STATE OF JAMMU AND XA.SJJMIR

M. S. F ~ROOQl AND Ol'HERS

March 17, 1972 rs. M. SIKRI, c.r., A. N. GR.ovila, A. N. RAv, n. o. PALBKAR

AND M. H. BEG, J.t.)

Constitution of lrtdia, 1950, Art. 254 as applied to Jammu and Kashmir in 1962....:..Scope of.

Jammu and Kashmir Government Servants' Prevention of Corruption C (Commission) Act, 1962-/f repugnooo to All India Services Act, 1951, and Rules made thereunder-Repugnahcy-Test$ for.

The respondent, a member of the Indian Police Service, wu borne on the Jammu and Kashmir Cadre. The Cottunission 8et up under the Jammu and Kashmir Government Servants'' Prevention of Corruption (Commission) Act 1962, directed investigation into a complaint received by t~ Comminlon again&t the respondent. He cballenaed the jurisdic D tion of the Commission, and the High Court allowed the petition, holdl.QJ tmot th.e members of an All Ina Service, serving in a State, are govern ed by the All India Services Act, 1951 and the Rules made thereUndet, and the Commission Act was not applicable to them.

Dismilaing the ap~ to this Court,

HELD : Asaumina that the Conunisaion Act is, in pith all.d substaooe, a law with respect. to cOrruption of Governm.ent servants, it ia repugnant to the provisions of the All India Se!rvis Act and the All Indn ServiefS

(Discipline and Appeal) Rules, 1955_.....and hence, under Art. 2'4 as it existed when the Commiasion Act came into force (July, 16, 1962)j the Commission Act must give way to the All India ServJoea Act and tm

Rules made therunder. [883 C-D. 887 B-C; 897 FJ

(a) The position when the Commission Act came into force was that F Parliant could legislate on it~:m 70, List I, cteruin~ with 'UniCill Public Servicee, All India Services and Union Public Serv1ce Commission, .and Art. 254, as appliqable to Jammu. and Ka&hmir at that time provided that, 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 iJ compmnt to enact the law made by Parliament, whether d before or after the Jaw made by the Legislature of tbcl State, &hall prevail G . and the law made by the Legislature Of the Sta~ aha.ll, to the extent of repugnancy, be void. It therefore follows that if provision of the Commission Act is repugnant to a provision of the Discipline '3IId Appeal Rules, I9SS, then tl!e law made by the State of Jammu and Kashmir must give way. , L884 HS85 F]

A. S, KrirhM v. State of MGJras,· [1957) S.C. a. ~99; , Deep Charld.

v. State of Uttar Pradesh, [19591 Supp. 2 S.C.R. 8 and Prem Nath H Kaul v. The State of Jammu and Kashmir, [1959] Supp. 2 S.C.R. 270, explained.

(b) Repugnancy arises when (i) there is inoonsi$tency in the a~~ terms of the Act enacted by Parliament and the impugned State ..Act,

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[1972] 3 S.C.R.

or (ii) the law enacted by Parli-ament was intended to be a complete and A. exhaustive code, (or) (ih) the law enacted by Parliament was innded expressly or impliedly to cover the whole field. L887 FPH] ,

Ch. Tika Ram ji v. Stat.e of U.P., [1956] S.C. R. 393, f<>llowed.

Deep Chand v. State of Uttar Pradesh, [1959) Supp. 2 S.C.R. 8; ref.erred to.

(c) It could be said '3. law enacted by Parliament was intended to -cover the whole field, where by reason of the subject ma.tter dealt with, and the thod of dealing with it, and the nature and multiplicity of the regulations prescribed, Parliament had adopted a plan or scheme which would be hindered and obstructed if '3.0y additional regulations whatever are prescribed upon the subject by any other authority, that is, if the subject is either touched or trenched upon by the State authority. [888 D-Fl

O'Sullivan v. Noarlunga Meat Ltd .. , [1957] A. C. 1: Attornczy General, Canada v. Attorney-General, British Columbia, i1930] A.C. 1:t 1; Subrahmanyan Chattiar v. Muthuswami Goundan, t1940] F.C.R. 188 and Ukha Kolha v. State of Madras, A.I.R. 1963 S.C. 1531, referred to.

Megh Raj v: Allah Rakhia, [1947} F.C.R. 77; Prafulla Kumar Mukherjee v. Bank of Commerce; [1947] F.C.R. 28 and CalcuUa Gas Company v. Ste of West Bengal, [1962] Supp. 3 S.C. R. 1 ; explained

Wynes, Legislative Executive and Judicial Power~ in Austral1'a~ 4th ed. p. 101, referred to.

