Vijay
Kumar Sharma & Ors Vs. State of Karnataka & Ors [1990] INSC 60 (27 February 1990)
Misra
Rangnath Misra Rangnath Sawant, P.B. Ramaswamy, K.
CITATION:
1990 AIR 2072 1990 SCR (1) 614 1990 SCC (2) 562 JT 1990 (2) 448 1990 SCALE
(1)342
ACT:
Karnataka
Contract Carriages (Acquisition) Act, 1976:
ss.
14, & 20--Whether repugnant to ss. 74 & 80, Motor Vehi- cles Act,
1988--State Act whether impliedly repealed by Parliamentary Act--State Act
whether hit by Article 254 of the Constitution.
HEAD NOTE:
Constitution
of India, Article 254.' Repugnancy between
the Parliamentary Act and the State Act in respect of mat- ters, in the
Concurrent List, Seventh Schedule--When arises--Karnataka Contract Carriages
(Acquisition) Act, 1976---Whether repugnant to the Motor Vehicles Act, 1988.
Statutory
interpretation-Doctrine of pith and substance or dominant purpose--Scope
of--Whether applicable to find repugnancy under Article 254 of the Constitution
between Parliamentary and State laws in respect of matters in List 111. Seventh
Schedule to the Constitution.
The
Karnataka Contract Carriages (Acquisition) Act, 1976 enacted by the State
Legislature by taking aid of Entry 42 List III of the Seventh Schedule and
Articles 31 and 39 (b) and (c) of the Constitution was reserved for
consideration and received the assent of the President of March 11, 1976.
Section
4 of that Act provided for vesting of contract carriages along with the
respective permits and/or certifi- cates of registration issued under the Motor
Vehicles Act, 1939 in the State absolutely free from encumbrances. Sub- section
(1) of s. 14 prohibited applications for fresh permits or renewal of existing
permits on or from the date of vesting. Section 14(2) provided for abatement of
all applications, appeals or revisions pending before the appro- priate
authority as on the notified date. Sub-section (1) of s. 20 provided for
cancellation of, notwithstanding anything in the 1939 Act, all contract
carriage permits granted or renewed in respect of any vehicle other than a
vehicle acquired under the Act or belonging to the State Road Trans- port
Corporation. Sub-section (2) entitled the Corporation to the grant or renewal
of contract carriage permits to the exclusion of all other persons, while
sub-section (3) re- strained the authority concerned from ?615 entertaining
applications from persons other than the Corpo- ration.
Section
73 of the Motor Vehicles Act, 1988 (enacted to replace the 1939 Act) lays down
the mode of application for a contract carriage permit. Section 74(1) empowers
the Regional Transport Authority to grant such permits. Sub- section (2)
enumerates conditions that could be attached to such permit. Sub-section (3)
empowers the State Government when directed by the Central Government to limit
the number of contract carriages on the city routes. Under s. 80(1) such
application could be made at any time. Sub-section (2) posits that a Regional
Transport Authority shall not ordi- narily refuse to grant such application.
Section 217(1) repealed all the laws which were inconsistent with the
provisions of the Act.
The
petitioners, a group of contract carriage operators who were denied permits
that they had applied for under ss. 73, 74 and 80 of the Motor Vehicles Act,
1988 in view of the provisions of ss. 14 and 20 of the Karnataka Contract Car-
riages (Acquisition) Act, 1976, filed writ petitions under Article 32 of the
Constitution questioning the action of the R.T.A. It was contended that the
provisions of ss. 14 and 20 of the Karnataka Act were in direct conflict with
the provi- sions of ss. 74 and 80(2) of the M.V. Act, 1988 in as much as while
the Regional Transport Authority was enjoined by the said provisions of the
1988 Act ordinarily not to refuse to grant an application for permit of any
kind, the said provisions of the Karnataka Act prohibited any person from
applying for, and any officer or authority from entertaining or granting
application for running any contract carriage in the State; that since the M.V.
Act, 1988 was a later legis- lation operating in the same area, it should be
deemed to have impliedly repealed the provisions of ss. 14 and 20 of the
Karnataka Act even if the latter Act had received the assent of the President,
in view of the proviso to sub- clause (2) of Article 254 of the Constitution;
that when there is a repugnancy under Article 254 of the Constitution, the
doctrine of pith and substance does not apply, and even if some of the
provisions of the State Legislation are in conflict with some of the provisions
of the Central legisla- tion, the conflicting provisions of the State
legislation, will be invalid and that, therefore, their applications under ss.
74 and 80 were maintainable without reference to the provisions of the
Karnataka Act.
For
the respondents it was contended that the Acquisi- tion Act was made in
exercise of the power under a different entry and was not on the same subject,
therefore, the matter did not come within the ambit of Art. 254 of the
Constitu- tion, and that the Acquisition Act having been 616 reserved for consideration
under Art. 254(2) and having received the assent of the President, it prevails
over the Parliamentary Act in the State of Karnataka.
On the
question: Whether there is repugnancy between the provisions of ss. 14 and 20
of the Karnataka Contract Car- riages (Acquisition) Act, 1976 and ss. 74 and 80
of the Motor Vehicles Act, 1988 and whether the doctrine of domi- nant purpose
and pith and substance is applicable while examining the repugnancy of the two
statutes? Per Misra, J. (Concurring with Sawant, J.)
1.
There is no direct inconsistency between the Karnata- ka Contract Carriages
(Acquisition) Act, 1976 and the Motor Vehicles Act, 1988. [631G-H]
2.1 In
cl. (1) of Art. 254 of the Constitution it has been clearly indicated that the
competing legislations must be in respect of one of the matters enumerated in
the Con- current List. In the instant case, the State Act was an Act for
acquisition and came within Entry 42 of The Concurrent List. The Parliamentary
Act on the other hand is a legisla- tion coming within Entry 35 of the
Concurrent List. There- fore, the said two Acts as such do not relate to one
common head of legislation enumerated in the Concurrent List.
Clause
(2) also refers to the law with respect to the same matter. [628F; 629A]
2.2
Repugnancy between two statutes would arise if there is direct conflict between
the two provisions and if the law made by Parliament and the law made by the
State Legislature occupy the same field. In the instant case, the State Act
intended to eliminate private operators from the State in regard to contract
carriages acquired under the existing permits, vehicles and ancillary property
and with a view to giving effect to a monopoly situation for the State Under-
taking made provision in s. 20. The Parliamentary Act does not purport to make
any provision in regard to acquisition of contract carriage permits which
formed the dominant theme or the core of the State Act. Nor does it in s. 73
and s. 74 indicate as to who the applicant shall be while laying down how an
application for a contract carriage permit shall be made and how such a permit
shall be granted. Section 80 of the Parliamentary Act does contain a
liberalised provision in the matter of grant of permits but even then there
again the ancillary provision contained in s. 20 of the State Act to effectuate
acquisition does not directly run counter to the 1988 provision. [630G; 631C]
617 There does not thus appear to be any repugnancy between the two Acts for
invoking Art. 254 of the Constitution.
[631D-E]
Bar Council of Uttar Pradesh v. State of U.P. & Anr., [1973] 2 SCR 1073; Kerala State Electricity Board v. Indian Aluminium Company, [1976] 1 SCR
552; Deep Chand v. State of Uttar Pradesh
& Ors., [1959] 2 Suppl. SCR 8; T. Barai v. Henry Ah Hoe & Anr., [1983]
1 SCR 905; Hoechst Pharmaceuti- cals Ltd. & Anr. v. State of Bihar & Ors., [1983] 3 SCR 130;
Zaverbhai Amaidas v. State of Bombay, [1955]
1 SCR 799; M. Karunanidhi v. Union of India, [1979] 3 SCR 254 and State of
Karnataka & Anr. v. Ranganatha Reddy & Anr. [1978] 1 SCR 641, referred
to.
Per
Sawant, J:
1.
There is no repugnancy in the provisions of ss. 14 and 20 of the Karnataka
Contract Carriages (Acquisition) Act, 1976 and ss. 74 and 80 of the Motor
Vehicles Act, 1988.
Hence
the provisions of Article 254 of the Constitution do not come into play. [652F;
636C]
2.1
Whenever repugnancy between the State and Central Legislation is alleged, what
has to be first examined is whether the two legislations cover or relate to the
same subject matter. The test for determining the same is to find out the
dominant intention of the two legislations. If the dominant intention of the
two legislations is different, they cover different subject matters. If the
subject matters covered by -'.he legislation are thus different, then merely
because the two legislations refer to some allied or cognate subjects they do
not cover the same field. The legislation to be on the same subject matter must
further cover the entire field covered by the other. [652C-D] A provision in
one legislation to give effect to its dominant purpose may incidentally be on
the same subject as covered by the provision of the other legislation. But such
partial coverage of the same area in a different context and to achieve a
different purpose does not bring about the repugnancy which is intended to be
covered by Article 254(2). Both the legislations must be substantially on the
same subject to attract the Article. [652E] Municipal Council Palai v.T.J.
Joseph & Ors., [1964] 2 SCR 87; Tika Ramji & Ors. etc. v. State of U.P.
& Ors., [1956] SCR 393 and State of Karnataka & Anr. etc. v. Ranga-
natha Reddy & Anr. etc., [1978] 1 SCR 641, referred to.
618
Ratan Lal Adukia v. Union of India, [1989] 3 SCR 537, distinguished.
2.2 In
the instant case, the objects and the subject matters of the two enactments
were materially different. The Karnataka Act was enacted by the State
Legislature for acquisition of contract carriages under Entry 42 of the
Concurrent List read with Article 31 of the Constitution to give effect to the
provisions of Articles 39(b) and (c) thereof. The MV Act 1988 on the other hand
was enacted by the Parliament under Entry 35 of the Concurrent List to regulate
the operation of the motor vehicles. They thus occupy different areas. [636C, B-C]
2.3
Unlike the MV Act 1988 which was enacted to regulate the operation of the motor
vehicles, the object of the Karnataka Act was, not only the regulation of the
operation of the motor vehicles. Nor was its object merely to prevent the
private owners from operating their vehicles with the exclusive privilege of
such operation being reserved in favour of the State or the State Undertaking.
For if that were the only object, the same could have been achieved by the
Transport Undertakings of the State following the spe- cial provisions relating
to State Transport Undertakings in Chapter IV-A of the Motor Vehicle Act, 1939
which was in operation when the Karnataka Act was brought into force. The very
fact that instead the State undertook the exercise of enacting the Karnataka
Act shows that the object of the State Legislature in enacting it was
materially different i.e. to nationalise the contract carriage services in the
State with a view to provide better transport facilities to the public and also
to prevent concentration of wealth in the hands of the few and to utilise the
resources of the country to subserve the interests of all. [634D-F; B-C]
3.1 A
comparison of the provisions of the MV Act, 1939 and MV Act, 1988 shows that
the latter has merely replaced the former. The special provisions relating to
the State Transport Undertakings which are contained in Chapter VI of the MV
Act, 1988 are pari-materia with those of Chapter IV-A of the MV Act, 1939 with
only this difference that whereas under the old Act it was the State Transport
Undertaking which had to prepare a scheme for running and operating the
transport service by it in relation to any area or route or portion thereof
exclusively, under the new Act such a scheme has to be prepared by the State Government
itself. There is no difference in the legal consequences of the schemes under
the two enactments. Both envisage the operation of the services by the State
Transport Undertaking to the exclusion of the rest, and cancellation of the
existing permits and compensation only for the deprivation of the balance of
the period of the permit. No acquisi- 619 tion of the vehicles or the
paraphernalia connected with such vehicles is envisaged as is the case under
the Karnata- ka Act. [634G; 635E-G]
3.2
Section 98 of the MV Act 1988 in terms clearly states (as did Section 68B of
the MV Act 1939) that Chapter VI relating to the special provisions about the
State Trans- port Undertaking and the rules' and orders made thereunder, shall
have effect notwithstanding anything inconsistent therewith contained in
Chapter V or in any other law for the time being in force or in any instrument
having effect by virtue of any such law. Sections 74 and 80 relating to the
grant of the contract carriage permit and the procedure in applying for the
grant of such permits respectively, are in Chapter V. This means that when
under Chapter VI, a scheme is prepared by the State Govt. entrusting the
contract carriage services in relation to any area or route or por- tion
thereof, to a State Transport Undertaking to the exclu- sion---complete or
partial of other persons, the provisions of ss. 74 and 80 would have no
application, and the private transport operators cannot apply for the grant of
contract carriage permits under s. 80 nor can such permits be granted by the
Transport Authority. The MV Act 1988 thus also makes a provision for
nationalisation of routes, and envisages a denial of permits to private
operators when routes are so nationalised. Hence it cannot be said that there
was a conflict between the provisions of the Karnataka Act and the M.V. Act,
1988. [637H; 638D]
4.
When the legislative encroachment is under considera- tion the doctrine of pith
and substance comes to the aid to validate a legislation which would otherwise
be invalid for the very want of legislative competence. When the repugnancy
between the two legislations is under consideration, what is in issue is
whether the provision of the State enactment though otherwise constitutionally
valid, has lost its valid- ity because the Parliament has made a legislation
with a conflicting provision on allegedly the same matter. If it is open to
resolve the conflict between two entries in differ- ent Lists, viz., the Union
and the State List by examining the dominant purpose and therefore the pith and
substance of the two legislations, there is no reason why the repugnancy under
Article 254 of the Constitution between the provisions of the two legislations
under different entries in the same List, viz. the Concurrent List should not
be resolved by scrutinizing the same by the same touchstone. What is to be
ascertained in each case is whether the legislations are on the same matter or
not. In both cases the cause of conflict is the apparent identity of the
subject matters. The tests for resolving it therefore cannot be different. [639E-H]
620 Meghraj & Ors. v. Allahrakhiya & Ors., AIR 1942 FC 27
distinguished.
Per K.
Ramaswamy, J. (Dissenting)
1.
Section 14(1) of Karnataka Contract Carriages (Acqui- sition) Act, 1976 to the
extent of prohibiting to make fresh application for grant of permits to run the
contract car- riages other than those acquired under that Act and the embargo
and prohibition created under s. 20(3) thereof on the respective Regional
Transport Authority in the State of Karnataka to invite/receive the application
to consider the grant of permits to such contract carriages according to law,
are void. [686C-D]
2.1
The Parliament and the legislature of a State derive their exclusive power to
legislate on a subject/subjects in List I and List II of Seventh Schedule to
the Constitution from Art. 246(1) and (3) respectively. Both derive their power
from Art. 246(2) to legislate upon a matter in the Concurrent List III subject
to Art. 254 of the Constitution.
The
entries in the three lists merely demarcate the legisla- tive field or
legislative heads. Their function is not to confer powers on either the
Parliament or the State Legisla- ture. [682E-D] Subrahmanyam Chettiar v.
Muttuswami Goundan., AIR 1941 FC 47; Governor General in Council v. The Reliegh
Investment Co. Ltd., [1944] FCR 229; Harakchand Ratanchand Banthia v. Union of
India, [1970] 1 SCR 479 AND Union of India v.H.S. Dhillon, [1972] 2 SCR 33,
referred to.
2.2
Clause (1) of Art. 254 posits as a rule that in case of repugnancy or
inconsistency between the State Law and the Union Law relating to the same
matter in the Concurrent List occupying the same field, the Union law shall
prevail and the State law will fail to the extent of the repugnancy or
inconsistency whether the Union law is prior or later in point of time to the
State law. To this general rule, an exception has been engrafted in cl. (2)
thereof, viz., provided the State law is reserved for consideration of the
President and it has received his assent, and then it will prevail in that
State notwithstanding its repugnancy or inconsistency with the Union law. This
exception again is to be read subject to the proviso to cl. (2) thereof, which
empowers the Parliament to make law afresh or repeal or amend, modify or vary
the repugnant State law and it became void even though it received President's
assent. [659D-F] 621
2.3
The question of repugnancy under Article 254 of the Constitution arises when
the provisions of both laws are fully inconsistent or are absolutely
irreconcilable and it is impossible to obey without disobeying the other, or
conflicting results are produced when both the statutes covering the same field
are applied to a given set of facts.
It
matters little whether the provisions fall under one or other entry in the
Concurrent List. The substance of the same matter occupying the same field by
both the pieces of the legislation is material and not the form. The repugnancy
to be found is the repugnancy of the provisions of the two laws and not the
predominant object of the subject matter of the two laws. The proper test is
whether effect can be given to the provisions of both the laws or whether both
the laws can stand together. If both the pieces of legislation deal with
separate and distinct matters though of cognate and allied character repugnancy
does not arise. [660A-B; 675B-C; 660C; 674H; 675A] Tika Ramji v. State of U.P.,
[1956] SCR 393; A.S. Krish- na v. Madras State, [1957] SCR 399; Prem Nath Kaul
v. State of J &K, [1952] 2 Supp. SCR 273; Bar Council of U.P.v. State of
U.P., [1973] 2 SCR 1073; Deep Chand v. State ofU. P., [1959] Supp. 2 SCR 8;
State of Orissa v.M.A. Tulloch & Co.,
[1964] 4 SCR 461; State of Assam v. Horizon Union, [1967] 1 SCR 484; State ofJ
& K v.M.S. Farooqi, [1972] 3 SCR 881; Kerala State Electricity Board v.
Indian Aluminium Co., [1976] I SCR 552; Basu's Commentary on the Constitution
of India (Silver Jubilee Edition) Volume K 144; Clyde Engineer- ing Co. v.
Cowburn, [1926] 37 CLR 466; Hume v. Palmer, [1926] 38 CLR 441; Brisbane
Licensing Court, [1920] 28 CLR 23; Colvin v. Bradley Bros. Pvt. Ltd., [1943] 68
CLR 151; In Re Ex Parte Maclean, [1930] 43 CLR 472; Wenn v. Attorney General
(Victoria), [1948] 77 CLR 84; O' Sullivan v. Noarlunga Meat Co. Ltd., [1954] 92
CLR 565; O'Sullivan v. Noarlunga Meat Co. Ltd., [1957] AC 1 and Blackley v.
Devon- dale Cream (Vic.) Pvt. Ltd., [1968] 117 CLR 253, referred to.
2.4
Section 14 read with s. 20 of the Acquisition Act freezed the right of a
citizen to apply for and to obtain permit or special permit to run a contract
carriage in terms of the permit and monopoly to run a contract carriage was
conferred on the S.T.U., Karnataka. But the M.V. Act, 1988 evinces its
intention to liberalise the grant of contract carriage permit by saying in s.
