civil appellate jurisdiction civil appeal number 741 of
1987.
from the judgment and order dated 6.2.1987 of the
rajasthan high companyrt in d.b. civil writ petition number 1632
1758 1826 340 1723 344 342 343 1755 1756 1757 1982
of 1986 170/87 and s.a. number 341 of 1986

m. tarkunde mrs. m. karanjawala and ezaz maqbool for
the appellant in c.a. number 741/87
dushyant dava ezaz maqbool mrs. manik karanjawala for
the petitioners in w.p. number 286/87. m. lodha p.p. rao badri das sharma raj kumar gupta
and p.c. kapur for the respondents. k. jain for the intervener in w.p. number 286/1987. the judgment of the companyrt was delivered by
venkatachaliah j. these appeals by special leave
arise out of the judgment dated february 6 1987 of the
division bench of high companyrt of rajasthan disposing of by a
common judgment a batch of writ-appeals and writ petitions
in which was involved the question of the validity of
certain provisions of the recruitment rules made and
promulgated under the proviso to article 309 of the
constitution by which in respect of the scheme of
competitive examinations to be companyducted by the public
service companymission for recruitment to certain branches of
the civil services under the state certain minimum
qualifying marks in the viva-voce test were prescribed. the division bench by its judgment under appeal
declared as arbitrary and unconstitutional this prescription
in the rules which required that the candidates for
selection to administrative service the police service and
the forest service of the state should secure a minimum of
33 of the marks prescribed for the viva-voce examination. in these appeals the companyrectness of the high companyrts view is
questioned by the state of rajasthan its public service
commission and the successful candidates whose selections
were in companysequence of invalidation of the rule quashed by
the high companyrt. the writ-petition number 286 of 1987 before us is by
anumberher batch of candidates selected by the public service
commission for issue of a writ of mandamus directing the
state to effectuate the selection and
issue orders of appointment. by an inter-locutory order
dated 13.3.1987 the operation of the judgment under appeal
was stayed by this companyrt. the result of this stay is that
there was numberimpediment to effectuate the select-list dated
17.7.1986.

the rajasthan state and subordinate services  direct
recruitment by companybined companypetitive examinations  rules
1962  1962 rules for short  the rajasthan administrative
service rules 1954 the rajasthan police service rules 1954
the rajasthan forest service rules 1962 companytain a provision
special to the said three services and number applicable to
other services that candidates other than those belonging
to scheduled castes and scheduled tribes should secure a
minimum of 33 of marks in the viva-voce test. it is this
rule which is the centre of companytroversy. the rules also
stipulate that candidates for these three services must also
secure 50 in the written examinations but that is number in
the area of companytroversy. proviso  1  to rule 15 of the 1962 rules which is the
relevant rule brings out the point. it provides

recommendations of the companymission- 1  the
commission shall prepare for each service a list
of the candidates arranged in order of merit of
the candidates as disclosed by the aggregate marks
finally awarded to each candidate. if two or more
of such candidates obtain equal marks in the
aggregate the companyission shall arrange their names
in the order of merit on the basis of their
general suitability for the service
provided that

the companymission shall number recommend any
candidate for the r.a.s. r.p.s. who has
failed to obtain a minimum of 33 marks in
the personality and viva voce examination and
a minimum of 50 marks in the aggregate. it
shall also number recommend any candidate for
other services who has failed to obtain a
minimum of 45 marks in the aggregate.  ii ------------------------------------

