JUDGMENT <NAME>, C.J.

1. This second appeal has been referred to a Bench by <NAME>, J. because some questions relating to lis pendens and limitation of general importance arose for consideration.

2. Such questions as arise are, in our opinion, capable of being answered on decisions already rendered by this <ORG>.

3. The salient facts are the following:-- The first respondent as plaintiff filed the suit out of which this second appeal arises against the second respondent and the appellant as defendants 1 and 2 respectively. We shall refer to the parties by their rank in the suit.

4. First defendant was the owner of house bearing C. T. S. No. 3192 in Bel-gaum. Second defendant was occupying it at a tenant. The plaintiff filed a suit against the first defendant for specific performance of an agreement (Exbt. 59) dated 14-9-48 said to have been entered into between him and the first defendant agreeing to sell the said house to her (plaintiff). First defendant filed a written statement stating that with the knowledge of the plaintiff he had agreed to sell the same house to second defendant under Exbt. 9S dated 8th August 1948, but did not take further interest in the suit. Instead, he executed a sale deed in favour of the second defendant on 30th December 1948. Plaintiff's suit for specific performance proceeded ex parte and resulted in a decree in her favour on 29th March, 1950. In execution thereof the plaintiff sought to get the second defendant implead-ed as a party. The application for im-pleading him was rejected by an order dated 21st September, 1955 (Exbt. 63). In a subsequent execution petition, the plaintiff got a sale deed of the house executed through court oa 29th December 1955.

5. The present suit out of which the second appeal arises was filed on 14th December, 1961 seeking recovery of possession of the house from both the defendants. The decree for possession passed in favour of the plaintiff has been confirmed by the lower appellate Court. Hence this second appeal.

6. The question of lis pendens arises because the sale deed in favour of tho second defendant dated 30th December) 1948 was executed by the first defendant during the pendency of the plaintiff's suit for specific performance. That such a sala would be affected by the doctrine of lis pendens under Section 52 of the Transfer of Property Act notwithstanding that the alleged agreement for sale in favour of the second defendant was of a date earlier than that of the agreement in favour of the plaintiff is the direct decision of a Full Bench of this Court reported in <CITATION> , (1964) 1 Mys LJ 236.

7. On the question of lis pendeni therefore, there is no difficulty whatever because the matter is fully covered by a Full Bench ruling of this Court.

8. The question of limitation has been raised by the appellant-second defendant on the basis that from the date of the sale deed in his favour namely, 30th December, 1948, his possession was adverse to that of not only the first defendant but also the plaintiff and that therefore, the suit filed by the plaintiff more than twelve years thereafter Is barred whether one looks at the question under Article 142 or Article 144 of the first schedule of the Limitation Act , 1908 which governs this suit.

9. It appears to us that the foundation for the case of limitation so put forward is very weak and is not capable of being substantiated on any established principles of law.

10. As already stated, the sale in favour of the appellant-second defendant is undoubtedly affected by the doctrine of lis pendens under Section 52 of the Transfer of Property Act. That Section, to the extent material reads:

"During the pendency in any court having authority ..... of any suit or proceeding which is not conclusive and in which any right to immoveable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect rights of any other party thereto under any decree or order which may be made therein except under the authority of the <ORG> and on such terms as it may impose."

11. Before proceeding to discuss the legal effect of this section in this case, it it necessary to dispose of an argument that the suit for specific performance filed by the plaintiff was a collusive one. That question has been, found by both the courts below against the appellant. The finding is one of fact and it is difficult for the appellant to ask us to interfere with it unless some error of law is made out. An attempt in that direction is made by pointing out that in the order (Exbt. 63) refusing to im-plead the second defendant in the execution proceedings taking out by the plaintiff, the court has observed as follows:--

"An agreement to sell a land operates only in personem and no right in rem arises to follow it in the hands of a person in <NAME> position. If the sale to <NAME> by <NAME> was effected during the suit and in breach of agreement with decree-holder purchaser <NAME> cannot be answerable in execution to decree-holder. We cannot import the principle of lis pendens in a case of this kind where no interest in the property is involved but only the enforcement of a contractual right to get a sale deed. Decree-holder cannot be believed when she says she discovered <NAME> name at Exbt. 14, property-card, only after filing the darkhast application. She did have knowledge of the sale in prior suit which was decided in her favour on 29-3-50 whereas the sale is of 30-12-48 and defendant <NAME> had pleaded that he had sold the house."

