Civil Appeal No 1577 NCE of 1987
From the Judgment and Order dated 244
1987 of the Madras High Court in Election Petition No 1 of 1986
Ram Jethmalani Ms Rani Jethmalani and MG Ramachan dran for the Appellant
RK Garg section Padmanabhan K Raj
Choudhary R Mohan K Chandrashekharan R Ayyam Perumal V Krishnamurthy section Thananjayan KV Vijaya Kumar AV Rangam and VR Kari thi kayan for the Respondents
770 The Judgment of the Court was delivered by KANIA J
This is an appeal from a judgment and order delivered by a learned Single Judge of the Madras High Court on April 24 1987 dismissing an election petition filed by the appellant
The appellant herein was the petitioner before the High Court and the respondents nos
1 to 8 herein were arraigned as respondents in the same order in the election petition
The dispute pertains to the election of six Members to the Rajya Sabha by the elected Members of the Tamil Nadu Legislative Assembly
The election was held as scheduled on June 28 1986
The appellant and respondents nos
1 to 7 were the eight candidates in the field all the nominations having been found valid
The 8th respondent was the Returning Officer
The polling took place as scheduled on June 28 1986 and immediately thereafter the ballot box was opened and the votes were sorted out
The election was under the preferential system of voting and the particulars of the first preferences votes cast and secured by the candidates are as follows Candidates First Preference Votes 1
Appellant 33 2
1st Respondent 35 3
2nd Respondent 31 4
3rd Respondent 33 5
4th Respondent 32 6
5th Respondent 34 7
6th Respondent 34 8
7th Respondent nil Out of the 33 first preference votes cast in favour of the appellant one ballot paper was rejected by the 8th respondent the Returning Officer on the ground that the said ballot paper was marked by the voter otherwise than with the article supplied for that purpose
It may be men tioned here that the first preference was indicated on the said ballot paper by a ball point pen with green ink whereas in the ball point pen kept along with the ballot box had blue ink
The working result sheets of the counting were prepared and announced by the 8th 771 respondent
The particulars of the said working result sheets are as follows 1
Appellant 3219 2
1st Respondent 3301 3
2nd Respondent 3270 4
3rd Respondent 3300 5
4th Respondent 3301 6
5th Respondent 3301 7
6th Respondent 3301 In consequence respondents nos
1 to 6 were declared as duly elected and the appellant was declared as having lost the election
It is submitted by learned counsel for the appellant that 1 the first preference vote in his favour in which first preference was indicated on the ballot paper in green ink was wrongly rejected
The rejection of the said ballot paper by the Returning Officer was duly objected to by the appellant at the time of counting
The said ballot paper is hereinafter referred to as the said rejected ballot paper
If the said rejected ballot paper had been received as valid the appellant would have the proportionate number of preference votes and would have been declared elected
The second contention raised by the appellant was that three ballot papers which did not contain the figure 1 in the space intended for marking the said figure should have been rejected and the same were wrongly accepted
These ballot papers had been used for casting first preference votes in favour of the first respondent and if the same had been rejected first respondent would not have been elected and in his place the appellant would have been elected
Both the mistakes according to the appellant materially affected the result of the election
Before going into the controversy raised before us we may note the relevant provisions of the Election Law
The election petition was filed under Chapter II of the Repre sentation of the People Act 1951 hereinafter referred to as the said Act
Section 59 of the said Act provides that at every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed
We are not 772 concerned here with the special procedure for voting pro vided in certain cases provided for under section 60 said Act
Section leo of the said Act deals with the grounds for during elections to be void
The relevant portion of the said section reads thus 1001 Subject to the provisions of sub section 2 if the High Court is of opinion a x x x b x x x c That any nomination has been improperly rejected or d that the result of the election in so far as it con cerns a returned candidate has been materially affected i by the improper acceptance or any nomination or ii by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or iii by the improper reception refusal or rejection of any vote or the reception of any vote which is void or iv by any non compliance with the provisions of the Con stitution or of this Act or of any rules or orders made under this Act the High Court shall declare the election of the returned candidate to be void
Conduct of Election Rules 1961 referred to hereinafter as the Election Rules came into force on 25th of April 1961
Rule 30 of the Election Rules prescribes the form of the ballot papers
Rule 31 of the Election Rules provides for arrangements at polling stations
Sub rule 3 of Rule 31 runs as under 3 the returning officer shall provide at each polling station a sufficient number of ballot boxes copies of the relevant part of the electroal roll ballot papers instru ments for stamping the distinguishing mark on ballot 773 papers and articles necessary for electors to mark the ballot papers
 Rule 39 of the Election Rules deals with the maintenance of secrecy of voting by electors within polling stations and the voting procedure
The material portion of sub rule 2 of that rule runs as follows 2 The elector on receiving the ballot paper shall forth with a proceed to one of the voting compartments b there make a mark on the ballot paper with the instru ment supplied for the purpose on or near the symbol of the candidate for whom he intends to vote Rule 70 lays down rules for the conduct of polls
The portion of Rule 70 material for the purposes of the case runs as follows a x x x x b to every election in a council unless voting by postal ballot has been directed in the whole of that constituency under clause b of rule 68 subject to the following modifications namely i clause a of sub rule 1 of rule 31 shall not apply to an election by assembly members ii in lieu of rules 37 to 40 the following rules shall apply 37A Method of voting
