Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh vs M/S. Air And Sea Trading Company on 7 February, 2020
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
W.P. No. 16140 of 2017
W.A. No. 1776 of 2017
W.A. No. 1973 of 2017
W.A. No. 551 of 2018
W.A. No. 552 of 2018
W.P. No. 20710 of 2018
COMMON ORDER:(Per the Hon'ble Sri Justice C.Praveen Kumar)
1) Writ Appeal Nos. 1973 of 2017; 551 of 2018 and 552 of 2018 came to be filed by the State assailing the Order, dated 13.11.2017, passed by the learned Single Judge of this Court in W.P. No. 16548 of 2017; 37319 of 2017 and 38948 of 2017.
2) Writ Petition No. 16140 of 2017 came to be filed seeking issuance of Writ of Mandamus to declare the amendment issued to Rule 12(5)(h)(VIII) of the Andhra Pradesh Minor Minerals Concession Rules, 1966, vide G.O.Ms. No. 29 Industries & Commerce (Mines-II) Department, dated 15.02.2017, as illegal, arbitrary and violative of principles of natural justice and contrary to Section 15(j) of Mines and Minerals Regulation Act, 1957. The said Writ Petition was also filed to declare the amendment issued to Rule 12(5)(h)(VIII) vide G.O. Ms. No. 29 prohibiting transfer of unexpired portion of lease has no application as on the date of issuing the said Rules.
3) Writ Appeal No. 1776 of 2017 is filed by the 4th Respondent against the Order in Writ Petition No. 16548 of 2017. 2
4) Writ Petition No. 20710 of 2018 came to be filed seeking issuance of Writ of Mandamus declaring the Orders in Proceedings No. 26722/R5-1/2012, dated 29.05.2017, and the Orders in Proceedings No. 26722/R5-1/2012, dated 26.02.2018, passed by the 2nd Respondent therein as illegal, arbitrary and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India.
5) Heard, Sri. Roy Reddy and Sri. C. Seena Kumar, Counsel for the Writ Appellants and Writ Petitioners and also the Government Pleader for Mines and Geology for the Appellants in the Appeals filed by the State. The Court also heard the arguments of Sri. R.N. Hemendranath Reddy and Sri. K.G. Krishna Murthy, learned Senior Counsel representing Sri. K. Rama Mohan Rao, for the Respondents.
6) Taking W.A. No. 1776 of 2017 as a lead case herein, the cases are disposed of by this Common Order.
7) Writ Petition No. 16548 of 2017 came to be filed challenging the Order of the Director of Mines and Geology, dated 04.04.2017. The facts as narrated in the Writ Petition show that the Writ Petitioner is a Company engaged in the business of mining, exploration, extraction, cutting, polishing, importing and exporting of marble, granite, laterite and lime stone rock.
8) Originally, M/s. Crystal Granite and Marble Private Limited was granted mining lease of black granite for a period of 20 years during the year 2008 in Survey No. 365/p of Allamdugu Village, Vedurukuppam Mandal, Chittoor District. On an application made 3 by M/s. Crystal Granite and Marble Private Limited and M/s. Ganga Rocks Private Limited [4th Respondent in the Writ Petition], permission was accorded for transferring of the said lease in favor of 4th Respondent invoking Rule 12 of Andhra Pradesh Minor Mineral Concession Rules, 1966, for the unexpired portion of lease, i.e., upto 24.11.2028. This Order came to be passed in Proceedings in 5468/TQL/2012, dated 11.10.2012, issued by the Assistant Director of Mines and Geology, Chittoor District.
