Case: Municipal Council Palai Vs. T.J. Joseph and Others

The Municipal Council, Palai, the appellant before us, passed a resolution on September 12, 1958 providing for the use from October 1, 1958 of a public bus stand constructed by it -for stage carriage buses starting from and returning to the municipal limits of Palai or passing through its limits. A fee of Re. 1 per day was to be, Charged on every such bus and 50 nP. per day on buses which merely pass through the municipal limits. The resolution also prohibited the use after that date of any other public place or the sides of any public street within Palai municipal limits as a bus stand or a halting place. At the request of the bus operators the Municipal Council, by a resolution dated September 24, 1958 reduced the rates from Re. 1 to 80 np. per day and from 50 nP. to 40 nP. per day. By a further resolution dated November 22, 1959 the Municipal Council modified the resolution of September 12, 1958 and instead imposed a prohibition on using as a bus stand or halting place a public place or side of a public road within a radius of six furlongs from the Municipal bus stand. Some of the operators who were using that bus stand did not pay the charges due from them for the use of the bus stand. Demand notices were, therefore, issued against them. The respondent in this appeal, Joseph, as well as the respondents in the other two appeals, Anthony and Eapen, who were recipients of such notices preferred writ petitions before the High Court of Kerala challenging the validity of the action taken by the Municipal Council and praying for quashing of the demand notices issued against them.

Reasoning:
Could it, therefore, be said that there is conflict between ss. 286 and 287 on the one hand and s. 72 of the Travancore- Cochin Motor Vehicles Act on the other because while under s. 287 a municipality can prohibit the use as a halting place of any place within a specified distance of the bus stand constructed by it, the Government or other appropriate authority can by order permit places within the prohibited area to be used as halting places ? It is urged before us on behalf of the Municipal Council that until action is taken under s. 72 of the Travancore Cochin Motor Vehicles Act which will have such result, it cannot be said that a conflict will arise and that until such conflict actually takes place, the old provision must stand. In support of this contention learned counsel refers us to the decision of Sulaiman J., in Shyamakant Lal v. Rambhajan Singh ([1939] F.C.R. 193, 212.). There, the learned judge in his judgment has stated the principles of construction to be applied when the question arises as to whether provincial legislation is repugnant to an existing Indian law. In the course of judgment the learned judge has observed "Further, repugnancy must exist in fact, and not depend merely on a possibility."He relied upon the decision in Attorney-Generalfor Ontario v. Attorney-General for the Dominion ([1896] A.C. 348, 369-370.)in support of his view. In that case there was a prior provincial law enabling local authorities to adopt certain provisions of a provincial law for enforcing prohibition. Then a later Dominion law was enacted called the Canada Temperance Act, 1886 which provided that part II of that law could be brought into operation in a province by an order of the Governor General of Canada in Council. It may be mentioned that there were certain provisions in the Dominion Act which purported to repeal the prohibitory provisions of the provincial Act. The Privy Council held that those provisions were ultra vires. It was contended before the Privy Council alternatively that the provisions of the Provincial Act being repugnant to the Dominion Act stood repealed by implication by the provisions of part II of the Dominion Act by resorting to which local authorities could introduce prohibition in their areas. The Privy Council pointed out that those provisions were inapplicable until an order was made by the Governor General of Canada in Council applying Part II of the Act to a province and in fact no such order was made. That case is clearly distinguishable because Part 11, of the Act had not come into force at all and since it was not in force in a province the question of its being in conflict with the provincial law did notseems to us however, clear that bearing in mind the fact that the provisions of s. 72 of the Travancore Cochin Motor Vehicles Act were intended to apply to a much wider area than those of ss. 286 and 287 of the Travancore District Municipalities Act it cannot be said that s. 72 was intended to replace those provisions of the Travancore District Municipalities Act. The proper way of construing the two sets of provisions would be to regard s. 72 of the Travancore-Cochin Motor Vehicles Act as a provision in continuity with ss. 286 and 287 of the Travancore District Municipalities Act so that it could be availed of by the appropriate 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 appropriate authority may nevertheless take action under s. 72 of the Travancore Cochin Motor Vehicles Act, the result of which would be to override the action taken by the Municipal Council under s. 287 of the District Municipalities Act. No action under section 72 has so far been taken by the Government and, therefore, the resolutions of the municipal Council still hold good. Upon this view it is not necessary to consider certain other points raised by learned counsel,