PETITIONER:
DAMODAR VALLEY CORPORATION
Vs.
RESPONDENT:
STATE OF BIHAR & ORS.
DATE OF JUDGMENT05/08/1976
BENCH:
KHANNA, HANS RAJ
UNTWALIA, N.L.
SINGH, JASWANT
CITATION:
1976 AIR 1956 1977 SCR (1) 118
1976 SCC (3) 710
ACT
Constitution of India, 1950---Art. 288(2)--Scope of.
Bihar Electricity Duty Act, 1948 (as amended) S.
3(2)(e)--Scope of
HEADNOTE
The proviso (v) to s. 3(1) of the Bihar Electricity Duty
Act, 1948 provided that no duty shall be leviable on units
of energy consumed by, or in respect of, or sold for con-
sumption in any mine or industrial undertaking except to
the extent specified in the Second Schedule. In 1963 s. 3
of the Act was amended and a new s. 3 was. substituted for
the old s. 3. Sub-section (2)(e) of the new section states
that no duty shall be leviable on units of energy consumed
by the Damodar Valley Corporation for the generation, trans-
mission or distribution of electricity by that Corporation.
Item A of the First Schedule, as amended in 1963 states that
for a mine or an industrial undertaking the duty leviable
shall be at such rate or rates not exceeding 2 naya paise
per unit of energy fixed by the State Government with, the
previous consent of the president. The Amending Act re-
ceived the assent of the President.
In response to notices issued by the Superintendent of
Commercial Taxes calling upon the appellant to pay elec-
tricity duty under the Act as amended, the appellant
contended that it enjoyed immunity from payment of tax under
cl. (1) of Art. 288 of the Constitution, no law satisfying
the requirement of cl. (2) of Art. 288. having been made.
warranting the levy of such duty.
The High Court dismissed the appellant’s writ petition.
Dismissing the appeal to this Court,
HELD: (1) What is required by cl. (2) of Art. 288 is
that the law made by the State legislature for imposing, or
authorising the imposition of tax mentioned in cl. (1) shall
have effect only if (i) after having been reserved for the
consideration of the President, it receives his assent, and
(ii) that if such law provides for the fixation of the rates
and other incidents of such tax by means of rules or orders
to be made under the law by any authority, the law shall
provide for ,the previous consent of the, President being
obtained to the making of any such rule or order. It is,
however, not the effect of that clause that even if these
two requirements are satisfied, the provisions which merely
deal with the mode and manner of the payment of the tax
should also receive the assent of the President and that in
the absence of such, assent, the provisions dealing with the
incidence of tax, which have received the assent of the
President, would remain unenforceable. [123 H; 124 A-B] (2)
The contention of the appellant that the amending Act did
not contemplate or contain any indication regarding the,
imposition of electricity duty upon the appellant is plain-
ly, untenable, for it would have the effect of rendering s.
3(2)(e) to be wholly redundant. Under proviso (v) to s.
3(1) of the Principal Act, mines and industrial undertakings
were exempt from levy of duty. This exemption stood with-
drawn as a result of substitution of new s. 3 for the old
section by the amending Act. The new charging s. 3(1) roped
in all industrial undertakings, including the Damodar Valley
Corporation, for the purpose of levy of duty. Section
3(2)(e), introduced by the Amending Act of 1963, expressly
granted exemption from levy of electricity duty on units
of energy consumed by the appellant for the, generation,
transmission or distribution of electricity by that Corpora-
tion. This provision, containing express reference to the
appellant Corporation, dearly warrants the inference that
in respect of units of energy not covered by s. 3(2)(e) the
exemption would not be available to the appellant. [123 A-
B]
119
(3) There is no substance in the contention that unless
s. 4 of the principal Act was also re-enacted with the
assent of the President, the liability for payment of duty
cannot be fastened upon the appellant. Section 3 of the
Amending Act which deals with the incidence of duty makes it
clear that such duty has to, be paid on the units of energy
consumed or sold and at the rate or rates specified in the
schedule. As the duty is to be levied on the units of
energy consumed or sold, it would follow that the duty would
have to be paid by the consumer or seller as the case may
be. Section 4 of the. principal Act merely provides for the
manner and mode of payment of the duty. [123 F-G]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 104 of 1970.