12. The last sentence has reference to the written statement of the first defendant in the previous suit in which he had stated that with the knowledge of the plaintiff the property had been sold to the second defendant. The argument of Mr. <NAME>, learned counsel for the petitioner is that imputation of knowledge to the plaintiff of the sale and the subsequent inaction on the part of the first defendant is clearly indicative as collusion between them motivated by the idea of keeping the second defendant out of the suit and thus prejudicially affecting rights. If any act between the plaintiff and the first defendant is at all to be called as collusion, it must be some sort of an agreement, the principal object of which is to benefit the plaintiff at the expense of the second defendant. But the very statement of fact that the plaintiff was made aware of the sale in favour of the second defendant, if she was not already aware of it, was itself sufficient to put her on notice of the necessity of implead-ing the second defendant also. If she did not do so, the result will be more trouble for her and not conferment of any special benefit upon her. Further in actual effect first deferdant's conduct was an abandonment of a defence which by itself cannot be regarded as collusive between the defendant and the plaintiff.

13. The observation contained in the extract from the order (Exbt. 63) given above to the effect that the agreement to sell a land operates only in personem and that therefore, there could be no lis pendens in regard thereto is either an unnecessary observation or a mere erroneous step in the reasoning leading to a decision to reject the plaintiff's application for implcad-ing the second defendant in the execution proceedings. As the second defendant was not at ail impleaded it is impossible to suggest that any question was decided between him and the plaintiff so as to attract the principles even remotely relating to res judi-cata. We are therefore, unable to find any legal complexion in the finding of fact against the appellant that the previous suit of the plaintiff for specific performance was collusive in nature and was therefore beyond the scope or operation of Section 52 of the Transfer of Property Act.

14. So far as the legal aspect is concerned, little argument is necessary to make out that the object of Section 52 is to subordinate all derivative interests or all interests derived from parties to a suit by way of transfer pendente lite to the rights declared by the decree in the suit and to declare that they shall not be capable of being enforced against the rights acquired by the decree-holder. A transferee in such circumstances therefore takes the consequences of the decree which the party who made the transfer to him would take as the party to the suit. The principle of lis pen-dens embodied in Section 52 being a principle of public policy, no question of good faith or bona fides arises. Such being the position, the transferee from one of the parties to the suit cannot assert or claim any title or interest adverse to any of the rights and interests acquired by another party under the decree in suit. The principle of lis pendens prevents anything done by the transferee from operating adversely to the interest declared by the decree.

15. Another aspect of the matter is that whether or not a decree for specific performance expressly gives the relief of recovery of possession (we may state that in this case the decree expressly contains such a relief), the liability to deliver possession is necessarily implied in a decree for specific performance directing the defendant to execute a sale deed on the principle of Clause (f) of Sub-section (1) of Section 55 of the Transfer of Property Act, according to which the liability to deliver possession arises immediately upon execution of a sale deed unless by agreement, the date for delivery of possession is postponed. That was what was held by this Court in <NAME> v. <NAME>, (1966) 1 Mys LJ 799. The effect of that decision is that the plaintiff's right to ask for possession arose on the execution of the sale deed in her favour, i.e., 29th December, 1955 and the suit has been filed in less than six years from that date.

16. The plea of limitation therefore, cannot successfully be pressed against the plaintiff's claim for recovery of possession in this case.

