the event of this contention succeeding the Rajasthan Finance Act 1963 in so far as it has any effect on the question before us, though it did not enhance the rates of tax any further, should be equally ineffective. As for the Ordinance of 1964, this was in due course repealed and replaced by the Act of 1964 and so it is that this Act has been hotly assailed before us. It was strenuously contended that the Act in question was devoid of any legal effect or efficacy because it sought to amend some thing which was altogether void ab initio and therefore was incapable of amendment. The position taken up on behalf of the petitioners, therefore, was that the Act of 1964 was as ineffectual as the earlier Acts viz. , the Rajasthan Finance Acts of 1961 and 1962 or 1963, and so any notifications issued under the latter Acts continued to be bad because the authority under which they were issued had no effect in law, being unconstitutional. It was further contended in this connection that the taxes as levied by the enactments above referred to must pass the test of 'reasonableness' under Article 19 (1) (g) read with 19 (6), and that the burden of proving the same lay on the shoulders of the State and not on the petitioners and that this burden had not been discharged at all. Yet another contention that was raised before us was that, in any view of the matter, even if the enactments which were defective could be amended with retrospective effect, no penalties could be imposed for default of payment of tax under the Act of 1959 as amended as that would amount to the infliction of a penalty with retrospective effect in the face of Art. 20 of the Constitution, and consequently the penalties imposed by assessing officers on the petitioners in this or like cases were bad and unsustainable in law. The last contention that was raised was that in many of these cases, the assessing authority had made the assessment not on the basis of the evidence which was produced before him but by a sort of 'best judgment assessment' as under the Indian Income Tax Act or the Rajasthan Sales Tax Act, but, such a course, it was contended, was not permissible under the Act of 1959, as there was and is no provision permitting a 'best judgment assessment' in cases falling under this Act or the Rules made thereunder as in the case of the Income Tax or Sales Tax Acts, and consequently such assessments deserved to be quashed. These contentions, one and all, have been stoutly opposed by the State. We now propose to address over selves to these contentions in the order in which we have set them out above. We may point out at the very outset that Art. 245 of the Constitution inter alia provides that subject to the provisions thereof a State Legislature may make laws for the whole) or any part of a State. Art. 246 delimits the legislative power as between the Centre and the States and lays down, broadly speaking, that a State Legislature has exclusive power to make laws for the State concerned with respect to any of the matters enumerated in List 2 of the Seventh Schedule. Now legislation with respect to "taxes on goods and passengers carried by road or inland water-ways" falls within Serial No. 56 of List II-State List of the said seventh schedule. The State Legislature was and is, therefore, competent to enact such a law. Art. 301,, however, provides that subject to the other provisions of Part XIII ( wherein this Article is contained ) trade, commerce and intercourse throughout the territory of India shall be free. Art. 304 then provides that notwithstanding anything contained in Art. 301 or Art. 303, which latter Article is not material for our present purposes, the Legislature of a State may by law impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest. There is, however, a proviso added to this that no Bill or amendment for the purposes of this clause shall be introduced or moved in the Legislature of a State without the previous sanction of the President. This provision has obviously been added, putting it tersely, to ensure the economic stability and unity of the country. The position, therefore, is that the power of the State to pass tax legislation affecting trade, whether within its own territory or outside, is not an uncontrolled one and is subject to the Constitutional limitation contained in the proviso to Art. 304 (b ). It is well settled at this date that a law like this must, therefore, be passed with the previous sanction of the President who, if we may say so, with respect, is the nexus between the various States composing our Federal State and acts as a sentinel to watch their interest as a whole, and if such previous sanction has not been obtained, then it must be passed with his subsequent assent under Art. 255 of the Constitution; and where such a Jaw has been passed without complying with any of these constitutional requirements, then it suffers from a constitutional infirmity and cannot be given effect to. In this connection, we would refer to the decision of the Supreme Court in Atiabari Tea Co. Ltd. , Vs. State of Assam (2 ). In this case it was unmistakably made clear by Gajendragadkar J. (as he then was) speaking for the majority of the court that it was a mistake to think that tax laws were governed only by