No 723 of 1989 etc
Under Article 32 of the Constitution of India
G Ramaswamy Additional Solicitor General NP FS Nariman GL Sanghi GPrabhakar M Rangaswamy NDB Raju Ms CK Sucharita SK Agnihotri PR Ramashesh KR 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 section 20 of the Karnataka Act has not become void with the enforce ment of the  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 
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
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 andor 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 sections 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
vs Shri Ranganatha Reddy  Anr  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 section 20 made provisions contrary to those in the of 1939 was taken to be valid under article 2542 of the Constitution
The 59 of 1988 being a Parliamen tary legislation was brought into force with effect from 17 1989
Under section 12 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 section 73 provides for an application for such permit section 74 contains the procedure for the consideration of the grant and section 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 of 1988 as a piece of central legislation the provisions of section 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 article 254 of the Constitution section 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 article 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 article 254 I of the Constitution applies to the situation in hand and whether section 20 of the Karnataka Act being inconsistent with the provisions of sections 73 74 and 80 of the 1988 Motor Vehi cles Act became void
It would be convenient to extract the provisions of article 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 article 254 to meet the difficulties experienced in the intervening years
The Article reads thus 2541 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 article 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 vs State of UP  Anr  and Kerala State Electricity Board vs Indian Aluminium Company 1976 1 SCR 552
This Court in Deep Chand vs State of Uttar Pradesh  Ors   T Barai vs Henry Ah Hoe  Anr  and Hoechst Pharmaceuticals Ltd  Anr
vs State of Bihar  Ors
  has laid down that cl
1 of article 254 lays down the general rule and cl
2 is an exception thereto the proviso qualifies the exception
Therefore while interpreting article 254 this position has to be kept in view
The situation of the 1939 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 article 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 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 vs 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 article 2542 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 vs Union of India  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 ie 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 2541 discussed above
Thirdly so far as the matters in List II ie 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 fullv inconsistent Emphasis added and are absolutely irreconcilable 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 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
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
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 2542 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 vs 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 section 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 section 73 or section 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 section 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 sections 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 article 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 article 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 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
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
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 39b 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
vs Shri Ranganatha Reddy  Anr
  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
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 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
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 ie 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
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 39b 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
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 802 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 802 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
vs 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
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
vs Allahrakhiya  Ors 29 AIR 1942 FC 27 and the other of the Privy Council report ed in AIR 34 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 1071 the Govt
of India Act 1935 corresponding to Article 2541 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
 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 vs
TJ Joseph  Ors  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 vs The Metropolitan Board of Works  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 vs Clarke  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 vs Phillips 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 vs 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 vs 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 ie 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 vs State of UP  Ors 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 vs Rambhajan Singh 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 section 72 of the Travancore Cochin Motor Vehicles Act were intended to apply to a much wider area than those of sections 286 and 287 of the Travancore District Municipalities Act it cannot be said that section 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 section 72 of the Travancore Cochin Motor Vehicles Act as a provision inconti nuity with sections 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 section 72 of the Travancore Cochin Motor Vehicles Act the result of which would be to override the action taken by the Municipal Council under section 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 vs Union of India 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 
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
vs State of UP  Ors
  what fell for consideration was the alleged repugnancy between the UP 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 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 GP Stewart vs
BK 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 Jin the Australian 44 hours case 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 vs 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 vs Attorney General for the Dominion 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 X of 1955 and the Sugar Control order 1955 issued thereunder with the UP 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 18g 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 18g 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
As far as the 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 UP 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 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 UP 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 
The Court therefore held that since there was no repugnancy between the two the provi sions of Article 2542 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 161b provides as follows 161 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 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 UP State was that under the proviso to Article 2542 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 2542 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 2542
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 161b of Act X of 1955 and clause 71 of the Sugar Cane Control Order 1955 must in this view be held to be invalid
Sic