17. The second appeal is therefore, dismissed.


PETITIONER: <ORG>, ETC. Vs. RESPONDENT: <ORG> LTD., ETC. DATE OF JUDGMENT: 17/04/1970 BENCH: <NAME>, K.S. BENCH: <NAME>, K.S. SHAH, J.C. CITATION: 1970 AIR 1292 1971 SCR (1) 288 1970 SCC (2) 280 CITATOR INFO : RF 1971 SC 231 (5) RF 1973 SC1461 (566) RF 1975 SC1234 (7) D 1975 SC2037 (11) RF 1975 SC2299 (190,607) RF 1984 SC1780 (8,10) R 1992 SC 522 (17) ACT: Bombay Provincial Municipal <ORG> Act (59 of 1949), s. 152A-Scope of-Constitutional validity of s. 152A(3). HEADNOTE: The appellant <ORG> assessed the immovable properties of the respondents to property-tax for the year 1964-65 and 1965-66 on the basis of the 'flat rate' method under the Bombay Provincial Municipal <ORG> Act, 1949. The assessments were challenged in <ORG> but the petitions were dismissed. While appeals were pending in this <ORG>, the appellant initiated proceedings for the recovery of the taxes and attached the properties of the respondents. The respondents challenged the attachment proceedings but their petitions were again dismissed. In appeals against those orders in this <ORG> the respondents prayed for interim stay, but this <ORG> did not grant stay because the appellant undertook to return the amounts if the respondents succeeded. This <ORG> thereafter allowed the appeals by the respondents. Meanwhile an amending Act entitled the Bombay Provincial Municipal <ORG> (Gujarat, Amendment) Act , 1968, was passed introducing s. 152A into the 1949 Act, but that provision was not brought to the notice of this <ORG>. However, when. the respondents demanded refund of the amounts illegally collected from them the appellant did not comply and hence the respondents moved <ORG> again. Those petitions were allowed and the appellant appealed to this <ORG>. While the appeals were pending, the Bombay Provincial Municipal <ORG> (Gujarat Amendment and Validity Provisions) Ordinance, 1969, was passed and sub-s. (3) was introduced in s- 152A. HELD : Under s. 152A before a <ORG> can retain any amount collected as property tax, there must be an, assessment according to law. But in the present case there Were no 'assessment orders in accordance with the provisions of the 1949 Act and the rules as amended by the, Amending Act , 1968. Therefore, the appellant was not entitled to retain, the amounts collected as the section does not authorise the <ORG> to retain amounts illegally collected. [293 G; 294 D] (2) Sub-Section (3) of s. 152A , commands the <ORG> to refuse to refund the amount illegally collected despite the orders of this <ORG> and <ORG>. It markes a direct inroad into the judicial powers of the <ORG>. The Legislatures under the Constitution have, within prescribed limits, powers to make laws prospectively as well as retrospectively. By exercise of those powers the legislature can remove the basis of a decision rendered by a competent, court thereby rendering the decision ineffective. But, no legislature in this Country-has power to ask the instrumentalities of the <ORG> to disobey or disregard the decisions given by courts. Therefore, s. 152A(3) , introduced by the Ordinance is repugnant to the Constitution. 1294 H; 295 A-C; 297 <CITATION>  1 S.C.R. Mahal Chand Sethia v. <ORG> of West Bengal Cr. A. No. 75/69 dt. 289 10- <CITATION> . and <ORG> of Madhya Pradesh v. <ORG>  3 S.C.R. 745, followed. The apart it authorises the <ORG> to retain the amounts illegally collected and' treat them as loans, that is, authorises the collection of forced loans which is impermissible under the Constitution. <CITATION> ,  3 S.C.R. 489, followed. JUDGMENT:

CIVIL APPELLATE/ORIGINAL JURISDICTION: Civil Appeals Nos. 2062 to 2064, 2072 and 2251 of 1968.

Appeals from the judgment and order dated July 3, 4, 1969 of <ORG> in Special Civil Applications Nos. 52 of 1969 etc. and Writ Petitions Nos. 51, 52 and 57 to 60 of 1970. Petitions under Art. 32 of the Constitution of India for the enforcement of fundamental rights.

<NAME> and <NAME>, for the appellants (in C.A. No. 2062 of 1969) and respondent Nos. 2 to 4 (in V.P. Nos. 59 and 60 of 1970).