Part XII of the Constitution and not by Part XIII, and further that : "when Art. 301 provides that trade shall be free throughout the territory of India primarily it is the movement part of the trade that it has in mind and the movement or the transport part of trade must be free subject of course to the limitations and exceptions provided by the other Articles of Part XIII. " It was, therefore, held by the Supreme Court in the last-mentioned case that the Assam Taxation (on Goods carried by Roads or Inland Waterways) Act (13 of 1954) was an Act which placed a direct restriction on the freedom of trade in imposing taxes on the movement of goods by roads or by inland waterways and which having been passed neither with the previous sanction of the President nor with his subsequent assent clearly fell within the mischief of the proviso to Art. 304 (b) and consequently the validity of the tax could not be sustained, and it was struck down. The principle of this case, in our opinion, fully applied to the present in so far as it goes, for it is unquestionable that the Finance Acts of 1961 and 1962 put a restraint on trade in the form of taxation on the movement thereof by roads, and therefore, placed a restriction on the trade itself, and that such restriction was direct and immediate and by no means indirect or remote and therefore the Finance Acts of 1961 and 1962 were void and of no effect whatsoever. It may be noticed at this place that Atiabari Tea Company's case (Supra) came up for further consideration in a later decision of the Supreme Court in Automobile Transport Ltd. Vs. State of Rajasthan (3) and it was there laid down that the principle propounded in the former case was correct subject to the clarification the regulatory measures or measures imposing compensatory taxes for the use of trading facilities would not come within the purview of the restrictions contemplated by Art. 301 and such measures did not fall within its ambit and therefore such Laws need not comply with the requirements of the proviso to Art. 304 (b) of the Constitution. This was a case which went up in appeal from our own Court and in which the constitutionality of the Rajasthan Motor Vehicles Taxation Act (11 of 1951) was challenged. It was held that as the taxes imposed under that Act were compensatory, they could not be accepted as hindering the freedom of trade, commerce or intercourse assured by Art. 301 of the Constitution and consequently the taxes imposed were legal. It is not contended that the taxes imposed by the enactments which are impugned before us are of a compensatory character and therefore this case need not detain us further. In this state of the law, we have no hesitation in coming to the conclusion that the Rajasthan Finance Acts of 1961 and 1962 standing by themselves were not validly passed and the notifications issued thereunder must suffer from the same infirmity from which their fountain-source suffers and therefore must be held to be void and of no legal effect. In this view of the law, the Rajasthan Finance Act of 1963 does not improve the position for respondent, for if the foundation crumbles down, the superstructure cannot but fall. It was, however, contended before us by the learned Advocate General that these Acts had received the subsequent assent of the President and therefore they were cured by Art. 255 of the Constitution. We do not think that they can be. Art. 255, omitting such portions as are not material for our purposes, reads as follows: "255. No Act of Parliament or of the Legislature of a State and no provision in any such Act, shall be invalid by reason only that. . . previous sanction required by this Constitution was not given, if assent to that Act was given - (a ). . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . (c) Where the. . . . . . . . . previous sanction required was that of the President, by the President. " The question is how and when such subsequent assent can be given. The relevant Articles bearing on the question of assent in our Constitution appeared to us to be 200, 201 and 211. A careful perusal of these Articles clearly leads us to the conclusion that the assent contemplated thereunder is an assent before a Bill becomes an Act and there can be no question of a Bill being assented to by the President after it has been passed as an Act. It was contended that, if that was so, Article 255 would not have been worded so as to say that 'no Act of the Parliament or of the Legislature of a State' or that no provision contained 'in any such Act' shall be invalid, and, therefore, a subsequent consent after a bill had been passed into an Act as such is possible. With all respect, it seems to us that this argument is fallacious. There is no provision in the Constitution which contemplates such a consent. So far as the particular language of this article on which reliance is placed is concerned, it seems to us to contemplate the curative effect of this provision in those cases where a previous sanction of the President has not been taken before the introduction of the bill but nevertheless his subsequent assent has been obtained by the Governor reserving it for the assent of the President before the Bill becomes an Act. Viewed in this perspective, we have no