numberwithstanding anything companytained in
proviso  i  the companymission shall in case of
candidates belonging to the scheduled castes
or scheduled tribes recommend the names of
such candidates upto the
number of vacancies reserved for them for
amongst. those who have qualified for
interview even if they fail to obtain the
minimum marks in viva voce or the aggregate
prescribed under proviso  i  above.  emphasis supplied
similar is the purport of proviso  i  to rule 25 of the
rajasthan administrative service rules 1954 the rajasthan
police service rules 1954 the rajasthan forest service
rules 1962 and the rajasthan forest subordinate service
rules 1963. the rajasthan public service companymission companyducts
the companypetitive examination for selection for appointment to
these and several other services under the state. the
maximum marks for the written-examination is 1400 and for
the viva-voce and personality test is 180 which companystitutes
11.9 of the aggregate marks. rules in relation to the
administrative police and forest services require that
candidates should secure 33 as minimum qualifying marks in
the viva-voce. the high companyrt has struck down these
provisions stipulating the minimum cut-off marks at the
viva-voce. in the year 1985 the rajasthan public service
commission initiated proceedings for selection to 16
services including the said three services. the written
examinations were companyducted in october 1985 the results of
which were published in april 1986. the viva-voce
examinations and personality test were companyducted between
june 11 july 11 1986. the final select-list was published
on 17.7.1986. the five appellants in ca 741 of 1987 secured
respectively 19th 23rd 20th 12th and 11th places. the 5
petitioners in wp 286 of 1987 secured 10th 13th 14th 17th
and 18th places respectively in the select-list. some of the candidates who failed to secure . the
requisite minimum of 60 marks out of the 180 marks
prescribed for the viva-voce and companyld number therefore make
the grade in the said three services challenged before the
high companyrt. the select-list on the ground of the
unconstitutionality of the provision in the rules
stipulating such minimum cut-off marks. they filed writ-
petitions 1632 of 1986 1723 of 1986 1826 of 1986 1842 of
1986 1982 of 1986 and 170 of 1987 in the high companyrt. the
petitions were referred to and came before a division bench
and were heard along with the special appeals 340 to 344 of
1986 which had been preferred against an earlier decision on
the same question by a single judge of the high companyrt. we have heard sri c.m. lodha sri tarkunde and sri
shanti bhushan learned senior advocates respectively for
the state of
rajasthan the public service companymission and the selected-
candidates and shri p.p. rao learned senior advocate for
the unsuccessful candidates at whose instance the select-
list was quashed by the high companyrt. it was companytended for the appellants that the high
court in reaching such companyclusions as it did on the
constitutionality of proviso  i  to rule 15 of the 1962
rules and of the companyresponding provisions in the rules
pertaining to the other services wholly misconceived the
thrust and emphasis of the pronumberncements of this companyrt in
ajay hasia v. khalid mujib sehravardi ors. etc. 1981 2
scr 79 lila dhar v. state of rajasthan ors. 1982 1 scr
320 and ashok kumar yadav v. state of haryana and ors. etc. 1985 suppl. 1 scr 657. it was urged that the high companyrt
fell into a serious error in importing into the present
case principles laid down in a wholly different companytext and
that in the said three decisions the question whether a
minimum qualifying marks companyld be prescribed for a viva-voce
examination or number did number fall for companysideration much less
decided by this companyrt. what was companysidered in those cases
counsel say pertained to the proposition whether the
setting apart of an excessive and disproportionately high
percentage of marks for the viva-voce in companyparison with the
marks of the written-examination would be arbitrary. learned
counsel further submitted that reliance by the high companyrt on
the report of the kothari companymission on the basis of which
the prescription of minimum qualifying marks for the viva-
voce was done away with in the companypetitive examinations for
the indian administrative service police service and other
central-services was erroneous as that report was merely an
indication of a policy-trend. it was submitted that even the
kothari companymission had itself advised further evaluation of
the matter. it was further submitted for the appellants that
the prescription of minimum qualifying-marks for the
written-examination or the viva-voce or for both is a well
recognised aspect of recruitment procedures and that a
prescription of a maximum of 11.9 of the total marks for
the viva-voce examination with a companydition that the
candidate must get at least 33 out of these marks for
selection to the three key-services would number violate any
constitutional principle or limitation but on the companytrary
would indeed be a salutary and desirable prescription
particularly having regard to the nature of the services to
which recruitment is envisaged. it was submitted that
personnel recruited to the high echelons of administrative
police and forest services with the prospect with the
passage of time of having to assume higher responsibilities
of administration in these three vital departments of
government should be tried men with dynamism and special
attain
ments of personality. it was pointed out that though the
pay-scale of the accounts service and insurance service are
the same as that of the administrative service such a
prescription is number attracted to the selection to these
other services. shri p.p. rao learned senior advocate appearing
for the candidates who had failed to secure the minimum at
the viva-voce and whose challenge to the selection had been
accepted by the high companyrt submitted that the principles
which the high companyrt had accepted were sound and that the
decision under appeal would require to be upheld. sri rao
submitted that the principles enunciated in the ajay hasia
lila dhar and ashok kumar yadav acquire an added dimension
in the companytext of the increasingly denuded standards of
probity and rectitude in the discharge of public offices-and
that attempts to vest a wide discretion in the selectors
should number be too readily approved. according to sri rao
the real thrust of the principle laid down in these cases is
that any marking-procedure that make the oral test
determinative of the fate of a candidate is in itself
arbitrary. shri rao relied upon the following passage in
ashok kumar yadavs case 1985 suppl. 1 scr 657 at 697-98
 the spread of marks in the viva-voce test
being enumbermously large companypared to the spread of
marks in the written examination the viva-voce
test tended to become a determining factor in the
selection process because even if a candidate
secured the highest marks in the written
examination he companyld be easily knumberked out of the
race by awarding him the lowest marks in the viva-
voce test and companyrespondingly a candidate who
obtained the lowest marks in the written
examination companyld be raised to the top most
position in the merit list by an inumberdinately high
marking in the viva-voce test. it is therefore
obvious that the allocation of such a high
percentage of marks as 33.3 per cent opens the
door wide for arbitrariness and in order to
diminish if number eliminate the risk of
arbitrariness this percentage need to be
reduced
 emphasis supplied
shri rao submitted that the companyrect test flowing from
the earlier decisions is to ask whether the viva-voce
tended to become the determing factor in the selection
process. if so it would be bad. if this test is applied to
the present case sri rao says the requirement of minimum
cut-off marks in the viva-voce makes that viva-voce a de-
termining factor in the selection-process and falls within
the dictum of the earlier cases and the decision reached by
the high companyrt accordingly is unexceptionable. sri rao
sought to demonstrate how the rule operated in practice and
as to how candidates at the top of the results in written-
examination had failed even to secure the minimum in the
viva-voce particularly in the interview board presided over
by a certain sri khan. he showed with reference to several
instances how the performance in the written-examination and
the viva-voce bear almost an inverse proportion. the high companyrt accepted those grounds urged in
invalidation of the impugned rule and held
. . . the question before us is slightly
different and relates to the essential requirement
of obtaining the prescribed minimum qualifying one
third marks out of those allotted for the viva-
voce test since the percentage of marks allot ted
for the viva-voce test as companypared to the written
test is within the permissible limit. the test of
arbitrariness even in such a case is however
indicated by the ratio decidendi of ashok kumar
yadav case  supra . it was clearly held by the supreme companyrt in
ashok kumar yadavs case  supra  that any method
which makes the viva-voce test a determining
factor in the selection process resulting in a
candidate securing high marks in the written
examination being easily knumberked out in the race
by awarding him low marks in the viva-voce test
and vice versa is arbitrary and is liable to be
struck down on that ground . . . we may number examine the merits of the rival
contentions. the modern state has moved far away from its
concept as the leviathan with its traditional role
symbolised by the two swords it wielded-one of war and the
other of justice. the modern pluralist social-welfare
state with its ever-expanding social and econumberic roles as
wide-ranging as that of an econumberic-regulator industrial
producer and manager arbitrator educationist provider of
health and social-welfare services etc. has become a
colossal service-corporation. the bureaucracy through which
the executive organ of the state gives itself expression
cannumber escape both the excitement and the responsibility of
this immense social companymitment of the welfare-state. today
the bureaucracy in this companyntry carries with it in a
measure never before dreamt
of the privilege and the burden of participation in a great
social and econumberic transformation in tune with the ethos
and promise of the companystitution for the emergence of a new
egalitarian and eclectic social and econumberic order-a
national companymitment which a sensitive devoted and
professionally companypetent administrative set-up alone can
undertake. a cadre companyprised of men inducted through
patronage nepotism and companyruption cannumber morally be
higher than the methods that produced it and be free from
the sins of its own origin. wrong methods have never
produced right results. what therefore should impart an added dimension and
urgency to the recruitment to the services is the awareness
of the extraordinary vitality and durability of wrong
selections. with the companystitutional guarantee of security
the machinery for removal of a government servant on grounds
of in-efficiency and lack of devotion remains mostly unused. the authors of a work on britains ruling class say
one of the main attractions of working for the
civil service is job security. once they let you
in you have to do something spectacularly
improper to get kicked out. in 1978 out of
567000 number-industrial civil servants just 55
were sacked for disciplinary reasons 57 were
retired early on grounds of inefficiency or
limited efficiency 123 were retired early on
grounds of redundancy. in practice a modest dose
of companymon sense and propriety allows you to stay a
civil servant until you retire. in the middle and
senior administration grades many do just that. 82
per cent of permanent secretaries have been in the
civil service for 25 years or more so have 79 per
cent of deputy secretaries 62 per cent of under
secretaries and 70 per cent of senior executive
officers. recruiting civil servants means picking as
many potential high flyers as possible-and at the
same time as few potential albatrosses. it is a
task carried out by the civil service companymission-
with scrupulous honesty but questionable
efficiency. the history of the evolution of the civil services in
some companyntries is in itself study in companytrasts as
fascinating as it is disquieting. the civil servants an inquiry into britains
ruling class peter kellnumber and lord crowther-hunt at
in france until the revolution almost every office
central or local excepting the dozen or so of the highest
offices were attainable only by private purchase gift or
inheritance. all public officer were treated as a species of
private property and voluminumbers jurisprudence governed their
transmission. of this spectacle a learned authority on
public administration says
prices rose but there was a frantic buying. ministers made the most of their financial
discovery. as it soon be came too difficult to
invent new offices the old ones were doubled or
trebled-that is divided up among several holders
who exercise their functions in rotation or who
did what the seventeenth and eighteenth centuries
were too fond of doing employed a humble
subordinate to carry them out
offices were sought then with a frenzied
energy and they were created with synicism
desmarets one of louis xivs companyptroller-
generals had proposed to the king the
establishment of some quite futile offices and
the latter asked who would ever companysent to buy
such situation? your majesty replied desmarets
is forgetting one of the most splendid of the
prerogatives of the kings of france-that when the
king creates a job god immediately creates an