9) Vide letter, dated 13.07.2015, the Writ Petitioner and the 4th Respondent submitted a joint application in 'Form-R' for transfer of lease in favor of the Petitioner, under Rule 12(5)(b)(VIII) of the Rules. The said application was duly acknowledged by the official Respondents. In support of the said application, the Managing Director of the 4th Respondent Company gave its consent in the form of an affidavit, dated 08.07.2015, to transfer the quarry lease held by the Petitioner herein for the unexpired period. It is to be noted here that the application came to be made by the Petitioner with all the required deeds and documents and also paid the requisite fee. The time for disposal of the said application was 180 days from the requested date. Though, the Assistant Director of Mines and Geology, Chittoor District, is said to have recommended transfer of lease in favor of the Petitioner, but the Director of Mines and Geology, by way of an Impugned Proceedings, dated 04.04.2017, rejected the application submitted by the Writ Petitioner, in view of the amended sub clause (VIII) of clause (h) of sub-rule (5) of Rule 12 of the APMMC Rules, vide G.P.Ms. No. 29, dated 15.02.2017, Industries and Commerce 4 (Mines-II) Department, Government of Andhra Pradesh. Challenging the same, the Writ Petition came to be filed raising various grounds. The same was impugned in the Writ Petition. By its Judgment, dated 13.11.2017, the learned Single Judge set aside the Order passed by the Assistant Director of Mines and Geology, dated 04.04.2017 and allowed the Writ Petition. Challenging the same, Writ Appeals came to be filed.
10) Sri. Roy Reddy, who lead the arguments on behalf of the Appellants and the Writ Petitioners would submit that the existing lease holder, i.e., the 4th Respondent in Writ Petition withdrew its consent for transfer of quarry lease in favor of the Petitioner before the request was accepted, by way of a letter and affidavit, dated 29.06.2016, which was followed by e-mail, dated 07.07.2016, letter dated 22.11.2016, 08.12.2016 and 04.03.2017, showing payment of dead rent of Rs.,6,13,015/- on the same day. Referring to the provisions of the Contract Act, he would contend that, when the Appellants has withdrawn its consent, transfer could not have been given effect to and the request of the Petitioner for enforcement of Rule which is not in existence cannot be accepted. According to him, under the new Law, transfer of lease is permissible only if the original lease had been granted for captive consumption and if the lease is for non-captive purpose, the same is not transferable. Since, the lease if for non-captive purpose, question of transferring the same would not arise. Therefore, the Writ of Mandamus cannot be issued for implementation of the Rule, which is not in existence as on that day. He further pleads that, pending applications can only be considered under the Rules 5 prevalent/existing as on the date of such consideration and not on the basis of Rules, which are no longer in existent. He referred to the judgments of the Hon'ble Apex Court in State of Tamilnadu v. M/s. Hind Stone and others1 and M.P. Ram Mohan Raja v. State of Tamilnadu and others2 in that regard.
11) Insofar as failure of the authorities to give notice to the Writ Petitioners before its rejection of application made on 13.07.2015, it is pleaded that, since transfer of lease was impermissible in view of the amendment to Rule 12(5)(h)(viii) of the Rules, which came into effect vide issuance of G.O.Ms. No. 29, dated 15.02.2017, putting the Writ Petitioner on notice would not have improved the situation in any manner. Since, no other conclusion could be arrived at by the statutory authority, expect rejection of the application, dated 13.07.2015, putting the Writ Petitioner on notice would be an empty formality. He pleads that the judgment of the Hon'ble Apex Court in Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited3 has no application to the facts of the case, since, the Apex Court was dealing with a case of a right which got accrued to the petitioners, and accordingly the court held that the amendment could not be retrospectively applied.
12) According to him, the application for transfer of lease is made on 13.07.2015 and the same was pending till it was disposed of by the impugned order, dated 04.04.2017. Applicability of the law cannot be treated with a retrospective 1 (1981) 2 SCC 205 2 (2007) 9 SCC 78 3 (2015) 1 SCC 1 6 effect. According to him, if the applications which are pending as on the date of new rule coming into force, by virtue of which, the old rule stood repealed and replaced, were to be considered on the basis of the repealed rule, the statutory authority, would be committing an illegality, which is wholly impermissible. Therefore, pleads that, there cannot be any retrospective application of the amended rule, as contended by the Writ Petitioner.