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 ie 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 2542
Both the legislations must be substantially on the same subject to attract the Article
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 STU 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 39b 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 3g of the Acquisition Act defines Contract Carriage as one covered under section 24 of the 4 of 1939 for short the Repealed Act including public serv ice vehicle defined under section 636 etc
section 3a defines acquired property means the vehicles and other immovable and movable property vesting in the State Government under section 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 section 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 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 section
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 STU Karnataka or referred to in section 24 thereof shall stand canceled
Sub section
2 accords with mandatory language that the STU shall be entitled for or renewal of con tract carriage permits to the exclusion of all other per sons and sub section
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 STU for grant of permit or the running of the contract carriage
 By conjoint operation of sections 14 and 20 the right of any person other than STU 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 STU Karnataka
The constitutional validity of the Acqui sition Act was upheld by this Court in State of Karnataka vs Ranganatha Reddy 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 sections 14 and 20 is incidental or ancillary to the acquisition
Having received the assent of the President it is saved by article 2542 of the Constitution
When an attempt to obtain renew al or fresh special permits to run contract carriages taking aid of section 621 or section 636 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 RTA Bangalore vs PD Sharma  held that by operation of sections 14 and 203 a public service vehicle be it a contract carriage or stage carriage for which temporary permits under sections 621 and 636 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 STU Karnataka
655 2
The Act 59 of 1988 for short the Act came into force with effect from July 1 1989
Section 27 defines contract carriage 
Section 28 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 234 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 235 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 247 defines transport vehicle  to mean a public service vehicle    or a private service vehicle
Chapter V deals with Control of Transport Vehicles section 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 section
1 thereof provides that subject to provisions of sub section
3 a Regional Transport Authority may on an appli cation made to it under section 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 section 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 section
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 section 801 an application for a permit of any kind may be made at any time
Sub section
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 sections 73 74 and 80 of the Act for grant of contract carriage permits
Placing reliance on sections 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 article 32 of the Consti tution
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 section 27 of the Act is a public service vehicle within the meaning of section 235 of the Act
Section 66 obligates the owner to obtain permits to run contract carriages
Section 141 read with section 801 accords the right to the petition ers to apply for and enjoins the authorities under section 802 to consider and to grant permits to run public service vehicles as contract carriages
Section 2171 repealed all the laws save such of the laws which are not inconsistent with the provisions of the Act
The operation of sections 14 and 20 of the Acquisition Act is inconsistent with sections 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 section 74 read with section 80 and section 2 17 the operation of sections 14 and 20 became void under proviso to article 2542
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 STU 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 article 2542 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 sections 14 and 20 of the Acquisition Act and sections 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
At the cost of repetition it may be stated that sections 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 section 50 thereof is absent in the Act
The Acquisition Act aimed to acquire the contract carriages
They stood vested in the State Government under section 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 section 142 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 STU Karnataka
On and from March 12 1976 section 203 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 STU 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 article 2542 of the Constitution
Sections 73 and 74 read with section 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 section 801 gives discretionary power to grant permit but sub section
2 of section 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 article 254 is the sole fountain source concerning a State law in the Concurrent List
Article 2541 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 article 254
Its forerunner is section 107 of the Government of India Act 1935
Both the Parliament and a State Legislature derive their power only under article 254 and article 2462 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 subjectsubjects 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 article 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 article 2541 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 article 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 article 254 is with respect to that matter
Clause 1 of article 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 article 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 subjectsubjects in the Concurrent List III of the Seventh Schedule of the Constitution
It is seen that the Acquisition Act was made in exercise of the power under Entry 42 of the Concurrent List and sections 14 and 20 thereof are integral part of the Acquisi tion Act
Undoubtedly they are consequential or ancillary to section 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 sections 141 and 203 of the Acquisition Act in juxtaposition to sections 661 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 vs State of UP  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 UP Sugarcane Regula tion of Supply and Purchase Act Act 24 of 1953 is ultra vires of the UP Legislature in view of article 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 article 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 AS Krishna vs Madras State   the question was whether section 42 of the Madras Prohibition Act which lays down a presumptive evidence is repugnant to the Central legislation viz Criminal Procedure Code
Dealing with section 107 of the Government of India Act 1935 which is in pari material to article 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 section 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 42 of the Prohibition Act was held to be void
In Prem Nath Kaul vs State of J  K 1959 2 Supp
SCR 273 another Constitution Bench held that the essential condition for application of article 2541 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 UPv
State of UP  the question arose was whether the State Government is empowered to impose stamp duty on the certificate of enrollment under section 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 vs State of UP 1959 Supp 2 SCR 8 relied on by Sri Nariman the Uttar Pradesh legislature made UP 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 UP Amendment Act became void by reason of article 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 UP Act and prospectively became void as the Central Amend ment Act occupied the same field in respect of the same schemes initiated under the UP Amendment Act and to that extent the State Act must yield its place to the Central Act