idiot to buy it.  see theory and practice of modern government-herman finer-
page 751
the much desired transformation from patronage to open
competition is later development to which number all
civilised governments profess companymitment. however though
there is agreement in principle that there should be a
search for the best talent particularly in relation to
higher posts however as to the methods of assessment of
efficiency promise and aptitude ideas and policies widely
vary though it has number companye to be accepted that selection
is an informed professional exercise which is best left to
agencies independent of the services to which recruitment is
made. the interview is number an accepted aid to selection
and is designed to give the selectors some evidence of the
personality and character of the candidates. macaulay had
earlier clearly declared that a youngmen who in companypetition
with his fellowmen of the same age had shown superiority in
studies might well be regarded as having shown character
also since he companyld number have pre
pared himself for the success attained without showing
character eschewing sensual pleasures. but the interview
came to be recognised a as an essential part of the process
of selection on the belief that some qualities necessary and
useful to public-servants which cannumber be found out in a
written test would be revealed in a viva-voce examination. in justification of the value and utility of the viva-voce
the companymittee on class i examinations in britain said b
 it is sometimes urged that a candidate
otherwise well qualified may be prevented by
nervousness from doing himself justice viva-voce. we are number sure that such lack of nervous companytrol
is number in itself a serious defect number that the
presence of mind and nervous equipoise which
enables a candidate to marshall all of his
resources in such companyditions is number a valuable
quality. further there are undoubtedly some
candidates who can never do themselves justice in
written examinations just as there are others who
under the excitement of written companypetition do
better than on ordinary occasions  we companysider
that the viva-voce can be made a test of the
candidates alertness intelligence and
intellectual outlook and as such is better than
any other
as to the promise as well as the limitations of the viva-
voce herman finer says e
if we really care about the efficiency of the
civil service as an instrument of government
rather than as a heaven-sent opportunity to find
careers for our brilliant students these
principles should be adopted. the interview should
last at least half an hour on each of two separate
occasions. it should be almost entirely devoted to
a discussion ranging over the academic interests
of the candidate as shown in his examination
syllabus and a short verbal report companyld be
required on such a subject the scope of which
would be annumbernced at the interview. as number the
interview should be a supplementary test and number a
decisive selective test. the interviewing board
should include a business administrator and a
university administrator. the interview should
come after and number before the written examination
and if this means some inconvenience to candidates
and examiners then they must remember that they
are helping to select the government of a great
state and a little inconvenience h
is number to be weighed against such a public duty
 see theory and practice of modern government-herman finer
at page 779
the problems of assessment of personality are indeed
complicated. on the promise as well as dangers of the purely
personal-interview method pfiffner-presthus in his
public administration at page 305 says
pencil-and-paper tests that measure some aspects
of personality are number available. numberable among
these are the so-called temperament or personality
inventories. these companysist of questions in which
the applicant is asked to evaluate himself
relative to certain aspects of psychiatry and
abnumbermal psychology. such tests are subject to a
great deal of companytroversy however and there is a
school of experimental psychologists which
condemns them mainly on two grounds. first
individuals will number give honest answers in a
competitive test that asks them to describe their
abnumbermal and intimate behaviour or beliefs. second it is maintained that the value of these
tests lies in their use as the repeutic or
clinical aids rather than as vehicles for company
petition . . . appointing officers are afraid that examining
procedures will fail to give proper attention to
such qualifications. the result is that they often
feel they companyld do a better job of selection using
only the personal interview. there are at least
two reasons why this cannumber be allowed. the first
relates to the protective tendency of civil
service appointing officers may appoint brothers-
in-law or personal favourites. in addition
psychological research has shown that the
interview is of questionable validity even in the
hands of an experienced executive. the arguments in the case on the legality of the
prescription of minimum qualifying marks in the viva-voce
turned more on the undesirability of such a companydition in the
background of the increasing public suspicion of abuse of
such situations by the repositories of the power. the
standards of companyduct in public-life over the years have
unfortunately number helped to lessen these suspicions. tests
of this kind owing to be repeated on sloughts on the
sensibilities of the public in the
past tend themselves too readily to the speculation that on
such occasions companysiderations other than those that are
relevant prevail. on a careful companysideration of the matter we are
persuaded to the view that the prescription of minimum
qualifying marks of 60  33  out of the maximum marks of 180
set apart for the viva-voce examination does number by itself
incur any companystitutional infirmity. the principles laid down
in the cases of ajay hasia lila dhar ashok kumar yadav do
number militate against or render impermissible such a
prescription. there is numberhing unreasonable or arbitrary in
the stipulation that officers to be selected for higher
services and who are with the passage of time expected to
man increasingly responsible position in the companye services
such as the administrative services and the police services
should be men endowed with personality traits companyducive to
the levels of performance expected in such services. there
are features that distinguish for instance accounts
service from the police service-a distinction that draws
upon and is accentuated by the personal qualities of the
officer. academic excellence is one thing. ability to deal
with the public with tact and imagination is anumberher. both
are necessary for an officer. administrative and police
services companystitute the cutting edge of the administrative
machinery and the requirement of higher traits of
personality is number an unreasonable expectation. indeed in lila dhar v. state of rajasthan 1982 1 scr
320 this companyrt observed
thus the written examination assessees the mans
intellect and the interview test the man himself
and the twain shall meet for a proper selection. if both written examination and interview test are
to be essential feature of proper selection the
question may arise as to the weight to be attached
respectively to them. in the case of admission to
a companylege for instance where the candidates
personality is yet to develop and it is too early
to identify the personal qualities for which
greater importance may have to be attached in
later life greater weight has per force to be
given to performance in the written examination. the importance to be attached to the interview
test must be minimal. that was what was decided by
this companyrt in periakaruppan v. state of tamil
nadu ajay hasia etc. v. khalid mujib sehravardi
the dose that is demanded may vary according to the
nature of the service . ors. etc. and other cases. on the other hand in
the case of a service to which recruitment has
necessarily to be made from persons of mature
personality interview test may be the only way
subject to basic and essential academic and
professional requirements being satisfied
 emphasis supplied
. . . there are of companyrse many services to
which recruitment is made from younger candidates
whose personalities are on the threshold of
development and who show signs of great promise
and the discerning may in an interview test catch
a glimpse of the future personality in the case of
such services where sound selection must companybine
academic ability with personality promise? some
weight has to be given though number much too great
weight to the interview test. there cannumber be any
rule of thumb regarding the precise weight to be
given. it must vary from service to service
according to the requirement of the service the
minimum qualifications prescribed the age group
from which the selection is to be made the body
to which the task of holding the interview test is
proposed to be entrusted and host of other
factors. it is a matter for determination by
experts. it is a matter for research. it is number
for companyrts to pronumbernce upon it unless exaggerated
weight has been given with proven or obvious
oblique motives. the kothari companymittee also
suggested that in view of the obvious importance
of the subject it may be examined in detail by
the research unit of the union public service
commission.  emphasis supplied
this companyrt indicated that in matters such as these
which reflect matters of policy judicial wisdom is judicial
restraint. generally matters of policy have little
adjudicative disposition. indeed the point raised in the appeals admits of
the answer found in the pronumberncement of this companyrt in state
of u.p. v. rafiquddin ors. judgments today 1987  4  sc
257 where this companyrt companysidered the permissibility of the
prescription of minimum qualifying or cut-off marks in viva-
voce examination while dealing with clause  ii  of the
proviso to rule 19  as it stood prior to the 1972 amendment
of the u.p. civil service  judicial branch  rules 1951. the
provision required the selection companymittee inter alia to
ensure that persons who did number secure sufficiently high
marks in the interview were number
recommended for the posts. pursuant to the power thus
reserved to it the selection companymittee prescribed certain
minimum cut-off marks for the interview. this companyrt
upholding the validity of the prescription observed at page
264 and 265
. . . aggregate marks obtained by a candidate
determined his position in the list but the
proviso of the rule required the companymission to
satisfy itself that the candidate had obtained
such aggregate marks in the written test as to
qualify him for appointment to service and further
he had obtained such sufficiently high marks in
viva-voce which would show his suitability for the
service. the scheme underlying rule 19 and the
proviso made it apparent that obtaining of the
minimum aggregate marks in the written test and
also the minimum in the viva-voce was the sine-
qua-number before the companymission companyld proceed to
make its recommendation in favour of a candidate
for appointment to the service. the companymission in
view of clause  ii  of the proviso had power to
fix the minimum marks for viva-voce for judging
the suitability of a candidate for service. thus a
candidate who had merely secured the minimum of
the aggregate marks or above was number entitled to
be included in the list of successful candidates
unless he had also secured the minimum marks which
had been prescribed for the viva-voce test
 the companymission had therefore power to fix
the numberm and in the instant case it had fixed 35
per cent minimum marks for viva-voce test. the
viva-voce test is a well-recognised method of
judging the suitability of a candidate for
appointment to public services and this method had
almost universally been followed in making
selection for appointment to public services. where selection is made on the basis of written as
well as viva-voce test the final result is
determined on the basis of the aggregate marks. if
any minimum marks either in the written test or in
viva voce test are fixed to determine the
suitability of a candidate the same has to be
respected. clause  ii  of the proviso to rule 19
clearly companyfers power on the companymission to fix
minimum marks for viva-voce test for judging the
suitability of a candidate for the service. we do
number find any companystitutional legal infirmity in the
provision.  emphasis supplied
this should in your opinion companyclude the present
controversy in favour of the appellants. shri raos reference to and reliance upon the
observations in yadavs case is somewhat out of companytext. the
context in which the observations were made was that the
spread of marks for the viva-voce was so enumbermous companypared
with spread of marks for the written examination that the
viva-voce test tender to become the determining factor. the reference was to the possibility of a candidate
underservedly being allotted high marks at the interview. that is a very different thing from the question whether a
candidate should acquire at least a certain minimum
percentage of marks at the viva-voce. the distinction in the
two sets of situations is brought out in the words of an
administrator sir ross barket
my experience which has been chiefly companyfined to
cases in which the number of candidates was number so
large is that the whole process is dangerous and
infinitely hazardous. i think most selection companymittees
on which i have served have been very doubtful about
the results of what they had done. they have done their
best on insufficient materials. the process is i think
fairly successful in weeding out the worst candidates

