INDIAN EXPRESS NEWSPAPERS (BOMBAY) PRIV.ATE LTD. & ORS. ETC. ETC. v. UNION OF INDIA & ORS. ETC. ETC .

JNDIAN EXPRESS v. UNiON (Venkataramiah, J.) 367 VIII Relief Now arises the question relating to the nature of relief that may be granted in these petitions. These cases present a peculiar difficulty which arises out of the pattern of legislation under consideration. If the impugned notifications are merely quashed, they being notifications granting exemptions, the exemptions granted B under them will cease. Will such quashing revive the notification dated July 15,1977 which was in force prior to March 1,1981 under • which total exemption had been granted? We do not think so . The impugned notification dated March l, 1981 was issued in supersession of the notification dated July 15,1977 and thereby it achieved two objects-the notification dated July lS,1977 came to 0 • be repealed· and 103 ad valorem customs duty was imposed on newsprint. Since the notification dated July 15,1977 had been repealed by the Government of India itself, it cannot be revived on the quashing of the notification of March l,1!181. The effect of such quashing of a sub1equent notification on an earlier notification in whose place the subsequent notification was issued has been considered by this Court in B.N. Tiwari v. Union of India & Ors.f!.) In that case the facts were these : In 1952, a 'carry forward' rule governing the Central Services was introduced whereby the unfilled reserved vacancies. of a particular year would be carried forward for one year only. In 1955 the above rule was substituted by another providing that the unfilled reserved vacancies of a particular year would be carried forward for two years. In T. Devadasrm v. The Union of India & Anr.(•) the 1955 rule was declared unconstitutional. One of the questions which arose for consideration in this case Tiwari's 'case (supra) was whether the 1952 rule had revived after the 1955 rule was struck down. This Court held that it could not revive. The following arc the observations of this Court on the above question : • "We shall first consider the question whether the carry forward rule of 1952 still exists. It is true that in Devadasan's case, the final order of this Court was in these G terms:-

"In the result the petition succeeds partially and -(:'.':l):""'.["°t9:-:6c-:5]_2_S-.C-.R-.-4-21-- (2) [1964] 4 S.C.R, 680 ff .. I( ..

368 SUPREME COURT REPORTS [1985] 2 s.c.R.

the carry forward rule as modified in 1955 is declared ('-- invalid."

That however does not mean that this Court held that the 1952-rule must be deemed to exist because this Court said that the·carry forward rule as modified in 1955 was declared B invalid. The carry forward rule of 1952 was substituted the carry forward by rule of 1955. On this substitution the carry forward rule of 1952 clearly ceased to exist because its place was taken by the carry forward rule of 1955. Thus by promulgating the new carry forward rule in 1955, the Government of Jndia itself cancelled the carry c forward rule of 1952. When· therefore this Court struck down the carry forward rule as modified in 19S5 that did • not mean that the carry forward rule of 1952 which had alreadyiceased to exist, because the Government of India itself cancelled it and had substitued a modified rule in D 1955 in• its place, could revive. We are therefore 'or opfoionthat after the judgment of this Court in Devadasan's case there is no carry forward rule at all, for the carry forward rule of 1955 was struck down by this Court while the carry forword.rule of 1952 had ceased to exist when

E the.Government of India substituted the carry forward rule + of 1955 in its place."

In Firm A.T.B. Mehtab Majid & Co. v. State of Madras & Anr.(') also this Court has taken the view that once an old rule has been substituted by a new rule, it ceases to exist and it does not get revived when the new rule is held invalid.

The rule in Mohd. Shaukat Hussain Khan v. State of Andhra Pradesh(') is inapplicable to these cases. In that case the subsequent Jaw which modified the earlier one and which was held to be void ' was one which according to the Court could not have been passed at all by the State Legislature. In such a case the earlier law could be deemed to have never been modified '.or repealed and would, therefore, continue to be in force. It was strictly not a case of revival of an earlier law which had been repealed or modified on

(I) [19631 Supp. 2 S.C.R. 435 at 446. ft (2) (197S] I s,c.R. 4~·

INDIAN EXPRESS v. UNION (Venkataramiah, J.) 369

the striking down of a later Jaw which purported to modify or repeal the earlier one. It was a case where the earlier law had not been either modified or repealed effectively. The decision of this Court in Shri Mufchmzd Odhai:ji v. Rojkot Borough Municipality is also distinguishable. In that case the State Government had been empowered by section 3 of the Saurashtra Terminal Tax and Octroi Ordinance (47 of 1949) to impose octroi duty in towns and cities specified in Schedule I thereof and section 4 authorised the Government to make rules for the imposition ,and collection of octroi duty. These rules were to be in force until the City Municipalities made their own rules. The rules framed by the Municipality concerned were held to be inoperative. Then the question arose whether the rules of the Government continued 'to be in force. The Court held : 0

"The Government rules, however, were to cease to operate as the notification provided "from the date the said Municipality put into force their independent by laws." It is clear beyond doubt that the '.Government rules would cease to apply from the time the respondent-Municipality brought into force its own bye-laws and rules under which h could validly irnpose, levy and recover the octroi duty. The said notification did not intend any hiatus when neiiher the Government rules nor the municipal rules would be in the field. Therefore, it is clear that if the bye-laws made by the respondent-Municipality could not be legally in force •ome reason or the other, for instan~o. for not having been validly made, the Government rules would continue to operate as it cannot be said that the Municipality had "put into force their independent ,bye-Jaws". The Trial F Court, as also the District Court, were therefore, perfectly right in holding that the respondent-Municipality could • levy and collect octroi duty from the appellant-firm under the Government rules; There was no question of the. Government rules being revived, as. in the alifience of valid rules of the respondent-Municipality they continued to operate. The submission of counsel in this behalf, therefore, cannot be &ustained."