663 In State of Orissa vs
MA Tulloch  Co  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 vs Horizon Union  the facts are that under the  Section 7 A3a 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 3a 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 A3a 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 vs
MS Farooqi  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 CJ 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 vs 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 vs Cowburn 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 section 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 section 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 CJ 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 vs Palmer  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 Rv
Brisbane Licensing Court  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 vs Bradley Bros Pvt Ltd 1943 68 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 section 109 in that it directly prohibited something which the Commonwealth award permitted
In In Re Ex Parte Maclean  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 section 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 vs Attorney General Victoria  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 vs Noarlunga Meat Co Ltd  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 vs Noarlunga Meat Co Ltd 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 vs Devondale Cream Vie Pvt Ltd   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
REPEAL BY IMPLICATION Sub section
1 of section 217 of the Act repeals thus The  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 s2171 does not expressly repeal sections 141 and 203 of the Acquisition Act
In Zaveribhai vs State of Bombay 1955 1 SCR 799 relied on by Sri Nariman the facts were that section 7 of the Essential Supplies Temporary Powers Act 1949 provides penalty for contravention of orders issued under section 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 article 2542 will have no application
The principle embodied in section 1072 and article 2542 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 article 2542 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 vs Union of India  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 article 2541
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 article 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 article 2542 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 vs Henry Ah Hoe  relied on by
Sri Nariman the facts are that for an offence under Sec 161a read with Sec 7 of the  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 16a and also introduced Section 16 A in 1976 to the  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 AP Sen J speaking for three Judges  Bench has held thus There is no doubt or difficulty as to the law applicable
article 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 article 2541 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 article 2542 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 eg 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 article 2541
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 Ms Hoeshst Pharmaceuticals Ltd vs State of Bihar  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 51 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 section
3 of section 5 prohibits such dealer from col lecting the amount of surcharge from the purchasers
The 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 section
1 of section 5 the State Act is repugnant and is void
In considering that question AP 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 article 254 ie 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 ie 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
article 2541 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 article 2461 read with opening words Subject to article 2463
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
It is true as tightly contended by Mr Sanghi that sections 14 and 20 are consequential or ancillary to section 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 article 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 sections 14 and 20 of the Acquisition Act
The result of the above discussion leads to the following conclusions a The doctrine of repugnancy or inconsistency under article 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 article 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 ie 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 ActProvision 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 ActProvision or Provisions in both the pieces of legislation are irrelevant
e The repugnancy to be found is the repugnancy of Act provisionProvisions 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 Actprovision 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 ActProvisionProvisions 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 rightobliga tion privilege on a citizenperson 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 rightprivilege 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 penaltiespunishments of different kind degree or variation in procedure etc
The inconsistency must appear on the face of the impugned statutesprovisionprovisions 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 Actsprovision 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 article 2542 given to a State lawprovision provisions therein accord only opera 677 tional validity though repugnant to the Central law but by subsequent law made by the Parliament or amendmentmodifica 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
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 articles 2461 and 2463 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
From this scenerio let us peep into few important decisions touching the subject
In Prafulla Kumar vs 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 vs
FN Balsara   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 vs State of Assam  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
vs 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
1071 of the Government of India Act 1935 which is in pari materia to article 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 pithand 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 Actprovision 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
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 article 2462 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 2462 read with Article 254 only
Paramouncy to the law made by the Parliament is given by Article 2541 and provi so to Article 2542
The Parliament derives its exclusive power under Article 2461 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 2463 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 vs Muttuswami Goundan AIR 1941 FC 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 vs The Reliegh Investment Co Ltd 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 CJ 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 vs Union of India  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 vs
HS Dhillion  at p 52 Sikri CJ 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 subjectsubjects in Lists I and List II of Seventh Schedule to the Constitution from article 2461 and 3 respectively
Both derive their power from article 2462 to legislate upon a matter in the Concurrent List III subject to article 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 subjectsubjects in the Concurrent list III of Seventh Schedule to the Constitution
article 2541 and provi so to article 2542 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 article 2542
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