(From the Judgment and Order dated 23-10-1967 of the
Patna High Court in Civil Writ Jurisdiction Case No.
299/66).
L.M. Singhvi, U.P. Singh and S.N. Jha, for the Appellant.
Sarjoo Prasad and U.S. Prasad, for the Respondent.
The Judgment of the Court was delivered by
KHANNA, J. The short question which arises for determi-
nation in this appeal on certificate by Damodar Valley
Corporation against the judgment of Patna High Court dis-
missing the writ petition filed by the appellant is whether
the appellant is liable to pay electricity duty under Bihar
Electricity Duty Act,, 1948 as amended by Bihar Electricity
Duty (Amendment) Act, 1963. The High Court answered the
question in the affirmative against the appellant.
The appellant is a corporation established under the
Damodar Valley Corporation Act, 1948 for the development of
the Damodar Valley in the States of Bihar and West Bengal.
One of the functions of the appellant is the promotion and
operation of schemes for the generation, transmission and
distribution of hydroelectric and thermal electrical energy.
Bihar Electricity Duty Act, 1948 (Bihar Act 36 of 1948)
(hereinafter referred to as the principal Act) was published
in the Bihar gazette; on October 1, 1948. It was an Act for
the levy of duty on the sales and consumption of electrical
energy in the province of Bihar. Material part of sec-
tions. 3 and 4,. as they stood before the amendment made in
1963, read as under:
"3. Incidence of duty.---(1) There shall be
levied and
paid to the: State Government on the units of
energy consumed or sold, excluding losses of energy
in the transmission and transformation, a duty at
the rates specified in the First Schedule:
Provided that no duty shall be leviable on
units of energy :--
(i) ........
(ii) ....
(iii) ......
(iv) .....
120
(v) consumed by, or in respect of, or sold for
consumption in any-
(a) mine, as defined in the Indian Mines Act, 1923:
(b) industrial undertaking;
except to the extent specified in the Second
Schedule:
(vi)......
(2) ....
4. Payment of duty.--( I ) Every licensee
shall pay every month to the State Government at
the time and in the manner prescribed the
proper duty payable under section 3 on the units of
energy consumed by him or sold by him to the con-
sumer.
(2) Every licensee may recover from the
amount which falls to be paid by the licensee as
duty in respect of energy sold to the consumer.
(3).......
(4) ....
(4a) ....
(5) ....
The principal Act was amended by Bihar Electricity
Duty (Amendment) Act, 1963 (Bihar Act 20. of 1963)
(hereafter referred to as the amending Act). The
amending Act received the assent of the President
on December 4, 1963 and was published on December
17, 1963. By section 2 of the amending Act, new
section 3 was substituted for the old section 3.
Material part of new section 3 read as under:
"3. Incidence of duty.(1) Subject to the
provision of sub-section (2), there shall be levied
and paid to the State Government on the units of
energy consumed or sold, excluding losses of
energy in transmission and transformation, a duty
at the rate or rates specified in the Schedule.
(2) No duty shall be leviable on units of energy-
(a) ....
(b) ....
(c) ....
(d) ....
(e) consumed by the Damodar Valley Corporation
for the generation, transmission or distribution of
electricity by that Corporation;
(f) ....
(3) ....
121
Amendment was also made in the First Schedule of
the principal Act. The relevant part of the sched-
ule read as ’under :
THE SCHEDULE
(See section 3.)
RATES OF DUTY
A. For a mine or an industrial under- Such rateor rates
taking, save in respect of its not exceeding 2 naya
premises used for residential or paisa per unit of office
purpose energy as may, from
time to time, be fixed
by the State Govern
ment with the previ
ous consent of the
President, by order
in this behalf".