(d) From the perusal of the provisions of the two statutory laws, namely, the All India Services (Discipline and Appeal) Rules, 1955, and the Jammu and Kashmir Government Servants Prevention of Cctruption (Commission) Act, 1962 it is impossible to escape the conclusion that the two cannot go together.

The impugned Act pro. vides for addition-al punishments not provided for in the Discipline and Appeal Rules; and in so far as the Commission Act deals with the infliction of disciplinary punishment it is repugnant to the Disdpline and Appeal Rules.

Parliament had occupied the field and given clear indication that the only manner in which any disciplinary action could re taken against the members of the All India Service, was und-er the AU India Services (Discipline and Appeal) Rules. [897 B-D]

In so far as the Commission Act deals, with a preliminary enquiry for the purposes of enabling any prosecution to be launched it may be within the legislative competence of the Jammu and Kashmir State and not repugn'ant to the provisions of the Discipline and Appeal Rules. But '8S the provisions dealing with investigation for possible criminal prosecution are inextricably interwined with the provisions dealing with infliction of disciplinary punishment the whole Act mut be read so as to leave the mPmbers qf the All Jndia Services outside its purview. f1897 D-F]

CML APPELLATE JURISDICTION: C.A No. 1572 of 1968.

Appeal from the judgment and order dated the 31st October, 1966 of the Jammu and Kashmir High Court m Writ P€tition No. 130 of 1966.

M. K. Ramamurthi, Ram Panjwani and R. N. Sachthey, for the H appellant.

G. L. Sanghi, for the respondents.

J. & K. STATE v. M. s. FAROOQI (Sikri, C.}.) .883

The Judgment of the Court was delivered by

Sikri, C.J. This is an appeal by certificate granted by the High Court of Jammu and ashmir from its judgment dated October 31, 1966 allowing the writ petition filed by the petitioner.respondent, M. S. Farooqi of the In4ian Police Service, and restraining the State of I ammu and Kashmit, appellant before us, from proceeding against him under the Jammu and Kashmir Government Servant<~'

Prevention of Corruption (Commission) Act, 1962-hereinafter referred to as the Collliliission Act. The High Court held that the members of an All India Serviee serving in a State are governed by the All India Services Act, 1951, and the Rules made thereunder, and the Commission Act was not applicable to them. The High Court further held that the Commission Act was hit by art. 14 of the Constitution as "there is a c~.:.ar discrimina:tion between the members of All India Services posted else where and the members of the same Servic~ postled in the State inasmuch as inquiry against the former for .acts of corruption is to be hel4 under the Central Act and the rules made thereunder while against the latter o for the same acts of corruption enquiry is to be held under the Commission Aot, the px:_ovisions of which are for more drastic than the Central Act and tl_le rules made thereunder."

We may briefly state the releyant facts which necessitated the filing of the writ petition. The respondent before us, M. S. Farooqi, hereinafter referred to as the petitioner, is a member of the Indian E Police Service which is in All India Service. He is borne on the Jammu & Kashmir cadre. On March 12, 1964, an anonymous complaint was received by the Commission, set up undet:. the Commission Act.

On March 20, 1964, the Commi§sion asked for a report from the Deputy Inspector General of Police. The Deputy

Inspector General of Police (Anti Corruption Organisation) raised the question of the juriSqiction of the Commission. The Commis4 sion, however, held that the Commission Act was applicable in its entirety to Government servants belonging to Jammu and Kashmir cadre of the All India ervices. The objection raised by the In4 vestigating Agency was thus overruled. The Investigating Agency was directed to continue Investigation of the. case and submit a report. Thereupon the Qetitioner filed the writ petition in the High Court challenging the .jurisdiction of the Commission. As stated above, the High Court allowed the petition, but later granted certificate of fitness and the appeal filed on behalf of the State of Jammu and Kashmir is now before us.

The learned counsel for the State contends that :

(l) The Commission Ad is in pith and substance a law in respect of corruption of Government servants of 'Jammu ; and Kashmir and only incidentally deals with memberi; of the All India

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(1972) 3 S.C.R.

Services, and is therefore valid in its entirety.

(2) If such a legislation ia valid, t:be Act ilnot discriminatory because aBservants of Jammu and Kamii Government are treat ed alik"!! aDd the same procedure applied to them for the trial of oftences corruptionj

(3) There is valid' classification on 1lbe basis of territory; and

( 4) In any event, the procedure under the Commission Act is not more prejudicial than that under the All India Services Act, 1951, and the rules made thereunder.

The first pointraised by the learned counsel does not meet the. real objection to the applicability of the Commission Act to mem- C bers of the Indian Police Service serving in Jammu and Kashmir.