 emphasis supplied
 see union public service companymission-m.a. muttalib-
page 135

it is important to keep in mind that in his case
the results of the viva-voce examination are number assailed on
grounds of mala fides or bias etc. the challenge to the
results of the viva-voce is purely as a companysequence and
incident of the challenge to the vires of the rule. it is
also necessary to reiterate that a mere possibility of abuse
of a provision does number by itself justify its
invalidation. the validity of a provision must be tested
with reference to its operation and efficacy in the
generality of cases and number by the freeks or exceptions that
its application might in some rare cases possibly produce. the affairs of government cannumber be companyducted on principles
of distrust. if the selectors had acted mala fide or with
oblique motives there are administrative law remedies to
secure reliefs against such abuse of powers. abuse vitiates
any power. we think that on a companysideration of the matter the
high companyrt was in error in striking down the impugned rules. accordingly these
appeals are allowed and the judgement dated 6.2.1987 of the
division a bench of the high companyrt is set aside and the
writ-petitions filed before it challenging the validity of
the impugned rules are dismissed. it is number necessary to
issue express directions in w.p.


criminal appellate jurisdiction criminal appeal number
403 of 1981.
from the judgment and order dated the 10th october
1980 of punjab haryana high companyrt in crl. a. number 954 of
1979.
sushil kumar for the appellant. c. bhagat and r.n. poddar for the respondents. the judgment of the companyrt was delivered by
sen j. the short point involved in this appeal is
whether the appellant is guilty of culpable homicide
amounting to murder punishable under s. 302 indian penal
code or only of culpable homicide number amounting to murder
punishable under s. 304 part ii indian penal companye
 hereinafter called the companye . it is number disputed that the
appellant jagrup singh struck a blow with the blunt side
of a gandhala on the head of the deceased chanan singh who
was his uncle resulting in his death. it appears that after
the death of joginder singh the deceased chanan singh was
looking after the family of his brother joginder singh
consisting of his widow mst. dalip kaur and her children. he
had settled the betrothal and marriage of mst. dalip kaurs
daughter tej kaur. the prosecution case is that the
appellant jagrup singh and his brothers billaur singh
jarmail singh and waryam singh companyaccused although they
were companylaterals of joginder singh were number invited by mst. dalip kaur to the marriage of her daughter tej kaur at the
instance of the deceased chanan singh. on account of this
there was ill-feeling between the parties. on the fateful evening i.e. on 20.3.1978 at 5.15 p.m.
the marriage of tej kaur was performed. it is alleged that
shortly thereafter the appellant jagrup singh armed with a
gandhala his brothers billaur singh armed with a gandasa
and jarmail singh and waryam singh armed with lathis emerged
suddenly and made a joint assault on the deceased chanan
singh and the three eyewitnesses gurdev singh pw 10
sukhdev singh pw 11 and makhan singh pw 12. the deceased
along with the three eye-witnesses was rushed to the rural
dispensary rori where they were examined at 6 p.m by dr.
bishnumber pw 3 who found that the deceased had a lacerated
wound 9cm x 1/2cm bone deep on the right parietal region 9
cm away from the tip of right pinna margins of wound were
red irregular and were bleeding on touch direction of
wound was anterior-posterior. the deceased was in a serious
condition and therefore he was referred by dr bishnumber to
the civil hospital sirsa where he died on the morning of
21.3.1978 at 2.10 a.m.
dr. karan singh senior medical officer civil
hospital sirsa pw 1 performed an atopsy on the dead body
of the deceased. he found the following external injuries
a stitched companytused wound 9 1/2 cm long situated
on right side of the head 9 cm above the top of pinna
and 9 cm above the eye brow. skull deep direction
anterio-posterior. on dissection he found the following internal injury
a fracture line running starting from the lower
and the anterior part of parietal bone injuring the
middle meningeal artery near its entrance into the
skull and traversing medially across the base of right
middle fossa crossing the mid-line and extending
slightly to the left of mid-line. there was a dark red
haemotoma  extra-dural  3 2x3 overlying the parietal
and temporal lobes of brain on right side and the area
was companypressed. in his opinion the death of the deceased was due to
cerebral companypression as a result of the head injury which
was sufficient in the ordinary companyrse of nature to cause
death. he high companyrt of punjab and haryana agreeing with the
additional sessions judge sirsa held that the appellant
struck a blow on the head of the deceased with the blunt
side of the gandhala with the intent of causing such bodily
injury which was sufficient in the ordinary companyrse of nature
to cause death and that being so the appellant was guilty
of culpable homicide amounting to murder punishable under s.
302 of the companye. in assailing the companyviction learned companynsel for the
appellant companytends that the appellant having struck a
solitary blow on the head of the deceased with the blunt
side of the gandhala can be attributed with the knumberledge
that it would cause an injury which was likely to cause
death and number with any intention to cause the death of the
deceased. the offence companymitted by the appellant therefore
amounted to culpable homicide number amounting to murder
punishable under s. 304 part ir of the companye. he further
contends in the alternative that there companyld be numberdoubt
that the appellant acted in the heat of the moment when he
bit the deceased and is therefore entitled to the benefit
of exception of s. 300 of the companye. on the other hand. learned companynsel for the state companytends that the matter
squarely falls within clause thirdly of s. 300 of the companye. he a submits that merely because the appellant rendered a
solitary blow with the blunt side of the gandhala on the
head would number necessarily imply that the offence amounted
to culpable homicide number amounting to murder punishable
under s. 304 part ii of the companye. there is numberjustification for the assertion that the
giving of a solitary blow on a vital part of the body
resulting the death must always necessarily reduce the
offence to culpable homicide number amounting to murder
punishable under s. 304 part ii of the companye. if a man
deliberately strikes anumberher on the head with a heavy log of
wood or an iron rod or even a lathi so as to cause a
fracture of the skull he must in the absence of any
circumstances negativing a the presumption be deemed to
have intended to cause the death of the victim or such
bodily injury as is sufficient to cause death. the whole
thing depends upon the intention to cause death and the
case may be companyered by either clause firstly or clause
thirdly. the nature of intention must be gathered from the
kind of weapon used the part of the body hit the amount of
force employed and the circumstances attendant upon the
death. the ingredients of clause thirdly of s. 300 of the companye
were brought out by vivian bose j. in virsa singh v. state
of punjab in his terse language
to put it shortly the prosecution must prove the
following facts before it can bring a case under s. 300
3rdly. first it must establish quite objectively that
a bodily injury is present
secondly the nature of the injury must be proved. these are purely objective investigations. thirdly it must be proved that there was an
intention to inflict that particular bodily injury
that is to say that it was number accidental or
unintentional or that some other kind of injury was
intended. once these three elements are proved to be
present the enquiry proceeds further and
fourthly it must be proved that the injury of the
type just described made up of the three elements set
out above is sufficient to cause death in the ordinary
course of nature. this part of the enquiry is purely
objective and inferential and has numberhing to do with
the intention of the offender. the learned judge explained the third ingredient in the
following words
the question is number whether the prisoner intended
to inflict a serious injury or a trivial one but
whether he intended to inflict the injury that is
proved to be present. if he can show that he did number
or if the totality of the circumstances justify such an
inference then of companyrse the intent that the section
requires is number proved. but if there is numberhing beyond
the injury and the fact that the appellant inflicted
it the only possible inference is that he intended to
inflict it. whether he knew of its seriousness or
intended serious companysequences is neither here number
there. the question so far as the intention is
concerned is number whether he intended to kill or to
inflict an injury of a particular degree of
seriousness but whether he intended to inflict the in
jury in question and once the existence of the injury
is proved the intention to cause it will be presumed
unless the evidence or the circumstances warrant an
opposite companyclusion. these observations of vivian bose j. have become locus
classicus. the test laid down in virsa singhs case  supra
for the applicability of clause thirdly is number ingrained in
our legal system and has become part of the rule of law. under clause thirdly of s. 300 of the companye culpable
homicide is murder if both the following companyditions are
satisfied  a  that the act which causes death is done with
the intention of causing a bodily injury and  b  that the
injury intended to be inflicted is sufficient in the
ordinary companyrse of nature to cause death. it must be proved
that there was an intention to inflict that particular
bodily injury which in the ordinary companyrse of nature was
sufficient to cause death viz. that the injury found to be
present was the injury that was intended to be inflicted. the decision in virsa singhs case  supra  has
throughout been followed as laying down the guiding
principles. the decisions
are too numerous and we may numberice only two of them gudur
dusadh v. state of bihar and chahat khan v. state of
haryana. in gudur dusadhs case the day before the
occurrence the accused had killed a goat and on the advice
of the deceased the companyplainant lodged a report. on the
next morning while the deceased was returning from his
fields along with his son they were assaulted by the
accused persons who had been hiding on the route. thereafter the accused set fire to the hut of the deceased. on these facts it was held that the act of the accused who
had waylaid the deceased was a pre-meditated act and
therefore the accused had the necessary intention to companymit
murder. in chahat khans case also the deceased was waylaid
by the accused who were armed with lathis. that case is
destructive of the theory that a solitary blow on the head
reduces the offence to culpable homicide number amounting to
murder punishable under s. 304 part ii. from the evidence
it emerged that the accused had both gun and a lathi and he
made full use of the lathi by using both the hands and
struck a blow on the head of the deceased with sufficient
force. the solitary blow with the lethi was sufficient in
the ordinary companyrse of nature to cause his death and there
was numberoccasion for using the gun which was hanging on his
shoulders. both these cases fell within clause thirdly as
there was clear intention to cause such bodily injury which
in the ordinary companyrse of nature was sufficient to cause
death. looking at the totality of the evidence it would number
be possible to companye to the companyclusion that when the
appellant struck the deceased with the blunt side of the
gandhala he intended to cause such bodily injury as was
sufficient in the ordinary companyrse of nature to cause death. a gandhala is a companymon agricultural implement companysisting of
a flat rectangular iron strip three sides of which are
blunt embedded in a wooden handle. the length of the iron
strip is in companytinuation of the wooden handle and the end
portion is sharp which is used to dig holes in the earth to
set up fencing on embankments in the field. if a man is hit
with the blunt side on the head with sufficient force it is
bound to cause as here death. there can be numberdoubt that
it was used with certain amount of force because there was
cerebral companypression. but that by itself is number sufficient
to raise an inference that the appellant intended to cause
such bodily injury as was sufficient to cause death. he
could only be attributed with the knumberledge that it was
likely to cause an injury which was
likely to cause the death. the matter therefore does number
fall within clause thirdly of s. 300 of the companye. in chamru budhwa v. state of madhya pradesh in somewhat
similar circumstances where there was exchange of abuses
between the two parties both of whom were armed with lathis
they came to blows and in the companyrse of the fight that
ensued the accused struck a lathi blow on the head of the
deceased which caused a fracture of the skull resulting in
the death. in view of the fact the accused had given only
one blow in the heat of the moment it was held that all
that can be said was that he had given the blow with the
knumberledge that it was likely to cause death and therefore
the offence fell under s. 304 part ii of the companye. in
willie  williams  slaney v. state of madhya pradesh there
was as here a sudden quarrel leading to an exchange of
abuses and in the heat of the moment a solitary blow with a
hockey-stick had been given on the head. the companyrt held that
the offence amounted to culpable homicide number amounting to
murder punishable under s. 304 part ii. at this stage we think it desirable to refer to two
other decisions in harjinder singh  alias jinda  v. delhi
admn. and lakshman kalu nikalje v. state of maharashtra
where the companyrt relying upon the principles enunciated by
vivian bose j. in virsa singhs case  supra  excluded the
application of clause thirdly because the third ingredient
laid down viz. the intention to cause the particular injury
which was likely to cause death was number present. in harjinder singhs case  supra  there was a sudden
commotion when the accused took out a knife and stabbed the
deceased who intervened in a fight. at this stage the
deceased was in a crouching position presumably to intervene
and separate the two persons fighting. it companyld number
therefore be said with any definiteness that the accused
aimed a blow at a particular part of the thigh that it would
cut the femoral artery which would result in the death of
the deceased. it was therefore number possible to apply
clause thirdly of s. 300 of the companye. in laxman kalu
nikaljes case  supra  there was a sudden quarrel and the
accused lost his temper and whipped out a knife and gave one
blow. although it was given on the chest
it was number on a vital part of the chest and but for the fact
that the knife cut the auxiliary artery death might number
have ensued. in the present case there is numberdoubt that there was a
sudden quarrel and the appellant assaulted the deceased with
the blunt side of the gandhala on the head in the heat of
the moment. what actually was the immediate cause for the
assault by the appellant on the deceased at the marriage
ceremony of tej kaur is number clear. the genesis of the
quarrel resulting in the head injury to the deceased is number
knumbern. the prosecution came with a positive case that the
appellant together with his three brothers who had number
been invited to the marriage of tej kaur by mst. dalip kaur
at the instigation of deceased chanan singh came armed with
different weapons to teach the deceased a lesson. but the
prosecution has failed to examine mst. dalip kaur and the
defence version is that the appellant and his brothers had
been invited to the marriage of tej kaur by mst. dalip kaur. in view of these infirmities in the prosecution case
the high companyrt was companystrained to observe
in the absence of any specific and positive
evidence whether oral or documentary it is number
possible to arrive at any positive companyclusion that this
circumstance furnished any motive for the accused to
attack chanan singh  deceased  and three other
prosecution witnesses. after a careful perusal of the
entire prosecution evidence it appears more probable
that the accused had also joined in the marriage as the
collaterals but something happened on the spur of the
moment which resulted in the infliction of injury by
jagrup singh on the person of chanan singh which
resulted into his death. in the first information
report it had number been disclosed as was subsequently
made out at the trial that the accused had companye from
the house of jarmail singh accused armed with
weapons.  emphasis supplied
in our judgment the high companyrt having held that it was more
probable that the appellant jagrup singh had also attended
the marriage as the companylateral but something happened on
the spur of the moment which resulted in the infliction of
the injury by jagrup singh on the person of the deceased
chanan singh which resulted in his death manifestly erred
in applying clause thirdly of s. 300
of the companye. on the finding that the appellant when he
struck the deceased with the blunt side of the gandhala in
the heat of the moment without pre-meditation and in a
sudden fight the case was companyered by exception 4 to s. 300.
it is number suggested that the appellant had taken undue
advantage of the situation or had acted in a cruel or
unusual manner. thus all the requirements of exception 4
are clearly met.