1 Every elector has only one vote at an election irrespective of the number of seats to be filled
2 An elector in giving his vote a shall place on his ballot paper the figure 1 in the space opposite the name of the candidate for whom he wishes to vote in the first instance and 774 b may in addition place on his ballot paper the figure 2 or the figures 2 and 3 or the figures 2 3 and 4 and so on in the space opposite the names of the other candidates in the order of his preference
38A x x x x 39A Maintenance of secrecy of voting by electors within polling station and voting procedure 1 Every elector to whom a ballot paper has been issued under rule 38A or under any other provision of these rules shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down
2 The elector on receiving the ballot paper shall forth with a proceed to one of the voting compartments b record his vote in accordance with sub rule 2 of rule 37A with the article supplied for the purpose
c fold the ballot paper so as to conceal his vote d insert the folded paper in the ballot box and e quit the polling station It is not necessary to quote the rest of Rule 39A for the purposes of this Judgment It was submitted by learned counsel for the appellant that the express on article supplied for the purpose used in Rule 39A2b and Rule 732e of the Election Rules was misconstrued by the High Court
It was submitted by him that in the context of the election law and the instructions contained in the hand books to which reference will be made that expression should be interpreted as meaning actually given or handed over
In this regard reference was made to instructions given to the Presiding Officer in respect of elections to Lok Sabha and State Assemblies
The relevant instructions in the said hand book provide that the proce dure followed in respect of the election to Lok Sabha and State Assemblies is that the Polling Officer or 775 Polling Assistant must give the rubber stamp properly inked to the voter before he proceeds into the voting booth for marking his choice and the Polling Officer or Polling As sistant must take back the said rubber stamp from the voter after he comes out from the voting both having cast his vote and then hand it over to the next voter and so on
It was urged that the same procedure should have been followed mutatis matandis in the case of an election to the Legisla tive Council like the one in question before us and if this were done it would imply that the ball point pen for mark ing the preference should have been personally handed over to the voter with instructions to use it for marking his preference
This argument is not worthy of acceptance
As pointed out by the High Court the nature of the elections to the Lok Sabha and the State Assemblies is different from that of elections to a Legislative Council or Rajya Sabha and this difference has to be taken into account in inter preting the relevant words used in the rules relating to an election
The election to Lok Sabha and the State Assemblies is a direct election on the basis of a single member con stituency where the voter has only one choice whereas in the case of an election to the Rajya Sabha the said election is by members of the Legislative Assemblies of the States and the election is an indirect election conducted on the prin ciple of proportional representation by means of a single transferable vote
In the case of elections to the Lok Sabha and State Assemblies a rubber stamp with arrow cross mark is provided with which the voter has to make a mark on the symbol of the candidate of his choice in the ballot paper
Many of the voters are not familiar with the election proce dure and it is in these circumstances that the requirement has been provided that a rubber stamp containing the cross mark properly inked should be handed over to each voter with instructions to use the same for marking his vote or choice
In the case of the election to the Rajya Sabha or a Legisla tive Council the situation is entirely different
The number of voters is limited
One could assume that they are reasonably familiar with the procedure of voting and the article supplied for marking the preference is a fountain pen or ball point pen
In these circumstances there is hardly any warrant for requiring that the procedure of handing over personally to each voter the article for mark ing his preference should be followed and it is quite  adequate if the article for marking the preference namely the fountain pen or ball point pen is made available in the voting booth with clear instructions that the same should be used in marking the preference
It must also be borne in mind that there is no express rule or instruction in connec tion with the elections to the RaRajya Sabha by Members of the State Assemblies or elections to the Legislative Coun cils of States which specifically requires that the arti 776 cle for marking the preference should be handed over to each voter personally
In these circumstances in our view the High Court was right in interpreting the expression article supplied for the purpose in Rule 39A2b and Rule 732e of the Election Rules as meaning made available for the purpose or provided for the purpose
Reliance was placed by learned counsel for the appellant on the decision of this Court in Ram Utar Singh Bhaduria vs Ram Gopal Singh  Ors  and particularly the observations at page 200 of the said report
We are of the view that that decision as well as the other decisions in this connection cited before us are in connection with the elections to the Lok Sabha or the State Assemblies and have no application to an indirect election like the election to the Rajya Sabha by Members of State Assemblies
Rule 56 of the Election Rules deals with counting of votes
The material portion of sub rule 2 of Rule 56 of the Election Rules runs as follows 56
Counting of Votes
1 The ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinized
2 The returning officers shall reject a ballot paper a x x b If it bears no mark at all or to indicate the vote it bears a mark elsewhere than on or near the symbol of one of the candidates on the face of the ballot paper or it bears a mark made otherwise than with the instrument supplied for the purpose or   Rule 73 deals with the scrutiny of opening of ballot boxes and packets of postal ballot papers