13) The learned Counsel also relied upon the Judgments of the Hon'ble Apex Court in State of Rajasthan v. Mangilal Pindwal4 and also the Judgment in Bishnu Narain Misra v. The State of U.P. and others5. He also relied upon the Judgments in State of Orissa v. Mohd. Illiyas6 and Islamic Academy of Education v. State of Karnataka7, to show that the Judgment in Vatika Township Private Limited [supra] would not apply to the case on hand. In other words, his plea is that a direction cannot be given to authorities to implement the rule, which is not in existence on the date of the application.
14) The Government Pleader for Revenue while adopting the arguments of Sri. Roy Reddy, learned Counsel for the Appellants would submit that the question of implementing the law, which is not in existence would not arise. He further pleads that, when the joint application was withdrawn much prior to the acceptance, existence of such consent is not there on record, and as such the question of implementing the same would not arise. The same 4 AIR 1996 SC 2181 5 AIR 1965 SC 1567 6 (2006) 1 SCC 275 7 (2003) 6 SCC 697 7 argument was also adopted by the learned counsel for the Petitioner.
15) The same is opposed by Sri. Hemandernath Reddy, Counsel appearing for the Respondents. According to him, the Respondent in the Appeal was not aware about the issuance of letter withdrawing the consent for transfer. He would submit that no notice was given at the time of passing of the impugned order. He further submits that G.O.Ms. No.29 has only protective application i.e., from the date of publication i.e. 15.02.2017. According to him, much prior to the issuance of G.O., the Respondent made an application for transfer of quarry lease and the same was recommended by the Assistant Director.
16) He further contends that the application made for transfer of quarry lease ought to have been considered within a period of 180 days, but, without assigning any reason even after ample requests the 2nd Respondent kept the said application pending for more than eighteen [18] months and erroneously rejected the application on some erroneous interpretation of law. He pleads that when there is no express provision of retrospective application of the said G.O., the authorities ought not to have made it applicable to the instant case. It is stated that everything happened behind the back of the Petitioner and the same is being done with mala fide intention.
17) Sri. K.G. Krishnamurthy, learned Senior Counsel would submit that his case would stand on a much better footing than that of the Respondent in W.A. No. 1776 of 2019, as in his case 8 the entire process has been completed. According to him, the Respondents in his case also erred in rejecting the application making the amended rule retrospective in operation.
18) Insofar as the case in W.A. No. 552 of 2018 is concerned, a show cause notice was issued on 21.03.2017, to which the Respondent submitted his explanation on 11.04.2017 giving reasons as to why and how the rule cannot be made operational with retrospective effect apart from the fact that money being invested for development of quarries.
19) Both the Counsel further plead that having kept their applications pending for years together [beyond the statutory period within which their request were to be considered] cannot now amend the Rule and make it applicable retrospectively, more so, when the Rule is silent on the said aspect. The counsel relied on various Judgments in support of their plea which will be discussed later.
20) The short point that arises for consideration is whether the authority was justified in passing the impugned Order retrospectively applying the amended 12(5)(h)(VIII) of the Andhra Pradesh Minor Minerals Concession Rules. In order to appreciate the same, it would be useful to extract the un-amended Rule and the amendment which are as under:
"The un-amended Rule: (viii) The licensee or lessee shall not assign, sub-let, transfer or otherwise dispose of the under license or lease without obtaining the A.P. Minor Mineral Concession Rules, 1966 43 previous sanction in writing of the Director. The transfer application shall be made to the Assistant Director of the District concerned in Form R along with non-fefundable application fee of Rs.5,000 (Rupees Five 9 Thousand Only). The license or lease deed shall be executed as per the provision under clause (c):
Provided that such sanction shall be accorded that there is no speculation involved in the transfer of license or lease:
Provided further that the transferor and the transferee shall not be in arrears of any mineral revenue to the Government.
The amended Rule: "(viii) The prospecting licenses and quarry leases granted for the purpose of non-captive consumption are not transferable.
The prospecting licenses and quarry leases granted for captive consumption to a processing industry are transferable provided that the licensee or lessee shall transfer the lease along with the processing industry.
However, the licensee or lessee shall not assign, sublet, transfer or otherwise dispose of the license or lease that was granted for captive consumption along with processing industry, without obtaining the previous sanction in writing from the Director.