80(2) that the Regional Transport Authority "shall not ordinarily refuse
to grant the permit". It also confers the right on an applicant to apply
for and authorises the Regional Transport Authority to grant liberally contract
carriage permit except in the area covered by s. 80(3) and refusal appears to
be an exception, that too, obviously for reasons to be recorded. It may be 622
rejected if the permit applied for relate to an approved or notified route. The
M.V. Act accords the right, while the Acquisition Act, negates and freezes the
self-same right to obtain a permit and to run a contract carriage and prohibits
the authorities to invite or entertain an application and to grant a permit to
run contract carriage. The Act and the relevant rules cover the entire field of
making an applica- tion in the prescribed manner and directs the Regional
Transport Authority to grant permit with condition attached thereto to run
contract carriages vide ss. 66(1), 73, 74 and 80. Thus the existence of two
sets of provisions in the Motor Vehicles Act 59 of 1988 and Acquisition Act 21
of 1976 is sufficient to produce conflicting results in their opera- tion in
the same occupied filed. The two sets of provisions run on collision course,
though an applicant may waive to make an application for a permit. Thereby
there exists the operational incompatibility and irreconcilability of the two
sets of provisions. Sections 14(1) and 20(3) of the Acquisi- tion Act are
repugnant and inconsistent to ss. 73, 74 and 80 of the Act. By operation of
proviso to Art. 254(2) of the Constitution, the embargo created by ss. 14(1)
and 20(3) of the Acquisition Act to make or invite an application and injuction
issued to Regional Transport Authority prohibiting to grant contract carriage
permit to anyone except to S.T.U., Karnataka within the State of Karnataka
became void. [682H; 683E]
3.1
The Parliament with a view to lay down general prin- ciples makes law or amends
the existing law. The State Legislature still may feel that its local
conditions may demand amendment or modification of the Central Law. Their
reserve power is Art. 254(2). After making the Act 59 of 1988 the power of the
State Legislature under Art. 254(2) is not exhausted and is still available to
be invoked from time to time. But unless it again enacts law and reserves it
for consideration and obtains the assent of the President afresh, there is no
prohibition for the petitioners to make applications for the grant of contract
carriage permits under the Act and consideration and grant or refusal thereof
according to law by the concerned Regional Transport Author- ity. [685E; 686B]
3.2
The Karnataka State Legislature is, therefore, at liberty to make afresh the
law similar to ss. 14(1) and 20(3) of the Acquisition Act with appropriate
phraseology and to obtain the assent of the President. [686B]
4.
Parliament may repeal the State law either expressly or by necessary
implication but Courts would not always favour repeal by implication. Repeal by
implication may be found when the State law is repugnant or inconsistent with
the Union law in its scheme or opera:ion. The principle would be equally
applicable to a question under 623 Article 254(2) of the Constitution.
In the
instant case, s. 217(1) of the Union law does not expressly repeal ss. 14(1)
and 20(3) of the State law. They are repugnant with the Union law. [676C-D;
670E-F; 669F] Zaveribhai v. State of Bombay, [1955] 1 SCR 799; M. Karunanidhi
v. Union of India, [1979] 3 SCR 254; T. Barai v. Henry Ah Hoe, [1983] 1 SCR 905
and M/s Hoechst Pharmaceuti- cals Ltd. v. State of Bihar, [1983] 3 SCR 130, referred to.
5. For
the applicability of the principle that special law prevails over the general
law, the special law must be valid law in operation. Voidity of law obliterates
it from the statute from its very inception. In the instant case, since ss.
14(1) and 20(3) are void the said principle is not applicable. [683F]
Justiniano Augusto De Peidada Barreto v. Antonia Vicente De Fonseca & Ors.,
[ 1979] 3 SCR 494, distinguished.
6.1
The doctrine of pith and substance or the predomi- nant purpose or true nature
and character of law is applied to determine whether the impugned legislation
is within the legislative competence under Arts. 246(1) and 246(3) of the
Constitution, and to resolve the conflict of jurisdiction.
If the
Act in its pith and substance fails in one List it must be deemed not to fail
in another List, despite inciden- tal encroachment and its validity should be
determined accordingly. The pith and substance rule, thereby, resolves the
problem of overlapping of "any two entries of two dif- ferent Lists
vis-a-vis the Act" on the basis of an inquiry into the "true nature
and character" of the legislation as a whole and tries to find whether the
impugned law is substan- tially within the competence of the Legislature which
enact- ed it, even if it incidentally trespasses into the legisla- tive field
of another Legislature. [680C; 677F; 678A1
6.2
The doctrine has no application when the matter in question is covered by an
entry or entries in the Concurrent List and has occupied the same field both in
the Union and the State Law. It matters
little as in which entry or en- tries in the Concurrent List the subject-matter
falls or in exercise whereof the Act/provision or provisions therein was made.
The Parliament and Legislature of the State have exclusive power to legislate
upon any subject or subjects in the Concurrent List. The question of incidental
or ancillary encroachment or to trench into forbidden field does not arise. The
determination of its 'true nature and character also is immaterial. [680C-D]
624 Prafulla Kumar v. Bank of Commerce, Khulna, AIR 1947 PC 60; State of Bombay v.F.N. Balsara, [1951] SCR 682; Atiabari Tea Co.Ltd. v. State of Assam, [1961] 1 SCR 809 and Meghraj &
Ors. v. Allaharakhiya & Ors., AIR 1942 FC 27, referred to.
ORIGINAL
JURISDICTION: Writ Petition No. 723 of 1989 etc.
(Under
Article 32 of the Constitution of India).
G.
Ramaswamy, Additional Solicitor General (N.P.), F.S. Nariman, G.L. Sanghi,
G.Prabhakar, M. Rangaswamy, N.D.B. Raju, Ms. C.K. Sucharita, S.K. Agnihotri,
P.R. Ramashesh, K.R. Nagaraja and Ms. Anita Sanghi for the appearing par- ties.
The
following Judgments of the Court were delivered:
RANGANATH
MISRA, J. I have the benefit of reading the judgment prepared by my esteemed
brethren Sawant and K. Ramaswamy, JJ. Brother Sawant has taken the view that s.
20 of the Karnataka Act has not become void with the enforce- ment of the Motor
Vehicles Act, 1988, while Brother K. Ramaswamy has come to the contrary
conclusion. Agreeing with the conclusion of Sawant, J., I have not found it
possible to concur with Ramaswamy, J. Since an interesting question has arisen
and in looking to the two judgments I have found additional reasons to support
the conclusion of Sawant. J., I proceed to indicate the same in my separate
judgment.
These
applications under Article 32 of the Constitution by a group of disgruntled
applicants for contract carriage permits call in question action of the
concerned transport authorities in not entertaining their applications under
the provisions of the Motor Vehicles Act, 1988.
Motor
Vehicles Act (4 of 1939) made provision for grant of contract carriage permits.
The Karnataka Contract Car- riages (Acquisition) Act (Karnataka Act 21 of 1976)
received assent of the President on 11th of March. 1976. but was declared to
have come into force from 30th of January, 1976, when the corresponding
Karnataka Ordinance 7 of 1976 had come into force. The long title of the Act
indicated that it was an Act to provide for the acquisition of contract car-
riages and for matters incidental. ancillary or subservient thereto, and the
preamble stated:
625
"Whereas contract carriages and certain other categories of public service
vehicles are being operated in the State in a matter highly detrimental and
prejudicial to public interest;
And
whereas with a view to prevent such misuse and also to provide better
facilities for the transport of passengers by road and to give effect to the
policy of the State towards securing that the ownership and control of the
material resources of the community are so distributed as best to subserve the
common good and that the operation of the economic system does not result in
the concentration of wealth and means of production to the common detriment;
And
whereas for the aforesaid purposes it is considered necessary to provide for
the acquisition of contract carriages and certain other categories of public
service vehicles in the State and for matters incidental, ancillary or
subservient thereto ...... " Section 2 contains the declaration to the
following effect:
"It
is hereby declared that this Act is for giving effect to the policy of the
State towards securing the principles specified in clauses (b) and (c) of
Article 39 of the Con- stitution of India and the acquisition therefore of the
contract carriages and other property referred to in section 4." Under ss
4 contract carriages owned or operated by contract carriage operators along
with the respective per- mits and/or certificates of registration, as the case
may be, vested in the State absolutely free from encumbrances, and compensation
for such acquisition was provided under the scheme of the Act. Section 14
prohibited application for any permit or fresh permit or renewal of existing
permits for running of any contract carriage in the State by any private
operator and all pending proceedings in relation to grant or renewal abated.
Consequential provisions were made in ss. 15 and 16 of the Act. Section 20 gave
the Corporation the exclusive privilege of running contract carriages within
the State to the exclusion of any provision under the 1939 Act.
The
vires of the Act was the subject-matter of the decision of this 626 Court in a
group of appeals in the case of the State of Karnataka & Anr. v. Shri
Ranganatha Reddy & Anr., [1978] 1 SCR 641. A Seven Judge Bench upheld the
validity of the statute holding that the impugned statute was an 'acquisi- tion
Act' within the ambit of Entry 42 of the Concurrent List under Schedule VII of
the Constitution. The Court took note of the fact that even though it may have
had some incidental impact on inter-State trade or commerce it did not suffer
from any lacuna on that count. Since the Act had been reserved for Presidential
assent, to the extent s. 20 made provisions contrary to those in the Motor
Vehicles Act of 1939, was taken to be valid under Art. 254(2) of the
Constitution.
The
Motor Vehicles Act (59 of 1988) being a Parliamen- tary legislation was brought
into force with effect from 1.7. 1989. Under s. 1(2), the Act extended to the
whole of India and, therefore, the Act became
applicable to the State of Karnataka by
the notification appointing the date of commencement of the Act.
The
1988 Act has admittedly liberalised the provisions relating to grant of permits
of every class including con- tract carriages. Sections 73, 74 and 80 contain
the relevant provisions in this regard. While s. 73 provides for an application
for such permit, s. 74 contains the procedure for the consideration of the
grant and s. 80 contains a general provision that the transport authority shall
not ordinarily refuse to grant an application for permit of any kind made at
any time under the Act. It is the contention of the petitioners that with the
enforcement of the Motor Vehicles Act of 1988 as a piece of central
legislation, the provisions of s. 20 of the Karnataka Act became void to the
extent the state law was inconsistent with the provisions of the 1988 Act and,
therefore, by operation of the provisions contained in Art. 254 of the
Constitution, s. 20 stood abrogated and the scheme of the 1988 Act became
operative.
The
applications of the petitioners for grant of contract carriage permits were
maintainable and should have been entertained and disposed of in accordance
with the provi- sions of the 1988 Act.
It is
the stand of the respondents, in particular of the Karnataka State Transport
Undertaking, that the State Act is a legislation under a different entry and
was not on the same subject. Therefore, the matter did not come within the
ambit of Art. 254 of the Constitution. The State Act contin- ues to hold the
field and the transport authorities had rightly refused to entertain the
petitioners' applications.
627
The question for consideration is: Whether Art. 254( I) of the Constitution
applies to the situation in hand and whether s. 20 of the Karnataka Act being
inconsistent with the provisions of ss. 73, 74 and 80 of the 1988 Motor Vehi-
cles Act became void. It would be convenient to extract the provisions of Art.
254 of the Constitution at this stage and recount the background in which such
provision was warrant- ed. It is the common case of the parties that with the
introduction of federalism and distribution of legislative powers and accepting
a Concurrent List wherein in regard to specified subjects the Federal and the
Federating State Legislatures had power to legislate, a provision of ration-
alisation became necessary. Section 107 of the Government of India Act, 1935,
contained the provision to deal with such a situation. The Constituent Assembly
accepted a similar mechanism and added a proviso to clause (2) of Art. 254 to
meet the difficulties experienced in the intervening years.
The
Article reads thus:
"254(1)
If any provision of a law made by the Legislature of a State is repugnant to
any provision of a law made by Parliament which Parliament is competent to
enact, or to any provision of any existing law with respect to one of the
matters enumerated in the Concurrent List, then, subject to the provisions of
clause (2), the law made by Parliament, whether passed before or after the law
made by the Legislature of such State, or, as the case may be, the existing
law, shall prevail and the law made by the Legislature of the State shall, to
the extent of the repug- nancy, be void.
(2)
Where a law made by the Legislature of a State with respect to one of the
matters enumerated in the Concur- rent List contains any provision repugnant to
the provisions of an earlier law made by Parliament or an existing law with
respect to that matter, then, the law so made by the Legis- lature of such
State shall, if it has been reserved for the consideration of the President and
has received his assent, prevail in that State:
Provided
that nothing in this clause shall prevent Parliament from enacting at any time
any law with respect to the same matter including a law adding to, amending,
varying or repealing the law so made by the Legislature of the State." 628
Though for some time there was difference of judicial opinion as to in what
situation Art. 254 applies, decisions of this Court by overruling the contrary
opinion have now concluded the position that the question of repugnancy can
arise only with reference to a legislation falling under the Concurrent List: Bar
Council of Uttar Pradesh v. State of U.P. & Anr., [1973] 2 SCR 1073 and
Kerala State Electricity Board v. Indian Aluminium Company, [1976] 1 SCR 552.
This
Court in Deep Chand v. State of Uttar Pradesh & Ors., [1959] 2 Suppl. SCR 8; T. Barai v. Henry Ah Hoe
& Anr., [1983] 1 SCR 905 and Hoechst Pharmaceuticals Ltd. & Anr. v.
State of Bihar & Ors., [1983] 3 SCR 130 has
laid down that cl. (1) of Art. 254 lays down the general rule and cl. (2) is an
exception thereto; the proviso qualifies the exception. Therefore, while
interpreting Art. 254 this position has to be kept in view. The situation of
the 1939 Motor Vehicles Act being existing law and the Karnataka Act containing
provision repugnant to that Act with Presidential assent for the State Act
squarely came within the ambit of cl. (2) of the Article. That is how the State
Act had over- riding effect.
The
consideration of the present question has to be within the ambit of cl. (1) as
the State law is the earlier legislation and the Parliamentary Act of 1988 came
later and it is contended that the State legislation has provisions repugnant
to provisions made in the 1988 Act. There can be no controversy that if there
is repugnancy, the Parliamen- tary legislation has to prevail and the law made
by the State Legislature to the extent of repugnancy becomes void.
In cl.
(1) of Art. 254 it has been clearly indicated that the competing legislations
must be in respect of one of the matters enumerated in the Concurrent List. The
seven- Judge Bench examining the vires of the Karnataka Act did hold that the
State Act was an Act for acquisition and came within Entry 42 of the Concurrent
List. That position is not disputed before us. There is unanimity at the Bar
that the Motor Vehicles Act is a legislation coming within Entry 35 of the
Concurrent List. Therefore, the Acquisition Act and the 1988 Act as such do not
relate to one common head of legislation enumerated in the Concurrent List and
the State Act and the Parliamentary statute deal with different mat- ters of legislation.
The
language of cl. (2) is also similar though applica- ble in a different
situation. Apparently in one sense both the clauses operate on a similar level
though in dissimilar context. In cl. (2) what is rele- 629 vant is the words:
'with respect to that matter'. A Consti- tution Bench of this court in
Zaverbhai Amaidas v. State of Bombay, [1955] 1 SCR 799 emphasised that aspect.
Venkatarama Ayyar, J. pointed out:
"The
important thing to consider with reference to this provision is whether the legislation
is 'in respect of the same matter'. If the later legislation deals not with the
matters which formed the subject of the earlier legisla- tion but with other
and distinct matters though of a cognate and allied character, then Art. 254(2)
will have no applica- tion." A lot of light relevant to the aspect under
considera- tion is available from another decision of a Constitution Bench of
this Court: (M. Karunanidhi v. Union of India, [1979] 3 SCR 254) Atp. 263 of
the Reports, it has been said:
"It
would be seen that so far as clause (1) of Article 54 is concerned it clearly
lays down that where there is a direct collision between a provision of a law
made by the State and that made by Parliament with respect of one of the
matters enumerated in the Concurrent List, then, subject to the provisions of
clause (2), the State law would be void to the extent of the repugnancy. This
naturally means that where both the State and Parliament occupy the field
contemplated by the Concurrent List then the Act passed by Parliament being
prior in point of time will prevail and consequently the State Act will have to
yield to the Central Act. In fact, the scheme of the Constitution is a
scientific and equitable distribution of legislative powers between Parlia-
ment and the State Legislatures. First, regarding the mat- ters contained in
List I, i.e., the Union List to the Sev- enth Schedule, Parliament alone is
empowered to legislate and the State Legislatures have no authority to make any
law in respect of the Entries contained in List I. Secondly, so far as the
Concurrent List is concerned. both Parliament and the State Legislatures are
entitled to legislate in regard to any of the Entries appearing therein, but
that is subject to the condition laid down by Article 254(1) discussed above.
Thirdly, so far as the matters in List II, i.e., the State List are concerned,
the State Legislatures alone are competent to legislate on them and only under
certain condi- tions Parliament can do so. It is, therefore, obvious that in such
matters repugnancy may result from the following circumstances:
630
1.
Where the provisions of a Central Act and a State Act in the Concurrent List
are full.v inconsistent (Emphasis added) and are absolutely irreconcilable, the
Central Act will prevail and the State Act will become void in view of the
repugnancy.
2.
Where, however, a law passed by the State comes into collision with a law
passed by Parliament on an Entry in the Concurrent List, the State Act shall
prevail to the extent of the repugnancy and the provisions of the Central Act
would become void provided the State Act has been passed in accordance with
clause (2) or Article 254.
3.
Where a law passed by the State Legislature while being substantially within
the scope of the entries in the State List entrenches upon any of the Entries
in the Central List the constitutionality of the law may be upheld by invoking
the doctrine of pith and substance if on an analysis of the provisions of the
Act it appears that by and large the law fails within the four corners of the
State List and en- trenchment, if any, is purely incidental or inconsequential.
4.
Where, however, a law made by the State Legislature on a subject covered by the
Concurrent List is inconsistent with and repugnant to a previous law made by
Parliament, then such a law can be protected by obtaining the assent of the
President under Article 254(2) of the Constitution. The result of obtaining the
assent of the President would be that so far as the State Act is concerned, it
will prevail in the State and overrule the provisions of the Central Act in its
applicability to the State only. Such a state of affairs will exist only until
Parliament may at any time make a law adding to, or amending, varying or
repealing the law made by the State Legislature under the provision to Article
254." In Deep Chand v. State of Uttar Pradesh, supra, this court had pointed out that repugnancy between
two statutes would arise if there was direct conflict between the two
provisions and if the law made by Parliament and the law made by the State
Legislature occupied the same field.
It has
already been stated that the State Act intended to eli- 631 minate private
operators from the State in regard to con- tract carriages acquired under the
existing permits, vehi- cles and ancillary property and with a view to giving
effect to a monopoly situation for the State undertaking made provision in s.
20 for excluding the private operators. The 1988 Act does not purport to make
any provision in regard to acquisition of contract carriage permits which
formed the dominant theme or the core of the State Act. Nor does it in s. 73 or
s. 74 indicate as to who the applicant shall be while laying down how an
application for a contract carriage permit shall be made and how such a permit
shall be granted.
Section
80 of the 1988 Act does contain a liberalised provi- sion in the matter of
grant of permits but here again it has to be pointed out that the ancillary
provision contained in s. 20 of the Acquisition Act to effectuate acquisition
does not directly run counter to the 1988 provision.
Section
20 of the State Act creates a monopoly situation in favour of the State
undertaking qua contract carriages by keeping all private operators out of the
filed. Since ss. 73, 74 and 80 of the 1988 Act do not contain any provision
relating to who the applicants for contract carriages can or should be, and
those sections can be applied without any difficulty to the applications of the
State undertaking, and there does not appear to be any repugnancy between the
two Acts for invoking Art. 254 of the Constitution. A provision in the State
Act excluding a particular class of people for operating contract carriages or
laying down qualifications for them would not run counter to the relevant provisions
of the 1988 Act.