hesitation in saying that the language of the Article is perfectly appropriate and apt when it says that no Act of Parliament or of the Legislature of a State and no provision contained in any such Act shall be invalid merely because previous sanction thereto was not obtained, if assent to that Act was given subsequently, that is before it became an Act. We are clearly of opinion, therefore that the requirements of Article 255 are not satisfied in the present case and that that article does not help the respondent in any way. Building then his arguments on this basis, learned counsel for the petitioner forcefully contended that the impugned sections of the Rajasthan Finance Acts having not been passed in accordance with the constitutional limitations imposed on the State Legislature, they were void ab initio, and that being so, any subsequent attempt on the part of the State to amend them by passing either the Ordinance of 1964 or later the Act of 1964 was of no avail, the argument being that what was void ab initio or dead or still born could not be put life into, revived or revitalised. A rather elaborate argument was developed before us to the effect that although there is authority for holding that while a pre-constitution statute void for unconstitutionality can be revitalised by an amendment of the Constitution removing the constitutional objection, a post constitutional statute cannot be so vitalised because such a statute is dead or still born and what was dead or non-existent cannot be put life into and revived by any subsequent amendment of the Constitution. Reliance was placed in support of this submission on Saghir Ahmed vs. State of U. P. (4) and Mahendra Lal vs. State of U. P. (5 ). It was held in the first case that the validity of a statute must be tested according to the Constitution as it stood at the time it was passed and that it cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted. The U. P. Road Transport Act No. 2 of 1951 was thus held to be void as it violated inter alia Art. 19 (1) (g) of the Constitution and was not protected by clause 6 of the Article as it stood at the time, and the Constitution 1st Amendment Act of 1951 had come into force subsequently and could not be applied to it. This proposition was affirmed in the second case referred to above and it was also held relying on the distinction between cls. (1) and (2) of Art. 13 of the Constitution that the pre-Cons-titution laws which were perfectly valid when they were passed and the existence of which is recognised in the opening words of Art. 13 (1) but which became void being opposed to the Constitution can revive by the removal of the inconsistency in question by what is known as the doctrine of eclipse and thus an amendment of the Constitution may remove the cloud which is cast on them for the time being but it was further made clear that in the case of post-constitution laws where the law made was void for unconstitutionality under Art. 13 (2) the application of such a doctrine is not possible inasmuch as a law having been made either in defiance of the fundamental rights or of the law making authority of the agency making the law was equally void from the very inception or dead or still-born and there can be no revival thereof by a subsequent amendment of the Constitution. In this view of the matter the U. P. Land Tenures (Regulation of Transfers) Act No. XV of 1952 was declared to be void because it did not comply with Article 31 (2) of the Constitution as it stood at the time it was passed and it was further held that the Constitution (Fourth Amendment) Act could not be invoked to save this Act by virtue of the doctrine of eclipse and therefore it was struck down. This is how Wanchoo J. speaking for the Court summed up the entire position at page 1030 of the report: - "now what the doctrine of eclipse can revive is the operation of a law which was operative until the Constitution came into force and had since then become inoperative either wholly or partially ; it cannot confer power on the State to enact a law in breach of Art. 13 (2) which would be the effect of the application of the doctrine of eclipse to post-constitution laws, Therefore, in the case of Art. 13 (1) which applies to existing law, the doctrine of eclipse is applicable as laid down in Bhikaji Narain's case (1955) 2 S. C R. 589 ; A I. R. 1955 S. C. 781; but in the case of a law made after the Constitution came into force, it is Art. 13 (2) which applies and the effect of that is what we have already indicated and which was indicated by this Court as far back as Saghir Ahmad's case (1955) 1 S. C. R. 707 ; (A I. R. 1954 S. C. 728)" We were also referred to a number of American authorities in this connection and notably to the case of Extein Norton V. Shelby County (6) where at page 186 of the report it was said - "an unconstitutional Act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, inoperative as though it had never been passed. " It was thus vehemently contended that the original laws with which we are concerned here having been void ab initio and such laws being post-Constitution laws, it was impossible to revive them by amendment and consequently the amending Ordinance and the Act were of no avail. On the other hand, it