<NAME> and <NAME>, for the appellants (in C.A. No. 2063 of 1969) and respondents Nos. 2 to 4 (in W.P. Nos. 51 and 52 of 1970.

<NAME>, for the appellants (in C.A. Nos. 2064, 2072 and 2251 of 1969) and respondent Nos. 2 to 4 (in W.P. No. 57 and 58 of 1970).

<NAME>, <NAME>, <NAME> and <NAME>, for respondents (in all the appeals) and the petitioners (in all the petitions).

<NAME> and <NAME>, for respondent No. 1 (in all the petitions) The Judgment of the Court was delivered by <NAME>, J. These are connected proceedings. Herein the validity as well as the interpretation of some of the provisions of the Bombay Provincial Municipal Corporation Act, 1949 (Act 59 of 1949) (to be hereinafter referred to as the Act) as amended from time to time by the Gujarat State comes up for consideration. In these proceedings some of <ORG> of Ahmedabad are ranged against the State of Gujarat as well as <ORG> of the City of Ahmedabad. They are seeking to get refund of some amounts paid as property tax, by them, which amounts according to them were illegally collected from them.

In order to understand the controversies involved in these proceedings, it is best to set out the course of events leading upto these proceedings. Various Textile Mills which are involved in these cases will hereafter be referred to as the "companies". These companies own immovable properties consisting of lands and buildings in the city of Ahmedabad. <ORG> (which will hereinafter be referred to as the "<ORG>") in the purported exercise of its power under the Act and the rules framed thereunder assessed the immovable properties of the companies to property tax for the assessment years 1964-65 and 1965-66. Those assessments were done on the basis of the method popularly known as "flat rate" method. According to that method in valuing the lands, the value of plants and machinery were also taken into consideration. The buildings were assessed on the basis of their floor area. Those assessments were challenged by means of writ petitions under Arts. 226 and 227 of the Constitution before <ORG>, by the companies. Those petitions were dismissed by <ORG>. The aggrieved companies thereafter brought up the matters in appeal to this <ORG>. During the pendency of those appeals, the <ORG> proceeded to assess those companies as well as others, to property tax for the assessment year 1966-67. Those assessments were challenged before this <ORG> by some of the companies by means of writ petitions under Art. 32 of the Constitution. Meanwhile on the strength of the assessment made for the assessment years 1964-65 and 1965-66, the <ORG> initiated proceedings for recovery of the taxes due under those assessments. Some of the companies paid the tax assessed but some others including <ORG> did not pay the tax levied on them. Hence the Officers of the <ORG> resorted to the attachment 'of their properties. At that stage, those companies challenged the validity of those attachment proceedings before <ORG> under Art. 226 of the Constitution. Those writ petitions were dismissed. <ORG> also refused to grant certificates under Art. 133(1) of the Constitution. But the concerned companies appealed to this <ORG> after obtaining special leave from this <ORG>. In those appeals, those companies prayed for an interim stay of the recovery proceedings. This <ORG> declined to stay the proceedings in view of the undertaking given on behalf of the <ORG> to refund the tax collected within a month from the date of the judgment of this <ORG>, if those companies succeeded in the writ petitions before this <ORG>. By its judgment dated February 21, 1967, this <ORG> struck down the rules framed under the Act permitting the <ORG> to value the lands and buildings on the "flat rate" method. This, <ORG> opined that it was not permissible for the <ORG> to value the premises on the basis of the floor area nor could it take into consideration the value of plants and machinery in determining the rateable, value of the lands and buildings. That decision is reported in [1967]2, Supreme <ORG> Reports p. 679 ( <CITATION> . In view of that conclusion the assessments impugned in the writ petitions were set aside.