The material portion of sub rule 2 of Rule 73 runs as follows 2 a ballot paper shall be invalid on which a the figure 1 is not marked or b the figure 1 is set opposite the name or more than one candidate or is so placed as to render it doubtful to which candidate it is intended to apply or 777 c x x x d x x x e there is any figure marked otherwise than with the article supplied for the purpose
 It would now be convenient to deal with the first con tention of the learned counsel for the appellant
As we have already pointed out the said rejected ballot paper was rejected on the ground that it was marked otherwise than with an article supplied for the purpose
As we have already pointed out the figure 1 indicating the first preference in the said ballot paper was marked in green ink whereas in the ball point pen kept in the voting booth with the ballot box the ink used was blue
The returning officer took the view that the said marking of preference in green ink clearly established that it was done with a bail point pen other than the one which was supplied for marking the preference and hence the vote was invalid
It was urged by Shri Jeth malani in this connection that although the marking of preference was done in green ink there was no doubt that the intention of the over concerned was to give the first preference vote to the appellant
It was submitted by him that the fundamental rule of election law is that effect should be given to the intention of the voter and this could be done only by treating the vote as valid as the intention of the voter was quite clear
Mr Jethmalani may be right when he contends that the intention of the voter could be clearly gathered and it was to cast the first preference vote for the appellant
However it is not enough for the vote to be valid that it is possible to gather the intention of the voter to vote for a particular candidate as pointed out by the Constitution Bench of this Court in the leading case of Hari Vishnu Kamath vs Syed Ahmad Ishaque and Others  at page 1132
This Court held that  1132 But when the law prescribes that the intention should be expressed in a particular manner it can be taken into account only if it is so expressed
An intention not duly expressed is in a court of law in the same position as an intention not expressed at all In the present case Rule 392b which is applicable to the election petition before us clearly prescribes that the vote must be cast by the voter in accordance with the said sub rule 2 of Rule 39 of the Election Rules with the article supplied for the purpose
Rule 39A2b read with Rule 37A2a prescribes that an elector in giv 778 ing his vote shall place on his ballot paper the figure 1 in the space opposite the name of the candidate for whom he wishes to vote in the first instance with the article sup plied for the purpose
Hence unless the ball point pen kept with the ballot box is not to be regarded as the article supplied for marking the preference the intention of the elector in the present case cannot be given effect to as it was expressed in a manner inconsistent with the provisions in the rules
Clause b of sub rule 2 of Rule 56 of the Election Rules provides inter alia that if a ballot paper contains a mark made on it otherwise than with the instru ment supplied for the purpose the returning officer shall reject the said ballot paper
Rule 73 is included in Part VII of the Election Rules and that Part applies to the counting of votes at elections by Assembly members
Clause e of sub rule 2 of Rule 73 of the Election Rules set out earlier that a ballot paper shall be invalid on which there is any figure marked otherwise than with the article sup plied for the purpose
Rule 73 is directly applicable to the case of the election in question and as aforesaid it pre scribes that if on the ballot paper there is any figure marked otherwise than with the article supplied for the purpose the ballot paper shall be invalid
Assuming that the voter in this case had expressed his intention clearly by marking the figure 1 in green ink he did so in violation of the express provisions of the Rules which have a statuto ry force and hence no effect can be given to that intention
It was next argued in this connection that the expres sion article supplied for the purpose as used in the said Rules 39A2b and 732e was misconstrued by the Presid ing Officer and the High Court in the present case
It was submitted by learned counsel for the appellant that Rule 562b was not complied with by making a ball point pen available in the polling compartment near the ballot box for the use of the electors in marking their preference as law required that the Polling Officer should personally hand over the bali point pen to the voter before he proceeds to the voting booth with instructions to mark his preference with that ball point pen
He referred to the hand book dealing with the procedure prescribed in elections to the Lok Sabha and to the Legislative Assemblies and submitted that the said procedure was applicable mutatis mutandis to elections to the Rajya Sabha and the Legislative Councils
It was urged by him that the second proviso to clause e of sub rule 2 of Rule 73 of the Election Rules provides that if the returning officer is satisfied that any such defect as is mentioned in the said clause has been caused by any mistake or fault on the part of the Presiding Officer or Polling Officer the ballot paper shall not be rejected merely on the ground of the said defect
It was contended by him that the Polling Officer was bound to hand over to 779 each voter individually the ball point pen to be used for marking his preference on the ballot paper
He submitted that the duty of the Polling Officer was to hand over the ball point pen to the voter to use the same for marking his preference and it was also his duty to take back the said pen from the voter after he has cast his vote and given the same to the next voter
He urged that merely providing a bail point pen for voting did not constitute substantial compliance with Rule 39A2b or Rule 732e
He urged that the mistake in the present case namely marking of the preference with green ink on the ballot paper had occurred because no bail point pen was handed over as aforesaid to the voter concerned