was equally strenuously argued on behalf of the State that these laws were not void in the sense of being void ab initio and that the use of the word "void" in Atiabari Tea Company's case (Supra) was not made in the sense of being void ab initio. And in support of this submission reliance was strongly placed on an earlier decision of the Supreme Court in Sundararamier & Co. V. State of Andhra Pradesh (7 ). In this case Venkatarama Aiyar J. speaking for the Court observed as follows - "now in considering the question as to the effect of unconstitutionality of a statute, it is necessary to remember that unconstitutionality might arise either because the law is in respect of a matter not within the competence of the Legislature, or because the matter itself being within its competence, its provisions offend some constitutional restrictions. In a Federal Constitution where legislative powers are distributed between different bodies, the competence of the Legislature to enact a particular law must depend upon whether the topic of that legislation has been assigned by the Constitution Act to that Legislature. Thus, law of the State on an Entry in List I, Sch. VII of the Constitution would be wholly incompetent and void. But the law may be on a topic within its competence, as for exam ple, an Entry in List II but it might infringe restrictions imposed by the Constitution on the character of the law to be passed, as for example limitations enacted in Part III of the Constitu tion. Here also, the law to the extent of the repugnancy will be void. Thus a legislation on a topic not within the competence of the Legis lature and a legislation within its competence but violative of Constitutional limitations have both the same reckoning in a Court of law; they are both of them unenforceable. But does it follow from this that both the laws are of the same quality and character, and stand on the same footing for all purposes? This question has been the subject of consideration in numerous decisions in the American Courts, and the oreponderance of authority is in favour of the view that while a law on a matter not within the competence of the Legislature is a nullity, a law on a topic within its competence but repugnant to the Constitutional prohibitions is only unenforceable. This distinction has a material bearing on the present discussion. If a law is on a field not within the domain of the Legislature, it is absolutely null and void and a subsequent cession of that field to the Legislature will not have the effect of breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the Legislature but its provisions disregard Constitutional prohi bitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective with out reenactment. " Now, the meaning of the word 'void' engaged the further attention of their Lordships of the Supreme Court in Mahendra Lal's case (Supra) and their Lordships appear to us to be of the view that the word ''void' correctly means "ineffectual, nugatory, or devoid of any legal force or binding effect" and not that the statute stood repealed and therefore obliterated from the statute book, though it was recognised that there is a vital difference in this behalf between the pre-Constitution and post-Constitutional laws, and that in the case of the former the voidness is not from their very inception but is a supervening one, while the voidness in the case of the latter starts from their very inception and they do not exist for all practical purposes. It necessarily follows from this as a corollary that whereas a pre-constit-ution law can be revived by the removal of the constitutional defect, by a subsequent amendment of the Constitution and the law is thus revived, yet in the case of post Constitution laws there can be no revival by a mere amendment of the Constitution, and the doctrine of eclipse which can apply in the first kind of laws is incapable of being properly attracted in the case of the second category thereof. We consider it unnecessary to pursue this controversy any further, because, in our considered opinion, the principal Act with which we are concerned namely the Act of 1964 is not merely an amending and a curative Act in that limited sense, but it is really an Act which virtually re-enacts the provisions of the earlier Acts which suffered from a Constitutional infirmity. We should like to refer in this connection to Saghir Ahmad's case (Supra) in which it clearly seems to us to have been held that although a post-Constitution statute void as being unconstitutional cannot be vitalised by an amendment as such, it being a still born law, there can be no valid objection to such law being re-enacted, and, if so re-enacted, by competent plenary authority, it would hold good. This position does not appear to us to have been affected otherwise by any subsequent decision of the Supreme Court; and it seems to have been re-affirmed in Rai Ramkrishna vs. State of Bihar (8) where it has been clearly laid down as follows: - "where the Legislature can make a valid law, it may provide not only for the prospective operation of the material provisions of the said law but it can also provide for the retrospective operation of the said provisions. Similarly there is no doubt that the legislative power