A
number of precedents have been cited at the hearing and those have been
examined and even some which were not referred to at the bar. There is no clear
authority in support of the stand of the petitioners--where the State law is under
one head of legislation in the Concurrent List; the subsequent Parliamentary
legislation is under another head of legislation in the same List and in the
working of the two it is said to give rise to a question of repugnancy.
The
State Act had done away with the private operators qua contract carriages
within the State. It is true that the 1988 Act is applicable to the whole of India and, therefore, is also applicable
to the State of Karnataka in the absence of exclusion of the
State of Karnataka from its operation.
But as
has been pointed out already, there is no direct inconsistency between the two
and on the facts placed in the case there is no necessary invitation to the
application of cl. (1) of Art. 254 of the Constitution.
632
The writ petitions fail and are dismissed.
SAWANT,
J. This group of petitions raises a common question of law viz. whether the
Motor Vehicles Act, 1988 (hereinafter referred to as the MV Act 1988) has
impliedly repealed the Karnataka Contract Carriages (Acquisition) Act, 1976
(hereinafter referred to as the Karnataka Act).
2. The
petitioners claim a declaration that the provisions of Sec. 14 and 20 of the
Karnataka Act are invalid because of their repugnancy with the provisions of
the MV Act, 1988, and a direction to respondent nos. 2 and 3, namely the
Karnataka State Transport Authority and the Karnataka Re- gional Transport
Authority respectively, to consider their applications for the grant of
contract carriage permits under Sec. 74 and 80 of the MV Act, 1988, without
reference to the provisions of the Karnataka Act. The precise question that
falls for consideration, therefore, is whether there is a repugnancy between
the two legislations.
3. The
Karnataka Act, as its title shows, was enacted to provide for the acquisition
of contract carriages and for matters incidental, ancillary and subservient
thereto. It was enacted under Entry 42 of the Concurrent List read with Article
31 of the Constitution, in furtherance of Article 39(b) and (c) thereof. This
is evident from the preamble, and Section 2 of the Act. The preamble states
that since the contract carriages and certain other categories of public
service vehicles were being operated in the State in a manner highly
detrimental and prejudicial to public inter- est, it was necessary to prevent
the misuse, and to provide better facility for the transport of the passengers
by road.
It was
also necessary to give effect to the policy of the State towards securing that
the ownership and control of the material resources of the community were so
distributed as best to subserve the common good and that the operation of the
economic system did not result in the concentration of wealth and means of
production to the common detriment. To effectuate the said intention it was
considered necessary to enact the legislation. Section 2 of the Act makes a
declara- tion in the following words:
"It
is hereby declared that this Act is for giving effect to the policy of the
State towards securing the principles specified in Clauses (b) and (c) of
Article 39 of the Con- stitution of India and the acquisition therefor of the
contract carriages and other property referred to in Section 4." 633 Under
Section 4 of the Act every contract carriage owned or operated by contract
carriage operator along with the permit or the certificate of registration or
both as the case may be, vested in the State Government absolutely and free
from all encumbrances. Further, a11 rights, title and interest of the contract
carriage operators in the lands, buildings, workshops and other places and all
stores, in- struments, machinery, tools, plants, apparatus and other equipments
used for the maintenance, repair of, or otherwise in connection with the
service of the contract carriage as the State Government may specify in that
behalf and all books of accounts, registers, records and all other docu- ments
of whatever nature relating to the contract carriages vested in the State
Government absolutely and free from all encumbrances, and all the said property
was deemed to have been acquired for public purpose. Section 6 provided for
payment of compensation for the acquisition of all the said property.
Since
the avowed object of the Act was two fold, namely (i) to prevent the misuse of
the operation of the contract carriages and to provide better facilities for
the transport of passengers, and (ii) to give effect to the policy under- lying
Clauses (b) and (c) of Article 39 of the Constitution, it was also necessary to
prevent the issue of fresh permits or renewal of the existing permits for
running the contract carriages in the State to any private individual. Hence,
Section 14 provided for a prohibition of the issue of fresh permit or renewal
of the existing permit to any individual or the transfer of such permit to
anyone except to the State Government or the Corporation which it may establish
under the Karnataka State Road Transport Corporation Act, 1950. To make an
alternative arrangement for running the contract carriages and to prevent both
the misuse of the permits as well as concentration of wealth in the hands of a
few indi- viduals, Section 20 of the Act provided that all contract
carriage-permits granted or renewed till then would stand cancelled and the
Corporation alone would be entitled to the grant or renewal of the said permits
to the exclusion of all other persons, and that applications from persons other
than the Corporation for the grant of such permit shall not be entertained.
In
State of Karntaka & Anr. etc. v. Shri Ranganatha
Reddy & Anr. etc., [1978] 1 SCR 641 this Court upheld the validity of the
said Act holding, among other things, that the Act was for acquisition of
property and was in the public interest and for a public purpose. The Act,
according to the Court, had nationalised the contract transport serv- ice in
the State and that was also for a public purpose as declared in the Act. It was
also observed that if Articles 38 and 39 are to be given 634 effect to, then
the State has progressively to assume the predominant and direct responsibility
for setting up new industrial undertakings which would also include development
of transport facilities. The State has also to become agency for planned
national development, and the socialistic pat- tern of society as the national
objective required that public utility services should be in the public sector.
The acquisition of road transport undertaking by the State, therefore,
undoubtedly served the public purpose.
4. It
is thus clear from the provisions of the Karnataka Act that the whole object of
the Act is to nationalise the contract carriage service in the State with a
view to put an end to the abuse of the contract carriage services by the
private operators and to provide better transport facilities to the public, and
also to prevent concentration of the wealth in the hands of the few and to
utilise the resources of the country to subserve the interests of all. To
secure the objective of the Act, it was also necessary to prohibit the grant of
the contract carriage permits to private indi- viduals and to reserve them
exclusively to the State Under- taking which was done by Sections 14 and 20 of
the Act.
Unlike
the MV Act 1988, which is admittedly enacted by the Parliament under Entry 35
of the Concurrent List, to regu- late the operation of the motor vehicles, the
object of the Karnataka Act is not only the regulation of the operation of the
motor vehicles. Nor is its object merely to prevent the private owners from
operating their vehicles with the exclu- sive privilege of such operation being
reserved in favour of the State or the State Undertaking. For if that were the
only object, the same could have been achieved by the Trans- port Undertakings
of the State following the special provi- sions relating to State Transport
Undertakings in Chapter IV-A of the Motor Vehicles Act, 1939 which was in
operation when the Karnataka Act was brought into force. The very fact that
instead, the State undertook the exercise of enacting the Karnataka Act shows
that the object of the State Legis- lature in enacting it was materially
different. This is also obvious from the various provisions of the enactment
pointed out above.
5. It
is for this reason that the contention advanced by the petitioners that the
object of the Karnataka Act and that of the MV Act, 1988 is the same and that
both of them occupy the same field, cannot be accepted. A comparison of the
provisions of the MV Act, 1939 (Old Act) and MV Act, 1988 (New Act) further
shows that the latter has merely replaced the former. All that it has done is
to update, simplify and rationalize the law on the subject. For this purpose it
has made important provisions in the following matters, namely:
635
"(a) rationalisation of certain definitions with additions of certain new
definitions of new types of vehicles;
(b)
Stricter procedures relating to grant of driving li- cences and the period of
validity thereof;
(c) laying
down of standards for the components and parts of motor vehicles;
(d) standards
for anti-pollution control devices;
(e) provision
for issuing fitness certificates or vehicles also by the authorised testing
stations;
(f) enabling
provision for updating the system of registra- tion marks;
(g) liberalised
schemes for grant of stage carriage permits on non-nationalised routes, all
India Tourist permits and also national permits for goods carriages;
(h),
(i), (j), (k), (l) ..........
6. The
special provisions relating to the State Trans- port Undertakings which are
contained in Chapter VI of the new Act are pari materia with those of Chapter
IV-A of the old Act, with only this difference that whereas under the old Act
it was the State Transport Undertaking which had to prepare a scheme for
running and operating the transport service by it in relation to any area or
route or portion thereof exclusively, under the new Act such a scheme has to be
prepared by the State Government itself. There is no difference in the legal
consequences of the schemes under the two enactments. Both envisage the
operation of the services by the State Transport Undertaking to the exclusion
of the rest, and cancellation of the existing permits and compensation only for
the deprivation of the balance of the period of the permit. No acquisition of
the vehicles or the paraphernalia connected with such vehicles is envisaged as
is the case under the Karnataka Act.
It is
also not correct to say that the new Act, i.e. MV Act 1988 incorporates a
special policy of liberalisation for private sector operations in the transport
field. We see no such provision in the Act nor was any pointed out to us. The
provisions with regard to the grant of 636 permits under both the old and the
new Act are the same. In any case there is no provision for liberalisation of
the grant of contract carriage permits in favour of the private individuals or
institutions so as to come in conflict with the Karnataka Act.
7.
Thus the Karnataka Act and the MV Act, 1988 deal with two different subject
matters. As stated earlier the Karna- taka Act is enacted by the State
Legislature for acquisition of contract carriages under entry 42 of the
Concurrent list read with Article 31 of the Constitution to give effect to the
provisions of Articles 39(b) and (c) thereof. The MV Act 1988 on the other hand
is enacted by the Parliament under entry 35 of the Concurrent list to regulate
the operation of the motor vehicles. The objects and the subject matters of the
two enactments are materially different. Hence the provisions of Article 254 do
not come into play in the present case and hence there is no question of
repugnancy between the two legislations.
8.
Shri Nariman, the learned counsel for the petitioners however, contended that
the provisions of Section 14 and 20 of the Karnataka Act were in direct
conflict with the provi- sions of Sections 74 and 80(2) of the MV Act 1988.
According to him while the Regional Transport Authority (RTA) is enjoined by
the provisions of Section 74 read with Section 80(2) of the MV Act 1988,
ordinarily not to refuse to grant an application for permit of any kind, the
provisions of Section 14 and 20 of the Karnataka Act prohibit any person from
applying for, and any officer or authority from enter- taining or granting,
application for running any contract carriage in the State. Thus there is a
direct conflict between the two legislations, and since the MV Act 1988 is a
later legislation, operating in the same area, it should be deemed to have
impliedly repealed the provisions of Section 14 and 20 of the Karnataka Act,
even if the latter Act had received the assent of the President. This is so
because of the proviso to sub-clause (2) of Article 254 of the Consti- tution.
This
contention proceeds on the footing that the two legislations occupy the same
field. As has been pointed out earlier, the objects of the two legislations are
materially different. The provisions of Sections 51 and 57 of the old Act
further correspond to provisions of Sections 74 and 80 of the new Act. The
Karnataka Act had received the assent of the President inspite of the
provisions of Sections 51 and 57 of the old Act. The assent of the President,
further as stated by the respondents, was taken by way of abundant precaution,
although the subject matters of the two Acts were different. The provisions of
Sections 14 and 637 20 of the Karnataka Act were incidental and necessary to
carry out the main object of the said Act. Without the said provisions, the
object of the said Act would have been frustrated. In the case of State of
Karnataka & Anr. Etc. v..Ranganatha Reddy & Anr. Etc., (supra) while
repelling the contention that there was a legislation encroachment by the
Karnataka Act because it impinged on the subject of Inter- State Trade &
Commerce in the Union List as it provided also for acquisition of transport
carriages running on inter- state routes, this Court in para 32 of the Judgment
has observed as follows:
"
..... It (the Karnataka Act) is not an Act which deals with any Inter-State
Trade and Commerce. Even assuming for the sake of argument that carriage of
passengers from one state to the other is in one sense a part of the InterState
Trade and Commerce, the impugned Act is not one which seeks to legislate in
regard to the said topic. Primarily and almost wholly it is an Act to provide
for the acquisition of contract carriages, the Intra-State permits and the
other properties situated in the State of Karnataka. In pith and substance it is an Act of that kind. The incidental en-
croachment on the topic of inter-state trade and commerce, even assuming there
is some, cannot invalidate the Act. The MV Act 1939 was enacted under Entry 20
of List III of Sched- ule Seven of the Government of India Act 1935
corresponding to Entry 35 of List III of the Seventh Schedule to the
Constitution. The subject being in the Concurrent List and the Act having
received the assent of the President, even the repugnancy, if any between the
Act and the Motor Vehi- cles Act stands cured and cannot be a ground to
invalidate the Act. Entry 42 of List 111 deals with acquisition of property.
The State has enacted the Act mainly under this entry ...... " (emphasis
supplied) According to me these observations should put an end to any
controversy on the subject, namely, whether the two Legislations are enacted
under two different entries in the Concurrent List, and whether they occupy
different areas or not.
I am also
unable to appreciate the contention that the provisions of Sections 14 and 20
of the Karnataka Act are in conflict with the provisions of Sections 74 and 80
of the New MV Act 1988. Section 98 of the MV Act 1988 in terms clearly states
(as did Section 68B of the 638 MV Act 1939) that Chapter VI relating to the
special provi- sions about the State Transport Undertaking and the rules and
orders made thereunder, shall have effect notwithstand- ing anything
inconsistent therewith contained in Chapter V or in any other law for the time
being in force or in any instrument having effect by virtue of any such law.
Sections 74 and 80 relating to the grant of the contract carriage permit and
the procedure in applying for the grant of such permits respectively, are in
Chapter V. This means that when under Chapter VI, a scheme is prepared by the
State Govt.
entrusting
the contract carriage services in relation to any area or route or portion
thereof, to a State Transport Undertaking to the exclusion--complete or partial
of other persons, the provisions of Sections 74 and 80 would have no
application, and the private transport operators cannot apply for the grant of
contract carriage permits under Section 80 nor can such permits be granted by
the Transport Authority. In other words, the MV Act 1988 also makes a provision
for nationalisation of routes, and envisages a denial of permits to private
operators when routes are so nationalised. Hence it is not correct to say that
there is a conflict between the provisions of the two Acts.
9. It
was then contended that when there is a repugnancy between the legislations
under Article 254 of the Constitu- tion, the doctrine of pith and substance
does not apply, and even if some of the provisions of the impugned State legis-
lation are in conflict with some of the provisions of the Central legislation,
the conflicting provisions of the State legislation will be invalid. In support
of this contention, reliance was placed on two decisions one of the Federal
Court in the case of Meghraj & Ors. v. Allahrakhiya & Ors., 29 AIR 1942
FC 27 and the other of the Privy Council report- ed in AIR 34 1947 PC 722
confirming the former.
The
Federal Court in the above decision has observed that when a provincial Act is
objected to as contravening not Section 100 but Section 107(1) the Govt. of
India Act 1935 (corresponding to Article 254(1) of the Constitution) the
question of the pith and substance of the impugned Act does not arise. In that
case, the validity of the Punjab Restitution of Mortgage Lands Act was
challenged on the ground that some of its provisions were repugnant to certain
provisions of the Contract Act and of the Civil Procedure Code. The Court held
that there was no repugnancy between the legislations. But while holding so,
the Court made a one sentence observation as follows: "In the judgment of
the High Court there is some discussion of the question of the "pith and
substance" of the Act; but that question does not 639 arise as objection
is taken not under Section 100 of the Constitution act but Sec. 107."
There is no discussion on the point. The arguments, if any advanced on the
question are neither reproduced nor dealt with. The observation further was not
necessary for the decision in that case, since as is pointed out above, the
Court had held that there was no repugnancy between the two statutes since they
cov- ered two different subject matters. Hence the issue as to whether the
impugned Punjab Restitution of Mortgage Lands Act was valid because the pith
and substance of the Act covered an area different from the one covered by the
Con- tract Act and the Civil Procedure Code, did not fall for consideration
before the Court. What is more, when the matter went in appeal before the Privy
Council, the said point was not even remotely referred to and I find no obser-
vation in the judgment either confirming, or dissenting from the said
observations. This being the case the said observa- tions cannot be regarded as
more than general in nature.
They
are not even an obiter-dicta much less are they the ratio decidendi of the case
Hence the said observations do not have a binding effect.
Even
otherwise, I am of the view that not to apply the theory of pith and substance
when the repugnancy between the two statutes is to be considered under Article
254 of the Constitution, would be illogical when the same doctrine is applied
while considering whether there is an encroachment by the Union or the State
legislature or a subject exclu- sively reserved for the other. When the
legislative en- croachment is under consideration the doctrine of pith and
substance comes to the aid to validate a legislation which would otherwise be
invalid for the very want of legislative competence. When the repugnancy
between the two legislations is under consideration, what is in issue is
whether the provision of the State enactment though otherwise constitu-
tionally valid, has lost its validity because the Parliament has made a
legislation with a conflicting provision on allegedly the same matter. If it is
open to resolve the conflict between two entries in different Lists, viz. the
Union and the State List by examining the dominant purpose and therefore the
pith and substance of the two legisla- tions, there is no reason why the
repugnancy between the provisions of the two legislations under different
entries in the same List, viz. the Concurrent List should not be resolved by
scrutinizing the same by the same touchstone.
What
is to be ascertained in each case is whether the legis- lations are on the same
subject matter or not. In both cases the cause of conflict is the apparent
identity of the sub- ject matter. The tests for resolving it therefore cannot
be different.
640
10. I
may in this Connection refer to some of the au- thorities relied upon by the
parties. In Municipal Council Palai v.T.J. Joseph & Ors., [1964] 2 SCR 87
this Court had to consider the repugnancy between the presolution passed by the
appellant Municipal Council in exercise of the powers vested in it under
Section 286 and 287 of the Travancore District Municipalities Act 1941, and the
provisions of Section 42 of the Travancore-Cochin Motor Vehicles Act 1950 which
came into force on January 5, 1950, providing for the use of a public bus stand
constructed for Stage Carriage buses starting from and returning to the
Municipal limits or passing through its limits.
The
respondent operators challenged the resolution of the Council by contending
that the provisions of Sections 286 and 287 of the Municipalities Act stood
repealed by implication by virtue of the provisions of Section 42 of
Travancore-Cochin Motor Vehicles Act, 1950. That Section read as follows:
"Government
or any authority authorised in this behalf by Government may, in consultation
with the local authority having jurisdiction in the area concerned, determine
places at which motor vehicles may stand either indefinitely or for a specified
period of time, and may determine the places at which public service vehicles
may stop for a longer time than is necessary for the taking up and setting down
of passengers. ' ' The High Court accepted the contention of the respondents
and allowed the Writ Petition. In appeal against the said decision, this Court
discussed the law relating to the repugnancy between two legislations by
referring to various decided cases foreign as well as Indian. The Court pointed
out that in Daw v. The Metropolitan Board of Works, [1862] 142 ER 1104 after
stating the general principles of con- struction, the Court there had said that
when the legisla- tion was found dealing with the same subject matter in two
Acts, so far as the later statute derogates from and is inconsistent with the
earlier one, the legislature must be held to have intended to deal in the later
statute with the same subject matter which was within the ambit of the earli-
er one. This Court further observed that in that case the English Court was concerned with the statutes
which covered more or less the same subject matter and had the same object to
serve. That decision further had kept open the question whether the powers
conferred upon one authority by an earli- er Act, could continue to be
exercised by that authority after the enactment of a provision in a subsequent
law which 641 conferred wide powers on another authority which would include
some of the powers conferred by the earlier statute till the new authority
chose to exercise the powers con- ferred upon it. Referring to the case of The
Great Central Gas Consumers Co. v. Clarke, [1863] 143 ER 331 the Court observed
that the foundation of that decision was that the later statute was a general
one whereas the previous one was a special one and, therefore, the special
statute had to give way to the later general statute.