We are unable to accept this submis sion
The procedure followed in an election to the Lok Sahba or the State Assembly is to give to the voter a rubber stamp for voting with an arrow mark properly inked with instruc tions to use the same for voting before the voter enters the voting compartment to put his mark against the name of the candidate for whom he desires to vote and to take the rubber stamp back from the voter when he comes out of the voting compartment and to repeat this process for every voter
In the first place it must be noticed that there is no rule or standing order requiring the Presiding Officer or to follow this procedure in the case of an election to the Rajya Sabha or Legislative Council of a State
There is a material difference between an election to Lok Sabha or a Legislative Assembly which is a direct election with one constituency for each seat and only vote is to be cast and an election to Rajya Sabha which is an indirect election with the preferen tial system of voting
Sub rule 2 of Rule 39 which is applicable to such an election to a Legislative Assembly provide that the elector on receiving the ballot paper has to make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candi date for whom he intends to vote
It is only in the case of an election like this that it becomes necessary to provide a rubber stamp properly inked to the voter to mark his prefer ence
It must be remembered that in such an election case the number of voters or electors is extremely large and many of them might be unfamiliar with the voting procedure
An election to the Rajya Sabha on the other hand is an indi rect election with multiple candidates  constituency and the system of voting followed is the preferential system of voting
Rule 37A of the Election Rules which is applicable to such an indirect election by virtue of the provisions of Rule 70 provides that an elector in giving his vote shall place on his ballot paper figure 1 in the space opposite the name of the candidate for whom he wishes to vote in the first instance
This difference in the case of an election to the Rajya Sabha makes it wholly unnecessary that the Presiding Officer or the Polling Officer should hand over to 780 every voter individually a bail point pen to mark his vote and it would quite wholly be adequate if the article for marking the preference namely a ball point pen is provid ed to the voter to use the same for marking his preference or if the pen is placed in such a way as to make it clear that the marking of the preference is to be done with that pen and instructions given to use that pen for marking the preference
The evidence of the returning officer which has been accepted by the High Court is to the effect that there were two voting compartments in the polling booth and in each of them a ball point pen with blue ink was kept as soon as an elector went into the polling booth one Polling Assistant gave him his identity slip and another Polling Assistant gave to the elector printed copies of Rules 37A and 39A of the Election Rules and a copy of the guidelines
Then the elector went to the first Polling Officer who obtained his signature in the counter foil of the ballot paper and instructed the elector that he should mark his preference on the ballot paper with the article kept for the purpose inside the voting compartment
Another Polling Officer gave the ballot paper to the voter and again in structed him to go into the voting compartment and mark the ballot paper with the article kept there for that purpose fold the ballot paper before coming out and put in into the ballot box in front of the Polling Officer
In the light of this evidence we are of the view that the ball point pen with blue ink kept in the voting compartment for marking the preference must be regarded as the article supplied for that purpose namely the purpose of the voter marking his pref erence on the ballot paper
It was submitted by learned counsel for the appellant that it was possible that a voter might have used his own pen if the pen kept in the voting compartment was not working and such a vote cannot be re garded as invalid
We are not concerned with a case of that kind here as there is no evidence that in any voting com partment the ball point pen kept there was not working
It was next urged that if a voter had used another ball point pen that is other than the one kept in the voting compart ment containing the blue ink it would not have been possi ble to find out that the preference marked with such a bail point pen had been used for marking the preference and not the pen supplied
This is of no relevance here
The possibility that in a given case a breach of the rules may be difficult to detect cannot lead to the conclusion that the mandatory requirement that preference on the ballot paper must be marked with the article supplied for the purpose should be regarded as not binding in law
We are therefore of the view that the said ballot paper was right ly rejected by the returning officer and the arguments urged by learned counsel for the appellant in that contention must be rejected
781 The next point is regarding the three first preference votes cast in favour of respondent No 1 which were accepted by the returning officer as stated earlier
In respect of these three votes the figure 1 is marked not in the right hand column opposite the name of respondent No 1 but in the left hand column containing the name of candidate and opposite the name of respondent No 1
The appellant unsuc cessfully objected to the validity of these three ballot papers on the ground that the first preference had not been marked in the space provided for that purpose opposite the name of the candidate concerned namely respondent No 1 as required by Rule 37A2
It was submitted by learned counsel for the appellant that the returning officer as well as the High Court were in error in holding that the said three ballot papers were valid
We propose to discuss this controversy very shortly because we are in full agreement with the reasoning and conclusions given by the High Court in its impugned judgment in coming to the conclusion that the returning officer was justified in rejecting the objec tions preferred by the appellant to the said three votes and holding that the same were valid
The relevant portion of Rule 37A2 of the Election Rules has already been quoted earlier