in question includes the subsidiary or the auxiliary power to validate laws which have been found to be invalid. If a law passed by a legislature is struck down by the courts as being invalid for one infirmity or another, it would be competent to the appropriate Legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. This position is treated as firmly established since the decision of the Federal Court in the case of United Provinces V. Mst. Atiqa Begum, 1940 FCR 110: (AIR 1941 FC 16 ). " It is well settled law at this date that a taxation law can be enforced with retrospective effect, and, if any authority is needed for that proposition, we would refer to Union of India vs. Madan Gopal Kabra (9) a case from our own Court and M/s. Chhotabhai vs. Union of India (10) and Rai Ramkrishna vs. State of Bihar (Supra ). This brings us to a consideration of the provisions of the Act of 1964 itself to see what its true scope and content are. This Act received the assent of the President on the 8th September, 1964. The preamble states that the Act has been enacted to further amend the Rajasthan Passengers and Goods Taxation Act, 1959, and to validate certain lump sum payments in lieu of tax and to validate certain enactments and the levy and collection of tax thereunder. Sec. 1 relates to the short title of the Act. Sec. 2 amends sec. 3 of the Act of 1959 retrospectively as follows - "provided that the tax shall be charged in respect of all passengers carried and goods transported by motor vehicles - (a) during the period between the 1st day of May, 1959, and the 8th day of March, 1961, at the rate of - (i) One-eighth of the value of the fare or freight in case of cemented, tarred, asphalted, metalled, gravel and kankar roads, and (ii) One-twelfth of the fare or freight, in other cases, subject to a minimum of one Naya Paisa in any one case, the amount of tax being calculated to the nearest Naya Paisa; and (b) during the period between the 9th day of March, 1961, and the 25th day of March, 1962, at the rate of - (i) fifteen percent of the value of the fare or freight in the case of cemented, tarr ed, asphalted, metalled, gravel and Kankar roads, and (ii) ten percent of the fare or freight, in other cases subject to a minimum of one Naya Paisa in any one case, the amount of tax being calculated to the nearest Naya Paisa. " It may be noted at this place that this provision adds a proviso to the original sec. 3 of the Act of 1959 so as to levy the rates of 1 /8th and l/12th of the fare and freight according as the passengers or goods are carried by motor vehicles on the superior kind of roads or the inferior ones from the 1st May, 1959, to the 8th March, 1961, and further these rates have been raised from the 9th March, 1961, to the 25th March, 1962, to 15 per cent and 10 per cent respectively. It must be remembered further in this connection that the notifications which were issued under the Act of 1959 and as amended in 1961 and 1962 by the Rajasthan Finance Acts of these years related to carrying of passengers or transporting of goods by stage carriages only and did not apply to what are called public carriers or goods vehicles, and a subsidiary controversy was raised before us whether a lump sum tax on the goods carried by public carriers could at all be charged under the circumstances under rule 8 (ii) of the Rules which reads as follows : " (ii) The owner of a public carrier shall pay to the State Government a lump sum in lieu of the tax chargeable under the Act on freight and the amount of such lump sum shall be fixed by the State Government from time to time by Notification in this behalf. " The validity of this provision came up for question in M. /s Sainik Motors Vs. State of Rajasthan (ii) before their Lordships of the Supreme Court and it was held that this provision was essentially optional and could be taken advantage of by the owners of the goods vehicles if they so chose, and it is obvious that in order that there should have been an option, the State Government should have also issued a notification u/s. 3 as it existed from time to time as to what were the rates of tax for the carriage of the goods by goods vehicles. But such a notification was never issued, and the notifications that were issued in the years 1959, 1961 and 1962 related to stage carriages only. In order to get over this difficulty, S. 3 seems to have been amended in the manner in which it has been so as to substantively prescribe the actual rates to be levied for the period from the 1st May, 1959 to 8th March, 1961, and from the 9th March, 1961, to 25th March 1962, for carriage of goods by all motor vehicles so as to include goods vehicles also. As already stated, it is indisputable that, broadly speaking, a Legislature can levy taxes retrospectively and amend such laws also with retrospective effect. The position which is substantially sought to be achieved by this amendment, therefore, is that the rates which were prescribed by the Finance Acts of 1961 and 1962 have been re-enacted for carriage of passengers and transport of goods both by stage carriages and public carriers or goods vehicles in the Act itself so that there would be an option with the owners of goods vehicles in accordance with rule 8 (ii) of the Rules as