This objection is that,. assuming that the Commission Act is in pith and substance a law with respect to corruption of Qovernment servants, it is repugnant to the provisions of the All India Service Act, 1951, and the All India Services (lmcipline and Appeal) Rules, 1955-horeinafter referred to as the Discipline and Appeal D Rule., and it must give way to the statUtory provisions.

It seems to us that there is force in the objection raised on be half of the. petitioner an"). in that view it is not necessary to decide the four points raised by the learned counsel.

We are here coricef!lled with. the Constitution Of India as applicable to the State of Jammu and Kaibm.ir at the relevant time. Arti- _cle 3 70 of the Constitution of India, inter alia, provides that "the

powers of-Parliament to make laws for the State (of Jammu and Kashmir) shall be limited to those matters in the Union J., ist and the Concurrent List whih, in consultation with the Government of

the State~ are declared by the President to correspond to matters specified in the Instrument of Acce8sion. governing the Accession r of the State to the Dominion of India as the matters with respect to which the Dominion. Legillature may make laws for the State, and (ii) such other matters in the said Lists as, with the concurrence

of the Government of the State, the President may~ by order epecify." .

G In exercise of the powers onferred by cl. (l) of art. 370, the President, with the concrrence ot the Government of the State of Jammu and Kashmir, made . the Cqnstitution (Applicatton to Jammu andJ Kashmir) Order; 1954.

We are concerned in this case with the position as it existed onJuly 16, 1962 when e Com missiqn Act received he assent of the Sadari-Riyasat. nte posi 1:1 1ion was that Pailiametlt coald legislate on List I, entry 70, which reads: .. Union Public Services, AU•Ind.ia Servicesj UniOn. Public Sttvice commission... .

J. & K. STATE v. M. s. FAl\OOQI (Sikri, C.J.) 88.5.

Articl~ 246 of the Constitution, as applied to Jammu and Kashmir, then read:

"246 ( 1) Parliament has exclusive power to .~ . laws with respect t9 any of the matters enumera~ in

List I in the Seventh Schedule (in this Constitution re-- ferred to as the "Union List"."

Articles 248 and .249 of the Consditution had not been mado applicable to the Stat~ of Jammu and Kashmir and, therefore. all the residuary powers resed with the State of Jammu and Kashmir.

Entry 97 of List I, dealing with residuary powers~ had abo been omitted.

. Article 254, as applicae to the State of Jammu and Kashmir at the relevant time, provided :

"254. If any provision of a law made by the Legi~ lature of a State is rpugnant to any provision of a law made by Parliament which Parliament is competent to enact, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail and t.he law made by the Legislature of the State shal11 to the extent of repugnancy, be void.''

At the relevant time there was no concurrent list. Certain entries in the Concummt 'List eem to have been applied by the order J No. CO 66 of 1963 dated September 25,-1963, for the first time.

. Fr9m this constitu.tiQnal scheme it follo\vs tha• if a. provision 6f the Conuuission Act repugnant to a provision of the Discipline and Appeal Rules, 19S5, then the law made by the State of Jammu and Kashmir must give way. r Article 254 o( the Consrtitution as applied abOw, is similar to section 109 of e Al:!tralian Constitution which provides that "when a Jaw of the State is inconsist&nt with a law ol the Coni monwealth, the latter Shall prevail, and the fonner shall to the extent of inconsistency, be invalid."

G The ]earned counsel for the State relied on various deei&ions of

thi~ Co.urt interpreting art. 2S4, as it existsin the Indian Consti

tuhon. · ·

In A . s. Krishna v. State of M atltas.( 1) while nteq?rettfig s. 107 of the Govent of' India Act, 1935,, which is similar tO art. 254(1) of the Constitution, Venkatarama Ayyar, J, o~~ :

"For tbia section to apply, :two eonditians ttlott be f\IUilled: (1) the provisions of the Provincial law d

(1) [l9S7J S.(:.R. 399.

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(1972] 3 S.C.R..

those of the_ Centr~ Legislation must bOth be in respect of a matter which is enumerated in the Concurrent List.

and (2) they must be repugnant to each other. It is only when both these requirements are satisfied that t:he provincial law will, to the extent of repugnancy, become void."

In Deep Chand v. State of Uttar Pradesh(!), SubbaRao, J., as he then was, seems td read cl. (2) of art. 254 in a similar manner.