Referring
to the case of Goodwin v. Phillips, [1908] 7 CLR 16 the Court observed that the
doctrine of implied repeal was well recognised, and that repeal by implication
was a convenient form of legislation and that by using this device, the
legislature must be presumed to intend to achieve a consistent body of law. The
Court then went on to say that it is undoubtedly true that the legislature can
exercise the powers of repeal by implication, but it is an equally well-settled
principle of law that there is a pre- sumption against an implied repeal. Upon
the assumption that the legislature enacts laws with a complete knowledge of
all existing laws pertaining to the same subject, the failure to acid a
repealing clause indicates that the intent was not to repeal existing
legislation. This presumption is rebutted if the provisions of the new Act are
so inconsistent with the old ones that the two cannot stand together. Then the
Court referred to the following observations from page 631, para 311 of
Crawford on Statutory Construction:
"There
must be what is often called 'such a positive repug- nancy between the two provisions of the
old and the new statutes that they cannot be reconciled and made to stand
together'. In other words they must be absolutely repugnant or irreconcilable.
Otherwise, there can be no implied repeal ..... for the intent of the
legislature to repeal the old enactment is utterly lacking." The Court
then referred to the observations made in Crosby v. Patch, 18 Calif. 438 quoted by Crawford
"Statutory Con- struction" p. 633 to point out the reasons of the
rule that an implied repeal will take place in the event of clear inconsistency
or repugnancy. The said observations are as follows:
"As
laws are presumed to be passed with deliberation, and with full knowledge of
all existing ones on the same sub- ject, it is but reasonable to conclude that
the Legislature, in 642 passing a statute, did not intend to interfere with or
abrogate any former law relating to the same matter, unless the repugnancy
between the two is irreconcilable. Bowen v. Lease, 5 Hill 226. It is a rule,
says Sedgwick, that a general statute without negative words will not repeal
the particular provisions of a former one, unless the two acts are
irreconcilably inconsistent. 'The reason and philosophy of the rule', says the
author, 'is, that when the mind of the legislator has been turned to the
details of a subject, and he has acted upon it, a subsequent statute in general
terms, or teating the subject in a general manner, and not expressly
contradicting the orginal act, shall not be con- sidered as intended to affect
the more particular or posi- tive previous provisions, unless it is absolutely
necessary to give the latter act such a construction, in order that its words
shall have any meaning at all." The Court then pointed out that for
implying a repeal the next thing to be considered is whether the two statutes
relate to the same subject matter and have the same purpose.
The
Court in this connection quoted the following passage at page 634 from
Crawford:
"And,
as we have already suggested, it is essential that the new statute covers the
entire subject matter of the old;
otherwise
there is no indication of the intent of the legis- lature to abrogate the old
law. Consequently, the later enactment will be construed as a continuation of
the old one." (emphasis supplied) These observations are very material for
considering the question with which we are concerned in the present case,
namely whether the doctrine of pith and substance is ap- plicable while
examining the repugnancy of the two statutes.
The
Court then stated that the third question to be considered was whether the new
statute purports to replace the old one in its entirety or only partially, and
the Court observed that where replacement of an earlier statute is partial, a
question like the one, which the Court did not choose to answer in Daw's case
(supra) would arise for decision. The Court also stated that it has to be
remembered that at the basis of the doctrine of implied repeal is the
presumption that the legislature which must be deemed to know the existing law
did not intend to create any confusion in the law by retaining conflicting
provi- 643 sions on the statute book and, therefore, when the court applies
this doctrine, it does no more than give effect to the intention of the
legislature ascertained by it in the usual way, i.e., by examining the scope
and the object of the two enactments, the earlier and the later.
The
Court then referred to its earlier decision in Deep Chand v. State of U.P.
& Ors., [1959] 2 SCR 8 and pointed out that in that case the following
principles were laid down to ascertain whether there is repugnancy or not:
1.
Whether there is direct conflict between the two provi- sions;
2.
Whether the legislature intended to lay down an exhaus- tive code in respect of
the subject matter replacing the earlier law;
3.
Whether the two laws occupy the same field.
The
Court then referred to Sutherland on Statutory Construc- tion (Vol. 13rd Edn.
p. 486) on the question of "repeal of special and local statutes by
general statutes". The para- graph reads as follows:
"The
enactment of a general law broad enough in its scope and application to cover
the field of operation of a special or local statute will generally not repeal
a statute which limits its operation to a particular phase of the subject
covered by the general law, or to a particular locality within the
jurisdictional scope of the general statute. An implied repeal of prior
statutes will be restricted to statutes of the same general nature since the
legislature is presumed to have known of the existence of prior special or
particular legislation, and to have contemplated only a general treatment of
the subject-matter by the general enactment. Therefore, where the later general
statute does not propose an irreconcilable conflict, the prior special statute
will be construed as remaining in effect as a quali- fication of or exception
to the general law." The Court, however, hastened to add that there is no
rule of law to prevent repeal of special and local statute by a later general
statute and therefore, where the provisions of the special statute are wholly
repugnant to the general statute, it would be possible to infer that the
special statute was repealed by the general enactment. However, the Court
observed that where it is doubtful whether the special statute 644 was intended
to be repealed by the general statute, the Court should try to give effect to
both the enactments as far as possible, since the general statute applies to
a11 persons and localities within its jurisdiction and scope as distinguished
from the special one which in its operation is confined to a particular
locality. Where the repealing effect of a statute is doubtful, the statute is
to be strictly construed to effectuate its consistent operation with previous legislation
as observed by Sutherland on Statutory Construction. The Court also approved of
the observations of Suleman J., in Shyamakant Lal v. Rambhajan Singh, [1939]
FCR 193 that repugnancy must exist in fact, and not depend merely on a
possibility. After discussing the principles of repugnancy as above, the Court
answered the question that fell for consideration before it in favour of the
Municipal Council by observing as follows:
"It
seems to us however, clear that bearing in mind the fact that the provisions of
s. 72 of the Travancore Cochin Motor Vehicles Act were intended to apply to a
much wider area than those of ss. 286 and 287 of the Travancore District
Municipalities Act it cannot be said that s. 72 was intended to replace those
provisions of the Travancore Distt. Municipalities Act. The proper way of
construing the two sets of provisions would be to regard s. 72 of the
Travancore-Cochin Motor Vehicles Act as a provision inconti- nuity with ss. 286
and 287 of the Travancore District Munic- ipalities Act so that it could be
availed of by the appro- priate authority as and when it chose. In other words
the intention of the legislature appears to be to allow the two sets of
provisions to co-exist because both are enabling ones. Where such is the position,
we cannot imply repeal.
The
result of this undoubtedly would be that a provision which is added
subsequently, that is, which represents the latest will of the legislature will
have an overriding effect on the earlier provision in the sense that despite
the' fact that some action has been taken by the Municipal Council by resorting
to the earlier provision the appropri- ate authority may nevertheless take
action under s. 72 of the Travancore Cochin Motor Vehicles Act, the result of
which would be to override the action taken by the Municipal Council under s.
287 of the District Municipalities Act. No action under section 72 has so far
been taken by the Govern- ment and, therefore, the resolutions of the Municipal
Coun- cil still hold good. Upon this view it is not necessary to consider
certain other points raised by learned counsel." 645 It would thus appear
from this decision that the Court held there that the allegedly conflicting
provisions of Travancore Cochin Motor Vehicles Act were intended to apply to
much wider area than the relevant provisions of the Distt. Municipalities Act
and, therefore, it could not be said that the provisions of the Motor Vehicles
Act were intended to replace the provisions of Municipalities Act.
The
Court also held that the proper way of construing the two sets of provisions
would be to regard the conflicting provisions of the Motor Vehicles Act as
provisions in conti- nuity with the relevant provisions of the Municipalities
Act so that it could be availed of by the appropriate authority as and when it
chose. The Court, therefore, read into the relevant provisions, the intention
of the legislature to allow the two sets of provisions to co-exist because both
were enabling ones, and in such circumstances no repeal could be implied. The
Court also rested the said decision by relying on the fact that since no action
was taken by the Government under the relevant provisions of the Motor Vehi-
cles Act, till such time as the action was taken under the said provisions, the
Municipal Council could act under the provisions of the Municipalities Act.
What
is important from our point of view, is the view taken in that case that when
repugnancy is alleged between the two statutes, it is necessary to examine
whether the two laws occupy the same field, whether the new or the later
statute covers the entire subject matter of the old, whether legislature
intended to lay down an exhaustive code in respect of the subject matter
covered by the earlier law so as to replace it in its entirety and whether the
earlier special statute can be construed as remaining in effect as a
qualification of or exception to the later general law, since the new statute
is enacted knowing fully well the existence of the earlier law and yet it has
not repealed it expressly. The decision further lays down that for examining
whether the two statutes cover the same subject matter, what is necessary to
examine is the scope and the object of the two enactments, and that has to be
done by ascertaining the intention in the usual way and what is meant by the
usual way is nothing more or less than the ascertainment of the dominant object
of the two legislations.
In
Ratan Lal Adukia v. Union of India, [1989] 3 SCR 537 the conflict was between
the provisions of Section 80 of the Railways Act 1890 as amended by the
Railways (Amendment) Act 1961 on the one hand and the provisions of Section 20
of the Code of Civil Procedure, 1908 and section 18 of the Presi- dency Small
Causes Courts Act 1882, on the other. Section 80 of the Railways Act before its
amendment had 646 provided that a suit for compensation for loss of life or
injury to a passenger or for loss, destruction and deterio- ration of animals
or goods, would lie where the passengers or the animals or goods were booked through
over the Rail- ways of two or more Railway Administrations, against the Railway
Administration from which the passengers and the goods were booked or against
the Railway Administration on whose railway the loss injury, destruction or
deterioration occurred. By the amendment of 1961, the aforesaid provisions of
Section 80 were changed and such a suit was made main- tainable--(a) if the
passenger or the animals or goods were booked from one station to another on
the railway of the same Railway Administration, against that Railway Adminis-
tration. (b) if they were booked through over the railway of two or more
Railway Administrations, against the Railway Administration from which they
were booked or against the Railway Administration on whose railway the destination
station lay or the loss etc. occurred. It was further pro- vided that in either
of these two cases the suit may be instituted in a court having jurisdiction
over the place at which the passenger or the goods were booked or the place of
destination or over the place in which the destination station lies or the loss
etc. occurred. Thus the changes brought about by the amendment were
significant. The old section did not deal with the liability of claims in
respect of goods etc. carried by single railway. It only concerned itself with
them when they were carried by more than one railway and provided that the suit
for loss of such goods could he brought against either the Railway
Administration with which the booking was made or against the Railway Administration
of the delivery station. The old section further did not speak of the places
where such suits could be laid. The choice of the forum was regulated by
section 20 of the Code of Civil Procedure or section 18 of the Presi- dency
Small Causes Courts, as the case may be. The amendment of the section however,
made a departure in this respect, namely, it also named the place where such
suits could be instituted and it is with this change the decision in ques- tion
was concerned. Confirming the High Court's view, the Court held that the new
Section 80 prevailed over the provi- sions of Section 20 of the Code of Civil
Procedure and of Section 18 of the Presidency Small Causes Courts Act. The
Court took the view that in view of the fact that the provi- sions of the new
Section 80 as well as the relevant provi- sions of the Code of Civil Procedure
and the Presidency Small Causes Courts Act dealt with the same subject matter,
namely, the forum for suits, and since the new Section 80 was a special
provision relating to special suits against the Railway Administration the
special provisions would prevail over the general provisions. The Court also
stated that Section 80, looking into its earlier history 647 and the other
changes which were brought in it, was a code in itself dealing with the
relevant subject matter, and therefore, it repealed the provisions of Section
20 of the Code of Civil Procedure and of Section 18 of the Presidency Small
Causes Courts Act by necessary implication. The Court also held that since the
provisions of the latter two gener- al statutes related to territorial
jurisdiction of courts and since the amendment to Section 80 also dealt with
the same subject, but in case of only suits for compensation against the
Railway, Section 80 being the special statute should be deemed to have
supplanted the general statutes like the Code of Civil Procedure and general
provisions of section 20 of the Code and Section 18 of the Presidency of Small
Causes Courts Act.
It
will thus be apparent that in that case the provi- sions which were in conflict
related to the same subject matter unlike in our case. The provisions with
regard to application and grant of permits in Sections 14 and 20 have nothing
in common with the provisions of Sections 74 and 80 of the Motor Vehicles Act
1988. The former provisions are ancillary to giving effect to the acquisition
and nationali- sation of the road transport within local territorial lim- its.
The later provisions are general in nature and in furtherence of the object of
the Act which is to regulate transport. The subject matters of both the
statutes and the object of the two sets of provisions are, therefore, materi-
ally different. In our case both the statutes can stand together. The
legislative intent is clear. Since, further, the Parliament had enacted the
later statute knowing fully well the existence of the earlier statute and yet
it did not expressly repeal it, it will be presumed that the Parliament felt
that there was no need to repeal the said statute.
In Ch.
Tika Ramji & Ors. etc. v. State of U.P. & Ors., [1956] SCR 393 what
fell for consideration was the alleged repugnancy between the U.P. Sugarcane
(Regulation of Supply and Purchase) Act 1953 and two Notifications issued by
the State Government under it on September 27, 1954 and November 9, 1955 on the
one hand, and Industries (Development & Regulation) Act 1951 and the
Essential Commodities Act 1955 and the Sugar Cane Control Order 1955 issued
under it on the other. The Court has stated there that no question of repug-
nancy under Article 254 of the Constitution can arise where Parliamentary
legislation and State legislation occupy different fields and deal with
separate and distinct matters even though of a cognate and allied nature, and
whereas in that case there was no inconsistency in the actual terms of the Act
enacted by Parliament and the State Legislature, the test of repugnancy would
be whether Parliamentary 648 and the State Legislature in legislating under an
Entry in the Concurrent List exercised their powers over the same subject
matter or whether the laws enacted by Parliament were intended to be exhaustive
so as to cover the entire field.
The
Court then referred to three tests of inconsistency or repugnancy listed by
Nicholas on p. 303 2nd Edn. of his Australian Constitution, namely,
(1) there
may be inconsist- ency in the actual terms of the competing statutes,
(2) though
there may be no direct conflict, a State law may be inoperative because the
Common Wealth Law, or the Award of Common Wealth Court is intended to be a
complete exhaustive code,
(3) even
in the absence of intention, the conflict may arise when both State and Common
Wealth Law seek to exercise their powers over the same subject matter. The
Court also quoted with approval, observations of the Calcutta High Court in
G.P. Stewart v.B.K. Roy Choudhary, AIR 1939 Cal.
628 on
the subject which are as follows:
"It
is sometimes said that two laws cannot be said to be properly repugnant unless
there is a direct conflict between them, as when one says "do" and
the other "don't", there is no true repugnancy according to this
view, if it is possible to obey both the laws. For reasons which we shall set
forth presently, we think that this is too narrow a test: there may well be
cases of repugnancy where both laws say "don't" but in different
ways. For example, one law may say, "No person shall sell liquor by
retail, that is, in quantities of less than five gallons at a time" and
another law may say, "No person shall sell liquor by retail, that is, in
quantities of less than ten gallons at a time". Here, it is obviously
possible to obey both laws, by obeying the more stringent of the two namely the
second one; yet it is equally obvious that the two laws are repugnant, for to
the extent to which a citizen is compelled to obey one of them, the other,
though not actually disobeyed, is nullified".
"The
principle deducible from the English cases, as from the Canadian cases, seems
therefore to be the same as that enunciated by Issacs, J.in the Australian 44
hours case (37 CLR 466) if the dominant law has expressly or impliedly evinced
its intention to cover the whole field, then a subordinate law in the same
field is repugnant and therefore inoperative. Whether and to what extent in a
649 given case, the dominant law evinces such an intention must necessarily
depend on the language of the particular law".
The
Court also approved the observations of Sulaiman, J. in Shyamakant Lal v.
Rarnbhajan Singh, (supra) on the subject which are as follows:
"When
the question is whether a Provincial legisla- tion is repugnant to an existing
Indian law, the onus of showing its repugnancy and the extent to which it is
repug- nant should be on the party attacking its validity. There ought to be a
presumption in favour of its validity, and every effort should be made to
reconcile them and construe both so as to avoid their being repugnant to each
other; and care should be taken to see whether the two do not really operate in
different fields without encroachment. Further, repugnancy must exist in fact,
and not depend merely on a possibility. Their Lordships can discover no
adequate grounds for holding that there exists repugnancy between the two laws
in districts of the Province of Ontario where the prohibitions of the Canadian Act are not and may
never be in force: (Attorney-General for Ontario v. Attorney-General for the
Dominion, [1896] AC 348).
11.
Referring to the case in hand; the Court then stated that there was no question
of any inconsistency in the actual terms of the two Acts. The only questions
that arose there were whether the Parliament and the State Legislature sought
to exercise their powers over the same subject matter or whether the laws
enacted by Parliament were intended to be a complete exhaustive code, or in
other words, expressly or impliedly evinced an intention to cover the whole
field.
The
Court then compared the provisions of Industries (Devel- opment and Regulation)
Act, 1951 as amended by Act XXVI of 1953, the Essential Commodities Act X of 1955
and the Sugar Control order 1955 issued thereunder with the U.P. Act and Order
of 1954 issued by the State Government thereunder. By comparing the impugned
State Act with the Central Act of 1951 as amended by the Act, 1953, the Court
held that the Central Act related to sugar as a finished product while the
State legislation covered the field of sugar cane. Thus the fields of operation
of the two legislations were different and hence there was no repugnancy
between the Central Act and the State Act. It was also further pointed out
there that even assuming that sugar cane 650 was an article or class of
articles relatable to the sugar industry within the meaning of Section 18(g) of
the Central Act, no order was issued by the Central Government in exer- cise of
the powers vested in it under that Section, and hence no question of repugnancy
could ever arise because repugnancy must exist in fact and not depend merely on
a possibility. The possibility of an Order under Section 18(g) being issued by
the Central Government would not be enough.
The
existence of such an Order would be the essential pre- requisite before any
repugnancy could ever arise.
12. As
far as the Essential Commodities Act, 1955 was concerned, the Court pointed out
that the Parliament was well within its powers in legislating in regard to
sugar cane, and the Central Government was also well within its powers in
issuing the Sugar Cane Control Order, 1955 because all that was in exercise of
the concurrent powers of legis- lation under Entry 33 of List 111. That,
however, did not affect the legislative competence of the U.P. State Legisla-
ture to enact the law in regard to sugar cane and the only question which had
to be considered was whether there was any repugnancy between the provisions of
the Essential Commodities Act and the State legislation in that behalf.
The
Court then pointed out that the State Government did not at all provide for the
fixation of minimum price for sugar cane. Neither had it provided for the
regulation of movement of sugar cane as was done by the Central Government in
Clauses (3) and (4) of the Sugar Cane Control Order 1955.