The judgment of this Court dealt with the validity of the assessment for the year 1966-67. But at the time when that judgment was delivered, the appeals filed by some of the companies in respect of the assessment made for the years 1964-65 and 1965-66, were still pending in this Court. On March 30, 1968, the State of Gujarat brought into force 'an Act entitled, Bombay Provincial Municipal <ORG> (Gujarat Amendment) Act, 1968 (hereinafter referred to as the amending Act). The appeals filed by the companies in this Court cam up for hearing on April15, 1968. This Court allowed those appeals following its decision in <ORG> and <ORG> and ors. case (supra). When those appeals were heard neither the State of Gujarat, nor the <ORG> brought to the notice of this Court, the provisions of the amending Act. After the judgment of this Court in those appeals, the concerned companies called upon the '<ORG> to refund the amounts illegally collected from them as property taxes for the assessment years 1964-65 and 1965-66. The <ORG> did not respond to the demands made by those companies. Hence they again moved <ORG> under Art. 226 of the Constitution seeking writs of Mandamus against the <ORG> and its Officers directing them to refund' the amounts illegally collected from them and for a declaration that s. 152A of the Act newly introduced by the amending Act is ultra vires the Constitution. <ORG> allowed those petitions. That Court did not go into the vires of s. 152A but on a construction of that provision, it came to the conclusion that the said provision did not permit the <ORG> to withhold the amounts illegally collected. The appeals with which we are concerned now were filed by the State of Gujarat and the <ORG> against that decision. During the pendency of those, appeals, the <ORG> moved this Court to stay the operation of the judgment of <ORG> pending disposal of those appeals. Those applications came up for hearing on November. 5, 1969. On that date, this Court stayed the operation of the. judgment of <ORG> on the <ORG> undertaking to pay interest on the. amounts in- question at 6% per annum from the date on which they were collected till the date of refund in the event of the appeals failing. A few days thereafter, the <ORG> moved this Court to modify that order. It wanted to resile from the undertaking given by it. Hence this Court modified its earlier order and dismissed the stay applications on December 9, 1.969. On or about December 23, 1969 the Governor of Gujarat promulgated an Ordinance under Art. 213 of the Constitution entitled Bombay Provincial Municipal ,<ORG> (Gujarat Amendment and Validating Provisions) Ordinance, 1969. This Ordinance will be hereinafter referred to as "the Ordinance". That Ordinance came into effect immediately. By means of that Ordinance, a new sub-section namely sub-s. (3) was introduced into s. 152A . The effect of the insertion of sub-s. (3) in s. 152A is to authorise the <ORG> and its ,Officers to refuse to refund the amount of tax illegally collected despite the orders of this Court as well as <ORG> till the assessment or reassessment of property tax is made in ,,accordance with the provisions of the Act as amended. But under its provisions, the <ORG> is required to pay interest at 6% on the amount ultimately found liable to be refunded. In the writ petitions under consideration the validity of the aforementioned provision is challenged. This, in brief is the history of these cases. In these proceedings three questions of law arise for decision namely (1) What is the true scope of s. 152A (2) Is that pro-vision ultra vires any of the provisions of the Constitution and (3) Is sub-s. (3) of s. 152A (introduced by the Ordinance) violative. of the Constitution?

Section 152A reads as follows "(1) In the City of Ahmedabad if in respect of premises included in the assessment, book relating to Special Property Section, the levy, assessment, collection or recovery of any of the property taxes for any official year preceding, the official year commencing on the 1st April 1968 is affected by a decree or order of a court on the ground that the determination of the rateable value of the premises on the basis of rental value per foot of the floor area was not according to law or that sub-rules (2) and (3) of rule 7 of the rules contained in Chapter VIII of Schedule A to this Act were invalid, then it shall be lawful for <ORG> of the City of Ahmedabad to assess or reassess in respect of such premises any such property tax for any such official year at the rates applicable for that year in 'accordance with the provisions of this Act and the rules as amended by the Bombay Provincial Municipal Corporations (Gujarat Amendment) Act, 1968, as if the said Act had been in force during the year for which 'any such tax is to be assessed or reassessed; and accordingly the readable value of lands and buildings in such