In Prem Nath Kaul v. The State of Jammu and Kashmir( 2 ), Gajendragadkar, J., as he then was, observed:

"Besides, it is clear that the esnrtial condition for the application of Art. 254( 1) is that the existing law must be with respect to one of the matters enumeJrated in the Concurrent List; in other words, unless it is shown that the repugnancy is between the provisions of a sub~ sequent law and those of an existing law in respect of the specified matters, the Article would be inapplicable;

and, as we have already pointed out, Schedule Seven which cont; ains the three Legislative Lists was not then extended to the fa;.te; and. it is, therefore, impossible to predicate that the matter covered by the prior law is one .of the matllers enumerated in the Concurrent List. That is why Art. 2S4 cannot be invoked by the appelf.ant."

Art. 254, as applicable to the State of Jammu and Kashmir, at the time this judgment was delivered, was in the same form as in the Indian Constitution. This Court was not then dealing with. art. 254 in the form wit~ which we have to deal with.

We may mention that this Court left open the questjon regarding the interpretation of art. 254(1) in the following words in Ch. Tika Ramji v. The State of Uttar Pradesh(8 ) :

"We are concerned here with the repugnancy, if any, arising by reason of both Parliament and t!be State Legislature having operated in the same field inrespect of a matter enumerated in the Concurrent List, i.e., food~ stuffs comprised in Entry 33 of List III and we are, therefore, not ca1Le4 upon to express any opinion on the controversy which was raised in regard to the exact . scope and extent of article 254(1) in regard to "a law made by Parliament which Parliament is competent to enact", as to whether the lgislative power of Parlia~ ment therein refers to List I, List lli and the residuary power of legislation vested in Parliament . under article

1 [t<m] SJp>. 2 S.C.R. 8~1.

(2) [1959} Supp. 2 S.C.R. 270; 300.

(3) {1956) S.C.R. 393; 424.

.A.

J. & K. STATE v . . Jd; .s, FAR.OOQI (Sikri, C.J.) ' 881'

248 or is confined merely to. the matters enumerated.inth$

Cpncurrent List (V.ide A.I.R. 1942 Cal. 587 contra,. pet Sulantiut, J., in 1940 F.C.R. 188 at p. 226)."

It seems to us that the above cases are not applicable as the language of Art. 254 as appliable J. & K. is different .

On the wording of art. 254, as it existed when the Cssion Act was enacted, it seems to us that there is no escape from the clear wording of the article. It says in plain words tb.at if there is any repugnancy between the law made by the State and the law made by Parliamnt the law made by the Legislature of .the State must give way.

So, the only question to be determined is whether there is any repugnancy between the Discipline and Appeal Rules and the Commission Act.

We may state that we are not concerned with the meaning ascribed to art. 254, as it exists in the Indian Constiw tution and which was interpreted by the judgments referred to above.

 In Ch. Tika Ramji v. The State of Uttar Prade5h( 1) this., Court examined the question of. repugnancy. It referred to various authorities and concluded that either there mus~ be inconsistency in the actual terms of the Act. enacted by Parliament and the impugned State Act or 1he law enacted by Parliament be intended to be a complete and exhustive code; in other words, expressly or impliedly evince an intention to cover the whole field. Various tests have been suggested by various authorities as to how to dmmine whether there is any inconsistelicy or repugnancy. Bhagwati, J.,

referred to Nicholas-Australian Constitution, 2nd ed. p. 303who bad suggested three tests of inconsistency or repugnancy, namely:- ·

(1) There must be inconsistency in the actual terms of the c6nlpeting statutes. ·

(2) Though thre may be no direct conflict, a Statt: G law may be inoperative because the Cooimblf..: •

wealth law~ or the award ofth6 CoininonWealth Court, is intended to be a complete exhauStive code.·

(3) Even in *e absence pf intenon, a conftict:tnay ·

arise when both State and Conurionwealth-seek to exercise their powers over the same sject matter.

(1) (1956] S.C.R.. 393.

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[1972] 3 S.C.R .

In Deep Chand v. State of Uttar Pradesh(!) Subba Rao, 1., as he then was, speaking for the Court, observed on the question of re-- pugnancy:

"Repugnancy 'between two statutes may thus be as

certain"~ on the basis of the following .three principles :

( 1) Whether there is direct conflict between the two provisions;

(2) Whether Parliament intended to iay down .an exhaustive code in respect of the subject matter

replacing the Act of the State Legislature; and ( 3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field."

We may also refer to the observations of Evatt, J., in Stock Motor Plough Ltd. v. Forsyth(2 ), which were extracted in Tika Ramji's

case( 8) :

"It (the test of covering the field) is no more than a cliche for expressing the fact that, by reason of the sub ject matter dealt with, and the method of dealing with it, and the nature and multi.plicity of the regulations prescribed, the ederal authority has adopted a plan or

scheme which will be hindered and obstructed if any additional regulations whatever are prescribed upon thesuiect by any other authority; if, in other words, the subject is either touched or trenched upon by Stale

authority."