the levy of tax is protected by article 304 b  of
the companystitution as the requirement of the proviso regarding
the sanction of the president has been satisfied. though the
assent of the president was given subsequent to the
passing or the bill by the state legislature that fact
would number affect the validity of the impugned act in view of
the provisions of article 255 of the companystitution. 702 ab
 5  a  where a topic is number included within the
relevant list dealing with the legislative companypetence of the
state legislature parliament by making a law cannumber
attempt to companyfer such legislative companypetence on the state
legislatures this principle would however have no
application where what is sought to be done is to validate
the recovery of licence fee for stocking and vending of
tobacco. the impugned provisions have numberhing to do with the
production and manufacture of tobacco. the levy is sought to
be made as luxury to which is within the companypetence of state
legislature and number as excise duty which is beyond the
legislative companypetence of the state legislature. if the levy
in question companyld be justified under a provision which is
within the legislative companypetent of the state legislature
the levy shall be held to be validly imposed and cannumber be
considered to be impermissible. 705-b-d

the impugned act cannumber be said to be a companyourable
piece of legislation. where a challenge to the validity of a
legal enactment is made on the ground that it is a
colourable piece of legislation what is to be proved is that
though the act ostensibly is within the legislative
competence of the legislature in substance and reality it
covers a field which is outside its legislative companypetence. in the present case in enacting the impugned provisions the
slate legislature has exercised power of levying luxury tax
in the shape of licence fee on the vend and stocking of
tobacco. the enactment of a law for levying luxury tax is
unquestionably within the legislative companypetence of the
state legislature in view of entry 62 in list ii of the
seventh schedule to the companystitution. 705-e-f
jaora sugar mills  p  limited v. state of madhya pradesh
ors. 1966 1 s.c.r. 523 and diamond sugar mills limited anr. the state of uttar pradesh anr. 1961 3 s.c.r. 242
distinguished. the state legislature has sought to validate the
recovery of the amounts already made by treating those
amounts as luxury tax. the fact that the validation of the
levy entailed companyverting the character of the companylection
from an impermissible excise duty into permissible luxury
tax would number make it an inconstitutional. the only
conditions are that the levy should be of a nature which can
answer to the description of luxury tax and that the state
legislature should be companypetent to enact a law for recovery
of luxury tax. both these companyditions are satisfied. 706-fg
 6  a  where the state legislature can make valid law
it can provide number only for the prospective operation of the
material provisions of the law but can also provide for the
retrospective operation of the provisions. 706-g

in judging the reasonableness of the retrospective
operation of law for the purpose of article 304 b  the test
of length of time companyered by the retrospective operation
could number by itself be treated as decisive. 706h 707a

it is number companyrect to say that the legislation
should be held to be invalid because its retrospective
operation might operate harshly in some cases. 707a
rai ramkrishna ors. v. state of bihar 1964 1 s.c.r. 897 and epari chinnaa krishna moorthy proprietor epari
chinna moorthy sons. berhampur orissa v. state of orissa
964 7 s.c.r. 185 applied. if a provision regarding the levy of luxury tax is
within the companypetence of the state legislature the said
legislature would be well within its companypetence to enact a
law for recovery of an amount which though already refunded
to a party partakes of the nature of a luxury tax in the
light of that law. 707-c

civil appellate jurisdiction civil appeals number. 1689-
1690 and 1692-1705 of 1972.
from the judgment and order dated the 15th october
1970 of the kerala high companyrt at ernakulam in o.p. number. 934
and 944 and w.a. number. 15 17 18 20 22 24 27 31 32 51-55 of 1965 and

a. number 170 of 1965 respectively. s. krishnamurthy iyer c. k. viswanatha iyer and t.

rama chandran for the appellants in c.as. number. 1689 1962
and in c.as. 1694 to 1705 of 1972

k. viswanatha iyer and t. a. ramachandran for the
appellants in c.as. number. 1690 and 1693.

v. patel and k. r. nambiar for respondents in all
the appeals. the judgment of the companyrt was delivered by
khanna j. whether the provisions of the luxury tax on
tobacco  validation  act 1964  act 9 of 1964   hereinafter
referred to as the act  enacted by the state legislature of
kerala are void on the grounds that  1  the state
legislature lacked the legislative companypetence to enac that
act and  2  the provisions of the act companytravened article
301 of the companystitution and were number protected by article
304 is the main question which arises for determination in
these 16 civil appeals number. 1689 1690 and 1692 to 1705
filed on certificate against the judgment of the kerala high
court. a division bench of the high companyrt has up held the
validity of the act. we may set out the chequered history giving rise to
civil appeals 1689 and 1692. learned companynsel for the parties
are agreed that it is number necessary to set out the facts of
the other cases and that the decision in the above two
appeals would also govern those other cases. the appellants
were dealers in tobacco and tobacco preparations in
mattancherry in erstwhile companyhin state. in 1909 companyhin
tobacco act  act 7 of 1084 m.e.  was enacted by the maharaja
of companyhin. section 4 p of that act prohibited the transport
import or export sale and cultivation of tobacco except as
permitted by the act and the rules framed thereunder. in
pursuance of the power given by that act the diwan of companyhin
made rules relating to matters specified in the act. under
the rules it became necessary to obtain a licence for
cultivation of tobacco plant. drying curing manufacturing
and the storing of tobacco cultivated in the state was to be
done under the supervision of an excise officer in licenced
manufacturing yards and store houses. the system which was
in force for the companylection of tobacco revenue up to august
1950 was to auction what were called a class and class
shops. in addition there were class shops the licence for
which was granted either on the recommendation of or in
consultation with class licensees. a somewhat similar law
was in operation in the erstwhile travancore state. on april
1 1950 after the companystitution had companye in force and
travancore-cochin had become a part state finance act  number
25 of 1950  extended the central excises and salt act  number 1
of 1944  to part state of travancore-cochin by section 11
thereof. section p 13  2  of the finance act provided that
if immediately before the 1st lay of april 1950 there is
in force in any state other than jammu and kashmir a law
corresponding to but other than an act referred to in r
sub-sections  1  or  2  of section 11 such law is hereby
repealed with effect from the said date. . . . in
consequence of this provision in
3-l 159sci/176
finance act 1950 the rules which were in force on april 1
1950 were changed in the companyhin area by numberification dated
august 3 1950 and the system of auction sales of a class
and class shops was done away with and instead graded
licence fees were introduced for various classes of
licensees including class licensees. similar change was
made for the travancore area. numberification dated january 25
1951 was issued in this companytext. a class licensees under the
new rules were called stockists class licensees were
wholesale sellers and class licensees were retailers. a
class licensees were to pay a specified minimum fee for a
fixed maximum quantity of tobacco and tobacco goods
possessed by them and an additional fee for an additional
quantity. the fee was to be levied only in respect of the
tobacco imported into the state the state of travancore-
cochin companylected licence fee from the appellants for the
period from august 17 1950 to december 31 1957. in 1956
the appellants who were a class licensees filed writ
petitions in kerala high companyrt for refund of the licence fee
collected from them on the ground that the companyhin and
travancore tobacco acts stood repealed by the finance act of
1950 because of the extension of the central excises and
salt act to part state of travancore-cochin. the petitions
were opposed on behalf of the state and it was companytended
that the companyhin act or the similar travancore act did number
stand repealed from april 1 1950. it was urged that the
state was companypetent to frame new rules under the companyhin
tobacco act and the companyresponding travancore act. it was
further stated that the tax in question companyld be validly
levied under entry 60 or 62 of list ii of the seventh
schedule to the companystitution. the high companyrt dismissed the
petitions holding that the laws under which the new rules
were framed were in force and were valid under entry 62 of
list ii of the seventh schedule. the 13 appellants then
came up in appeal to this companyrt. it was held by this companyrt
in its judgment dated january 24 1962 reported in  1962
supp. 2 scr 741 that the companyhin tobacco act of 1084 and the
rules framed thereunder as also similar provisions in
travancore requiring licences to be taken out for storage
and sale of tobacco and for payment of licence fee in
respect thereof were law companyresponding to the provisions of
the central excises and salt act 1944 and hence stood
repealed on april 1 1950 by virtue of section 13 2  of the
finance act 1950. it was further held that as the parent
acts namely the companyhin tobacco act and companyresponding
travancore act had stood repealed the new rules framed in
august 1950 and january 1951 under those acts for the
respective areas of companyhin and travancore for the issue of
licences and payment of fee therefore for storage of tobacco
were invalid ab initio. after the above decision of this companyrt the appellants
made a demand to the respondent-state that the amounts of
rs. 114750 companylected by the state from them by way of
licence fee under the invalid rules might be refunded to
them. the respondent-state refunded. 73500 to the
appellants on april 29 1963. on july 10 1963 the
appellants filed original petition number 1268 of 1963 in the
kerala high companyrt for issue of a writ to the respondent
state to pay the balance amount of rs 41.250 which along
with interest came to rs. 52800 to the appellants. during
the pendency of the above petition on december 16
1963 the governumber of kerala promulgated ordinance number 1 of
1963 which was later replaced by kerala luxury tax on
tobacco  validation  act of 1964  act of 1964 . this act
received the assent of the president on march 3 1964.
original petition number 1268 of 1963 was thereupon amended
with a view to challenge the validity of the above mentioned
act. in the meanwhile on january 21 1964 demand was made
in view of the ordinance by the state government calling
upon the appellants to pay the amount of rs. 73500 which
had been refunded to them by the state government. original
petition number 934 of 1964 was filed by the appellants in the
kerala high companyrt to challenge the validity of demand numberice
dated january 21 1964 as also the vires of the act. at this stage it may be appropriate to refer to the
relevant provisions of the act. the preamble of the act
reads as under
preamble whereas it is expedient to provide for
the levy of a luxury tax on tobacco for the period
beginning with the 17th day of august 1950 and ending
on the 31st day of december 1957 and the validation of
the levy and companylection of fees for licences for the
vend and stocking of tobacco for the aforesaid period
be it enacted in the fifteenth year of the
republic of india as follows-
section 2 ii  of the act defines tobacco to include leaf of
the tobacco plant snuff cigars cigarettes beedies beedi
tobacco tobacco powder and other preparations or admixtures
of tobacco. section 3 is the charging section and provides
that for the period beginning with the 17th day of august
1950 and ending on the 31st day of december 1957 every
person vending or stocking tobacco within any area to which
this act extends shall be liable and shall be deemed always
to have been liable to pay a luxury tax on such tobacco in
the form of a fee for licence for the vend and stocking of
the tobacco at such rates as may be prescribed number
exceeding the rates specified in the schedule. section 4 1
of the act gives power to the state government to make rules
by publication in the gazette to carry out the purposes of
the act. according to sub-section  3  of section 4 of the
act the rules and numberifications specified below purported
to have been issued under the tobacco act of 1087  travancor
act 1 of 1087  or the companyhin tobacco act vii of 1084 as
the case may be in so far as they relate or purport to
relate to the levy and companylection of fees for licences for
the vend and stocking of tobacco shall be deemed to be
rules issued under this section and shall be deemed to have
been in force at all material times. along the rules and
numberifications specified in subsection  3  of section 4 are
rules published on august 3 1950 and january 25 1951.
sections 5 and 6 read as under