Clause a of sub rule 2 of that Rule only pro vides that the voter shall place on his ballot paper the figure i in the space opposite the name of the candidate for whom he wishes to vote in the first instance
it is signifi cant that this rule does not specifically say that the figure 1 must be placed in the column earmarked for marking the preference but only requires that the figure 1 should be placed opposite the name of the candidate
Sub rule 4 of Rule 71 which is a definition runs as follows 714 first preference  means the figure 1 set opposite the name of a candidate second preference  means the figure 2 set opposite the name of a candidate third pref erence  means the figure 3 set opposite the name of a candi date and so on It is significant that in this sub rule also there is nothing to indicate that the preference must be indicated in the column reserved for that purpose the only requirement being that the figure 1 should be written opposite the name of the candidate
Similarly sub rule 2b of Rule 73 only lays down that if the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it applied the ballot paper would be invalid
Sub rule 12 of Rule 73 deals with the invalidity of ballot papers and that subrule nowhere states that merely by reason of the preference being 782 marked in the wrong column if the marking is opposite the name of the candidate concerned the ballot paper shall be rendered invalid
It is true that the column in which the preference should have been marked and intended for that purpose was the column on the righthand side of the first column where the name of the candidate was to be put but there is no express provision to the effect that unless the preference is marked in the correct column the ballot paper would be invalid
In such a situation the principle enunci ated by this Court in several judgments and reiterated in section Sivaswami vs
V Malaikannan  Ors  that the primary task of the Court in a case where the question is whether the ballot paper is invalid is to ascertain the intention of the voter must be applied
In that case the Court held that the ballot paper shall not be rejected as invalid if it is reasonably possible to gather a definite indication from the marking so as to identify the candidate in favour of whom the vote had been intended to be given
This of course is subject to the rule that before a ballot paper is accepted as valid the ballot paper must not be invalid under any other express provision and the intention of the voter must not be expressed in a manner which is contrary tO or totally inconsistent with the manner pre scribed under the said Act or the Election Rules for ex pressing the same
In the case of the said three votes in question the figure 1 was clearly marked opposite the name of respondent No 1 being the candidate concerned as required by the express provision of the said Rule 37A and the intention of the voter was clearly to cast the first preference in favour of respondent No 1
In these circum stances the ballot papers were rightly accepted by the returning officer as valid and the High Court was justified in coming to the conclusion to which it has arrived
In the result the appeal fails and is dismissed
Howev er considering the facts and circumstances of the case there will be no order as to costs
RSS Appeal dis missed


Summary:
Constitution of India Article 254  Repugnancy between the Parliamentary Act and the State Act in respect of mat ters in the Concurrent List Seventh Schedule When arises Karnataka Contract Carriages Acquisition Act 1976 Whether repugnant to the 
Statutory interpretation Doctrine of pith and substance or dominant purpose Scope of Whether applicable to find repugnancy under Article 254 of the Constitution between Parliamentary and State laws in respect of matters in List 111
Seventh Schedule to the Constitution
The Karnataka Contract Carriages Acquisition Act 1976 enacted by the State Legislature by taking aid of Entry 42 List III of the Seventh Schedule and Articles 31 and 39 b and c of the Constitution was reserved for consideration and received the assent of the President of March 11 1976
Section 4 of that Act provided for vesting of contract carriages along with the respective permits andor certifi cates of registration issued under the in the State absolutely free from encumbrances
Sub section 1 of section 14 prohibited applications for fresh permits or renewal of existing permits on or from the date of vesting
Section 142 provided for abatement of all applications appeals or revisions pending before the appro priate authority as on the notified date
Sub section 1 of section 20 provided for cancellation of notwithstanding anything in the 1939 Act all contract carriage permits granted or renewed in respect of any vehicle other than a vehicle acquired under the Act or belonging to the State Road Trans port Corporation
Sub section 2 entitled the Corporation to the grant or renewal of contract carriage permits to the exclusion of all other persons while sub section 3 re strained the authority concerned from 615 entertaining applications from persons other than the Corpo ration
Section 73 of the enacted to replace the 1939 Act lays down the mode of application for a contract carriage permit
Section 741 empowers the Regional Transport Authority to grant such permits
Sub section 2 enumerates conditions that could be attached to such permit
Sub section 3 empowers the State Government when directed by the Central Government to limit the number of contract carriages on the city routes
Under section 801 such application could be made at any time
Sub section 2 posits that a Regional Transport Authority shall not ordi narily refuse to grant such application
Section 2171 repealed all the laws which were inconsistent with the provisions of the Act