In the writ petition the appellant prayed for
quashing three notices dated February 10, 1965
issued by the Superintendent of Commercial Taxes
Giridih as also his orders dated March 24 and 29,
1966. By the impugned notices the Superintendent
of Commercial Taxes called upon the appellant to
show cause as to why penal action under the princi-
pal Act as amended,, should not be taken against
the appellant for having failed to get itself
registered under that Act. The appellant was also
called upon to apply for registration. By the
impugned orders the Superintendent of Commercial
Taxes directed. the appellant to pay electricity
duty under the: Act as amended. The case of the
appellant was that it enjoyed immunity from payment
of tax under clause (1) of article 288 of the
Constitution. No law satisfying the requirement of
clause (2) of article 288, it was contended, had
been made warranting the levy of such a duty. The
High Court repelled this contention, and we find no
sufficient ground to take a different view.
Article 288 of the Constitution reads as under:
"288(1) Save in so far as the President may
by order otherwise provide, no law of a State in
force immediately before the comencement of this
Constitution shall impose, or authorise the imposi-
tion of, a tax in respect of any water or electric-
ity stored, generated, consumed, distributed or
sold by any authority established by any existing
law made by Parliament for regulating or develop-
ing any inter-State river or river-valley.
Explanation.--The expression ’law of a State
in force’ in this clause shall include a law of a
State passed or made before the commencement of
this Constitution and not previously repealed,,
notwithstanding that it or parts of it may not be,
then in operation either at all or in particular
areas.
(2) The Legislature of a State may by law
impose or authorise the imposition of, any such tax
as is mentioned in clause ( 1 ), but no such law
shall have any effect unless it has, after having
been reserved for the consideration of the
President, received his assent; and if any such law
provides for the fixation of the rates and other
incidents of such tax by means of rules or orders
to be made under the law by any authority, the law
shall provide for the previous consent of the
President being obtained to the making of any
such rule or order."
10--1003 SCI/76
122
Article 288 grants exemption from tax under any law of a
State in respect of any water or electricity stored, gener-
ated, consumed, distributed or sold by any authority estab-
lished by any existing law or any law made by Parliament for
regulating or developing any inter-State river or river-
valley, except in certain cases. According to clause (1)
of the article, this exemption would not be available in
respect of such tax imposed under any law of a State in
force immediately before the commencement of the Constitu-
tion if the: President by order so provides. Although the
principal Act is a pre-Constitution law, being an Act of
1948, no order was admittedly made by the President with-
drawing the exemption in respect of the appellant from levy
of such, tax under the principal Act. Indeed, there was no
question of issue of any such order because the principal
Act did not provide for the imposition of electricity duty
upon a corporation like the appellant. Clause (v) of the
proviso. to sub-section (1 ) of section 3 of the principal
Act expressly stated that no duty shall be leviable on units
of energy consumed by, or in respect of, or. sold for con-
sumption in any mine, as defined in the Indian Mines Act,
or industrial undertakings, except to the extent specified
in the Second Schedule. The appellant is admittedly an
industrial undertaking, and as such, was not liable. to pay
electricity duty under theprincipal Act.
The case of the respondentS is that the bar to the levy
of the said duty was removed and the levy of the duty on the
appellant was, put on a sound legal basis as a result of the
amendment made. in the principal Act by the amending Act
of 1963. The amending Act, we find, satisfies the require-
ments of clause (2) of article 288. According to that
clause, the legislature of a State may by law impose, or
authorise the imposition of, any tax mentioned in clause (1)
of that article, but no such law shall have any effect
unless it has, after having been reserved for the consider-
ation of the President, received his assent; and if any such
law provides for the fixation of the rates and other inci-
dents of such tax by means of rules or orders to. be made
under the law by any authority,, the law shall provide for
the previous consent of the President being obtained to the
making of any such rule or order. The amending Act of 1963,
as already mentioned, received the assent of the President
before its publication. The exemption which was granted to
mines and industrial undertakings from payment of elec-
tricity duty under the principal Act was withdrawn under the
amending Act, except to some extent with which we are not
concerned. The new schedule, substituted for the old sched-
ule by the amending Act, prescribed the rates of duty for
mines and industrial undertakings, and it was provided that
the rate of duty shall be such rate or rates not exceeding 2
naya paise per unit of energy as may, from time to time, be
fixed by the State Government with the previous consent of
the President, by order in this behalf.