interpreted by their Lordships of the Supreme Court. Further, to validate lump sum payments which have already been or may still remain to be made in connection with the carriage of goods by goods vehicles, Section 3 of the Act of 1964 lays down as follows: - "notwithstanding any judgment, decree or order of any court, or any want of notification under sub-sec. (i) of sec. 3 of the principal Act, the lump sum amount paid or payable by any owner of a motor vehicle, in lieu of tax, under notifications issued from time to time in pursuance of rule 8 of the Rajasthan Passengers and Goods Taxation Rules, 1959, shall be and be deemed always to have been validly paid or payable. " We pause here to point out that in the first place the section is obviously intended to validate lump sum payments already paid in the past. In the second place, it is intended to validate such payments in the case of persons whose assessments have not been so made and which are therefore payable still, and this would be in line with the law as it has been interpreted by the highest court in the country that under the Act of 1959 read with rule 8, it is open to the owner of the goods vehicles to pay tax either according to the rates prescribed or in a lump sum as may have been fixed by the Government. Before we proceed further, it would be convenient to deal with an argument which was raised before us about the validity of S. 2 of the Act of 1964. It was strongly urged before us that the legitimate function of a proviso to a section is that it carves out a chunk from the total area of the main provision contained in the section to which it is a proviso and creates an exception thereto ; but the provision which has been sought to be made in the proviso by the Act of 1964 exceeds this function, and it seems to make a totally new provision for the years 1961 and 1962 of which it could hardly be said with justification that it carves out some thing from the ambit of the main provision contained in S. 3 of the Act of 1959. This criticism might perhaps have had force if sec. 2 had stood by itself; and we consider it unnecessary to pursue this matter further as, in our opinion, even if there were any such infirmity about this amendment, S. 4 of the Act of 1964 to which we propose to address ourselves presently sufficiently cures this just as well as certain other defects retrospectively. This section reads as follows: - 'notwithstanding any judgment, decree or order of any court, but subject to the provisions of this Act, section 8 of the Rajasthan Finance Act, (961, (Rajasthan Act 14 of 1961), section 9 of the Rajasthan Finance Act, 1962 (Rajasthan Act 11 of 1962) and Section 14 of the Rajasthan Finance Act, 1963, (Rajasthan Act 13 of 1963) shall not be deemed to be invalid, or ever to have been invalid during the period between the 9th day of March, 1961, and the date of commencement of this Act, merely by reason of the fact that the Bills, which were enacted as the Acts aforesaid, were introduced in the Rajasthan State Legislature without the previous sanction of the President under the proviso to article 304 (b) of the Constitution and were not assented to by the President and the tax levied paid or payable the composition fee paid or payable and any action taken or thing done or purporting to have been taken or done during the period aforesaid under the Rajasthan Passengers and Goods Taxation Act, 1959 (Rajasthan Act 18 of 1959) as amended by the Acts aforesaid, shall be deemed always to have been validly levied, paid, payable, taken or done in accordance with law and the aforesaid enactments shall be, and he deemed always to have been validly enacted, notwithstanding the aforesaid defects, and accordingly - (a) no suit or other proceeding shall be instituted, maintained or continued in any court for the refund of any tax or fee so paid or for any other relief on the ground of invalidity of the said sections of the Acts aforesaid; and (b) no court shall enforce any decree of order directing any such refund or relief. " Carefully analysed, this section seeks to achieve the following objects - (1) To validate S. 8 of the Rajasthan Finance Act, 1961, S. 9 of the Rajasthan Finance Act, 1962, and S. 14 of the Rajasthan Finance Act, 1963, (we are not concerned with the last mentioned section for present purpose) during the period between the 9th March, 1961 and the date of the commencement of this Act, that is, the 9th September, 1964. (2) To validate the taxes levied paid or payable, the composition fee paid or payable under the Act of 1959 as amended by the aforesaid sections as having always been validly levied, paid or payable. (3) To validate any action taken or thing done or purporting to have been taken or done during the period aforesaid under the said Act as amended as having always been taken or done in accordance with law, and (4) Last but not least, and this is most important, to re-enact the aforesaid provisions that is S. 8 of the Rajasthan Finance Act, 1961, and S 9 of the Rajasthan Finance Act, 1962 (together with section 14 of the Rajasthan Finance Act, 1963, which has no relevance for our present purposes) and to give them retrospective effect so that the aforesaid sections shall be and be deemed always to have been validly enacted notwithstanding any defects whatsoever. The language of this sec. is very comprehensive indeed. This Act has admittedly received the previous sanction and also the subsequent assent of the President though one or the other would have been alone necessary. We are unable to hold that this provision is merely in the nature of an amendment, pure and simple, of something which was void. In our considered opinion, it amounts to some thing more, that is, it re-enacts the old provisions which suffered from a constitutional infirmity as originally made and invests them with legal force and validity and does that with retrospective effect.