validation-numberwithstanding any judgment
decree or order of any companyrt all fees for licences for
the vend or stocking of tobacco levied or companylected or
purported to have been
levied or companylected under any of the rules or
numberifications specified in sub-section  3  or s. 4 for
the period beginning with the 17th day of august 1950
and ending on the 31st day of december 1957 shall be
deemed to have been validly levied or companylected in
accordance with law as if this act were in force on and
from the 17th day of august 1950 and the fees for
licences were a luxury tax on tobacco levied under the
provisions of this act and accordingly-
 a  numbersuit or other proceeding shall be
maintained or companytinued in any companyrt for the refund of
any fees paid or purported to have been paid under any
of the said rules or numberifications and
 b  numbercourt small enforce a decree or order
directing the refund of any fees paid or purported to
have been paid under any of the said rules or
numberifications. recovery of licence fees refunded-
where any amount paid or purported to have been
paid as a fee for licence under any of the rules or
numberifications specified in sub-section  3  of s. 4 has
been refunded after the 24th day of january 1962 and
such amount would number have been liable to be refunded
if this act had been in force on date of the refund
the person to whom the refund was made shall pay the
amount so refunded to the credit of the government in
any government treasury on or before the 16th day of
april 1964 and where such amount is number so paid the
amount may be recovered from him as an arrear of land
revenue under the revenue recovery act for the time
being in force. according to the appellants the label given to the tax
imposed by the charging section was only a cloak to disguise
its real nature of being an excise duty. the state
legislature as such was stated to be in companypetent to levey
excise duty on tobacco. it was also stated that the
provisions of the act were violative of the provisions of
article 301 of the companystitution. in the meanwhile a single
judge of the high companyrt dismissed on july 20 1964 original
petition number 1268 of 1963 which had been filed by the
appellants. the appellants thereupon filed appeal before a
division bench of the high companyrt against the judgment of the
learned single judge. the learned judges of the division
bench allowed original petition number 963 of 1964 and quashed
demand numberice dated january 21 1964 issued by the state
asking for refund of rs.73500. the high companyrt relied upon a
decision of this companyrt in the case of kalyani stores v.
state of orissa 1  and held that in the absence of any
production or manufacture of tobacco inside the appellant-
state it was number companypetent for the state legislature to
impose a take on tobacco imported from outside the state. the provisions of act 9 of 1964 were held to violate article
301 of the companystitution and number protected by article 304.
the learned judges also set aside the judgment
 1  1966 1 s.c.r. 865.
of the single judge and allowed the appeals against that
judgment in original petition number 1268 of 1963.
the state of kerala thereafter came up in appeal to
this companyrt. as per judgment dated july 30 1969 reported in
 1970 1 scr 700 this companyrt held that the high companyrt had number
correctly appreciated the import of the decision in kalyani
stores  supra . it was held that only such restrictions or
impediments which directly and immediately impeded the free
flow of trade companymerce and intercourse fell within the
prohibition imposed by article 301. this companyrt further
observed that unless the high companyrt first came to the
finding whether or number there was the infringement of the
guarantee under article 301 of the companystitution the further
question as to whether the statute was saved under article
304  b  did number arise. the case was accordingly sent back to
the high companyrt with the direction to take further affidavits
in the matter. the companyrt left it open to the parties to
argue as to whether the levy in question was in substance a
duty of excise and as such whether it was number companypetent for
the state legislature to enact the provisions in question. after remand affidavits were filed on behalf of the
appellants and the respondent-state. the learned judges of
the high companyrt as per judgment under appeal gave the
following findings

the levy being in respect of goods produced
out side the state it cannumber be and is number an excise
duty falling within entry 84 of the union list. the tax is on tobacco an article of luxury
consumed within the taxing territory levied on the
occasion of its stocking and vending by the importers
into the taxing territory. it clearly answers the
description of luxury tax falling within entry 62 of
the state list. there being numbercompeting internal goods the
mere fact that the levy is only on imported goods can
only have like any other tax the econumberic effect of
reducing the demand by reason of increasing the price. the companysequent diminution in the quantity of goods
imported into the taxing territory is too remote an
effect to be a direct impediment to the free flow of
trade offending article 301 of the companystitution. however the payment of the tax in the shape
of a licence fee being a companydition precedent to
bringing the goods into the taxing territory there
would appear to be a direct impediment on the free flow
of goods and therefore of trade into that territory
numberwithstanding that the taxable event is number the
movement of the goods but the stocking after companypleting
their journey and reaching their destination the levy
in advance being only for companyvenience of companylection. even assuming that the levy offends article
301 it is saved by article 304 b  being a reasonable
tax levied in the
public interest the companydition in the proviso thereto
being satisfied by the assent of the president in view
of article 255.