Likewise,
the provision contained in Section 17 of the State Act in regard to the payment
of sugar cane price (as fixed by the Central Govt.) and the recovery thereof as
if it was an arrear of land revenue, did not find its place in the Central
Government Sugar Cane Control Order 1955. The provi- sions in the two
legislations were, therefore, mutually exclusive and did not impinge upon each
other. By referring to the provisions of Central Government Sugar Cane Control
Order 1955 and the U.P. Govt. Sugar Cane (Regulation and Purchase) Order 1954
issued under the respective statutes, the Court pointed out that none of those
provisions also overlapped. The Centre was silent with regard to some of the
provisions which had been enacted by the State and the State was silent with
regard to some of the provisions which had been enacted by the Centre. There
was no repugnancy whatever between those provisions, and neither the State Act
nor the rules flamed thereunder as well as the State Government's Order issued
under it, trenched upon the field covered by the Essential Commodities Act. The
Court therefore held that since there was no repugnancy between the two, the
provi- sions of Article 254(2) of the Constitution did not come into play. The
Court then considered 651 whether the repealing Section 16 of the Essential
Commodi- ties Act and clause 7 of the Sugar Cane Control Order 1955 had
repealed the State Act to the extent mentioned therein.
Section
16(1)(b) provides as follows:
"16(1)
The following laws are hereby repealed-- (a) x x x x (b) any other law in force
in any State immediately before the commencement of this Act in so far as such
law controls or authorises the control of the production, supply and
distribution of, and trade and commerce in, any essential commodity".
The
contention was that the expression "any other law" covered the
impugned State Act which was in force in the State immediately before the
commencement of the Essential Commodities Act in so far as it controlled or
authorised the control of production, supply and distribution of and trade and
commerce in sugar cane (which was), an essential commod- ity under the Central
Act and Clause (7) of the Sugar Cane Control Order. The contention advanced on
behalf of the U.P.
State
was that under the proviso to Article 254(2), the power to repeal a law passed
by the State Legislature was incidental to enacting a law relating to the same
matter as is dealt with in the State legislation and that a statute which
merely repeals a law passed by the State Legislature without enacting
substantive provisions on the subject would not be within the proviso, as it
could not have been the intention of the Constitution that on a topic within
the concurrent sphere of the legislation, there should be a vaccum. The Court
observed that there was considerable force in the said contention and there was
much to be said for the view that a repeal simpliciter was not within the scope
of the proviso. The Court however, stated that it was not necessary to give its
decision on the said point as the petitioner in that case would fail on another
ground. The Court then observed that while the proviso to Article 254(2) does confer
on Parliament a power to repeal a law passed by the State Legislature, that
power is, under the terms of the proviso, subject to certain limitations. It is
limited to enacting a law with respect to the same matter adding to, amending,
varying or repealing a "law so made by the State Legislature". The
law referred to here is the law mentioned in the body of Article 254(2). It is
a law made by the State Legislature with reference to a matter in the
Concurrent List containing provisions repugnant to an earlier law made by 652
Parliament and with the consent of the President. It is only such a law that
could be altered, amended or repealed under the proviso. The impugned Act was
not a law relating to any matter, which is the subject of an earlier legislation
by Parliament. It was a substantive law covering a field not occupied by
Parliament, and no question of its containing any provisions inconsistent with
a law enacted by Parliament could therefore arise. To such a law, the proviso
had no application and Section 16(1)(b) of Act X of 1955 and clause 7(1) of the
Sugar Cane Control Order 1955 must, in this view, be held to be invalid. (Sic).
13.
The aforesaid review of the authorities makes it clear that whenever repugnancy
between the State and Central Legislation is alleged, what has to be first
examined is whether the two legislations cover or relate to the same subject
matter. The test for determining the same is the usual one, namely, to find out
the dominant intention of the two legislations. If the dominant intention, i.e.
the pith and substance of the two legislations is different, they cover
different subject matters. If the subject matters covered by the legislations
are thus different, then merely because the two legislations refer to some
allied or cognate subjects they do not cover the same field. The legislation,
to be on the same subject matter must further cover the entire field covered by
the other. A provision in one legis- lation to give effect to its dominant
purpose may inciden- tally be on the same subject as covered by the provision
of the other legislation. But such partial coverage of the same area in a
different context and to achieve a different purpose does not bring about the
repugnancy which is intend- ed to be covered by Article 254(2). Both the
legislations must be substantially on the same subject to attract the Article.
14. In
this view of the matter I am of the view that there is no repugnancy in the
provisions of Sections 14 and 20 of the Karnataka Act and Sections 74 and 80 of
the MV Act 1988. The petitions must therefore fail and are hereby dismissed
with costs.
ORDER
15. In
view of the decision of the majority the Writ Petitions stand dismissed and the
rule in each is discharged with costs.
K.
RAMASWAMY, J. 1. Despite my deep respect to my learned brother, I express my
inability to persuade myself to agree with the result proposed in the draft
judgments of my brothers.
653
The notoriety of open and uninhibited misuse of contract carriage as stage
carriages in picking up and setting down the passengers en route the route for
hire or reward sabo- taging the economic, efficient and co-ordinated transport
service by the respective State Transport Undertakings (for short, "the
S.T.U.") had been taken cognizance of by the Karnataka State Legislature.
It provided the remedy making the Karnataka Contract Carriages (Acquisition)
Act (21 of 1976), for short, "the Acquisition Act" by taking aid of
the Entry 42, List III (Concurrent List) of the Seventh Schedule to the Constitution
and Articles 31, 39(b) and (c) of the Constitution. It was reserved for
consideration and has received the assent of the President on March 11, 1976. It came into force with effect
from March 12, 1976. Section 3(g) of the Acquisition
Act defines "Contract Carriage" as one covered under s. 2(4) of the
Motor Vehicles Act (4 of 1939), for short, "the Repealed Act"
including public serv- ice vehicle defined under s. 63(6), etc. s. 3(a) defines
"acquired property"--means the vehicles and other immovable and
movable property vesting in the State Government under s. 4 thereof. The
Acquisition Act excluded tourist vehicles, motor cabs, etc. Section 4 declares
that on and from the notified date, every contract carriage along with permit
or certificate of registration or both, lands, buildings, workshop, etc. shall
stand vested in the State Government free from encumbrances. Section 6 provides
machinery to determine the amount for the vesting of the acquired proper- ty
under s. 4. Section 14 which is relevant for the purpose of this case read
thus:
"Fresh
permit or renewal of the existing permit barred- Except as otherwise provided
in this Act-- (1) No person shall on or after the commencement of this Act
apply for any permit or fresh permit or for renewal of an existing permit for
the running of any contract carriage in the State; and (2) every application
for the grant of a permit or fresh permit or for the renewal of the existing
permit and all appeals or revisions arising therefrom relating thereto made or
preferred before the commencement of this Act and pending in any Court or with
any Officer, Authority or Tribunal constituted under the Motor Vehicles Act
shall abate." A reading thereof manifests its unequivocal declaration that
on and 654 from the date of vesting viz., March 12, 1976, the statute prohibits
any person to apply for, any fresh permit or renewal of an existing permit to
run any contract carriage in that State and all applications, appeals or
revisions pending before the appropriate authority as on the notified date,
statutorily declared to have been abated. Section 20 declares by employing
non-obstenti clause in sub-s. (1) that notwithstanding anything in the repealed
Act with effect from March 12, 1976 all contract carriage permits granted or
renewed in respect of any vehicle other than a vehicle acquired under the
Acquisition Act, or belonging to the S.T.U., Karnataka; or referred to in s. 24
thereof shall stand canceled. Sub-s. (2) accords with mandatory language that
the S.T.U. "shall be entitled for or renewal of con- tract carriage
permits to the exclusion of all other per- sons" and sub-s. (3) prohibits
by employing a negative language that "no officer or authority shall
invite any application or entertain any such application of persons other than
the Corporation (S.T.U.) for grant of permit or the running of the contract
carriage." By conjoint operation of ss. 14 and 20, the right of any person
other than S.T.U., Karnataka to apply for and to obtain any permit or renewal
of an existing permit to run a motor vehicle as a contract carriage has been
frozen and issued statutory injunction restraining the authority concerned from
either inviting or entertaining any application from him for the grant or
renewal of contract carriage permit. Monopoly to obtain permit or renewal to
run contract carriage was conferred on S.T.U., Karnataka. The constitutional
validity of the Acqui- sition Act was upheld by this Court in State of Karnataka v. Ranganatha Reddy, [1978] 1 SCR
64 1. The contention that the Acquisition Act fails under Entry 42 of List I of
Seventh Schedule to the Constitution, viz., inter-state trade and commerce and
that therefore the State Legislature lacked competence to make the Acquisition
Act was negatived. It was held that in pith and substance, it is an act of
acquisition of the contract carriages falling in Entry 42 of List III.
It was
further held that the effect of operation of ss. 14 and 20 is incidental or
ancillary to the acquisition. Having received the assent of the President, it
is saved by Art. 254(2) of the Constitution. When an attempt to obtain renew-
al or fresh special permits to run contract carriages taking aid of s. 62(1) or
s. 63(6) respectively of the repealed Act 4 of 1939 was made on the ground that
the Acquisition Act had saved their operation, this Court in Secretary, R.T.A.,
Bangalore v. P.D. Sharma, AIR 1989 SC 509 held that by operation of ss. 14 and
20(3), a public service vehicle be it a contract carriage or stage carriage for
which temporary permits under ss. 62(1) and 63(6) were issued and were in force
on January 30, 1976 are not entitled to fresh permits and exclusive monopoly to
run contract carriages was given to S.T.U., Karnataka.
655
2. The
Motor Vehicles Act, 1988 (Act 59 of 1988), for short, "the Act", came
into force with effect from July 1, 1989.
Section 2(7) defines 'contract carriage'. Section 2(8) defines 'motor vehicle'
or 'vehicle' to mean any mechanical- ly propelled vehicle adapted for use upon
road whether the power of propulsion is transmitted thereto from an external or
internal source and includes a chasis to which a body has not been attached and
a trailer ..... Section 2(34) de- fines 'public place' to mean, a road, street,
way or other place whether a thoroughfare or not, to which the public have a
right of access and includes any place or stand at which passengers are picked
up or set down by a stage car- riage. Section 2(35) defines 'public service
vehicle' to mean, any motor vehicle used or adapted to be used for the carriage
of passengers for hire or reward, and includes a ..... , contract carriage and
stage carriage. Section 2(47) defines 'transport vehicle' to mean, a public
service vehicle ..... , or a private service vehicle. Chapter V deals with
Control of Transport Vehicles, s. 66 mandates an owner of a motor vehicle to
obtain permit to run it in accordance with the conditions of a permit thus:
"(1)
No owner of a motor vehicle shall use or permit the use of the vehicle as a
transport vehicle in any public place whether or not such vehicle is actually
carrying any passen- gers or goods save in accordance with the conditions of a
permit granted or countersigned by a Regional Transport Authority or any
prescribed authority authorising him the use of the vehicle in that place in
the manner in which the vehicle is being used." (Emphasis supplied) (The
provisos are not necessary for the purpose of this case. Hence omitted) Section
73 requires him to make an application for permit of a contract carriage with
particulars specified therein.
Section
74 deals with grant of contract carriage permit.
Sub-s.
(1) thereof provides that "subject to provisions of sub-s. (3), a Regional
Transport Authority may, on an appli- cation made to it under s. 73, grant a
contract carriage permit in accordance with the application or with such
modifications as it deems fit or refuse to grant such a permit, provided that
no such permit shall be granted in respect of any area not specified in the
application." Sub- s. (2) empowers the Regional Transport Authority to impose
any one or more conditions enumerated therein to be attached to the permit, the
details thereof are redundant. Sub-s. (3) empowers a State 656 Government, when
directed by the Central Government, to limit the number of contract carriages
generally or a speci- fied type as may be fixed in the notification published
in this behalf for their operation on the city routes. The details are also not
necessary for the purpose of this case.
Under
s. 80(1), an application for a permit of any kind may be made at any time. Sub-s.
(2) posits that "a Regional Transport Authority shah not ordinarily refuse
to grant an application for permit of any kind made at any time under this
Act." (Emphasis Supplied). The proviso are omitted as not being relevant.
The petitioners have applied under ss. 73, 74 and 80 of the Act for grant of
contract carriage permits. Placing reliance on ss. 14 and 20 of the Acquisi-
tion Act, the concerned authorities have refused to enter- tain their
applications. Calling them in question the above writ petitions have been filed
under Art. 32 of the Consti- tution.
3. The
contention of Sri Nariman, learned senior counsel for the petitioners, is that
the object of the Act is to liberalise grant of contract carriages which do not
ply on any particular routes. Contract carriage defined under s. 2(7) of the
Act is a public service vehicle within the meaning of s. 2(35) of the Act.
Section 66 obligates the owner to obtain permits to run contract carriages.
Section 14(1) read with s. 80(1) accords the right to the petition- ers to
apply for, and enjoins the authorities under s. 80(2) to consider and to grant
permits to run public service vehicles as contract carriages. Section 217(1)
repealed all the laws, save such of the laws which are not inconsistent with
the provisions of the Act. The operation of ss. 14 and 20 of the Acquisition
Act is inconsistent with ss. 74 and 80 of the Act. Grant of permit to run
contract carriage is covered by Entry 35 of List III of the Seventh Schedule.
Though,
the Acquisition Act was made under Entry 42 of List III and has received the
assent of the President, by opera- tion of s. 74 read with s. 80 and s. 2 17,
the operation of ss. 14 and 20 became void under proviso to Art. 254(2).
Sections
14 and 20 also stood repealed by implication. The authorities are, hereby,
enjoined to consider the petition- ers' applications for grant of contract
carriage permits as per the provisions of the Act and the relevant rules. Mr. Sanghi,
learned senior counsel for the S.T.U., Karnataka, contended that the
Acquisition Act was made in exercise of the power under Entry 42 of List III of
Seventh Schedule to the Constitution. Its constitutional validity was upheld by
this Court. It does not occupy the same field as under the Act. The Acquisition
Act, having been reserved for consider- ation under Art. 254(2) and has
received the assent of the President, it prevails over the Act in the State of Karnata- ka. The Acquisition Act is a
"special law" in juxtaposition to the general law under the 657 Act.
The argument of Mr. Sanghi, though apparently at first blush is alluring and
attractive, but on a deeper probe, I find insurmountable difficulties in his
way to give accept- ance to them. The main questions are whether ss. 14 and 20
of the Acquisition Act and ss. 73, 74 and 80 of the Act is "in respect of
the same matter" and whether the Act evinces its intention to occupy the
same field.
4. At
the cost of repetition, it may be stated that ss. 49 to 51 and the relevant
rules under the Repealed Act govern the grant of contract carriage permits and
in partic- ular the rigour imposed in s. 50 thereof is absent in the Act. The
Acquisition Act aimed to acquire the contract carriages. They stood vested in
the State Government under s. 4. Incidental and ancillary thereto, the
operation of the existing permits or seeking renewal thereof and the pendency
of the proceedings in that regard either by way of an appli- cation or in
appeal or in revision, having statutorily been declared under s. 14(2) to have
been abated, the right to obtain permits or special permits afresh or renewal
thereof to run contract carriages or stage carriages after expiry of the term,
has been frozen to all citizens. Exclusive monopo- ly to obtain permits or of
the renewal to run them has been given to the S.T.U., Karnataka. On and from March 12, 1976, s. 20(3) prohibits the authorities
concerned to invite or entertain an application or to grant or renew the
permits to a contract carriage or special permit, except to the S.T.U.,
Karnataka. The non-obstenti clause makes clear any cloud of doubts of the
applicability of the repealed Act 4 of 1939.
After
the receipt of the assent of the President, though it is inconsistent with the
Repealed Act, its operation is saved by Art. 254(2) of the Constitution.
Sections 73 and 74 read with s. 80 of the Act gives to an applicant the right
to apply for and to obtain, and obligates the Regional Transport Authority to
grant permit to run any public serv- ice vehicle as contract carriage
throughout the country including the State of Karnataka. Though, s. 80(1) gives
discretionary power to grant permit but sub-s. (2) of s. 80 manifests that
refusal to grant contract carriage permits appears to be an exception for
stated grounds and obviously for reasons to be recorded.
4A.
Constitutionalism is the alter to test on its anvil the constitutionality of a
statute and Art. 254 is the sole fountain source concerning a State law in the
Concurrent List. Article 254(1) deals with inconsistency of law made by
Parliament and the law made by the Legislature of a State.
Clause
(1) adumbrates that the existing law, if it is repug- nant with the law made by
the Parliament, subject to the provisions of cl. (2), the law made by the
Parliament wheth- er passed before or after the law made by the Legislature of
such state, or, as the case 658 may be, the existing law shall prevail and the
law made by the Legislature of the State shall, to the extent of repug- nancy,
be void. Clause (2) deals with the law made by the Legislature of a State with
respect to one of the matters enumerated in the Concurrent List contains any
provision repugnant to the provisions of an earlier law made by the Parliament
or an existing one "with respect to that matter", then the law so
made by the Legislature of such State shall, if it has been reserved for the
consideration of the Presi- dent and has received his assent, prevails in that
State;
provided
that nothing in this clause shall prevent Parlia- ment from enacting "at
any time any law with respect to the same matter' ', including a law adding to,
amending, varying or repealing the law so made by the Legislature of the State.
(Emphasis
supplied)
5. In
a federal system like ours, there are two streams of law, viz., Union and State. At times, the citizen sub- jected to both
of laws Central and State will find incon- sistency between the obligations
imposed on him by those laws or finds variance to avail both laws. In fact,
both the Union and State Legislatures are
competent to make laws on a subject enumerated in the Concurrent List. We are
not con- cerned in this case with regard to Union List or State List.
it is
quite possible that while legislating upon the sub- ject, they might end up in
handing down inconsistent law and the observance of one law may result is
non-observance of the other. The citizen will, in such a situation, be at a
loss to decide which of the two laws he should follow. To resolve the
inconsistency, in other words, to bring about operational uniformity
Constitution presses into Service Art. 254. Its forerunner is s. 107 of the
Government of India Act, 1935. Both the Parliament and a State Legislature
derive their power only under Art. 254 and Art. 246(2) to legislate
concurrently on the subjects enumerated in the Concurrent List. The enumeration
of the subjects in the Concurrent List is only for demarcation of legislative
heads or distribution of the subject/subjects over which the Parliament and the
State Legislature have competence to make law. However, paramouncy has been accorded
to the Union Law, making provision in Art. 254 firstly as to what would happen
in case of repugnancy between the Central and the State law in the concurrent
field and secondly resolving such a con- flict. The reason is that there are
certain matters which cannot be allocated exclusively either to the Parliament
or to a State Legislature and for which, though often it is desirable that the
State Legislature should make a provision in that regard. Local conditions
necessarily vary from State to State and the State Legislature ought to have
the power to adopt general legislation to meet the particular circum- stances
of a State. It is equally necessary that the 659 Parliament should also have
plenary jurisdiction to enable it in some cases to secure uniformity in the
main principles of law throughout the country or in other matters to guide and
encourage the States' efforts and to provide remedies for mischiefs arising in
the State sphere extending or liable to extent beyond the boundaries of a
single State.