The transfer application shall be made to the Assistant Director of the District concerned in Form R along with non-refundable application fee of Rs.10,000/- (Rupees Ten Thousand Only). The license or lease deed shall be executed as per the provision under clause (e):
The permission for transfer of lease along with processing industry shall be accorded on payment of an amount equivalent to ten times of annual dead rent per hectare or the amount equivalent to the dead rent per hectare for the unexpired period of lease, whichever is higher.
Provided further that the transferor and the transferee shall not be in arrears of any mineral revenue to the Government".
21) The fact that a joint application came to be made by the Petitioner herein and the 4th Respondent for transfer of lease in Form-R in accordance with Rule 12(5)(b)(VIII) of the Andhra Pradesh Minor Minerals Concession Rules, 1966, is not in dispute. It is also not in dispute that the Respondents herein acknowledged the said application and fixed the time limit for disposal of the same within 180 days from the date of requisition i.e. 13.07.2015. It is also not in dispute that the Assistant Director of Mines and Geology, vide its letter, dated 18.06.2016, recommended the said proposal to the 2nd Respondent for transfer of quarry lease in favor of the Respondent herein. In-spite of the same, the Assistant Director of Mines and Geology, kept the mater 10 pending till February 2017 without passing any orders. No explanation is forthcoming for the delay in passing of the same.
22) The issue as to whether a notice ought to have been issued before rejecting the application, in our view, may not be necessary, since, the main question which has been urged is with regard to the applicability of the amended Rule with retrospective effect. As stated earlier, the counsel for the Petitioner submitted that, in view of Section 5 of the Contract Act, the transfer could not be given effect to when the Appellant has withdrawn the same much prior to its acceptance. He relied upon a Judgment of the Division Bench of this Court in Raghunandhan Reddy v. State of Hyderabad8 in support of his plea. It was a case where the Government notified the sale by auction of the leasehold rights for 1364 F. of country liquor shops at Akbarjah Bazaar, Malakunta and Sultan Bazar localities in Hyderabad City. The auctions were fixed for 23-8-1954. Objections came to be raised by the intending bidders before the Deputy Excise Commissioner on the ground that the auction notifications did not specify whether the Sabucha tax is leviable on the toddy brought into the city or not. The bidders sought clarification from the Deputy Commissioner about this before commencement of the auction, as imposition of tax is bound to affect the liquor sales. Accepting the objections, the auction was adjourned to 24-8-1954. But, however, on 23-8-1954, the sendhi shop leases were auctioned subject to the sendhi contractors paying Sabucha tax. The Petitioners bid was accepted. 8 AIR 1963 AP 110 11 Long thereafter, the auction was set aside and reauction was ordered on 15-9-1954 without imposition of Sabucha lax.
23) The two points that have been urged in the Appeal before the High Court were: firstly, that the contract was not a concluded contract when the appellant withdrew his offer and consequently there is no contract at all between the parties and the appellant is entitled to the declaration asked for and the refund of the money paid; secondly, that the suit is barred by limitation having regard to Section 41 of the Hyderabad Abkari Act.
24) Dealing with the same, the Court held that, it is a well- established principle of law that only when an offer is accepted that the contract is concluded and binds the parties. It was also held that before an offer is accepted, the offerer can withdraw his offer, but if the acceptance is conditional or is not final, then there is no concluded contract. Referring to Section 5 of the Indian Contract Act it was held that a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. The court further held that, similarly, an acceptance can be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards. It is said that generally, in a sale by auction, the auctioneer is the agent of the person whose property or rights are being auctioned. The agent invites offers and every bid is an offer and it is binding on either side when it is assented to, that is, when the hammer falls at the third bid. In other words, 12 the Court held that, the appellant certainly withdraw his offer before the period of expiration.