(3.) WE wish to draw pointed attention in this connection to the last part of S. 4 which reads as follows: - "and the aforesaid enactments shall be, and be deemed always to have been, validly enacted, notwithstanding the aforesaid defects. " The word "enacted" used with reference to the earlier enactments namely S. 8 of the Rajasthan Finance Act, 1961, and S. 9 of the Rajasthan Finance Act, 1962, is not without considerable significance, and it clearly seems to us that these enactments in spite of all the defects have been enacted over again and things done or purporting to have been done thereunder have been validated ; and if that is the true effect of this section, as we think it unmistakably is, then the only question that can survive is whether such re-enactment was and is not possible in law. A strong objection that was urged in this connection was that the earlier Acts referred to above could not have been re-enacted by "reference" only, and if it were intended really so to do, then the entire provisions of those sections should have been bodily incorporated in this Act. In other words, it was contested before us that mere re-enactment by reference to earlier Acts was no permissible as those enactments were not valid pieces of legislation at all and were not available for any purpose whatever. We have given this contention our very careful and anxious consideration and do not think that there is any force in it. Now, it may generally be stated that a law is amended when it is in whole or in part permitted to remain and some thing is added to, or subtracted from it or it is in some way changed or altered to make it more complete or perfect to accomplish the object or purpose for which it was made or some other object or purpose. The object of a validating law, however, is to validate an Act which has been declared to be unconstitutional, or, it is so apprehended by the executive that it is likely to be so declared. Further it seems to us that validation may take the form of re-enactment of the old law in all its elaborateness by competent authority having regard to the constitutional requirements for doing so ; or such validation may be by a reference to the old law which has been or is likely to be declared illegal or ultra vires. So far as we think, both forms are in vogue and ought to be permissible, though the latter mode is perhaps less likely to be open to objection. Be that as it may, it, broadly speaking, follows from the distinction that we have pointed out above between an amending Act pure and simple and a validating Act that while a void Act, that is, one which is void from its very inception, is incapable of being amended and thereby cured, such an Act can certainly be re-enacted or validated by a competent legislature. Therefore, where a curative Act is challenged as failing to achieve its purpose in the sense that it seeks to fit it the better for accomplishing the object for which it was enacted, the nature of the Act has to be considered and adjudged. If it is a mere amending Act and the Act which was sought to be amended was void from its very inception, then the amendment must fail of its purpose, and the desired objective is not achieved. If on the other hand it is not an amending Act, pure and simple, but it is also a validating Act, then the new Act has its full curative effect provided ofcourse that such Act itself not open to any constitutional objection, in which case it fully serves its purpose and validates what was invalid or void before. We do not see why a validating Act - whether it follows the method of validating by reference or by the method of re-enactment - should not fulfil the desired objective, and the contention that the old Act which is void cannot be made effective is, in our opinion, barren of any substance and we have not felt impressed by it. In support of the view that we have felt persuaded to take, we should like to cite the following extract from the well-known book by Sutherland on Statutory Construction: Vol. 1 pp. 399-400 "a reviving Act is one which restores legal existence and force to a statute that has been expressly or impliedly repealed. A repealed statute may be revived by express enactment or by implication. . . . . . . . . . . . Revival by operation of law, or implied revival, such as the repeal of a repealing or amendatory act is more common. In the absence of an express constitutional prohibition, an act may be revived by to its title without setting out the act revived at length. A reviving act is not an amendment within the constitutional limitation that no act shall be amended by reference to its title only. " In this connection we drew pointed attention of the learned counsel for the petitioners to sec. 5 of the Constitution (First Amendment) Act, 1951, by which sec. 31 B was introduced into the Constitution, which reads as follows: "31b, Validation of certain Acts and Regulations.