It has been argued by Dr. Singhvi on behalf of the
appellant that the scheme of article 288 is to grant general
exemption from the levy of tax in respect of any water or
electricity stored, generated, consumed, distributed or
sold’ by any authority established by any, existing
123
law or any law made by Parliament for regulating or develop-
ing any inter-State river or river-valley. If any law made
by a State legislature, according to the submission, seeks
the imposition of any such tax, such law should contain
clear indication to that effect before it receives the
assent of the President. The amending Act of 1963, :ac-
cording to the learned counsel, did not contain any such
indication. This contention, in our opinion, is wholly
devoid of force. Under proviso (v) to section 3(1) of the
principal Act, mines and industrial undertakings were exempt
from levy of duty. This exemption stood withdrawn as a
result of, substitution of new section 3 for the old sec-
tion by the amending Act. The new charging section 3 (1 )
roped in all industrial undertakings, including the Damodar
Valley Corporation, for the purpose of levy of duty. Clause
(e) of sub-section (2) of new section 3 which was introduced
by the amending Act of 1963. expressly granted exemption
from levy of electricity duty on units of energy consumed by
the appellant corporation for the generation, transmission
or distribution of electricity by that corporation. This
provision. containing express reference to the appellant
corporation, clearly warrants the inference that in respect
of units of energy not covered by clause (e) of sub-section
(2) of section 3 the exemption would not be available to the
appellant. The contention advanced on behalf of the appel-
lant that the amending Act did not contemplate or contain
indication regarding the imposition of electricity duty upon
the appellant is plainly untenable, for it would have the
effect of Tendering clause (e) of sub-section (2) of sec-
tion 3 to be wholly redundant. The courts, it is well-
settled, should be loath to accept an argument which would
have the effect of rendering redundant the provision of a
statute.
Lastly, it has been argued that though there has been an
amendment of section 3 of the principal Act by its substitu-
tion by a new section under the amending Act of 196.3, there
has been no amendment of section 4 with the assent of the
President. As such, no liability to pay electricity duty
can be fastened upon the appellant. This submission too is
bereft of force. Section 3, as inserted by the ’amending
Act of 19’63, is the charging section. According to clause
(1) of that section, subject to the provision of sub-section
(2), there shall be: levied and paid to the State Government
on the: ’units of energy consumed or sold, excluding losses
of energy in transmission and transformation, a duty at the
rate or rates specified in the Schedule. The section thus
deals with the incidence of duty, and makes it clear that
such duty h.as. to be paid on the units of energy consumed
or sold and at the rate or rates specified in the schedule.
It is further made clear by the section that the duty is to
be levied and -paid to the State Government. As the duty is
to. be levied on the units of energy consumed or sold, it
would follow that the duty would have to be paid by the
consumer or seller,, as the case may be. Section 4- of the
principal Act merely provides for the manner and mode of
payment of the duty, and we find no substance in the conten-
tion that unless section 4 of the principal Act was also
re-enacted with the assent of the President, the liability
for payment of duty cannot be fastened upon the appellant.
124
What is required by clause (2) of article 288 is that
the law made by the State legislature for imposing or
authorising the imposition of tax mentioned in clause (1)
shall have effect only if after having been reserved for the
consideration of the President, it receives his assent.
Another requirement of that clause is that if such law
provides for the fixation of the rates and other incidents
of such tax by means of rules or orders to be made under the
law by any authority, the law shall.. provide for the previ-
ous consent of the President being obtained to the making
of any such rule or order. It is, however, not the effect
of that Clause that even if the above mentioned two require-
ments are satisfied, the provisions which merely deal with
the mode and manner of the payment of the aforesaid tax
should also receive the assent of the President and that in
the absence of such assent, the provisions. dealing with the
incidence of tax, which have received the assent of
the President, would remain unenforceable.
Some other aspects were also dealt with by the High
Court, but in the light of the view we have taken in the
matter, it is not necessary to deal with those aspects.
The appeal consequently fails and is dismissed but in
the circumstances without costs.
P.B.R. Appeal dis-
missed.
125