The
subjects like the Indian Penal Code, Civil Procedure Code, Criminal Procedure
Code, Labour Laws, the Motor Vehi- cles Act, etc. occupy this area. The
essential condition for the application of Art. 254(1) is that the existing law
or a law made by the Parliament subsequent to State law, must be with respect
to one of the matters enumerated in the Concur- rent List. In other words,
unless it is shown that the repugnancy is between the provisions of a State law
and an existing or subsequent law or amended law etc. of the Par- liament in
respect of the same specified matter, Art. 254 would be inapplicable,
6. The
Court has to examine in each case whether both the legislations or the relevant
provisions therein occupy the same field with respect to one of the matters
enumerated in the Concurrent List and whether there exists repugnance between
the two laws. The emphasis laid by Art. 254 is "with respect to that
matter". Clause (1) of Art. 254 posits as a rule that in case of
repugnancy or inconsistency between the State law and the Union law relating to
the same matter in the Concurrent List occupying the same field, the Union law
shall prevail and the State law will fail to the extent of the repugnancy or
inconsistency whether the Union law is prior or later in point of time to the
State law. To this general rule, an exception has been engrafted in cl. (2)
thereof, viz., provided the State law is reserved for con- sideration of the
President and it has received his assent, and then it will prevail in that State
notwithstanding its repugnancy or inconsistency with the Union law. This excep-
tion again is to be read subject to the proviso to cl. (2) thereof, which
empowers the Parliament to make law afresh or repeal or amend, modify or vary
the repugnant State law which will become void even though it received
President's assent. In short, cl. (1) lays down a general rule; cl. (2) is an
exception to cl. (1) and proviso qualifies that excep- tion. The premise is
that the law made by the Parliament is paramount and Union and State law must relate to the same subject matter
in the Concurrent List. It is, thus, made clear that the Parliament can always,
whether prior or subsequent to State law, make a law occupied by the State law.
An absurd or an incongruous or irreconcilable result would emerge if two
inconsistent laws or particular provi- sions in a statute, each of equal
validity, could coexist and operate in the same territory.
660
7.
Repugnancy between the two pieces of legislation, generally speaking, means
that conflicting results are produced when both laws are applied to the same
set of facts. Repugnancy arises when the provisions of both laws are fully
inconsistent or are absolutely irreconcilable and that it is impossible to obey
without disobeying the other.
Repugnancy
would arise when conflicting results are produced when both the statutes
covering the same field are applied to a given set of facts. The Court should,
therefore, make every attempt to reconcile the provisions of the apparently
conflicting enactments, and would give harmoneous construc- tion. There is no
repugnancy unless the two Acts or provi- sions are wholly incompatible with
each other or the two would lead to absurd result. The purpose of determining
the inconsistency is to ascertain the intention of the Parlia- ment which would
be gathered from a consideration of the entire field occupied by the State
Legislature. The proper test is whether the effect can be given to the
provisions of both the laws or whether both the laws can stand together.
There
is no repugnaney if these two enactments relate to different fields or
different aspects operating in the same subject. In my considered views, Art.
254 was engrafted in the Constitution by the rounding fathers to obviate such
an absurd situation. The reason is obvious that there is no provision in the
Constitution that the law made by the Parliament is to be void by reason of its
inconsistency with the law made by the Legislature of a State. It may be dif-
ferent if the State law is only to supplement the law made by the Parliament.
If both the laws without trenching upon another's field or colliding with each
other harmoneously operate, the question of repugnancy does not arise. It is
also axiomatic that if no law made by Parliament occupies the field, the State
Legislature is always free to make law on any subject/subjects in the
Concurrent List III of the Seventh Schedule of the Constitution.
8. It
is seen that the Acquisition Act was made in exercise of the power under Entry
42 of the Concurrent List and ss. 14 and 20 thereof are integral part of the
Acquisi- tion Act. Undoubtedly, they are consequential or ancillary to s. 4
thereof. It had received the assent of the Presi- dent. But after the Act was
brought on statute, the question emerges whether there exists no repugnancy
between ss. 14(1) and 20(3) of the Acquisition Act in juxtaposition to ss.
66(1), 73, 74 and 80 of the Act. Before embarking upon an enquiry into the
results produced by these provisions in the light of above discussion, let us
consider the relevant decisions and the ratio laid down therein in this
context.
661
Occupied Field:
1n
Tika Ramji v. State of U.P., [1956] SCR 393. Bhag- wati, J.
speaking for the Constitution Bench, applied three tests propounded by Nicholas
in his Australian Constitution, Second Edition, page 303, to find the
inconsistency or repugnancy thus.
(1)
There may be inconsistency in the actual terms of competing statutes;
(2)
Though there may be no direct conflict, a State law may be inoperative because
the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete and` exhaustive Code; and
(3)
Even in the absence of intention, a conflict may arise when both State and
Commonwealth seek to exercise their power over the same subject matter.
(Emphasis sup- plied). The repugnancy between the two statutes should exist in
fact and not depend merely on a possibility. In that case, the question was
whether the U.P. Sugarcane (Regula- tion of Supply and Purchase) Act (Act 24 of
1953) is ultra vires of the U.P. Legislature in view of Art. 246 read with
Entry 52 of List I and Item 33 of List III of Seventh Sched- ule to the
Constitution. In that context, it was held that if both the Central Legislature
and the Provincial Legisla- tures were entitled to legislature in regard to
this subject of production, supply and distribution of sugarcane, there would
arise no question of legislative competence of the Provincial Legislature in
the matter of having enacted the impugned Act. Repugnancy falls to be
considered when the law made by the Parliament and the law made by the
Legislature occupy the same field, because if both these pieces of legislation
deal with separate and distinct matters, though of a cognate and allied
character, repugnancy does not arise. (Emphasis supplied) So far as our
Constitution is concerned, repugnancy is dealt with in Art. 254. On a com-
parison of various provisions of the State and Central laws, it was held that
there was no question of any inconsistency in the actual terms of the Act
enacted by the Parliament and the impugned Act and they did not occupy the same
field.
In
A.S. Krishna v. Madras State, [1957] SCR 399, the question was whether s. 4(2)
of the Madras Prohibition Act which lays down a presumptive evidence is
repugnant to the Central legislation, viz., Criminal Procedure Code. Dealing
with s. 107 of the Government of India Act, 1935 which is in pari material to
Art. 254 read with Schedule VII, List II, Items 2 and 31 and List III, Items 2
and 5 of Schedule VII to the Constitution, Venkatarama Ayyar, J. speaking for
the Constitution Bench, held that for applying s. 107 of the Government of
India Act 1935, two conditions must be ful- filled--the provisions of the
provincial law and those of the Central legislation must both be in 662 respect
of a matter which is enumerated in the Concurrent List; and they must be
repugnant to each other. It is only when both these requirements are satisfied
that the provi- sional law will to the extent of repugnancy becomes void.
Section
4(2) of the Prohibition Act was held to be void.
In
Prem Nath Kaul v. State of J & K, [1959] 2 Supp. SCR 273, another
Constitution Bench held that the essential condition for application of Art.
254(1) is that the exist- ing law must be with respect to one of the matters
enumerat- ed in the Concurrent List; in other words, unless it is shown that
the repugnancy is between the provisions of a subsequent law and those of an
existing law in respect of the specified matters, the Article would be
inapplicable. In Bar Council of U.P.v. State of U.P., [1973] 2 SCR 1073 the
question arose was whether the State Government is empowered to impose stamp
duty on the certificate of enrollment under s. 22 of the Advocates Act. In
considering schedule VII, List I, Entries 77, 78 and 96; List II, Entry 63 and
List III, Entries 44 and 26 and the relevant provisions of the Stamp Act and
its Schedules, this Court held that the ques- tion of repugnancy can only arise
in respect of matters where both the parliament and the State Legislature have
competence to pass laws. In other words, when the Legisla- tive power is
located in the Concurrent List, the question of repugnancy arises. In Deep
Chand v. State of U.P., [1959] Supp. 2 SCR 8 relied on by Sri Nariman, the
Uttar Pradesh legislature made U.P. Transport Service (Development) Act, which
had received the assent of the President, introduced a scheme of
nationalisation of the transport service. Subse- quently, Parliament has
amended Act IV of 1939 through Amendment Act 100 of 1956. By reason thereof, it
was con- tended that the U.P. Amendment Act became void by reason of Art. 254
of the Constitution. The matter was examined by the Constitution Bench of this
Court. Subba Rao, J. (as he then was) per majority, while considering the
question, laid three propositions to determine the repugnancy thus: (1) Whether
there is direct repugnancy between the two provi- sions; (2) Whether Parliament
intended to lay down an ex- haustive code in respect of the subject matter replacing
the Act of the State Legislature; and (3) Whether the law made by the
Parliament and the law made by the State Legislature occupy the same field.
After examining in detail the provi- sions of the respective Acts, it was held
that after the Central Amendment Act 100 of 1956, it prevailed over the U.P.
Act and prospectively became void as the Central Amend- ment Act occupied the
same field in respect of the same schemes initiated under the U.P. Amendment
Act and to that extent the State Act must yield its place to the Central Act.
663 In
State of Orissa v.M.A. Tulloch & Co., [1964] 4 SCR 461 another Constitution
Bench of this Court held that the inconsistency may be demonstrated not by a
detailed compari- son of provisions of the two statutes but by the mere exist-
ence of the two pieces of legislation. Meeting the argument as to on which
Entry in the list the subject falls, it was held thus:
"If
by reason of the declaration by Parliament the entire subject matter of
'conversation and development of minerals' has been taken over for being dealt
with by Parliament, thus depriving the State of the power which it therefore
pos- sessed, it would follow that the 'matter' in the State List is, to the
extent of the declaration, (substracted from the scope of the declaration) and
ambit of Entry 23 of the State List. There would, therefore after the Central
Act 67 of 1957, be no matter in the List to which the fee could be related in
order to render it valid." It was accordingly held that the Orissa Mining
Areas Devel- opment Fund Act (27 of' 1952) to be void. Of course, this was in
considering the question under Article 246, Entry 54 of List I, and Entry 23 of
List 11.
In
State of Assam v. Horizon Union, [1967] 1 SCR 484 the facts are that under the
Industrial Disputes Act 1947, Section 7-A(3)(a) provided that the appropriate
Government may by notification constitute an Industrial Tribunal con- sisting
of one person to be appointed by the appropriate Government. The person shall
not be qualified for appoint- ment as presiding officer of the Tribunal unless
he is or has been a Judge of a High Court or he has held the office of Chairman
or any other member of the Labour Appellate Tribunal constituted under the
Industrial Disputes (Appel- late Tribunal) Act, 1950, or of any Tribunal, for a
period of not less than two years. Assam Act 8 of 1962 made an amendment to the
above procedure and had received the assent of the President, introducing
clause (aa) to sub-section (3)(a) of Section 7-A thus:
"He
has worked as a District Judge or as an Additional District Judge or as both
for a total period of not less than three years or is qualified for appointment
as a Judge of a High Court; provided that the appointment to a Tribunal of any
person qualified under this clause shall not be made without consultation with
the Assam High Court." 664 In 1964, the Parliament made an amendment viz.
Industri- al Disputes (Amendment) Act (36 of 1964) amending Section 7-A(3)(a)
stating that "he has, for a period of not less than three years, been a
District Judge or an Additional District Judge." The contention raised was
that the Assam Act became void by reason of the subsequent Amendment Act of
1964. Both the Parliament and the State Legislature have exercised their power
under the Concurrent List of VII Schedule. Another Constitution Bench of this
Court has held that the Central Amendment Act 36 of 1964 intended to be an
exhaustive code in respect of the subject matter and occu- pies the same field.
Therefore, the Assam Act 8 of 1962 was repugnant to the Central Amendment Act
36 of 1964 as it does not require the consultation with the High Court for the
appointment of an Industrial Tribunal. Accordingly, it was held to be void.
In
State ofJ & K v.M.S. Farooqi, [1972] 3 SCR 881 the facts were that the
respondent was a member of the Indian Police Service governed by the All India
Services Act, 1951 and the All India Services (Discipline and Appeal) Rules,
1955. They provided an exhaustive procedure to enquire into the misconduct by a
member of the All India Services. The State Legislature, exercising the
concurrent power, made Jammu and Kashmir Government Servants' Prevention of
Corrup- tion (Commission) Act, 1962. The validity thereof was ques- tioned on
the anvil of Article 254 of the Constitution.
Dealing
with the subject, another Constitution Bench, speak- ing through Sikri, C.J.
held that the Commission Act empow- ers to conduct on enquiry into the charges
of corruption and misconduct against all Government Servants including the
members of All India Services. In addition to the recommen- dation for
imposition of punishment engrafted in sub-section (2) of Section 17 of the
Commission Act, it also disquali- fies for any public office to a specified
period and also recommendation for prosecution for an offence in a Court of
law. These details were not dealt with under the Central Act and the Rules.
From this conspectus, this Court further held thus:
"It
seems to us that in so far as the Commission Act deals with the infliction of
disciplinary punishments it is repug- nant to Discipline and Appeal Rules.
Parliament has occupied the field and given clear indication that this was the
only manner in which any disciplinary action should be taken against the
members of the All India Services 665 Accordingly it was held that the State
Act must be read down so as to leave the members of the All India Services
outside its purview. Thereby, by implication it was held that by operation of
Article 254 of the Constitution the Commission Act is repugnant to the All
India Services Act and Rules.
In
Kerala State Electricity Board v. Indian Aluminium Co., [1976] 1 SCR 552
another Constitution Bench of this Court held that:
"Having
discussed the question of the legislative field it might be necessary to discuss
the question as to what hap- pens if it should be held that the matter under
considera- tion in these cases falls within the concurrent list, that is, Entry
38 in List III as contended in the alternative by some of the respondents. As
already mentioned the question will arise only if it should be held that the
Kerala State Act falls under Entry 38 as contended by Mr. B. Sen. If the
impugned legislation falls under List III then the question of repugnancy of
that legislation with the existing law or the law made by Parliament as the
case may be, will have to be considered." In Basu's Commentary on the
Constitution of India (Silver Jubilee Edition), Volume K, at page 144, it is
stated that "the repugnancy to be found is the repugnancy in the actual
provisions of two laws and not the subject matter of the two laws. The proper
test is whether effect can be given to the provisions of both the laws or
whether both the laws can stand together." (Emphasis added). It is trite
law that the form of the provision does not conclude the matter.
It
must be the "same matter" under consideration.
Operational
Incompatibility:
9.
Repugnancy could also be angulated from the perspec- tive of operational
incompatibility as well. The celebrated decision in Clyde Engineering Co. v.
Cowburn, [1926] 37 CLR 466 popularly known as 44-hour case, is a leading
authority on this topic. The facts therein are that a Commonwealth Arbitration
award fixed rates of pay and overtime on the basis of 48-hour working week
while Forthfour Hours Week Act 1925 (NSW) S. 6 purported to deal with the same
matter on the basis of 44-hours working week. The respondent employee claimed
the State Act rate of pay but was denied on the basis of 48-hours working week.
When questioned, it was argued that there was no 666 inconsistency between the
award and the State Act because the employer, it was said, could obey both laws
by observing the 44-hours working week but on the basis that the pay scale
determined by the award applied to the 44-hours work- ing week. The High Court
of Australia relying on s. 109 of Australian Constitution rejected the argument
and found that an inconsistency existed, as the State law operated to vary the
adjustment of industrial relations established by the Commonwealth award. Knox,
C.J. held that two enactments may be inconsistent although obedience to each of
them may be possible without disobeying the other. Statute may do more than
impose duties; they may for instance confer rights; and one statute is
inconsistent with another when it takes away a right conferred by the other
even though the right may be one which might be waived or abandoned without
disobeying the statute which conferred it. Issacc, J. in his separate but
concurrent judgment held:
"The
vital question would be: was the second Act in its true construction intended
to cover the whole ground, and there- fore, to supersede the first? If it was
intended, then the inconsistency would consist in giving operative effect at
all to the first Act; because the second was intended en- tirely to exclude it.
The suggested test however useful a working guide it may be in some cases prove
a test; cannot be recognised as the standard measuring rod of inconsisten- cy.
If, however, a competent legislature expressly or im- pliedly evinces its
intention to cover the whole field, that is a conclusive test of inconsistency
where another legisla- ture assumes to enter to any extent upon the same field
......
If
such a position as I have postulated be in fact estab- lished the inconsistency
is demonstrated not by comparison of detailed provisions but by the existence
of the two sets of provisions; where that wholesale inconsistency does not
occur but the field in partly open, then it is necessary to enquire further and
possibly to examine and contrast partic- ular provisions. If one enactment
makes or acts upon as lawful that which the other makes unlawful or if one
enact- ment makes unlawful that which the other makes or acts upon as lawful,
the two or to that extent inconsistent. It is plain that it may be quite
possible to obey both simply by not doing what is declared by either to be
unlawful and yet there is palpably inconsistency. The basic reason is that the
667 Constitution clearly intended that once the Commonwealth settled an
interstate dispute, that settlement shall stand and that its terms should be
framed by the one hand, the other being necessarily excluded. Forty-four hours
shall constitute a week's work. No day's work to exceed either hours without
payment for overtime, etc." Higgins, J. has held that:
"When
is a law inconsistent with another law? Etimologically I presume that things
are inconsistent when they cannot stand together at the same time and law is
inconsistent with another when the command or power or provision in one law
conflicts directly with the command, power or other provi- sion of another.
Where two legislations operate over the same territory and came into collision,
it is necessary that one should prevail, but the necessity is confined to
actual collision as one legislature says 'do' and the other says 'do not'.
(Emphasis
supplied) In that case it was held that there is operational incompat- ibility
between the Commonwealth award and the State law.
The
State law was held to be void.
In
Hume v. Palmer, [1926] 38 CLR 441 both New South Wales Act and Commonwealth Act
authorised making of the Regulations dealing with collisions at sea. In both
cases regulations had been made. They were in identical terms except that in
relation to the jurisdiction to convict for breaches. The New South Wales regulations prescribed summary
prosecution and a maximum penalty of Pound 50 whereas the Commonwealth
regulations prescribed summary prosecution on indictment and a maximum penalty
Pound 100. It was held that the same facts produced different legal results
under the two Acts, the penalty under State law was held displaced.
In
R.v. Brisbane Licensing Court, [1920] 28 CLR 23 a section of the Commonwealth
Electoral Act provided that on a polling day fixed for a federal election, a referandum
or vote of the electors of a State or part thereof, should not be taken. A
local option poll had been taken on such a day under Queensland legislation. It was held that a
direct inconsistency existed, and that the local option poll was, therefore,
declared to be invalid. In Colvin v. Bradley Bros. Pvt. Ltd., [1943] 68 668 CLR
151 an order made pursuant to a section of New South Wales Factories and Shops
Act prohibiting the employment of women on a milling machine. An award had been
made by the Commonwealth
Arbitration Court
under the Conciliation and Arbitration Act which permitted the employment of
females on work, which included work on a milling machine, unless the work was
declared to be unsuitable for women by a Board of Reference. No such declaration
had been made by the Board.
it was
held that the order was inconsistent with the award by virtue of s. 109 in that
it directly prohibited something which the Commonwealth award permitted.