It has been held in Australia that s. 109 of the Australian Constitution is not limited in its application to cases where both B sets of provisions deal with the same subject matter.

Wynes in his "Legislative, Executive and Judicial Powers in Australia" 4th ed. states the general principles as applicable to Australia at page

101, . Some of these p_rinciples may be set out :

"1. Itis essential to consider first whether the questiM of incOnsistency arises. Th:us;· if the Commonwealth have no power to pass th6 law under considera- G tion or the law is otherwise invalid, the matter is ended and sec:. 109 doesnot arise. Similarly, sec.l 09 does not

arise where the State law is invalid on other grounds.

• • 1 t t ..

I I t t o t t t

3. It matters not which Act is first in point of time ..

~ ·~ • ... , ....... .

(1) ~19~91 Supp. 1S:d.k.·~1. .

(2) : [1932)48 C.L.R. 128,)47:.>

(1) ·(I9S6J s.c.a. m.

J. & K. STATE v. ~. $. FA.ROOQI (Sikri, C.J.)

.88&

. 7. Where the is t a direct conHict or <liscrimina.- uoo, there tnay still be UJ.c006iy if the SWe Utell1pts to govern conduct or to de.aJ. with a mattu which hM ~!ready been dealt with by a law of the Commonwealth mtcnde<l to expres CO!llpUlt!!lY elhau.tively or exc111Siv~ ly th~ law goven:ug a certaL~ subject matter. TI; c question m every ca6e 1s : What " the intion of the a:nn~ monwealth Parliam.ent ? Is it an intention to lay dGWn the .wble f the .J.e.w on a ccctain subject'! II so, that subJect IS Withdrawn from State control, but, as we have see fo~ t.he reasoning of Dixon 1., in the 44-hour CO:t", 1t JS wtthdrawn, not from any or all State legislation wh1ch may affect or h.wc some connection with it, but only from Store legislation which attempt5 to govern it in the character in virtue of which it is regulated by Commonwealth law.

8. It is not essential to ihe operation of sec. I 09 that the two Acts comidered as a whole should be upon or "wilh respect to" the Jame &ubject matter, but where the inconsistency sou.Rht to be established is between Commonwealth intention to deal exclusively with a certain 5ubject and Scate law dealil\l: with conduct which may conceivnbly fonn a portion of that 5ubject, the question is whether tho State Act deal• with such conduct as for ming an dcrru:nt in the subject intended to be e.telusi\'l:ly governed by Commonwenllh law. This question is ooe which must be decided in the circumstances of each Pllrticulor case."

The Judicial Committee of the Privy Council_. in sullivan v. r Noarrlunga MaJ Ltd. (I) approved of the follov.ang lines from the

judgment of Dixon 1. in Ex part~ Mc/(an(') :

"The inconsistency does not lie! .in the mere~ tence of two l11ws wflich nre 5Uscept!ble. of simultaneous obedience. It depends upon th7 mtent1on of the p:tra mount legu!arure tu exss by fls eructment, CO!IJple~ ly, ellhoustlvely, or cxclwively, what shall be.J; f h'i~

ovn-n.Iog the partlcnlar conduct or rpatter to _.,_ c 1 .

I d' ._..

Wtren a Pda'sl st3tute "c os r.ttenltOf! ' 'rec'"'-' . m It (I}( the law of till~ an ml'e!tltlcn, it lnoonmtent W1 ft .. a Stt!te to tovcn the ra~ condaet or ma er,

. tromt.r ti and l11 Cued.l 1lli• Q'11eJti~ .+tas lll'ISCS Ul a l\OOillcy i6 .sa.14 to .H those c~ are revt bccnse .. ln Can.nd3 .Pa: IIIIIC of tAo four . be tied up with dte &rng Qoc&r!AO .w ..... 4'! ._

(I) (19HJ A.C. I; 28. ()) -4) c....... .• •


\ [1972] 3 S.C.lt.

propositions. laid down in the Fish Canneries case-Attorney General, Canada v. Attorney-General, British Columbia(!) and the fourth proposition was in these words :

"There can be a domain in which provincial. and Dominion legislation may overlap in which case neither legislation will be ultra vires if the field is clear, but if the field is not clear and the two legislations meet the Dominion legislation must prevail." {see G.T.R. v. A.G.