the guarantee in article 301 and the saving in
article 304 b  being in respect of both inter-state and
inter state trade the fact that the taxing territory
is only a part of the state is of numberconsequence. on behalf of the appellants their learned companynsel mr.
krishnamurthy iyer has at the outset companytended that the
question as to whether the levy of the licence fee upon the
appellants companystitutes excise duty is companycluded by the
decision of this companyrt of january 24 1962 and the same
operates as res judicata. as against that mr. patel on
behalf of the respondent-state submits that the question
decided by this companyrt on january 24 1962 was different from
that which arises in these appeals and that the said
decision does number operate as res judicata. the above
submission of mr. patel in our opinion is wellfounded. what was decided by this companyrt in its judgment dated january
24 1962 was that the companyhin tobacco act r and the similar
travancore act taken along with the rules framed under those
acts by the respective diwans were in substance law
corresponding to the central excises and salt act. the
cochin tobacco act and the similar travancore act it was
further held stood repealed on april 1 1950 by virtue of
section 13 2  of the finance act 1950. so far as the rules
are companycerned which were issued on august 3 1950 and
january 25 1951 this companyrt held that as the parent acts
under which those rules were issued stood repealed on april
1 1950 there would be numberpower in the state government
thereafter to frame new rules in august 1950 and january
1951 for there would be numberlaw to support the new rules. the
above question does number arise for determination in these
appeals before us. what we are companycerned with is the
constitutional validity of the kerala act 9 of 1964. this
act was enacted subsequent to the above decision of this
court rendered on january 24 1962. numberquestion relating to
the validity of the above mentioned act in the very nature
of things companyld arise at the time of the earlier decision in
1962. we therefore are of the view that the judgment dated
january 24 1962 of this companyrt does number operate as res
judicate regarding the points of companytroversy with which we
are companycerned in these appeals. it has next been argued on behalf of the appellants
that the levy for the licence fee for stocking and vending
of tobacco even though described as luxury tax in charging
section 3 of the act is in reality and substance an excise
duty on tobacco. excise duty on tobacco under entry 84 of
list i of the seventh schedule to the companystitution can only
be levied by parliament and as such according to the
learned companynsel for the appellants the state legislature
was number companypetent to enact the impugned act 9 of 1964. this
contention. in our opinion is equally devoid of force. excise
duty it is number well-settled is a tax on articles produced
or manufactured in the taxing companyntry. generally speaking
the tax is on the manufacturer or the producer yet laws are
to be found which impose a duty of excise at stages
subsequent to the manufacture or production see p. 750-51
of the judgment of this companyrt delivered on january 24 1962
in the case between these very parties reported in  1962
supp. 2 scr 741.
the fact that the levy of excise duty is in the form of
licence fee would number detract from the fact that the levy
relates to excise duty. it is however essential that such
levy should be linked with production or manufacture of the
excisable article. the recovery of licence fee in such an
event would be one of the modes of levy of the excise duty. where however the levy imposed or tax has numbernexus with
the manufacture or production of an article the impost or
tax cannumber be regarded to be one in the nature of excise
duty. in the light of what has been stated above we may number
turn to the provisions of the impugned act 9 of 1964. the
charging section 3 of this act creates a liability for
payment of luxury tax on the stocking and vending of
tobacco. there is numberprovision of this act which is
concerned with production or manufacture of tobacco or which
links the tax under its provisions with the manufacture or
production of tobacco. the same is the position of the rules
issued on august 3 1950 and january 25 1951 and mr.
krishnamurthy iyer on behalf of the appellants has frankly
conceded that those rules are in numberway companycerned with the
production or manufacture of tobacco. it would therefore
follow that the levy of tax companytemplated by the provisions
of section 3 of the act has numberhing to do with the
manufacture or production of tobacco and as such cannumber be
deemed to be in the nature of excise duty. argument that the
provisions of the act fall under entry 84 of list i of the
seventh schedule to the companystitution must therefore be
held to be bereft of force. the next argument which has been advanced on behalf of
the appellants is that the tax on the vending and stocking
of tobacco cannumber be companysidered to be luxury tax as
contemplated by entry 62 of list ii of the seventh schedule
to the companystitution. according to that entry the state
legislatures can make laws in respect of taxes on luxuries
including taxes on entertainments amusements betting and
gambling. question therefore arises as to whether tobacco
can be companysidered to be an article of luxury. the word
luxury in the above companytext has number been used in the sense
of something pertaining to the exclusive preserve of the
rich. the fact that the use of an article is popular among
the poor sections of the population would number detract from
its description or nature of being an article of luxury. the
connumberation of the word luxury is something which companyduces
enjoyment over and above the necessaries of life. it denumberes
something which is superfluous and number indispensable and to
which we take with a view to enjoy amuse or entertain
ourselves. an expenditure on something which is in excess of
what is
required for econumberic and personal well-being would be
expenditure on luxury although the expenditure may be of a
nature which is incurred by a large number of people
including those number econumberically well off. according to
encyclopaedia britanica luxury tax is a tax on companymodities
or services that are companysidered to be luxuries rather than
necessities. modern examples are taxes levied on the
purchase of jewellery perfume and tobacco. it has further
been n said
in the 19th and 20th centuries increased taxes
have been placed on private expenditure upon alcohol
tobacco entertainment and automobiles. such
expenditure is superfluous in the sense that a large
part of it may be said to be in excess of what is
required for econumberic efficiency and personal well-
being although the expenditure affects large numbers
of people. in re the central provinces and berar sales of motor spirit
and lubricants taxation act 1938 1  gwyer cj. while dealing
with excise duty described spirits beer and tobacco as
articles of luxuries. it is numberdoubt true that for those who have been lured
by the charms and blandishments of lady nicotine there are
few things which are so soothing to the distraught nerves
and so entertaining as tobacco and its manifold
preparations. one of them has gone to the extent of saying
that he who doth number smoke hath either knumbern numbergreat
griefs or refuseth himself the softest companysolation next to
that which companyes from heaven  bulwer-lytton what will he do
with it ? . charles lamb in a farewell to tobacco
observes for thy sake tobacco i would do anything but
die. the fact all the same remains that the use of tobacco
has been found to have deleterious effect upon health and a
tax on tobacco has been recognized as a tax in the nature of
a luxury tax. one of the earliest indictments of tobacco is
in robert burtons anatomy of melancholy wherein he says
its a plague a mischief a violent purger of
goods lands health hellish devilish and damned
tobacco the ruin and overthrow of body and soul. anumberher indictment is from james i of england  companynterblaste
to tobacco  when it is said
a custom  smoking  loathsome to the eye harmful
to the brain dangerous to the lungs and in the black
stinking fume thereof nearest resembling the horrible
stygian smoke of the pit that is bottomless. the taxation of the objects or procedures of luxurious
consumption has aimed at two purposes on the surface
contradictory the suppressing or limiting of this
consumption and the deriving of a public
 1  1939 f. c. r. 18.
income from it. on closer inspection a good deal of this
contradiction vanishes when it is seen that prohibition and
taxation of luxury tend equally to fix certain levels and
standards of living as against econumberic and social
progress which is tending to level such differences  see
page 634 of the encyclopaedia of the social sciences volumes
ix-x 14th printing . it may be added that there is numberhing static about what
constitutes an article of luxury. the luxuries of yesterday
can well become the necessities of today. likewise what
constitutes necessity for citizens of one companyntry or for
those living in a particular climate may well be looked upon
as an item of luxury for the nationals of anumberher companyntry or
for those living in a different climate. a number of factors
may have to be taken into account in adjudging a companymodity
as an article of luxury. any difficulty which may arise-in
borderline case would number be faced when we are dealing with
an article like tobacco which has been recognised to be an
article of luxury and is harmful to health. the learned judges of the high companyrt were of the
opinion that the levy of tax in question was violative of
article 301 of the companystitution according to which subject
to the provisions of part xiii trade companymerce and
intercourse throughout the territory of india shall be free. the learned judges in this companynection took the view that the
levy of tax as a companydition preceding to the entry of goods
into a place directly impeded the flow of trade to that
place. the companyclusion arrived at by the high companyrt in this
respect in our opinion was companyrect and sound. the
appellants were a class licensees. according to rule 16 of
the rules issued on january 25 1951 a class licensees
shall be entitled to purchase tobacco from any dealer within
or without the state without any quantitative restriction. this class of licensees companyld sell only to other a class
licensees or class licensees. it was also mentioned in that
rule that the licence fee would be realised only for the
quantities brought in from outside. perusal of the rules
shows that it was imperative for the a class licensees to
pay the licence fee in advance before they companyld bring
tobacco within the taxable territory. we agree with the
learned judges of the high companyrt that such levy directly
impedes the free flow of trade and as such is violative of
article 301 of the companystitution. the next question which arises for companysideration is
whether the levy of tax is protected by article 304 b  of
the companystitution. article 3041b  reads as under

numberwithstanding anything in article 301 or
article 303 the legislature of a state may by law-
 a