In In
Re Ex Parte Maclean, [1930] 43 CLR 472 at 483. Dixon J. held:
"When
the Parliament of the Commonwealth and the Parliament of a State each legislate
upon the same subject and pre- scribe what the rule of conduct should be, they
make laws which are inconsistent notwithstanding that the rule of conduct is identical,
which each prescribes, and s. 109 applies." It was further held that the
Federal statute had evinced an intention to cover the subject matter and
provide what the law upon it should be.
In
Wenn v. Attorney General (Victoria), [1948] 77 CLR 84 the Re-establishment and
Employment Act dealt with the obligations of employers' to give preference to
ex-service- men in employment (but included no provision as to the duty to give
preference in promotion to ex-servicemen already employed). The State Act dealt
not only with the same mat- ter, but also included a provision requiring
employers to give preference in promotion. It was held that Commonwealth
Legislation was an exhaustive code allowing no room for the operation of the
State legislation relating to matter not covered by the Commonwealth Act. The
Victorian Law giving preference in promotion was, therefore, held to have been
displaced.
In
O'Sullivan v. Noarlunga Meat Co. Ltd., [1954] 92 CLR 565 the facts are that the
South Australian Act prohibited laughter of stock for export without a State
licence while the Commonwealth Act prohibited export of meat from stock which
had not been slaughtered on premises registered under the regulations thereof.
In an evenly divided Court, the opinion of the Chief Justice had prevailed, it
was held that the Commonwealth regulations were detailed enough to show that
669 they covered the whole field of 'slaughter for export' and, therefore, the
State licensing requirement did not apply. On further appeal the Judicial Committee
in O. Sullivan v. Noarlunga Meat Co. Ltd., [1957] AC 1 at 28 added that
"in applying this principle it is important to bear in mind that the
relevant field or subject is that covered by the law said to be invalid." In
Australian Federal Constitutional Law by Collin Howard, Second Edition (1972). at
page 27, it was stated that where both a Commonwealth Law and a State law are
in terms applicable to a given set of facts, and they produce conflicting legal
results on those facts, the Commonwealth law applies and not the State law. In
Blackley v. Devondale Cream (Vie.) Pvt. Ltd., [1968] 117 CLR 253, a State wages
determination prescribed a minimum rate of pay for certain work which was also
covered by a Commonwealth award. The Commonwealth award prescribed a lower
minimum rate. It was held that there was a direct inconsistence because on the
same facts the two laws produced different entitlements. The award rate,
therefore, prevailed over the State's determina- tion.
10.
REPEAL BY IMPLICATION:
Sub-s.
(1) of s. 217 of the Act repeals thus:
"The
Motor Vehicles Act, 1939, and any law corresponding to that Act in force in any
State immediately before the com- mencement of this Act (hereafter in this
section referred to as the repeal enactments) are hereby repealed." (The
other sub-sections are not relevant. Hence omitted. ) (Emphasis supplied)
Thereby s.217(1) does not expressly repeal sections 14(1) and 20(3) of the
Acquisition Act. In Zaveribhai v. State of Bombay, [1955] 1 SCR 799 relied on
by Sri Nariman, the facts were that s. 7 of the Essential Supplies (Temporary
Powers) Act, 1949 provides penalty for contravention of orders issued under s.
3 for a term of three years or with fine or with both. The Bombay Legislature
amended the Act, by Act 52 of 1950. Section 2 of the Amendment Act provides
that '- notwithstanding anything contained in Essential Supplies (Temporary
Powers) Act, 1946, whoever contravenes an order made under Sec. 3 of the
Essential Supplies (Temporary Powers) Act, shall be punishable with
imprisonment for a term which may extend to seven years but shall not, 670
except for reasons to be recorded in writing, be less than six months and shall
also be liable to fine". Thus, the Bombay Act imposes minimum sentence
while indicating maximum sentence and obtained the assent of the President.
Later, the Central Act was amended in 1948, 1949 and 1950. In 1950 Act, Sec. 7
categorised three groups of offences covering the same field and imposd graded
sentences depending on the character of the offence and the nature of the
commodity contravened. The Bombay Act was challenged on the ground that it was
repugnant and was repealed by implication.
Venkatarama
Iyer, J. speaking for the Constitution Bench held that repugnancy might result
when both the legislations cover the same field. It was further held:
"The
important thing to consider with reference to this provision is whether the
legislation in 'in respect of the same matter.' If the later legislation deals
not with the matters which formed the subject of the earlier legislation but
with other and distinct matters though of a cognate and allied character, then
Art. 254(2) will have no application.
The
principle embodied in s. 107(2) and Art. 254(2) is that when there is
legislation covering the same ground both by the Centre and by the Province,
both of them being competent to enact the same, the law of the Centre should
prevail over that of the State." It was further held that though there is
no express repeal, even then the State law will be void under the proviso if it
conflicts with later law with respect to the same matter that may be enacted by
the Parliament. The principle on which the rule of implied repeal rests,
namely, that if the subject matter of later legislation is identical with that
of the earlier, so that they cannot both stand together then the earlier is
repealed by the later enactment, will be equally applicable to a question under
Art. 254(2) where the further legislation by Parliament is in respect of the
same matter as that of the State law. Accordingly, it was held that Sec. 2 of
the Bombay Act, No. 36 of 1947 cannot prevail as against Sec. 7 of the
Essential Supplies (Temporary Powers) Act as amended by Act 52 of 1950.
The
doctrine of repugnancy and implied repeal was again considered by this Court in
M. Karunanidhi v. Union of India, [1979] 3 SCR 254 where the Tamil Nadu Public
Men (Criminal Misconduct) Act (2 of 1974) was assailed to be repugnant to the
Indian Penal Code and the Prevention of Corruption Act 1947. In considering
that question, Fazal Ali, J. speaking for the Constitution Bench held:
671
"... So far as the Concurrent List is concerned, both Par- liament and the
State Legislatures are entitled to legislate in regard to any of the Entries
appearing therein, but that is subject to the condition laid down by Art. 254(1).
Where
the provisions of the Central Act and a State Act in the Concurrent List are
fully inconsistent and are absolute- ly irreconciliable, the Central Act will
prevail and the State Act will become void in view of the repugnancy.
Where,
however, a law passed by the State comes into colli- sion with a law passed by
Parliament on an Entry in the Concurrent List, the State Act shall prevail to
the extent of the repugnancy and the provisions of the Central Act would become
void provided the State Act has been passed in accordance with CI. (2) of Art.
254.
Where
a law passed by the State Legislature the entries in the State List entrenches
upon any of the entries in the Central List the consitutionality of the law may
be upheld by invoking the doctrine on a subject covered by the Concur- rent
List is inconsistent with and repugnant to a previous law made by the
Parliament, then such a law can be protected by obtaining the assent of the
President under Art. 254(2) of the Construction. The result of obtaining the
assent of the President would be that so far as the State Act is concerned, it
will prevail in the State and overrule the provisions of the Central Act in
their applicability to the State only. Such a state of affairs will exist only
until Parliament may at any time make a law adding to, or amend- ing, varying
or repealing the law made by the State Legisla- ture under the proviso to
Article 254." Dealing with the question of repeal by implication, it was
held that there is no repeal by implication unless the inconsistency appears on
the face of the two statutes that where two statutes occupy a particular field
but there is a room or possibility of both the statutes operating in the same
field without coming into collision with each other, no repugnancy results and
that where there is no inconsistency, a statute occupying the same field seeks
to create distinct and separate offence, no question of repugnancy arises and
both the statutes continue to operate in the same field. On a comparison of the
relevant provisions of the ,impugned Act and the Central Acts, it was not
repealed by implication.
672 In
T. Barai v. Henry Ah Hoe, [1983] 1 SCR 905 relied on by. Sri Nariman, the facts
are that for an offence under Sec. 16(1)(a) read with Sec. 7 of the Prevention
of Food Adulteration Act, 1954, prescribed maximum punishment of six years. But
the West Bengal Legislature amended the Central Act with effect from April 29,
1974 by the Prevention of Adulteration of Food, Drugs and Cosmatics (West
Bengal) (Amendment) Act, 1973, providing punishment with imprison- ment for
life and triable by a Court of Sessions. It had received the assent of the
President. Later on the Parlia- ment amended the Section (Section 16(a) and
also introduced Section 16-A in 1976 to the Prevention of Food Adulteration
Act, 1954, imposing punishment of three years. Both the enactments have been
made in exercise of the concurrent power. In considering the question whether
the State Act became void, A.P. Sen J. speaking for three Judges' Bench has
held thus:
"There
is no doubt or difficulty as to the law applicable.
Art.
254 of the Constitution makes provision firstly, as to what would happen in the
case of conflict between a Central and State Law with regard to the subjects
enumerated in the Concurrent List. and secondly, for resolving such conflict,
Art. 254(1) enunciates the normal rule that in the event of a conflict between
a Union and a State Law in the concurrent
field, the former prevails over the latter. Clause (1) lays down that if a
State law relating to a concurrent subject is 'repugnant' to a Union law
relating to that subject, then, whether the Union law is prior or later in
time, the Union law will prevail and the State law shall. to the extent of such
repugnancy, be void. To the general rule laid down in Clause (1), Clause (2)
engrafts an exception, viz., that if the President assents to a State law which
has been reserved for his consideration, it will prevail notwithstanding its
repugnancy to an earlier law of the Union,
both laws dealing with a concurrent subject. In such a case, the Central Act
will give way to the State Act only to the extent of incon- sistency between
the two, and no more. in short, the result of obtaining the assent of the
President to a State Act which is inconsistent with a previous Union law
relating to a concurrent subject would be that the State Act will pre- vail in
that State and override the provisions of the Cen- tral Act in their
applicability to that State only. The predominance of the State law may,
however, be taken away if Parliament legislate under the proviso to Clause (2).
The proviso to Art. 254(2) empowers the Union Parliament to 673 repeal or amend
a repugnant State law even though it has become valid by virtue of the
President's assent. Parliament may repeal or amend the repugnant State law,
either direct- ly, or by itself enacting a law repugnant to the State law with
respect to the 'same matter'. Even though the subse- quent law made by Parliament
does not expressly repeal a State law, even then, the State law will become
void as soon as the subsequent law of Parliament creating repugnancy is made. A
State law would be repugnant to the Union law when there is direct conflict
between the two laws. Such repug- nancy may also arise where both laws operate
in the same field and the two cannot possibly stand together, e.g. where both
prescribe punishment for the same offence but the punishment differs in degree
or kind or in the procedure prescribed, In all such cases, the law made by
Parliament shall prevail over the State law under Art. 254(1). That being so,
when Parliament stepped in and enacted the Central Amendment Act, it being a
latter law made by Parliament 'with respect to the same matter', the West
Bengal Amendment Act stood impliedly repealed." In M/s Hoeshst
Pharmaceuticals Ltd. v. State of Bihar, [1983] 3 SCR 130 the Bihar Finance Act,
1981 was made in exercise of the power under Entry 54 of List II of Seventh
Schedule to the Constitution amending and repealing the previous Act providing
therein to levy tax on sale or pur- chase of goods. Section 5(1) imposes levy
of surcharge on every dealer whose gross turnover during an year exceeds Rupees
Five lakhs, in addition to the tax payable by him at such rate not exceeding 10
per cent of the total amount of tax. Sub-s. (3) of s. (5) prohibits such dealer
from col- lecting the amount of surcharge from the purchasers. The Essential
Commodities Act made under Entry 33 of the Concur- rent List III empowering the
Government to fix prices of the essential commodities including drugs,
medicines, etc. It was contended that by operation of sub-s. (1) of s. 5, the
State Act is repugnant and is void. In considering that question, A.P. Sen, J.
speaking for three Judges' Bench held that both the Union and the State
Legislature have concur- rent powers of legislation with respect to any of the
mat- ters enumerated in List 111, subject only to the proviso contained in el.
(2) of Art. 254, i.e. provided the State Act do not conflict with those of any
Central Act on the subject .... The question of repugnancy arises only when
both legislatures are competent to legislature in the same field, i.e. when
both Union and the State laws relate 674 to a specified subject in List III and
occupy the same field. Yet another place it was held that it is only when both
these requirements are fulfilled that the State law will, to the extent of
repugnancy became void. Art. 254(1) has no application to the cases of repugnancy
due to over- lapping found between List II on the one hand and Lists I and II
on the other. If such overlapping exists in any particular case, State law will
be ultra vires because of the non obstenti clause in Art. 246(1) read with
opening words--"Subject to" Art. 246(3). In such cases, the State law
will fail not because of repugnance in the Union List but due to want of
legislative competence. Repugnancy arises where there is a direct conflict or
collision between the Central Act and the State Legislation and to the extent
of repugnancy by necessary implication or by express reference the State
legislation stands repealed."
11. It
is true, as tightly contended by Mr. Sanghi, that ss. 14 and 20 are
consequential or ancillary to s. 4 of the Acquisition Act 21 of 1976 which had
received the assent of the President. Its constitutionality was upheld by seven
Judges' Bench of this Court, when the legislative competence was assailed on
the anvil of Entry 42 of List I of the Seventh Schedule, but not on the touchstone
of proviso to cl. (2) of Art. 254 which gives overriding power to the
Parliament to make any law or amend, vary, modify or repeal the law made by a
State Legislature. Ranganatha Reddy's ratio, thereby, does not stand an
impediment to go into the validity of ss. 14 and 20 of the Acquisition Act.
12.
The result of the above discussion leads to the following conclusions:
(a)
The doctrine of repugnancy or inconsistency under Art.
254 of
the Constitution would arise only when the Act or provision/ provisions in an
Act made by the Parliament and by a State Legislature on the same matter must
relate to the Concurrent List III of Seventh Schedule to the Constitution; must
occupy the same field and must be repugnant to each other;
(b) In
considering repugnance under Art. 254 the question of legislative competence of
a State Legislature does not arise since the Parliament and the Legislature of
a State have undoubted power and jurisdiction to make law on a subject, i.e. in
respect of that matter. In other words, same matter enumerated in the
Concurrent List has occupied the field.
(c) If
both the pieces of legislation deal with separate and dis- 675 tinct matters
though of cognate and allied character repug- nancy does not arise.
(d) It
matters little whether the Act/Provision or Provi- sions in an Act falls under
one or other entry or entries in the Concurrent List. The substance of the
"same matter occupying the same field by both the pieces of the legisla-
tion is material" and not the form. The words "that matter"
connotes identity of "the matter" and not their proximity.
The
circumstances or motive to make the Act/Provision or Provisions in both the
pieces of legislation are irrelevant.
(e)
The repugnancy to be found is the repugnancy of Act/ provision/Provisions of
the two laws and not the predoninant object of the subject matter of the two
laws.
(f)
Repugnancy or inconsistency may arise in diverse ways, which are only
illustrative and not exhaustive:
(i)
There may be direct repugnancy between the two provi- sions;
(ii)
Parliament may evince its intention to cover the whole same field by laying
down an exhaustive code in respect thereof displacing the State Act, provision
or provisions in that Act. The Act of the Parliament may be either earlier or subsequent
to the State law;
(iii)
Inconsistency may be demonstrated, not necessarily by a detailed comparison of
the provisions of the two pieces of law but by their very existence in the
statutes;
(iv)
Occupying the same field; operational incompatibility;
irreconcilability
or actual collision in their operation in the same territory by the
Act/provision or provisions of the Act made by the Parliament and their counter
parts in a State law are some of the true tests;
(v)
Intention of the Parliament to occupy the same field held by the State
Legislature may not be expressly stated but may be implied which may be
gethered by examination of the relevant provisions of the two pieces of the
legislation occupying the same field;
676 (vi)
If one Act/Provision/Provisions in an Act makes lawful that which the other
declares unlawful the two to that extent are inconsistent or repugnant. The
possibility of. obeying both the laws by waiving the beneficial part in either
set of the provisions is no sure test;
(vii)
If the Parliament makes law conferring right/obliga- tion/ privilege on a
citizen/person and enjoins the authori- ties to obey the law but if the State
law denies the self same rights or privileges negates the obligation or freezes
them and injuncts the authorities to invite or entertain an application and to
grant the right/privilege conferred by the Union law subject to the condition
imposed therein the two provisions run on a collision course and repugnancy
between the two pieces of law arises thereby;
(viii)
Parliament may also repeal the State law either expressly or by necessary
implication but Courts would not always favour repeal by implication. Repeal by
implication may be found when the State law is repugnant or inconsistent with
the Union law in its scheme or operation etc. anti conflicting results would
ensue when both the laws are applied to a given same set of facts or cannot
stand togeth- er or one law says do and other law says do not do. In other
words, the Central law declares an act or omission lawful while the State law
says them unlawful or prescribes irrec- oncilable penalties/punishments of
different kind, degree or variation in procedure etc. The inconsistency must
appear on the face of the impugned statutes/provision/provisions therein;
(ix)
If both the pieces of provisions occupying the same field do not deal with the
same matter but distinct, though cognate or allied character, there is no
repeal by implica- tion;
(x)
The Court should endeavour to give effect to both the pieces of legislation as
the Parliament and the legislature of a State are empowered by the Constitution
to make laws on any subject or subjects enumerated in the Concurrent List III
of Seventh Schedule to the Constitution. Only when it finds the incompatibility
or irresconcilability of both Acts/provision or provisions, or the two laws
cannot stand together, the Court is entitled to declare the State law to be
void or repealed by implication; and (xi) The assent of the President of India
under Art. 254(2) given to a State law/provision, provisions therein accord
only opera- 677 tional validity though repugnant to the Central law but by
subsequent law made by the Parliament or amendment/modifica- tion, variation or
repeal by an act of Parliament renders the State law void. The previous assent
given by the Presi- dent does not blow life into a void law.
Scope
and operation of Rule of Pith and Substance and pre- doninant purpose vis-a-vis
Concurrent List.
13.