Can.( 2)]•·

Sulaiman, J., examined this question in Subrahamanyan C Chettiar v. Muthuswami Goundan( 3 ). He observed:

"lt seems to me that the principles of interpretation laid down by their Lordships. in the Canadian cases cannot be brushed aside by simQly saying tpat they relate to .a different Constitution. Those principles are not only , of the greatest weight but must be a guide to us even in interpreting the ndian Constitution. Of course, we cannot interpret the. language of any section in the Indian Act in the light of the interpretation of the corresponding section in the Canadian Constitution. That has to be ayoidedi but the principles of interpretation that have been established cannot be ignored. At the same time it would be dangerous to impon only a part of the doctrine and exclude another part. Partial application may frustrate the very object for which the rule of law was deduced.

The two doctrines of incidental encroachment and unoccupied field are closely related. I would go further and say that they are indissolubly connected.

We cannot import the doctrine of incidental encroachment in favour of the Provinces, and refuse to import the doctrine of unoccupied field which is in favour of the Centre. The two must go hand in hand. To allow Provincial legislatures to encroach upon the exclusiv~ Federal field, even though in an indirect way, when there . is a Central legislation already occupying -the fJ.eld,

would be to give the former a free hand in nullifying Central Acts relating to matters in the Federal List Such a carte blanche could hardly have been contemplated. The scheme of s. 100 of the Act is to exclude completely from the authority of the ProVincial Legis- . l.ature the power to legislate with respect' to subjects in

(1) (19~ A.C~ lll.

(2) (1907] A.C. 6S~ •Sei LUkin canadian Constitutional Law 3rd ed, p, lOS.

(3) {l940) ~.C.R. 1881 231, 240, 241.

. • ; t

, . •

J, &: K. STATE ll. M. S. FAROOQl (Sikri, C.J.) 891

List I. .If in consequence of certain difficulties that Provincial Legislatures would experience by a rigid enforcement of such an exclusion we must in interpreting

the words "with respect to" import the Canadian doctrine of permissibility of incidental encroachment, we must then at the sa:me time import the other allied doctrine also that such an encroachment is permissible only when

the field is actually unoccupied. It is only in this way that actual clash between the Centre and the Provinces can be avoided, which I think we must. This will also explain the apparent gap in s. 107 ( 1) of the Act, that gap being filled in by the provisions of s. 1 00''.

Varadachariar J., left open the point whether the provisions of the impugned Act may also be VQ.id under s. 107 of the Constitution Act insofar as they are repugnant to the provisions of the

Negotiable Instruments ;\ct. He observed :

"The validity of this contention will depend upon the import of the expression "federal law" occurring in the opening part of sub-section (1) of s. 107. It may be conceded that the words "which the Federal Legislature is competent to enact" may refer to the first List also and they need not be qualified by the words occurring later and referring to the Concurrent Legislative List; because, if these later words were intended to qualify the opening words of the sub-section also, it .would not have been necessary to use the words "which the Federal Legislature is competent to enact" in the earlier portion."

He further saw a possible anomaly in the operation of s. 107, viz.,

"that while provincial legislation in respect of subjects in the Concurrent List cannot override "existing Indian law'' except when

assented to by the Governor General, such legislation in respect of subjects enumerated in List II may without any such safeguard override pre-existing enactments even of the Central Legislature if they relate to subjects specified in List 1."

The learned counsel for the State relies on the decision of the G Privy Council in Megh Raj. v. Allah Rakhia(l) in support of his proposition that if the impugned legislation is a law not with respect to All India Servics but a law with respect to Corruption of Public Officers it is within the jurisdiction of the State Legislature, and no question of repugnancy arises. He relies paiticuhirly on. the

H following observations :

"Thus both patties" rightly construed s. 1 07 .as )ul.ving .no appUcation in a case where the province CO\Ikl s~ ·

(1) U947} P.C.R. 77, 8S, 88.

SUPREME COURT JlEPOltTS


that it was acting wholly within its powers under the Provin.ciill List and was not relying on any power conferred on it by the Concurrent List."

"It follows that in their Lordships' judgment there is not sufficient ground for holding that the impugned Act, or any part of it, was invalid. As. a whole it fell within the powers given to tJ:te province by items 2 and 21 of

list U, without any necessity to invoke any powers from the Concurrent List, List III. Accordingly questions of

regnancy under s. 107 of the Constitution At do not

anse and need. not be consideml here;"

But if facts are examined it would be clear that these obs"vations do not assist the appellant.

The Act which was impugned was the Punjab Restitution of Mortgaged Lands Act, 1938, and it was

argued that the provisions of the impugned Act were repugnant to certain existing Indiari Laws, viz., Indian Contract Act and the Code of Civil Procedure, which fell within en&ies 8 and 10 of List

m tho Government of India- Act, 1935.