Keeping the principles laid hereinbefore at the back of our mind let us consider the impugned provision
Section 14 read with section 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 STU Karnataka
But the Act evinces its intention to liberalise the grant of contract carriage permit by saying in section 802 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 section 803 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 sections 661 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 141 and 203 of the Acquisi tion Act are repugnant and inconsistent of sections 73 74 and 80 of the Act
By operation of proviso to article 2542 of the Constitution the embargo created by sections 141 and 203 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 STU Karnataka within the State of Karnataka became void
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 sections 141 and 203 are void the contention that the special law prevails over the general law is without sub stance
In Justiniano Augusto De Peidada Barreto vs Antonia Vicento De Fonseca  Ors  section 51 of the 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 article 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  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 
It was contended that the Portuguese Civil Code is void by operation of article 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
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 section 292 of the Limita tion Act are repugnant to the provisions of the Portuguese Civil Code are saved by section 292 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 depends on the question whether the Portuguese Civil Code is saved by section 292 of the  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 section 292 of the and they have to read into the  as if the schedule to the is amended mutatis mutandis Thus it is clear that the question of repugnancy in cl
2of article 245 did not arise in that case
On the other hand operation of Portuguese Civil Code was saved by section 292 of the as a local law
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 ie articles 141 and 203 to the 685 primary or predominant purpose is nailed by the alteredsituation viz making the law under the Act 59 of 1988
It is already held that article 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 ie Lists I and II of Seventh Schedule to the Constitu tion has been taken care of by the opening non obstenti clause of article 2461 of the Constitution which gives Su premacy of List I over List IILaws made by Parliament in its residuary jurisdiction will be governed by the same provision because article 248 is to be read with Entry 97 of List I Same is the position under article 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 article 253 of the Constitution
The position under temporary measures are therefor dealt with by article 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 articles 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 article 2541 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 article 2542
If the Parliament expressly repeals the repugnant law made under article 2542 different considerations may arise for which no final pronouncement is needed here
It is already found that sections 141 and 203 of the Acquisition Act 21 of 1976 became void
But after making the Act 59 of 1988 the power of the State Legislature under article 2542 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 article 254
Therefore after the Act has come into force the State legislature has its reserve power under article 2542 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 sections 141 and 203 of the Acquisition Act with appropriate phraseology and to obtain the assent of the President
The authorities have misconstrued the effect of the Act
Accordingly I hold that section 141 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 section 203 thereof on the respective Regional Transport Authority in the State of Karnataka to invitereceive the application to consider the grant of permits to such contract carriages according to law are hereby declared to be void
The writ petitions are accordingly allowed but in the circumstances without costs
PSS Petitions dismissed


Summary:
The appellant landlady and the respendent tenant ap peared before the Rent Controller for creation of a tenancy under Section 21 of the Delhi Rent Control Act 1958
Ac cordingly the authority passed an order creating tenancy for a limited period of two years
Since the respondent did not vacate the premises on the expiry of two years the appellant moved the Rent Controller for issuance of warrant of possession
The Respondent filed his objection
Enter taining the objection the Rent Controller dismissed the petition holding that the order granting permission for the tenancy under section 21 of the Act was not in accordance with law
The appellant s first appeal before the Rent Control Tribunal as also her second appeal before the High Court met the same fate
This appeal by special leave is against the High Court s order dismissing the second appeal in limine
On behalf of the appellant it was contended that the Rent Controller should not have entertained the objection of the respondent as the same has not been filed during the currency of the tenancy
It was also contended that some of the considerations which weighed with the Rent Control Tribunal were not relevant for judging the bona fides and genuineness of actions taken at the time of creating the tenancy
Allowing the appeal this Court HELD 1
Section 14 of the Delhi Rent Control Act 1958 deals with a normal tenancy and protects the tenant against unreasonable eviction
Section 21 of the Act on the other hand places the tenant outside the purview of section 14 and provides for an order of eviction at the time of creation of the tenancy
There is a purpose behind enacting section 21 of the Act
The Legislature considered it appropriate that should a 716 landlord not need his residential premises for a period instead of keeping it vacant the same could be available for a tenant s use on being let out for a limited period condi tional upon the tenant s surrendering possession as soon as the tenancy terminates by efflux of time and the need of the landlord revives
719G H 720A 21
The rule in Noronah s case has to be confined to a particular set of facts and should not be freely extended so as to take away the effect ors
724F G 22
In Vohra s case and in Shiv Chander Kapoor s case though not arising for determination in either it has been stated while laying down the rule that proceeding to chal lenge limited tenancy has to be taken during the currency of the tenancy an objection filed by the tenant could be looked into is indeed an obiter
The rule having been stated to the contrary in Vohra s case there was indeed no warrant to indicate the contra situation
Perhaps to meet the eventuality which might arise in a particular case the exception has also been indicated
If the tenant has an objection to raise to the validity of the limited tenancy it has to be done prior to the lapse of the lease and not as a defence to the landlord s application for being put into possession
Even if such an exercise is available that must be taken to be very limited and made applicable to excep tional situations
Unless the tenant is able to satisfy the Controller that he had no opportunity at all to know the facts earlier and had come to be aware of them only then should such an objection be entertained
725E H 23
In the facts and circumstances of the present case the belated objections of the tenant should not have been entertained and prayer for possession made by the landlady after the limited tenancy ran out should have been granted
726A SB Noronah vs Prem Kumari Khanna   JR Vohra vs India Export House Pvt Ltd  Anr   Inder Mohan Lal vs Ramesh Khanna  and Shiv Chander Kapoor vs Amar Bose JT  referred to
This Court directed that the landlady be put into possession of the premises by 31st March 1990