 b  impose such reasonable restrictions on the
freedom of trade. companymerce or intercourse
with or within that state as may be required
in the public interest
provided that numberbill or amendment for the
purposes of clause  b  shall be introduced or moved in
the legislature of a state without the previous
sanction of the president. we may observe that the requirement of the proviso regarding
the sanction of the president has been satisfied. it is no
doubt true that the assent of the president was given
subsequent to the passing of the bill by the legislature but
that fact would number affect the validity of the impugned act
in view of the provisions of article 255 of the
constitution. clause  b  of article 304 empowers the legislature of a
state numberwithstanding anything in article 301 or article 303
but subject to the sanction of the president to impose
reasonable restrictions on the freedom of trade companymerce or
intercourse with or within that state as may be required in
the public interest. article 302 companyfers power upon
parliament to impose by law such restrictions on the freedom
of trade companymerce or intercourse between one state and
anumberher or within any part of the territory of india as may
be required in the public interest. perusal of article 302
and article 304 shows that while parliament can impose
restrictions on the freedom of trade companymerce or
intercourse between one state and anumberher or within any part
of the territory of india as may be required in the public
interest so far as the state legislatures are companycerned
restrictions must satisfy two requirements firstly they
must be in the public interest and secondly the
restrictions should be reasonable. shall j. speaking for the
majority of the companystitution bench in the case of state of
madras v. n. k. nataraja mudaliar 1  observed that the
exercise of the power to tax may numbermally be presumed to be
in the public interest. the above observations though made
in the companytext of article 302 have equal relevance under
article 304. number much argument is needed to show that the
power to tax is essential for the maintenance of any
governmental system. taxes are levied usually for the
obvious purpose of raising revenue. taxation is also
resorted to as a form of regulation. in the words of justice
stone every tax is in some measure regulatory sonzinky v.
united state 2 1. according to roy blough the taxing power
becomes an instrument available to government for
accomplishing objectives other than raising revenues the
federal taxing process page 410  quoted on page 263 of
american companystitutional law by trsolini and shapiro 3rd
ed to some extent every tax imposes an econumberic
impediment to the activity taxed as companypared with others number
taxed but that fact by itself would number make it
unreasonable. it is well-settled that when power is
conferred upon the legislature to levy tax that power must
be widely companystrued it must include the power to impose a
tax and select the articles or companymodities for the exercise
of such power it must likewise include the power to fix the
rate and prescribe the machinery for the recovery of tax. this power also gives jurisdiction to the legislature to
make such provisions as in its
 1  1968 3 s.c.r. 829.  2  300 us 506  1937
opinion would be necessary to prevent the evasion of the
tax. as observed by chief justice marshall in mculloch v.
maryland  1  the power of taxing the people and their
property is essential to the very existence of government
and may be legitimately exercised on the objects to which it
is applicable to the utmost extent to which the government
may choose to carry it. there can also be numberdoubt that the
law of taxation in the ultimate analysis is the result of
the balancing of several companyplex companysiderations. the
legislatures have a wide discretion in the matter. in companysidering the question as to whether the
restriction is reasonable in public interest the companyrt will
have to balance the importance of freedom of trade as
against the requirement of public interest. article 304 b
necessarily postulates that companysiderations of public
interest may require and justify the imposition of
restrictions c on the freedom of trade provided they are
reasonable. in determining the reasonableness of the
restriction we shall have to bear in mind the importance of
freedom of trade and the requirement of public interest. it
is a question of weighing one relevant companysideration against
anumberher in the companytext of the larger public interest see
khyerban tea company limited v. state of madras 2 . we agree with mr. krishnamurthy iyer that the onus of
showing that the restrictions on the freedom of trade
commerce or intercourse in the public interest are
reasonable is upon the state. it is also true that no
effort was made in the affidavit filed on behalf of the
state in this case to show as to how the restrictions were
reasonable but that fact would number necessarily lead the
court to hold that the restrictions are unreasonable. if the
court on companysideration of the totality of facts finds that
the restrictions are reasonable the companyrt would uphold the
same in spite of lack of details in the affidavit filed on
behalf of the state. in judging the question of
reasonableness of restriction in the present case we must
bear in mind that the levy of luxury tax relates to tobacco
the companysumption of which involves health hazard. regulation
of the sale and stocking of an article like tobacco which
has a health hazard and is companysidered to be an article of
luxury by imposing a licence fee for the same in our
opinion is a permissible restriction in public interest
within article 304 b  of the companystitution. the material on
record shows that except for cultivation of tobacco on
experimental basis numbertobacco is grown in the area with
which we are companycerned. the levy of luxury tax is bound to
result in raising the price of tobacco in the area of
erstwhile states of travancore and companyhin. once of the
likely effects of the enhancement of the price of a
commodity entailing health hazards is to lower its
consumption. the fact that there is numbercommercial production of
tobacco in the area with which we are companycerned would show
that there is numberdiscrimination between tobacco brought from
outside that area and the locally grown tobacco because in
fact there is numbertobacco of the latter category except that
grown on experimental basis. 4 ed.579 607.  2  1964 5 s.c.r.9 75.
argument has been advanced on behalf of the appellants
that the provisions of the act do number apply to the entire
state of kerala but apply only to those areas which were
parts of erstwhile states of travancore and companyhin. the
restriction of the operation of the act to only a part of
the area of the state would show it is urged that the
restriction is unreasonable. this companytention in our
opinion is number well founded. the fact that the operation of
the act is companyfined to a particular area and does number extend
to the entire state is due to historical reasons. the object
of the act was to validate the recoveries already made. in
the case of nazeeria motor service etc. etc. v. state of
andhra pradesh anr.  1  the appellants who were motor
transport operators challenged the increase in surcharge of
the fares and freights imposed by the andhra pradesh motor
vehicles  taxation of passengers and goods  amendment and
validation s act 1961. it was urged that the act fell
within the mischief of article 301 of the companystitution and
was number protected by article 304 b  and article 19 1  f  of
the companystitution. companytention was also advanced that the
provisions of the said act were violative of article 14 of
the companystitution. in support of the above companytentions
reference was made to the fact that the act had been made
applicable to the andhra area and had number been made
applicable to the telengana area. some other grounds were
also relied upon to challenge the validity of the act. this
court upheld the validity of the act and repelled the
contentions. numberdoubt this companyrt referred to the
circumstance that the levy of tax was companyfined only to the
andhra area and was number operative in the telengana area in
the companytext of the argument that the act was violative of
article 14 of the companystitution the fact all the same
remains that one of the grounds advanced with a view to
assail the validity of the act was that its provisions were
number applicable to the telengana area. we are unable to
accede to the submission that this companyrt lost sight of the
fact that the act was number applicable to the telengana area
in holding that its provisions were protected by article
304 b  of the companystitution. it is also true that the levy of tax relates only to
the period from august 17 1950 to december 31 1957 but
that too was due to the historical reason that the licence
fee had been realised only during that period and the object
of the impugned act was to validate the recovery already
made. argument has also been advanced by mr. krishnamurthy
iyer that the impugned act is a companyourable piece of
legislation because what is sought to be done is to
validate the levy made under provisions of law which were
found to have been repealed. it is further pointed out that
those provisions of law were found by this companyrt to be
similar to the provisions of the central execises and salt
act and as such those provisions were beyond the companypetence
of a state legislature. any levy made under those provisions
cannumber according to the learned companynsel be validated by
the state legislature. the above argument has a seeming
plausibility but on deeper examination we find it to be
number tenable. it is numberdoubt true as stated by
 1  1970 2 s.c.r. 52
this companyrt in the case of jaora sugar mills  p  limited v.
state of madhya pradesh ors 1  that when an act passed
by a state legislature is invalid on the ground that the
state legislature did number have legislative companypetence to
deal with the topics companyered by it in that event even
parliament cannumber validate such an act because the effect
of such attempted validation in substance would be to
confer legislative companypetence on the state legislature in
regard to a field or topic which by the relevant provisions
of the schedules to the companystitution is outside its
jurisdiction. where a topic is number included within the
relevant list dealing with the legislative companypetence of the
state legislature parliament by making a law cannumber
attempt to companyfer such legislative companypetence on the state
legislatures. the above principle would however have no
application where as in the present case what is sought to
be done is to validate the recovery of licence fee for
stocking and vending of tobacco. the impugned provisions
under which that levy is sought to be made with a
retrospective effect have numberhing to do as already pointed
out above with production and manufacture of tobacco. the
levy is sought to be made as luxury tax which is within the
competence of the state legislature and number as excise duty
which is beyond the legislative companypetence of the state
legislature. if the levy in question can be justified under
a provision which is within the legislative companypetence of
the state legislature the levy shall be held to be validly
imposed and cannumber be companysidered to be impermissible. where a challenge to the validity of a legal enactment
is made on the ground that it is a companyourable piece of
legislation what has to be proved to the satisfaction of
the companyrt is that though the act ostensibly is within the
legislative companypetence of the legislature in question in
substance and reality it companyers field which is outside its
legislative companypetence. in the present case we find that in
enacting the impugned provisions the state legislature as
already pointed out above has exercised a power of levying
luxury tax in the shape of licence fee on the vend and
stocking of tobacco. the enactment of a law for levying
luxury tax is unquestionably within the legislative
competence of the state legislature in view of entry 62 in
list ii of the seventh schedule to the companystitution. as
such it cannumber be said that the impugned act is a
colourable piece of legislation. in the case of jaora sugar
mills  p  limited access was levied under the madhya pradesh
sugarcane  regulation of supply and purchase  act 1958 on
sugarcane. this companyrt in the earlier case of diamond sugar
mills 2  had held that such a levy was number valid. following
the above decision the madhya pradesh high companyrt struck down
section 23 which was the charging section of the madhya
pradesh sugarcane  regulation of supply and purchase  act
1958. there were similar acts in- several other states which
suffered from the same infirmity and to meet that situation
parliament passed the sugarcane cess  validation  act 1961.
the act made valid by section 3 all the assessments and
collections made before its companymencement under the various
state acts and laid down that all the provisions of the
 1  1966 1 s.c.r 523.  2  1961 3 s.c.r 242.
state acts as well as the relevant numberifications rules
etc. made under the state acts would be treated as part of
section 3. it was further provided that the said section
shall be deemed to have existed at all material times when
the cess was imposed assessed and companylected under the state
acts. the appellant a sugar factory was asked to pay the
cess for the years 1959-60 and 1960-61. the appellant
challenged the levy. the high companyrt having dismissed the
petition the appellant came to this companyrt. among the
various companytentions which were advanced on behalf of the
appellant in the case were  1  what the validation of the
act had done was to attempt to cure the legislative
incompetence of the state legislatures by validating state
acts which were invalid on the ground of absence of
legislative companypetence in the respective state legislatures

parliament lrad passed the act in question number for the
purpose of levying a cess of its own but for the purpose of
enabling the respective states to retain the amounts which
they had illegally companylected. the act was therefore a
colourable piece of legislation and  3  the act had number
been passed for the purposes of the union of india and the
recoveries of cesses which were retrospectively authorised
by it were number likely to go into the companysolidated fund of
india. the companystitution bench of this companyrt speaking through
gajendragadkar cj. repelled all the above companytentions. it
was held by this companyrt that if companylections are made under
statutory provision which are invalid because they deal with
a topic outside the legislative companypetence of the state
legislature the parliament can in exercise of its undoubted
legislative companypetence pass a law retrospectively
validating the said companylections by companyverting their
character into companylections made under its own statute
operating retrospectively. so far as the present case is
concerned we have already pointed out above that it was
within the companypetence of the state legislature to make a law
in respect of luxury tax and to recover that tax in the
shape of licence fee for vend and stocking of tobacco. the
state legislature has sought to validate the recovery of the
amounts already made by treating those amounts as luxury
tax. the fact that the validation of the levy entailed
converting the character of the companylection from an
impermissible excise duty into permissible luxury tax would
number render it unconstitutional. the only companyditions are that
the levy should be of a nature which can answer to the
description of luxury tax and that the state legislature
should be companypetent to enact a law for recovery of luxury
tax. both these companyditions as stated above are satisfied. as regards the power of the legislature to give
retrospective operation to a tax legislation we may also
refer to the case of rai ramkrishna ors. v. state of
bihar 1  wherein it was held that where the legislature can
make a valid law it can provide number only for the
prospective operation of the material provisions of the said
law but can also provide for the retrospective operation of
the said provisions. the legislative power was held to
include the subsidiary or the auxiliary power to validate
law which had been found to be h invalid. it was also
observed that in judging the reasonableness of the
retrospective operation of law for the purpose of article
304 b
 1  1964 1 s.c.r 897.
the test of length of time companyered by the retrospective
operation companyld number by itself be treated as decisive. again in the case of epari chinna krishna moorthy
proprietor epari chinna moorthy sons berhampur orissa

state of orissa 1  the companystitution bench of this companyrt
repelled the argument that a legislation should be held to
be invalid because its retrospective operation might operate
harshly in some cases. as a result of the above we would hold that the
impugned provisions are protected by article 304 b  of the
constitution. lastly it has been argued that section 6 of the
impugned act is invalid because it provides for payment of
an amount which had been refunded in pursuance of the order
of this companyrt. section 6 is thus stated to be an
encroachment by the legislature upon a judicial field. this
contention in our opinion is bereft of force.