Entry 8 dealt with "transfer of property other than agricultural land; registration of deeds and documents" and entry 1 0 deJlt with "COjlltracts, including partnership, agency, contracts of carriage, and other special forms of contract, but not including contracts relating to agricultural land." The Privy Council came to the conclusion that the impugned Act was within items 2 and 21 of List n. Their Lordlilhips observed : K

"If, as their Lordships think, the impugned Act is limited to agricultural lad, items 7, 8 and f 0 of List Ill do not affect the position, since agncultural land is ex4 cl'uded in these entries. But in any event, the Act does

:not deal with wills or the transfer of property at an; it does certainly deal with mortgages, but as their Lordships lrave already stated, mortgages, though not expressly mantioned in the Constitution Aot, are properly to bo classed not under the head of contrac~. but as special transactions ancillary to the entry of "land."."

, _

Ill this cue it was obvious that there was no conflict between legis- G lation entries in List ll and JePlation on entries in List m; the conftic:t if at all was with the existing ll!dian laws. The Privy CoucU had not lO deal -M.th the matter with Which 'We are con~ cened, viz., wbaa a Yalid .Sr. legislation eomes iDto caatUct with

a competemt legislation of Parliament under List 1 · hhrly, in P~ KlnMr Mw/cMrfN -.. kNk of Com- • JMrce(t) tMI'e was alltlei ~'1 MtwteR t1Je Blllpl Money

(l) [1941] P.C.R. 28, 34.

J, & K. STATE v. M. s. FAROOQI (Sikri, CJ,) 8~3

Lenders Act, 1940, and an existing Indian Law, namely, Negotiaable I!nstruments Act. It was u,:ged before the Privy Council that "if outside the authorized field the impugned Act con1licts with a Federal law-in the sense in which the words are 'used in s. 107 of the Constitution Actt may be that its provisions would be ineffective.

The answer to the suggestion that there is any such conflict here is threefold : (i) There is no conflict or inconsistency between the impugned Act and the !egotiable Itruments Act;

(ii) If there is a conflict, then the Negotiae Instruments Act is not a Federal law within the meaning of s. 107 of the Cqnstitution Act;

(iii) If there is a conflict, and if the Negotiable Instruments Act is a Federal law then the conflict is with that part of the Fed.eraj Law which is in the field Of contract, which is within the power conferred by List m, the Cqncurrent List, and the conflict is cured by the provisions of s. 107, sub-s. 2, of the Constitution Act, because this is a case where the Act was reserved for the consideration of the Governor-General, and therefore the Provincial law in the province would prevail."

The Privy Council posed three questions. ( 1) Does the Act in question deal in pith and substance with money lending? (2) It

it does, is it valid though it incidentally trenches on matters reserved for the Federal legislature ? ( 3) Once it is determined whether the pith and substance is money lending, is the extent to which the Federal field is invaded a material matter ? They ootswered the first question in the affirmative.

Dealing with the second question, the Privy Council o'bserYed :

''Moreover, the British Parliament when enacting the Indian CQnstitution Act had . a long experience of the working of the British North America Act and the Aus~ tralian Commonwealth Act and must have known that it is npt in principle possible to ensure that the powers entrusted to the several legislatures will never overlap."

The Privy Cooocil approved of certain obserVations of Sir Maurice

Gwyr, C.J. and then observed:

"But the overlapping of subjecttnatter is not avoided by substituting three lists for two, or even Jtr arranging for a hierarchy of jurisdictions. Subjects must still overlap, and where they do, the question must be. asked what

in pith and substance is the effect of the enactnient of which complaint is made, and in what list is its true nature and characttr to be found.

If these questions. could not be asked;· much benefiCient legislation would. be stifled at birth, and many oi the subjects entruSd to il-L1061SupCI/72

. ,


Provincial legislation could never effectively be dealt .4 with."

Dealing with the third question, the Privy Council observed :

"No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion. butJor the purpose of determining what is the pith and substance of the impugned Act.

Its provisions may advance so far into Feral territory as to show. that its true nature is not concerned with provincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to sho'Y that the pith and substance of the impugned Act is not money lending but promissory notes or banking ?"

Their Lordships further observed :

"Does the priority of the Federal legislature prevent the Provincial legislature from dealing with any matter which may incidentally affect any item in its list, or in each case has one 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 ?"

in this case there was no conflict alleged with the Federal legislation on an item in List I and what they were considering was conflict with the existing law. ·

In A. S. Krishna v. State'oj Madras( 1) the conflict alleged was between the Madras Prohibition Act, 193 7, on the one hand atld the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1898 on the other. This Court held that the impugned Act in question was a law with respect to. entry 31 List II, and observed :

'The Madras Prohibition Act is thus in its entirety a law within the exclusive competence of the Provincial Legislature, and 'the question of repugnance under s. 107 (1 ) does not arise."