The petitioners a group of contract carriage operators who were denied permits that they had applied for under sections 73 74 and 80 of the in view of the provisions of sections 14 and 20 of the Karnataka Contract Car riages Acquisition Act 1976 filed writ petitions under Article 32 of the Constitution questioning the action of the RTA It was contended that the provisions of sections 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 in as much as while the Regional Transport Authority was enjoined by the said provisions of the 1988 Act ordinarily not to refuse to grant an application for permit of any kind the said provisions of the Karnataka Act prohibited any person from applying for and any officer or authority from entertaining or granting application for running any contract carriage in the State that since the MV Act 1988 was a later legis lation operating in the same area it should be deemed to have impliedly repealed the provisions of sections 14 and 20 of the Karnataka Act even if the latter Act had received the assent of the President in view of the proviso to sub clause 2 of Article 254 of the Constitution that when there is a repugnancy under Article 254 of the Constitution the doctrine of pith and substance does not apply and even if some of the provisions of the State Legislation are in conflict with some of the provisions of the Central legisla tion the conflicting provisions of the State legislation will be invalid and that therefore their applications under sections 74 and 80 were maintainable without reference to the provisions of the Karnataka Act
For the respondents it was contended that the Acquisi tion Act was made in exercise of the power under a different entry and was not on the same subject therefore the matter did not come within the ambit of article 254 of the Constitu tion and that the Acquisition Act having been 616 reserved for consideration under article 2542 and having received the assent of the President it prevails over the Parliamentary Act in the State of Karnataka
On the question Whether there is repugnancy between the provisions of sections 14 and 20 of the Karnataka Contract Car riages Acquisition Act 1976 and sections 74 and 80 of the and whether the doctrine of domi nant purpose and pith and substance is applicable while examining the repugnancy of the two statutes Per Misra J Concurring with Sawant J 1
There is no direct inconsistency between the Karnata ka Contract Carriages Acquisition Act 1976 and the 
631G H 21 In cl
1 of article 254 of the Constitution it has been clearly indicated that the competing legislations must be in respect of one of the matters enumerated in the Con current List
In the instant case the State Act was an Act for acquisition and came within Entry 42 of The Concurrent List
The Parliamentary Act on the other hand is a legisla tion coming within Entry 35 of the Concurrent List
There fore the said two Acts as such do not relate to one common head of legislation enumerated in the Concurrent List
Clause 2 also refers to the law with respect to the same matter
628F 629A 22 Repugnancy between two statutes would arise if there is direct conflict between the two provisions and if the law made by Parliament and the law made by the State Legislature occupy the same field
In the instant case the State Act intended to eliminate private operators from the State in regard to contract carriages acquired under the existing permits vehicles and ancillary property and with a view to giving effect to a monopoly situation for the State Under taking made provision in section 20
The Parliamentary Act does not purport to make any provision in regard to acquisition of contract carriage permits which formed the dominant theme or the core of the State Act
Nor does it in section 73 and 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 Parliamentary Act does contain a liberalised provision in the matter of grant of permits but even then there again the ancillary provision contained in section 20 of the State Act to effectuate acquisition does not directly run counter to the 1988 provision
630G 631C 617 There does not thus appear to be any repugnancy between the two Acts for invoking article 254 of the Constitution
631D E Bar Council of Uttar Pradesh vs State of UP  Anr
   Kerala State Electricity Board vs Indian Aluminium Company 1976 1 SCR 552 Deep Chand vs State of Uttar Pradesh  Ors   T Barai vs Henry Ah Hoe  Anr   Hoechst Pharmaceuti cals Ltd  Anr
vs State of Bihar  Ors
   Zaverbhai Amaidas vs State of Bombay 1955 1 SCR 799 M Karunanidhi vs Union of India  and State of Karnataka  Anr
vs Ranganatha Reddy  Anr   referred to
Per Sawant J 1
There is no repugnancy in the provisions of sections 14 and 20 of the Karnataka Contract Carriages Acquisition Act 1976 and sections 74 and 80 of the 
Hence the provisions of Article 254 of the Constitution do not come into play
652F 636C 21 Whenever repugnancy between the State and Central Legislation is alleged what has to be first examined is whether the two legislations cover or relate to the same subject matter
The test for determining the same is to find out the dominant intention of the two legislations
If the dominant intention of the two legislations is different they cover different subject matters
If the subject matters covered by he legislation are thus different then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field
The legislation to be on the same subject matter must further cover the entire field covered by the other
652C D A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation
But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 2542
Both the legislations must be substantially on the same subject to attract the Article
652E Municipal Council Palai vs
TJ Joseph  Ors   Tika Ramji  Ors
vs State of UP  Ors
  and State of Karnataka  Anr
vs Ranga natha Reddy  Anr
   referred to
618 Ratan Lal Adukia vs Union of India  distinguished
22 In the instant case the objects and the subject matters of the two enactments were materially different
The Karnataka Act was enacted by the State Legislature for acquisition of contract carriages under Entry 42 of the Concurrent List read with Article 31 of the Constitution to give effect to the provisions of Articles 39b and c thereof
The MV Act 1988 on the other hand was enacted by the Parliament under Entry 35 of the Concurrent List to regulate the operation of the motor vehicles
They thus occupy different areas
636C B C 23 Unlike the MV Act 1988 which was enacted to regulate the operation of the motor vehicles the object of the Karnataka Act was not only the regulation of the operation of the motor vehicles
Nor was its object merely to prevent the private owners from operating their vehicles with the exclusive privilege of such operation being reserved in favour of the State or the State Undertaking