- Without prejudice to the generality of the provisions contained in Article 31 A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force. " The object of this amendment Act was to facilitate the abolition of the Zamindari generally and to place beyond question the constitutional validity of certain Acts passed by the various Legislatures to achieve that object in particular. This became necessary because many of such Acts had come up for serious challenge before the various High Courts in India and some of them had indeed been partially or wholly struck down. The Ninth Schedule to which Article 31-B refers mentions by their title as many as 13 Acts of the various States and it clearly seems to us that by this Article all those Acts which were set out In the said Schedule stood validated though they were sought to be validated by reference to their names or titles only and further by the language of the Article they were validated with retrospective effect. The answer that learned counsel was able to give us in this connection was two-fold. First, that amendments in the sense of validation of certain enactments under the Constitution stand on a different footing altogether and that the same method was not open to a State Legislature. With all respect, we see no valid reason for such a distinction. If at all, the Constitution stands on a distinctly higher footing, and if a particular method of validation is good enough for the purposes of the Constitution, then, in our considered opinion, no exception could be taken to the adoption of the same method for validating certain "void" Acts of the State Legislature. In the second place, it was contended that Article 31b was preceded by Article 31-A which was, as it were, in the nature of the main or the substantive provision and that Article 31b was only consequential thereto which was inserted in the Constitution more or less by way of abundant caution, to save the particular Acts included in the 9th Schedule of the Constitution from any decision of a court or tribunal that any of these Acts was void or in contravention of the fundamental rights and that Article 3ib has no independent existence and should not have achieved the desired result without Article 31a. This, in our opinion, has no force because Article 31b validates certain Acts which do not fall within Article 31a. Thus for example, the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, stands validated by Article 3ib, even though the Malguzari lands affected by it are not estates. It may be pointed out in this connection that while Article 31-A is confined to estates as defined in clause (2) thereof, Article 31b includes Acts which relate to properties other than estates. We are, therefore, disposed to hold the view that the validation of an Act, which may have been declared by courts as void, or, which, it is apprehended, may be so declared, by an enactment validating the same by reference and not bodily embodying the provisions of the Act to be validated, is perfectly permissible in law and there is nothing in our Constitution that inhibits such a course, unlike the Constitutions of some States elsewhere. The contention of learned counsel, therefore, that if the Acts which are constitutionally void are sought to be validated by the Legislature, they can only do so by re-enacting the provisions of those Acts at length and not by mere reference to their title, does not appear to us to have any substance. It was further contended in this connection that the phraseology of Sec. 4 does not indicate that the Legislature intended to re-enact the earlier Acts which we have held to be void, and, therefore, also we should hold that the Act of 1964 does not achieve the object which the framers thereof might have had in view. We have already analysed the section and need not repeat all that we have said. But we should like to point out, even if in doing so we have to repeat ourselves, that the plain language of this section is to validate the relevant sections of the Rajasthan Finance Acts of 1961, 1962 and 1963, and the taxes and the composition fee paid or payable thereunder or any action taken or thing done or purporting to have been done under those Acts. And the section does not stop there. It further goes on to say that the aforesaid enactments shall stand validly enacted notwithstanding any defect contained therein. Nay, it even goes a step further and lay down that the enactments in question shall be deemed always to have been validly enacted in spite of any defect to which they might have been subject as originally enacted. It is not the contention of learned counsel for the petitioners that this Act in itself suffers from any constitutional defect, and, that being so having regard to the plain language of this section we have felt persuaded to think that the old Acts have been validated by the re-enactment and have been so re-enacted with retrospective effect. We hold accordingly. , ;