25) But, in the instant case, it was a joint application made by both the parties enclosing all the necessary documents and the amount paid along with necessary documents for transfer of lease in favour of one party to another party basing on the law prevailing at that time. No action was sought to be initiated basing on that application for 18 months, during which period the Respondent herein is said to have been invested substantial amount in making preparations for mining operations since the lease was for a pretty long period. It is not a case of an offer and acceptance warranting applicability of Section 5 of the Indian Contract Act.
26) Be that may, the larger question is whether the amended Rule be given retrospective effect when the said Rule and the Act is silent as to its applicability with retrospective effect.
27) The Counsel for the Appellant relied upon the Judgments of the Apex Court in State of Tamil Nadu v. M/s. Hind Stone and Others9 and M.P. Ram Mohan Raja v. State of Tamil Nadu and others10 in support of his plea. It is to be noted here that, the applications for transfer of leases have to be disposed of on the basis of Rule in force at the time of making the applications and that the petitioner has no vested right, despite the fact that there is a long delay in passing the Order from the date of making the application.
9(1981) 2 SCC 205 10 (2000) 7 SCC 529 13
28) A reading of the Judgment in Hind Stone [supra] would show that, in the said case, several persons who held leases for quarrying black granite and whose leases were about to expire, applied to the Government of Tamil Nadu for renewal of their leases. There was a long delay in disposal of the said applications by the Government and in the meanwhile the Rule position changed. Applying the amended Rule, the applications for renewal of leases came to be rejected. It is to be noted here that the Apex Court while confirming the rejection held as follows:-
"While applications should be dealt with within a reasonable time, that does not clothe an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. In the absence of any vested rights in anyone, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application".
29) As seen from the Judgment of the Apex Court, it is clear that the issue in the said case was with regard to the renewal of lease. The application for renewal of lease, as held by the Apex Court is, in essence an application for the grant of a lease for a fresh period. There is a lot of distinction between an application for renewal of lease and application for transfer of lease.
30) In the instant case, the original lease is still subsisting and the joint application came to be made by both the parties seeking transfer of the existing lease. No new rights are created, insofar as the mining operations are concerned, except there being a change in the name of a person to do the mining operation. Therefore, it can be said that there is a vested right. Hence, the judgment of 14 Hind Stone [supra] relied upon by the counsel for the Appellant may not apply to the case on hand.
31) Similarly, in M.P. Ram Mohan Raja [supra] the Hon'ble Apex Court was dealing with an issue where the appellant/ writ petitioner applied to the State Government for grant of quarry lease for quarrying jelly and rough stone for a period of 20 years from the poramboke lands over an extent of 3.64 hectares. Rule 39 of the Tamil Nadu Minor Mineral Concession Rules, 1959, conferred power on the State Government to grant or renew quarry lease or permission in special cases, which rule was affirmed in Premium Granites & Anr.v. State of Tamil Nadu & Ors11. The Writ Petition was admitted on 29.04.2003 i.e., nearly seven years after the impugned auction by the Collector putting the lese to auction. By an Order, dated 27.02.2004, the Petitioner was permitted to carryon quarrying operation in the said land, which was challenged in Appeal by the State Government. In view of some clarifications given by the learned Single Judge, Writ Appeal was dismissed. The interim order, dated 27.02.2004, of the learned Single Judge was challenged by a private party in Writ Appeal No.453 of 2006 stating that taking advantage of the order of learned Single Judge the writ petitioner has unauthorisedly encroached upon the lease-hold land granted in his favour and started quarrying operation in the said land. Both these matters were clubbed and heard. Dealing with the issue as to the applicability of the rules, court found that the rule was already repealed on 27.6.1996 and the ground reality had also changed. 11
(1994) 2 SC 691 15 Insofar as grant of mining and mineral lease is concerned, it was held that, no person has a vested right in it. In the said case, the rule under which the writ petitioner sought a direction for consideration of his application was already repealed within the time frame granted by the High Court. Therefore the basis on which the order was passed has been totally knocked out. Rule 39, on the basis of which a direction was given was not in existence. Therefore, it could not have been possible for the authorities to have acceded to the request of the writ petitioner, more so, when no one has a vested right in mineral lease. Relying upon Judgment of the Apex Court in Hind Stone, which we have referred to earlier, the court held as under:-
"they are unable to accept the submission of the learned counsel that applications for the grant of renewal of leases made long prior to the date of G.O.Ms. No.1312 and it should be dealt with as if Rule 8- C did not exist".