For if that were the only object the same could have been achieved by the Transport Undertakings of the State following the spe cial provisions relating to State Transport Undertakings in Chapter IV A of the Motor Vehicle Act 1939 which was in operation when the Karnataka Act was brought into force
The very fact that instead the State undertook the exercise of enacting the Karnataka Act shows that the object of the State Legislature in enacting it was materially different ie to nationalise the contract carriage services in the State with a view to provide better transport facilities to the public and also to prevent concentration of wealth in the hands of the few and to utilise the resources of the country to subserve the interests of all
634D F B C 31 A comparison of the provisions of the MV Act 1939 and MV Act 1988 shows that the latter has merely replaced the former
The special provisions relating to the State Transport Undertakings which are contained in Chapter VI of the MV Act 1988 are pari materia with those of Chapter IV A of the MV Act 1939 with only this difference that whereas under the old Act it was the State Transport Undertaking which had to prepare a scheme for running and operating the transport service by it in relation to any area or route or portion thereof exclusively under the new Act such a scheme has to be prepared by the State Government itself
There is no difference in the legal consequences of the schemes under the two enactments
Both envisage the operation of the services by the State Transport Undertaking to the exclusion of the rest and cancellation of the existing permits and compensation only for the deprivation of the balance of the period of the permit
No acquisi 619 tion of the vehicles or the paraphernalia connected with such vehicles is envisaged as is the case under the Karnata ka Act
634G 635E G 32 Section 98 of the MV Act 1988 in terms clearly states as did Section 68B of the MV Act 1939 that Chapter VI relating to the special provisions about the State Trans port Undertaking and the rules  and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter V or in any other law for the time being in force or in any instrument having effect by virtue of any such law
Sections 74 and 80 relating to the grant of the contract carriage permit and the procedure in applying for the grant of such permits respectively are in Chapter V
This means that when under Chapter VI a scheme is prepared by the State Govt
entrusting the contract carriage services in relation to any area or route or por tion thereof to a State Transport Undertaking to the exclu sion complete or partial of other persons the provisions of 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
The MV Act 1988 thus also makes a provision for nationalisation of routes and envisages a denial of permits to private operators when routes are so nationalised
Hence it cannot be said that there was a conflict between the provisions of the Karnataka Act and the MV Act 1988
637H 638D 4
When the legislative encroachment is under considera tion the doctrine of pith and substance comes to the aid to validate a legislation which would otherwise be invalid for the very want of legislative competence
When the repugnancy between the two legislations is under consideration what is in issue is whether the provision of the State enactment though otherwise constitutionally valid has lost its valid ity because the Parliament has made a legislation with a conflicting provision on allegedly the same matter
If it is open to resolve the conflict between two entries in differ ent Lists viz the Union and the State List by examining the dominant purpose and therefore the pith and substance of the two legislations there is no reason why the repugnancy under Article 254 of the Constitution between the provisions of the two legislations under different entries in the same List viz the Concurrent List should not be resolved by scrutinizing the same by the same touchstone
What is to be ascertained in each case is whether the legislations are on the same matter or not
In both cases the cause of conflict is the apparent identity of the subject matters
The tests for resolving it therefore cannot be different
639E H 620 Meghraj  Ors
vs Allahrakhiya  Ors AIR 1942 FC 27 distinguished
Per K Ramaswamy J Dissenting 1
Section 141 of Karnataka Contract Carriages Acqui sition Act 1976 to the extent of prohibiting to make fresh application for grant of permits to run the contract car riages other than those acquired under that Act and the embargo and prohibition created under 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 void
686C D 21 The Parliament and the legislature of a State derive their exclusive power to legislate on a subjectsubjects in List 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 entries in the three lists merely demarcate the legisla tive field or legislative heads
Their function is not to confer powers on either the Parliament or the State Legisla ture
682E D Subrahmanyam Chettiar vs Muttuswami Goundan AIR 1941 FC 47 Governor General in Council vs The Reliegh Investment Co Ltd  Harakchand Ratanchand Banthia vs Union of India  AND Union of India vs
HS Dhillon   referred to
22 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 consideration of the President and it has received his assent and then it will prevail in that State notwithstanding its repugnancy or inconsistency with the Union law
This exception again is to be read subject to the proviso to cl
2 thereof which empowers the Parliament to make law afresh or repeal or amend modify or vary the repugnant State law and it became void even though it received President s assent
659D F 621 23 The question of repugnancy under Article 254 of the Constitution arises when the provisions of both laws are fully inconsistent or are absolutely irreconcilable and it is impossible to obey without disobeying the other or conflicting results are produced when both the statutes covering the same field are applied to a given set of facts
It matters little whether the provisions fall under one or other entry in the Concurrent List
The substance of the same matter occupying the same field by both the pieces of the legislation is material and not the form
The repugnancy to be found is the repugnancy of the provisions of the two laws and not the predominant object of the subject matter of the two laws