In the cases before us we do not have rules made by two

(1) A.I.R. 1970 S,C. 68~ ff

370 SUPREME COURT REPORTS (1985] 2 s.c.R

A different authorities as in Mu/chand's case (supra) and no intention on the part of the Central Government to keep alive the exemption in the event of the subsequent notification being struck down is also established. The decision of this court in Koteswar Vittal Karnath v. K. Jf.angappa Baliga & Co.(l) does :not also support the petitioners. In that case again the question was whether a subsequent legislation which was passed by a legislature without competence would have the ~!feet of reviving an earlier rule which it professed to supersede. This case again belongs to the category of Mohd. Shaukat Hussain ·Khan's case (supra). It may also be noticed that in Koteswar Vittal Kamath's case (supra) tlie ruling in the case of Firm A.T.B. Mehtab

• Majid & Co. (supra) has been distinguished. The case of State of Maharashtra etc. v. The Central Provinces Manganese Ore Co. Ltd.(') is again distinguishable. In this case the whole legislative process. termed substitution was abortive, because, it did not take effect for want of· the 'assent to the Governor-General and the Court distinguished that case from Tiwari's case (supra). We may also ,D state that the legal .effect on an earlier law when the later law enacted in its place is declared invalid does not depend merely upon the use of words like, 'substitution', or 'supersession'. It depends upon the totality of circumstances and the context in which they are used. In the cases before us the competence of the Central' Govern- E ment to repeal or annul or supersede the notification dated July 15, 1977 is not questioned- Hence its revival on the impugned notifications being held to be void would not arise. The present cases are governed by the rule laid down in Tiwari's case (supra) Hence if the notification dated July 15, 1977 cannot revive on the quashing of the impugned notifications, the result would be disastrous to the petitioners as they ·wollld have to pay customs duty of 40%ad va/orem from March 1, 1981 to February 28, 1982 and 403 ad va/orem plus Rs.1,000 per MT from March 1, 1982 • onwards. In addition to it they would also be liable to t pay auxiliary duty of 30%ad valorem durini;i the fiscal year 1983-84 and auxiliary duty of 50% ad va/orem during the fiscal year 1982-83. They would straigtaway be liable to pay the whole of customs duty • and any other duty levied during the current fiscal year also. Such a result cannot be allowed to 'ensue.

(I) [1969] 3 S.C.R. 40. B. (2) (1977] I S,C.R. 1002.

iNDiAN EXPRESS v. UNION (Tlenkataramiah, J.) 371

,... It is no doubt true that so me of the petitioners have also ' questioned the validity of the levy prescribed by the Customs Tariff Act, 1975 itself. But we are of the view the it is unaecessary to qua· sh it because of the pattern of the legislative provisions levying cus- toms duty which authorise the Government in appropriate' cases either to reduce the duty or to grant total exemption under section ~ 25 of the Customs Act, 1962 having regard to the prevalling B • circumstances and to very such concessions from time to time. The Governmental prectice in the matter of customs <lutes has· made the law imposing customs virtually a hovering legislation. Parliament expects the Government to review the situation in each case periodically and to decide what duty should be levied within the limit prescribed by the Customs Tariff Act, 1975. Hence the validity of the provision in the Customs Tariff Act, 1975 need not be examined c • now. Since it is established that the Government has failed to dis- ·~ charge its statutory obligations in accordance with law while issuing the impugned notifications issued uuder section 25 of the Custom Act, 1961 on and after March 1, 1981; the Government should be directed to re-examine the whole Lsue relating to the extant of D exeruption that should be granted in respect of imports of newsprint after taking into account all relevant considerations for the period

"°' subsequen tto March 1, 1981. We adopt this course sinse we do not also wish that the Government should be deprived of the legitimate duty which the petitioners would have to pay on the imported news- print during the relevant period. E

In the result, in view of the peculiar features of these cases and having regard to Article 32 of the Constitution which imposes an obligation. on this Court to enforce the fundamental rights and Article 142 of the Constitution which enables this Court in the exercise of its jurisdiction to make such order as is necessary for F doing complete justice in any cause or matter pending before it, we make the following order is these cases: • The Government of India shall reconsider within six months the entire question of levy of import duty or auxiliary duty payable by the petitioners and others on newsprint used for printing news- G • papers, periodicals etc. with effect from March 1, I 981. The petitioners and others who are engaged in newspaper business shall make available to the Government all information necessary to decide the question.

2. If on such reconsideration the Government decides that H

372 (1985) 2 s.c.R.

there should be.aµy modification in. the levy of custo111s duty or auxiliary duty wi1h effect from March 1, 1981, it shall take necessary .steps to implement its decision. ·

3. Until such redetermination of the liability of the petitioners and others is made, the Government shall recover only Rs. 550 per MT on· imported newsprint towards customs duty a11d auuiliary duty and shall not ·insist upon payment of duty in accordance with the impbnged notifications. The concessions extended to medium and small newspaers. may, however, remain in force. 0 • 4 .. If, after such redetermination, it is found that any of the petitioners is· liable to pay any deficit amount by way of duty, such deficit amount shall be paid by .such petitioner within four months • from the date on which a notice of demand is served qn such . petitioner by the concerned authority, Any bank guarantee or D security given by the petitioners shall be av.ailabe for recovery of such deficit amounts.

5Copy pinpoint5. If, after such redetermination, it is found that any of the petitioners is entitled to any refund-such refund _shall be made by the Government within four months from the date of such redeter- I mination.

6Copy pinpoint6. A writ shall issue to the respondents accordingly in these

.:•. cases. Parties shall, however, bear their own costs.

I' The petitions are accordingly allowed .

A.P.J. Petitions allowed. •