32) It is to be noted that it was also a case with regard to grant of renewal of lease. As held earlier, the facts in the instant case are different and the ratio laid down in M.P. Ram Mohan Raja [supra] case also in our view, would not apply to the case on hand.
33) In the words of Lord Blanesburg, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express intendment or necessary intendment". "Every Statue, it has been said", observed Lopes, L.J., "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, 16 must be presumed to be intended not to have a retrospective effect." The golden rule of construction as held by the Apex Court in Garikapati Veeraya v. N. Subbiah Choudhary12 is that, "in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed."
34) To decide the issue as to whether a statue is prospective or retrospective in operation, the court has to keep in mind presumption of prospectivity, articulated in legal maxim "nova constitutio futuris formam imponere debet non praeteritis" i.e., 'a new law ought to regulate what is to follow, not the past'. The presumption of prospectivity operates unless shown to the contrary by express provision in the statue or is otherwise discernible by necessary implication.
35) The law is well settled that the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned, they remain unaffected by the amendment in the enactment. Therefore, where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act such legislation is prospective in operation and does not effect substantive or vested rights of the parties unless made retrospective either expressly or by necessary 12 1957 SCR 488 17 intendment. [Smt. Dayawati And Another vs Inderjit And Others]13.
36) In Shyam Sunder v. Ram Kumar14, the Hon'ble Supreme Court while referring to Maxwell on Interpretation of Statutes held as under:
"Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only." The rule has, in fact, two aspects, for its "involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary."
37) In Francis Bennion's Statutory Interpretation, 2nd Edn., the statement of law is stated as follows:
"The essential idea of a legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex post factor law is enshrined in the United States Constitution and in the Constitution of many American States, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). As Willes, J. said retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law."13
1966 SCR (3) 275 14 AIR 2001 SC 2472 18
38) The question as to what a "vested right" would mean came up for consideration before the Full Bench of Gujarat High Court in Niko Resources Limited v. Union of India and Others15. After referring to the meaning of the said word as defined in various dictionaries, the court held that, "vested right" is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provide for such a course. Dealing with what 'Property" in legal sense means, the Court held as under:-
"property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of the thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property. The exclusive right of possessing, enjoying, and disposing of a thing is property in legal parameters. Therefore, the word 'property' connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status. Property, therefore, within the constitutional protection, denotes group of rights inhering citizen's relation to physical thing, as right to possess, use and dispose of it in accordance with law. In Ramanatha Aiyar's The Law Lexicon, Reprint Ed. 1987 at p. 1031, it is stated that the property is the most comprehensive of all terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have. The term "property" has a most extensive signification, and, according to its legal definition, consists in free use, enjoyment, and disposition by a person of all his acquisitions, without any control or diminution, save only by the laws of the land. In Dwarkadas Srinivas's case this court gave extended meaning to the word property. Mines, minerals and quarries are property attracting Article 300-A."
39) In paragraph 36.15, the court held that "valid contracts are property". The Court further held that, "it is beyond any cavil that a subordinate legislation can be given a retrospective effect and 15 2015 (0) SCJ Online (Guj) 792 (F.B.) 19 retroactive operation, if any power in this behalf is contained in the main Act. The rule-making power is a species of delegated legislation. A delegatee therefore can make rules only within the four corners thereof." In view of the above, the Court held that the amendments carried out could not thus take away the rights of the Appellant with retrospective effect.