The proper test is whether effect can be given to the provisions of both the laws or whether both the laws can stand together
If both the pieces of legislation deal with separate and distinct matters though of cognate and allied character repugnancy does not arise
660A B 675B C 660C 674H 675A Tika Ramji vs State of UP   AS Krish na vs Madras State   Prem Nath Kaul vs State of J K 1952 2 Supp
SCR 273 Bar Council of UPv
State of UP   Deep Chand vs State ofU P 1959 Supp
2 SCR 8 State of Orissa vs
MA Tulloch  Co   State of Assam vs Horizon Union   State ofJ  K vs
MS Farooqi   Kerala State Electricity Board vs Indian Aluminium Co 1976 I SCR 552 Basu s Commentary on the Constitution of India Silver Jubilee Edition Volume K 144 Clyde Engineer ing Co vs Cowburn  Hume vs Palmer   Brisbane Licensing Court   Colvin vs Bradley Bros Pvt Ltd   In Re Ex Parte Maclean   Wenn vs Attorney General Victoria   O  Sullivan vs Noarlunga Meat Co Ltd   O Sullivan vs Noarlunga Meat Co Ltd and Blackley vs Devon dale Cream Vic Pvt Ltd   referred to
24 Section 14 read with section 20 of the Acquisition Act freezed the right of a citizen to apply for and to obtain permit or special permit to run a contract carriage in terms of the permit and monopoly to run a contract carriage was conferred on the STU Karnataka
But the MV Act 1988 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 the 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 622 rejected if the permit applied for relate to an approved or notified route
The MV Act accords the right while the Acquisition Act negates and freezes the self same right to obtain a permit and to run a contract carriage and prohibits the authorities to invite or entertain an application and to grant a permit to run contract carriage
The Act and the relevant rules cover the entire field of making an applica tion in the prescribed manner and directs the Regional Transport Authority to grant permit with condition attached thereto to run contract carriages vide sections 661 73 74 and 80
Thus the existence of two sets of provisions in the 59 of 1988 and Acquisition Act 21 of 1976 is sufficient to produce conflicting results in their opera tion in the same occupied filed
The two sets of provisions run on collision course though an applicant may waive to make an application for a permit
Thereby there exists the operational incompatibility and irreconcilability of the two sets of provisions
Sections 141 and 203 of the Acquisi tion Act are repugnant and inconsistent to 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 to make or invite an application and injuction issued to Regional Transport Authority prohibiting to grant contract carriage permit to anyone except to STU Karnataka within the State of Karnataka became void
682H 683E 31 The Parliament with a view to lay down general prin ciples makes law or amends the existing law
The State Legislature still may feel that its local conditions may demand amendment or modification of the Central Law
Their reserve power is article 2542
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
But unless it again enacts law and reserves it for consideration and obtains the assent of the President afresh there is no prohibition for the petitioners to make applications for the grant of contract carriage permits under the Act and consideration and grant or refusal thereof according to law by the concerned Regional Transport Author ity
685E 686B 32 The Karnataka State Legislature is therefore at liberty 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
686B 4
Parliament may repeal the State law either expressly or by necessary implication but Courts would not always favour repeal by implication
Repeal by implication may be found when the State law is repugnant or inconsistent with the Union law in its scheme or operaion
The principle would be equally applicable to a question under 623 Article 2542 of the Constitution
In the instant case section 2171 of the Union law does not expressly repeal sections 141 and 203 of the State law
They are repugnant with the Union law
676C D 670E F 669F Zaveribhai vs State of Bombay 1955 1 SCR 799 M Karunanidhi vs Union of India   T Barai vs Henry Ah Hoe  and Ms Hoechst Pharmaceuti cals Ltd vs State of Bihar   referred to
For the applicability of the principle that special law prevails over the general law the special law must be valid law in operation
Voidity of law obliterates it from the statute from its very inception
In the instant case since sections 141 and 203 are void the said principle is not applicable
683F Justiniano Augusto De Peidada Barreto vs Antonia Vicente De Fonseca  Ors    distinguished
61 The doctrine of pith and substance or the predomi nant purpose or true nature and character of law is applied to determine whether the impugned legislation is within the legislative competence under articles 2461 and 2463 of the Constitution and to resolve the conflict of jurisdiction
If the Act in its pith and substance fails in one List it must be deemed not to fail in another List despite inciden tal encroachment and its validity should be determined accordingly
The pith and substance rule thereby resolves the problem of overlapping of any two entries of two dif ferent Lists vis a vis the Act on the basis of an inquiry into the true nature and character of the legislation as a whole and tries to find whether the impugned law is substan tially within the competence of the Legislature which enact ed it even if it incidentally trespasses into the legisla tive field of another Legislature
680C 677F 678A1 62 The doctrine has no application when the matter in question is covered by an entry or entries in the Concurrent List and has occupied the same field both in the Union and the State Law
It matters little as in which entry or en tries in the Concurrent List the subject matter falls or in exercise whereof the Actprovision or provisions therein was made
The Parliament and Legislature of the State have exclusive power to legislate upon any subject or subjects in the Concurrent List
The question of incidental or ancillary encroachment or to trench into forbidden field does not arise
The determination of its true nature and character also is immaterial
680C D 624 Prafulla Kumar vs Bank of Commerce Khulna AIR 1947 PC 60 State of Bombay vs
FN Balsara   Atiabari Tea CoLtd
vs State of Assam  and Meghraj  Ors
vs Allaharakhiya  Ors AIR 1942 FC 27 referred to