The further question is whether the doctrines of dominant purpose and pith and
substance would be applied to the matter covered under the Concurrent List. in
my consid- ered view, they do not apply. The doctrine of pith and substance
primarily concerns in determining the legislative competence. The idea
underlying the detailed distribution of legislative powers in three Lists was
to ensure that Parlia- ment and State Legislatures should keep themselves
within the spheres allocated to them in List I and vice versa in List II
respectively. However, legislation is a very compli- cated matter as it
reflects life, which itself is a compli- cated one. Hence, it is sometimes
inevitable that a law passed by the Parliament may trench upon the domain of
the State Legislature and vice versa. Would such incidental encroachment on the
territory of the other invalidates the legislation? In examining this question
and finding a solu- tion, the Courts try to save the legislation from unconsti-
tutionality by applying the flexible rule of pith and sub- stance. It is not
that the Courts encourage one legislature to encroach upon the legislative
field of another legisla- ture but merely recognise the reality that despite
the strict demarcation of legislative fields to respective legislatures, it is
not always possible to effectuate a legislative purpose without incidental
encroachment on another's field. In such a situation the Courts try to find out
the pith and substance of the legislation. If the legis- lation is found in its
pith and substance, within the legis- lative competence of the particular
legislature, it is held to be valid, despite incidental encroachment on the
legisla- tive power of another legislature. Thus, the rule of pith and
substance is applied to determine whether the impugned legislation is within
that competence under Arts. 246(1) and 246(3) of the Constitution, and to
resolve the conflict of jurisdiction. If the Act in its pith and substance
falls in one List it must be deemed not to fall in another List, despite
incidental encroachment and its validity should be determined accordingly. The
pith and substance rule, there- by, solves the problem of overlapping of
"any two entries of two different List vis-a-vis the Act" on the
basis of an inquiry into the "true nature and character" of the
legisla- tion. The Court examines the legislation as a whole and tries 678 to
find whether the impugned law is substantially within the competence of the
Legislature which enacted it, even if it incidentally trespasses into the
legislative field of anoth- er Legislature. In a case where the question of
validity of an act arises, it may be that the topic underlying the provisions
of the Act may in one view of the matter falls within the power of the Centre,
and on another view within the power of the States. When this happens, it is necessary
to examine the pith and substance of the impugned legisla- tion; and to see
whether in its pith and substance it fails within one, or the other of the
Legislative Lists. As stated earlier the constitutionality of the Impugned Act
is not determined by the degrees of invasion into the domain as- signed to the
other legislature but its pith and substance and its true nature and character
to find whether the matter fails within the domain of the enacting legislature.
The incidental or ancillary encroachment into forbidden field does not effect
the competence of the legislature to make the impugned law.
14.
From this scenerio let us peep into few important decisions touching the
subject. In Prafulla Kumar v. Bank of Commerce, Khulna, AIR 1947 PC 60 the
question was whether the Bengal Moneylenders Act (10 of 1940) is ultra vires by
reason of Schedule 7, List II, Items 28 and 38 of the Gov- ernment of India
Act, 1935, and thereby is void. In consid- ering that question, the Judicial
Committee held as culled out in Head note (b) thus:
"It
is not possible to make a clean cut between the powers of the Federal and
Provincial Legislatures. They are bound to overlap and where they do the
question to be considered is what is the pith and substance of the impugned
enactment and in what list is its true nature and character to be found. The
extent of invasion by the Provinces into subjects in Federal List is an
important matter not because the validity of a Provincial Act can be determined
by discrimi- nating between degrees of invasion but for determining the pith
and substance of the impugned Act. The question is not has it trespassed more
or less but is the trespass, whatever it be, such as to show that the pith and
substance of the impugned Act is not a Provincial matter but a Federal mat-
ter. Once that is determined the Act falls on one or the other side of the line
and can be seen as valid or invalid according to its true import.
No
doubt where they come in conflict List I has priority 679 over Lists III and II
and List III has priority over List II but in each case one has to consider
what the substance of an Act is and whatever its ancillary effect, attribute it
to the appropriate list according to its true character" This leading
ratio formed foundation in countless cases decided by this Court. In State of
Bombay v.F.N. Balsara, [ 1951] SCR 682 it was held that:
"It
is well settled that the validity of an Act is not affected if it incidentally
trenches on matters outside the authorised field and, therefore, it is
necessary to enquire in each case what is the pith and substance of the Act
impugned. If the Act, when so viewed, substantially falls within the powers
expressly conferred upon the Legislature which enacted it then it cannot be
held to be invalid merely because it incidentally encroaches on matters which
have been assigned to another Legislature." In Atiabari Tea Co. Ltd. v.
State of Assam, [1961] 1 SCR 809 Gajendragadkar, J. (as he then was) speaking
per majority, has explained the purpose of the rule of pith and substance thus:
"The
test of pith and substance is generally and more appro- priately applied when a
dispute arises as to the legislative competence of the legislature, and it has
to be resolved by reference to the entries to which the impugned legislation is
relateable, when there is a conflict between the two entries in the legislative
list, and legislation by refer- ence to one entry would be competent but not by
reference to other, the doctrine of pith and substance is invoked for the purpose
of determining the true nature and character of the legislation in
question." In Meghraj & Ors. v. Allaharakhiya & Ors., AIR 1942 FC
27 relied on by Sri Nariman, the contention raised was that when the matter in
the Concurrent List had occupied the flied whether the question of pith and
substance of the impugned Act would arise? The Federal Court held that when the
Provincial Act is objected to as contravening not Sec.
100
but Sec. 107(1) of the Government of India Act 1935, which is in pari materia to
Art. 254 of the Constitution, that the question of pith and substance of the
impugned Act does not arise. In Tika Ramji's case, the same question had arisen
for resolution. It was held that-- 680 "The pith.and substance argument
also cannot be imported here for the simple reason that when both the Centre as
well as the State Legislatures were operating in the Concurrent field. there
was no question of any trespass upon the exclu- sive jurisdiction vested in the
Centre under Entry 52 of List I, the only question which survived being
whether, putting both the pieces of legislation enacted by the Centre and the
State legislature together, there was any repugnancy a contention which will be
dealt with hereafter." I have no hesitation to hold that the doctrine of
pith and substance on the predoninant purpose, or true nature and character of
the law have no application when the matter in question is covered by an entry
or entries in the Concurrent List and has occupied the same field both in the
Union and the State Law. It matters little as to in which entry or entries in
the Concurrent List the subject-matter falls or in exercise whereof the
Act/provision or provisions therein was made. The Parliament and Legislature of
the State have exclusive power to legislate upon any subject or subjects in a
Concurrent List. The question of incidental or ancillary encroachment or to
trench into forbidder field does not arise. The determination of its 'true
nature and character' also is immaterial.
15.
Power to legislate whether derived from the con- cerned Articles or legislative
lists in Seventh Schedule
16.
Parliament and the Legislature of any state derive their power from Art. 246(2)
of the Constitution to make laws with respect to any of the matters enumerated
in List III of the VIIth Schedule to the Constitution. With a non- obstanti
clause engrafted therein namely notwithstanding anything in Clause ? the
Parliament, and, subject to Clause 1, the Legislature of any State also have
power to make laws with respect to any of the matters enumerated in List III.
List
III of Seventh Schedule enumerates the legislative heads over which the
appropriate Legislature can operate.
The
function of the list is not to confer power on either the Parliament or a State
Legislature. Article 254 of the Constitition removes the inconsistency between
the law made by the Parliament and by the Legislatures of States. Thus the
power to legislate on the Concurrent List is derived by the Parliament and the
Legislature of any State from Article 246(2) read with Article 254 only.
Paramouncy to the law made by the Parliament is given by Article 254(1) and
provi- so to Article 254(2). The Parliament derives its exclusive power under
Article 246(1) to legislate upon any of the 681 subjects enumerated in List I
of the Seventh Schedule in the Constitution. Similarly the Legislature of a
State derives its exclusive power from Article 246(3) to make laws on any
matters in List II. When the Parliament or the Legislature of a State while
making legislation within its exclusive domain, namely, List I or List II
respectively if it inci- dentally trenches upon the forbidden flied, namely,
the field demarcated or distributed to the State Legislature and vice versa by
the Legislature into List I the doctrine of Pith and Substance was applied to
find the "true purpose and character of the Legislation". In
considering the question of the doctrine of Pith and Substance in Subrahmanyam
Chet- tiar v. Muttuswami Goundan, A.I.R. 1941 F.C. 47 at p. 51 held that it
must inevitably happen from time to time that legislation, though purporting to
deal with a subject in one list, touches also on a subject in another list, and
the different provisions of the enactment may be so closely intertwined that
blind adherence to a strictly verbal inter- pretation would result in a large
number of statutes being declared invalid because the Legislature enacting them
may appear to have legislated in a forbidden sphere. Hence the rule which has
been evolved by the Judicial Committee where- by the impugned statute is
examined to ascertain its "pith and substance", or its "true
nature and character", for the purpose of determining whether it is
legislation with re- spect to matters in this list or in that. In that case the
question was whether the Madras Agriculturists Relief Act 4 of 1938, Section 8
thereto is invalid, since the matter is in Schedule VII, List I or List II of
the Government of India Act, 1935. The contention was that the negotiable
instrument; promissory notes are covered by List I of the Seventh Schedule,
therefore, the Act is invalid. In consid- ering that question and negativing
the contention the above ratio was enunciated.
(emphasis
supplied) In Governor General in Council v. The Reliegh Investment Co. Ltd.,
[1944] F.C.R. 229 at p. 261 in considering the ques- tion whether the Federal
Legislature's power is not limited to cases specified in clauses (a) to (e) of
sub-section (2) of Section 99 from Entry No. 23 of the List I of the Seventh
Schedule; it was held by Spens, C.J. that it would not be right that the
Legislature would derive the power to legis- late on this topic merely from the
reference to it in the List, because the purpose of the Lists was not to create
or confer powers, but only to distribute between the Federal and the Provincial
Legislatures, the powers which had been conferred by Section 99 and 100.
(emphasis
added) 682 In Harakchand Ratanchand Banthia v. Union of India, [1970] 1 SCR 479
at p. 489 the Constitution Bench speaking through Ramaswami, J. dealing with
the Gold (Control) Act (45 of 1968) observed thus:
"Before
construing these entries it is useful to notice some of the well-settled rules
of interpretation laid down by the Federal Court and by this Court in the
matter of construing the entries. The power to legislate is given to the appro-
priate legislature by Article 246 of the Constitution. The entries in the three
Lists are only legislative heads or fields of legislation; they demarcate the
area over which the appropriate legislatures can operate." (emphasis
added) In Union of India v.H.S. Dhillion, [1972] 2 SCR 33 at p.
52
Sikri, C.J. speaking per majority of Seven Judges' Bench held that it must be
remembered that the function of the lists is not to confer powers; they merely
demarcate the legislative field. The Constitution Bench followed the ratio in
Releigh Investment case, etc.
(emphasis
supplied)
16.
Thus I hold that the Parliament and the legislature of a State derive their
power to legislate on a subject/subjects in Lists I and List II of Seventh
Schedule to the Constitution from Art. 246(1) and (3) respectively.
Both
derive their power from Art. 246(2) to legislate upon a matter in the
Concurrent List III subject to Art. 254 of the Constitution. The respective
lists merely demarcate the legislative field or legislative heads. The
Parliament and the legislature of a State have concurrent power to legis- late
upon any subject/subjects in the Concurrent list III of Seventh Schedule to the
Constitution. Art. 254(1) and provi- so to Art. 254(2) give paramouncy to the
law made by the Parliament, whether existing or made afresh or amended,
modified, added or repealing the law subsequent in point of time to the state
law made under Art. 254(2). The exercise of the power by a state legislature to
make impugned law under one entry or other in the concurrent list is not
decisive. The concerned entry or entries is not the source of power to make
impugned law.
17.
Keeping the principles laid hereinbefore at the back of our mind, let us
consider the impugned provision. Section 14 read with s. 20 of the Acquisition
Act (21 of 1976) freezed the right of a citizen to apply for an to obtain
permit or special permit to run a contract car- 683 riage in terms of the
permit and monopoly to run a contract carriage was conferred on the S.T.U.,
Karnataka. But the Act evinces its intention to liberalise the grant of
contract carriage permit by saying in s. 80(2) that the Regional Transport
Authority "shall not ordinarily refuse to grant the permit." It also
confers the right on an applicant to apply for and authorises and Regional
Transport Authority to grant liberally contract carriage permit except in the
area covered by s. 80(3) and refusal appears to be an exception, that too,
obviously for reasons to be recorded. It may be rejected if the permit applied
for relate to an approved or notified route. The Act accords the right, while
the Acqui- sition Act negates and freezes the self-same right to obtain a
permit and to run a contract carriage and prohibits the authorities to invite
or entertain an application and to grant a permit to run contract carriage. the
Act and the relevant rules cover the entire field of making an applica- tion in
the prescribed manner and directs the Regional Transport Authority to grant permit
with condition attached thereto to run contract carriages vide ss. 66(1), 73,
74 and 80 of the Act. Thus, the existence of two sets of provisions in the Act
59 of 1988 and Acquisition Act 21 of 1976 is sufficient to produce conflicting
results in their operation in the same occupied field. The two sets of
provisions run on collision course, though an applicant may waive to make an
application for a permit. Thereby, there exists the operational incompatibility
and irreconcilability of the two sets of provisions. Sections 14(1) and 20(3)
of the Acquisi- tion Act are repugnant and inconsistent of ss. 73, 74 and 80 of
the Act. By operation of proviso to Art. 254(2) of the Constitution, the
embargo created by ss. 14(1) and 20(3) of the Acquisition Act (21 of 1976) to
make or invite an appli- cation and injunction issued to Regional Transport
Authority prohibiting to grant contract carriage permit to anyone except to
S.T.U., Karnataka within the State of Karnataka became void.
18.
For the applicability of the principle that special law prevails over the
general law, the special law must be a valid law in operation. Voidity of law
obliterates it from the statute from its very inception. In view of the finding
that ss. 14(1) and 20(3) are void the contention that the special law prevails
over the general law is without sub- stance. In Justiniano Augusto De Peidada
Barreto v. Antonia Vicento De Fonseca & Ors., [1979] 3 SCR 494 s. 5(1) of
the Goa, Daman and Diu (Administration) Act, 1962 declared that all laws in force
immediately before December 20, 1961 in Goa, Daman and Diu or in part thereof
shall continue to be in force therein until amended or repealed by a competent
Legislature or other competent authority. Pursuant to the powers conferred by
Art. 240 of the Constitution, the Presi- dent pro- 684 mulgated Goa, Daman and Diu (Laws) Regulations from time to time. These
regulations were extended with specified modifi- cation to Goa, Daman and Diu like Civil Procedure Code, 1908 and the Arbitration
Act, 1940, but the Limitation Act, 1908 was not extended by any regulation made
by the President.
The
Portuguese Civil Code inter alia provides limitation to lay suits which is
different from the periods prescribed in Limitation Act 1963. It was contended
that the Portuguese Civil Code is void by operation of Art. 254 of the
Constitu- tion. While considering this question this Court at page 500 has
stated thus:
"We
are not here concerned with the provisions of cl. (2). For the purpose of the
present appeals, we will assume that the Portuguese Civil Code which was
continued by Par- liament to be in force in Goa, Daman and Diu was a law made
by the State, though there may be several objections to so doing .... Without
doubt the provisions of the Portuguese Civil Code, unless they are saved by s.
29(2) of the Limita- tion Act, are repugnant to the provisions of the
Portuguese Civil Code are saved by s. 29(2) then there can be no ques- tion of
any repugnancy. So the question whether the provi- sions of Portuguese Civil
Code are void on the ground that they are repugnant to the provisions of the
Limitation Act depends on the question whether the Portuguese Civil Code is
saved by s. 29(2) of the Limitation Act, 1963." After exhaustive
consideration of that question it was held by Chinnappa Reddy, J. speaking for
a bench of two Judges that the provisions of the Portuguese Civil Code deal
with the subject of limitation of suits etc. and in force in the Union
Territory of Goa, Daman and Diu only is 'local law' within the meaning of s.
29(2) of the Limitation Act and they have to read into the Limitation Act 1963,
as if the schedule to the Limitation Act is amended mutatis mutandis Thus, it
is clear that the question of repugnancy in cl. (2)of'Art. 245 did not arise in
that case. On the other hand, operation of Portuguese Civil Code was saved by
s. 29(2) of the Limitation Act as a local law.
20.
The doctrine of predominant purpose of Acquisition Act (21 of 1976) as
discussed by my learned brothers is to achieve the objective of preventing the
flagrant and blatant misuse or abuse of the contract carriages as stage
carriages by eliminating that class of private pliers from all Karna- taka
roads I am in complete agreement with it. It is a laudable object to subserve
public purpose.
But the
opera- tion of its incidental or ancillary provisions, i.e. Arts. 14(1) and
20(3) to the 685 primary or predominant purpose is nailed by the
altered/situation, viz., making the law under the Act 59 of 1988. It is already
held that Art. 254 applies only to repugnancy arising between an existing or
subsequent Union law and State law on any one or more subjects in the Concur-
rent List III of Seventh Schedule to the Constitution. The inconsistency
arising between laws on the other two Lists, i.e. Lists I and II, of Seventh
Schedule to the Constitu- tion, has been taken care of by the opening non
obstenti clause of Art. 246(1) of the Constitution which gives Su- premacy of
List I over List II/Laws made by Parliament in its residuary jurisdiction will
be governed by the same provision because Art. 248 is to be read with Entry 97
of List I. Same is the position under Art. 252
of the Constitu- tion. Once Parliament has made a law under that Article on a
matter in State List, the Legislatures of those States on whose resolution the
law was passed by Parliament or which subsequently adopt it ceases to have a
power to make a law relating to that matter, and, therefore, there is no ques-
tion of retaining any legislative competence to make law on that matter. Same should
De the position under Art. 253 of the Constitution. The position under
temporary measures are, therefor dealt with by Art. 251 that in case of
inconsisten- cy between the Union and State
law, the former shall prevail and the latter will be only 'inoperative' but not
'null and void'. Under Arts. 252 and 253, the loss of legislative power of the
States is complete and, thereafter, the States can no longer make any law on a
subject on which Parliament has made a law and, therefore, their existing laws
and any laws that they may venture to make in future will be null and void and
for that matter Art. 254(1) cannot be invoked.
But
that is not the case with matter enumerated in the Concurrent List. The State
Legislature did not surrenderated power or jurisdiction. The Parliament, with a
view to lay down general principles makes law or amends the existing law. The
State Legislature still may feel that its local conditions may demand amendment
or modification of the Central law. Their reserve power is Art. 254(2). If the
Parliament expressly repeals the repugnant law made under Art. 254(2) different
considerations may arise for which no final pronouncement is needed here. It is
already found that ss. 14(1) and 20(3) of the Acquisition Act (21 of 1976)
became void. But after making the Act 59 of 1988, the power of the State
Legislature under Art. 254(2) is not exhausted and is still available to be
invoked from time to time Though, there is opposite school of juristic thought,
in my considered view the interpretation I have but up will sub- serve the
animation of the rounding fathers of the Constitu- tion; the Constitutional
Scheme and purpose envisioned by Art. 254. Therefore, after the Act has come
into force, the State legislature has its reserve power under Art. 254(2) 686
to make law. But unless it again enacts law and reserves it for consideration
and obtains the assent of the President afresh, there is no prohibition for the
petitioners to make applications for the grant of contract carriage permits
under the Act and consideration and grant or refusal thereof according to law
by the concerned Regional Transport Author- ity. It is, therefore, made clear
that this order does not preclude the Karnataka State Legislature to make
afresh the law similar to ss. 14(1) and 20(3) of the Acquisition Act with
appropriate phraseology and to obtain the assent of the President. The
authorities have misconstrued the effect of the Act.
21.
Accordingly I hold that s. 14(1) to the extent of prohibiting to make fresh
application for grant of permits to run the contract carriages other than those
acquired under Act 21 of 1976 (Acquisition Act) and the embargo and prohibition
created under s. 20(3) thereof on the respective Regional Transport Authority
in the State of Karnataka to invite/receive the application to consider the
grant of permits to such contract carriages according to law, are hereby,
declared to be void.
22.
The writ petitions are accordingly allowed, but, in the circumstances, without
costs.
P.S.S.
Petitions dismissed.
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