40) This issue was dealt more elaborately by the Constitution Bench of the Hon'ble Apex Court in Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited16. It would be apposite to extract the relevant paragraphs in the said decision, as the position laid down sums up the legal position, which is as under:
"We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. In Government of India & Ors. v. Indian Tobacco Association17, the doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied in the case of Vijay v. State of Maharashtra & Ors.18 It was held that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. However, we are confronted with any such situation here".16
(2015) 1 SCC 17 (2005) 7 SCC 396 18 (2006) 6 SCC 286 20 In such cases, retrospectively is attached to benefit the persons in contradistinction to the provision imposing some burden or liability where the presumption attaches towards prospectivity. In the instant case, the proviso added to Section 113 of the Act is not beneficial to the assessee. On the contrary, it is a provision which is onerous to the assessee. Therefore, in a case like this, we have to proceed with the normal rule of presumption against retrospective operation. Thus, the rule against retrospective operation is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. Dogmatically framed, the rule is no more than a presumption, and thus could be displaced by out weighing factors."
41) Taking into consideration the Judgment of the Hon'ble Apex Court in Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited [supra], three Judge Bench of the Hon'ble Supreme Court in Federation of Indian Mineral Industries & Ors. v. Union of India and Another19, after referring to various Judgments of the Apex Court including Vatika Township Private Limited [supra], held as under:-
"21. The power to give retrospective effect to subordinate legislation whether in the form of rules or regulations or notifications has been the subject matter of discussion in several decisions rendered by this Court and it is not necessary to deal with all of them - indeed it may not even be possible to do so. It would suffice if the principles laid down by some of these decisions cited before us and relevant to our discussion are culled out. These are obviously relatable to the present set of cases and are not intended to lay down the law for all cases of retrospective operation of statutes or subordinate legislation. The relevant principles are:
(i) The Central Government or the State Government (or any other authority) cannot make a subordinate legislation having retrospective effect unless the parent statute, expressly or by necessary implication, authorizes it to do so. (Hukum Chand v. Union of India20 and 19 2017 (12) Scale 586 20 1972 2 SCC 601 21 Mahabir Vegetable Oils (P) Ltd. v. State of (1972) 2 SCC 601 Haryana21).
(ii) Delegated legislation is ordinarily prospective in nature and a right or a liability created for the first time cannot be given retrospective effect.
(Panchi Devi v. State of Rajasthan22).
(iii) As regards a subordinate legislation concerning a fiscal statute, it would not be proper to hold that in the absence of an express provision a delegated authority can impose a tax or a fee. There is no scope or any room for intendment in respect of a compulsory exaction from a citizen. (Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla23 and State of Rajashtan v. Basant Agrotech (India) Limited24.).
42) From the narration of facts in the instant case and the law laid down, it is very clear that there a vested right is created in the case on hand. Further when the amended Rule or the provisions of the Act does not confer power to give effect to law retrospectively, the authority ought not to have given effect to the said law with retrospective effect. The decision taken in our view is totally contrary to the law laid down by the Hon'ble Apex Court in the Judgment referred to above. It is also to be noted here that, applying the amended rule retrospectively would amount to changing the rule conditions unilaterally to the detriment of the unofficial Respondents. The plans would get upset and the affairs arranged would suffer a set back as applying the amended rule would change the character of the past transaction carried upon in the faith of existing law. Therefore, the argument of the learned Counsel for the Appellant as well as the Government Pleader cannot be countenanced.
21 2006 3 SCC 620 22 2009 2 SCC 589 23 1992 3 SCC 285 24 2013 15 SCC 1 22
43) In view of the above, we feel that the Orders under challenge warrants no interference and it may not be necessary for us to go into the other aspects of the matter, more particularly, issuance of notice and violation of principles of natural justice.
44) Accordingly, all the Writ Appeal are dismissed and Writ Petition No. 20710 of 2018 & Writ Petition No. 16140 of 2017 are allowed to the extent of considering the application of the Petitioner, dated 14.10.2015, for passing appropriate orders in terms of the law laid down above. No Order as to Costs.
45) Consequently, miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR _________________________________________ JUSTICE M.SATYANARAYANA MURTHY Date: 07.02.2020 SM.
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY W.P. No. 16140 of 2017 W.A. No. 1776 of 2017 W.A. No. 1973 of 2017 W.A. No. 551 of 2018 W.A. No. 552 of 2018 W.P. No. 20710 of 2018 Date: 07.02.2020 SM.