-premises may be fixed and any such tax, when assessed or reassessed may be levied, collected and recovered by the said <ORG> and the provisions of this Act and the rules shall so far as may be apply to such levy, collection and recovery and the fixation of rateable value and the assessment or reassessment, levy collection and recovery of any such tax under this section shall be valid: and shall, not; be called in question on the ground that the- same were in any way inconsistent with the provisions of this Act and the rules as in force prior to the commencement of the said Act Provided that if in respect of any such premises the amount of tax assessed or reassessed for any year in accordance with the provisions of this section exceeds the, amount of tax which but for the decree or order of the court as aforesaid could have been assessed for that year in respect of the premises, then the amount of tax to be levied for that year in respect of the premises in accordance with the provisions of this section shall be an amount arrived at after deducting from the amount of tax so assessed or reassessed such amount as may be equal to the amount as so in excess.

(2) Where any such property tax in respect of any such premises is assessed or reassessed under subsection (1) for any official year and in respect of the same premises, the property- tax for that year has already been collected or recovered, then the amount of tax so collected or recovered shall be-taken into account in determining the amount of tax to be levied and collected under subsection (1) and if the amount already Collected or recovered exceeds the amount to be so levied and collected, the excess shall be refunded in accordance with the rules."

We are in agreement with <ORG> that this section does not empower the <ORG> to retain the amounts illegally collected as property tax.. Under this section before a <ORG> can retain any amount collected as property tax, there must be an assessment according to law. What the section authorises, the <ORG> is that, despite the fact that certain assessments have been set aside by courts, it shall be lawful for the <ORG> to 'assess or reassess the premises concerned in those decisions to property tax for the concerned assessment years at the rates applicable for those years in accordance with the provisions of the Act and the rules as:amended by the amending Act as if the: said Act has been, in force during the years. for which such tax is to assessed or reassessed and accordingly fix the rateable value of L 12 Sup CI 70-5 lands and buildings of those premises and assess or reassess the tax payable and when the tax is so assessed or reassessed, the tax so assessed may be levied, collected 'and recovered by the <ORG> and for that purpose the provisions of the amending Act and the rules shall, so far as may, be apply to such collection and proceedings preceding those collections. That provision further says that the fixation of rateable value so made and the collection and recovery of such tax shall be valid and shall not be called in question on the ground that the same were in any way inconsistent with the provisions of the Act and the rules in force prior to the commencement of the amending Act. The section also authorises the <ORG> to deduct from the amounts earlier illegally collected the tax assessed according to law. All that the proviso to that section says is that the <ORG> shall pay simple interest at the rate of six per centum for annum on the amount of excess liable to be refunded under sub-s. (2) from the date of the decree or order of the court referred to in sub-s. ( 1 ) to the date on which such excess is refunded. At this stage it may be noted that there had been no assessment orders even when these appeals were heard. In view of our above conclusion that s. 152A does not authorise the <ORG> to retain the amounts illegally collected, it is unnecessary for us to examine the validity of that section.

This takes us to the validity of sub-s. (3) of S. 152A introduced into that section by means of the Ordinance. That provision reads "Notwithstanding anything contained in any judgment, decree or order of any court, it shall be lawful, and shall be deemed always to have been lawful, for <ORG> to withhold refund of the amount already collected or recovered in respect of any of the property taxes to which sub-section (1) applies till assessment or reassessment of such property taxes is made, and the amount of tax to be levied and collected is determined under subsection (1 ) :

Provided that the <ORG> shall pay simple interest at the rate of six per cent per annum on the amount of excess liable to be, refunded under subsection (2), from the date of decree or order d the court referred to in sub-section (1) to the date on which such excess is refunded."

This is a strange provision. Prime facie that provision appears to command the <ORG> to refuse to refund the amount illegally collected despite the orders of this <ORG> and the High <ORG>.

The State of Gujarat was not well advised in introducing this provision. That provision attempts to make a direct inroad into the judicial powers of the State. The legislatures under our Constitution have within the prescribed limits, powers to make laws prospectively as well as retrospectively. By exercise of those powers, the legislature can remove the basis of a decision rendered by a competent court thereby rendering that decision ineffective. But no legislature in this country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by courts. The limits of the power of legislatures to interfere with the directions issued by courts were considered by several decisions of this Court. In <NAME> and anr. v. The Broach Borough Municipality and ors. (1) our present Chief Justice speaking for <ORG> observed "Before we examine s. 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general. When a legislature sets out, to validate a tax declared by a court to be ille- gally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. The most important condition of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the court shall not bind. for that is tantamount to reversing the decision in exercise of judicial power which the legis- lature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact re- moved and the tax thus made legal. Sometime this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law."

(1) [1970] 1 S.C.R. 388  <CITATION> (1), officer, J.. speaking for the Court stated the legal position in these words, "The argument of counsel for the appellant was that although it was open to <ORG> by an. Act and the Governor by an Ordinance to amend the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, it was incompetent for either of them to validate an order of transfer which had already been quashed by the issue of a writ of certiorari by the High Court and the order of transfer being virtually dead, could not be resuscitated by the Governor or, the:

<ORG> and the validating measures could not touch any adjudication by, the <ORG>. It appears to us that the High <ORG> took the correct view and the Fourth Special <ORG> had clearly gone wrong in its appreciation of the scope and effect of the. Validating Act and Ordinance. A legislature of a State is competent to pass any measure which is within the legislative competence under the Constitution of India. Of course, this is subject to the provisions of Part HI of the Constitution. Laws can be enacted either by the Ordinance making power of a Governor or the <ORG> of a State in respect of the topics covered by the entries in the appropriate List in the Seventh Schedule to the Constitution. Subject to the above limitations laws can be prospective as also retrospective in operation. court of law can pronounce upon the validity of any law and declare the same to be null and void if it was beyond the legislative competence of the legislature or if it infringed the rights enshrined in Part III of the Constitution. Needless to add it can strike down or declare invalid any Act or direction of a State Government which is not authorised by law. The position of a <ORG> is however different. It cannot declare any decision of a court of law to be void or of no effect."

Again <NAME>, J. (one of us) in <CITATION> . and anr. and State of Madhya Pradesh v. <ORG> and anr. (2) ; speaking for <ORG> explained the legal position in these words :

"The relevant words which purported to validate the imposition, assessment and collection of cess on coal may be recalled they are 'cesses imposed, assessed or collected by the <ORG> in pursuance of the notifications' (1) Cr. Appeal No. 75/69 decided on 10-9- 1969.

(2) [1970] 3 S.C.R. 745.

notices specified in the Schedule shall, for all purposes, be deemed to be-, and to have always been validly imposed, assessed or collected as if the enactment under which they were so issued stood amended at all material times so as to empower the Board to issue the said notifications/notices. Thereby the enactments, i.e. Act 4 of 1920 and the Rules, framed under the Act pursuant to which the notifications and notices were issued, must be deemed to have been amended by the Act. But the Act does not set out the amendments intended to be made in the enactments. Act 18 of 1964 is a piece of clumsy drafting. By a fiction it deems the Act of 1920 and the rules framed thereunder to have been amended without disclosing the text or even the nature of the amendments."

Proceeding further, it was observed "On the words used in the Act, it is plain that the legislature attempted to overrule or set aside the decision of this <ORG>. That in our judgment, is not open to the <ORG> to do under our constitutional scheme. It is open to the <ORG> within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the <ORG> to say that a judgment of a court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the <ORG>."

We are clearly of, the opinion that sub-s. (3) of s. 152A introduced by the Ordinance is repugnant to our Constitution. That apart, the said provision authorities the <ORG> to retain the ,amounts illegally collected and treat them as loans. That ,is an authority to collect forced loans. Such conferment of power is impermissible under our <CITATION> and anr. ( 4 ) In the result, the above appeals are 'dismissed with costs and the writ petitions allowed and s. 152A(3) is struck down. The petitioners are entitled to their costs in those petitions-one hearing fee both in the appeals and in the writ petitions.

Y.P. Appeals dismissed. (4) [1968] 3 S.C.R. 489.