The Court did not address itself to the question whether assuming that it was a law with respect to entry 31 List IT a, nd not a law with respect to entries 5 and 2 respectively. of List m, yet what is to happen if the existing laws, namely, the Evidence Act and the Criminal Procedure Code, were in fact repugnant. At any rate, this Court was then not concerned with Parliamentary legislation under List I and also was not concerned with art. 254 in the form as it existed at the relevant tim~ as awlic•bl~ . to the State of Jammu and Kashmir.

(1) [19S7] S.C.R. 399.

' '

. B

J. & K. STATE v. M. s. FAROOQI (Sikri, C.J.) sgs

We may mention that this Court upheld the provisions of the Bombay Prohibition Act, 1949, under art. 254(2) in Ukka Kolhe

v. State of Madras (1) insofar as they were consistent with the provisions of the Code of Criminal Procedure.

The learned counsel for the appellant referred to Calcutta Gas Company v. State of West Bengal(2), but we are unable to see how it helps the appellant's case.

In that case the Court was concerned with reconciling certain entries and observed that "entries in the lists are only legislative heads or fields of lslation; they demarcate the area over whichthe appropriate legislature cal' operate. It is well settled that wide:; t amplitude should be given to the language of the entries.

But some of the entries in the different List or in the same List may overlap and sometimes may also appear to be in direct conflict with each other.

It is then the duty of this Court to reconcile the entries and bring harmony between them." But in this case we are not concerned with any question of harmonising the entries because we have on the one hand a specific entry in List I and on the other hand a residuary List.

Now it remains to be seen whether the impugned Act is repugnant to the provisions of the All India Service (Discipline and Appeal) Rules, 1955.

We may first notice the provisions of the Discipline and Appeal Rules.

Rule 3 prescribes certain penalties, which may for good and sufficient reasons. and as hereinafter pro. vided be imposed on a member of the Service.

The penalties include censure, withholding of increments or promotion; reduction in rank, removal from service and dismissal from service, etc. The authority to institute proceedings and to impose penalties is mentioned in r. 4.

It is the Government, under whom the member is serving At the time of the commission of an act or omission which renders him liable to any penalty, which is competent alone to institute disciplinary proceedings and that Government can also impose all the penalties specified in r. 3 except the penalty of dismissal, removal or compulsory retirement which order can only be passed by an order of the Central Government.

Rule 5 prescribes the procedure for imposing penalties.

The gro"Jnds on which it is proposed to take action shall be reduced to the fonn of definite

charge or charges which shall be communicated to the member of the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it,'is proposed to take into consideration in passing orders on the B . case. A member of the service is given reasonable time to 'put in a written statement of defence. It enables him to be, heard if he

(1) A.l.R. £1963} S.C. 1531. {2)' £1962f Supp. 3 S.C.R. 1.

896 SUP.Rl!MB COUllT REPORTS [1972]'3 S.C.ll.

so desires. The member of the Service is entitled to have acce8s A to official records.

After the written statement is received, if such is filed, the Government may appOint a Board of Inquiry or an Inquiry Officer to enquire into the . charges or the Government enquires into the charges itself.

' In brief, detailed rules are laid down regarding the manner of B holding the enquiry. Rule 6 provides for consultation with the Union Public Service Commission.

Rule 7 deals. with suspension during disciplinary proceedings and r. 8 deals with subsistence allowance during suspension. Rule 9 deals with payment of pay and allowances and treatment of service on reinstatemnt. A right of appeal is given against certain orders and r. 20 provides for a C . memorial to be submitted to the President.

These rules are a complete code as far as infliction of penalties prescribed in r. 3 is concerned.

The Commission Act provides for the constitution of one or D . more Commissions to be known as the Anti-Corruption Commis~

sions to hold enquiry into the charges of corruption -and misconduct, as defined in s. 3 and 4 of the Coqunission Act, against all government servants including members of All India Services. The Commission is provided with an investigating agency to investigate into the charges. Section 10, before its amendinent, provided for E

an inquiry by the Commission either suo motb or on a report in writing by certain officers. Under s. 11 every person is entitled to complain to the Commission against a Government servant. Section 12 provides for' a preliminary examination of the complaint.

The Commission may either dismiss the complaint or, if in its opinion there are sufficient grounds for taking further proceedings in the complaint, the Commission shall cause the sutance of. the I' allegations to be drawn into distinct articles of charges and summon the accused to appear beibre it. Under sub-s. (5) of:s. 12, as it existed before its amendment in 1969, the government servant had to be placed under suspension after the charges were drawn up

against him by the .commission. Section 13 provides for procedure at the enquiry.

Section 17 requires the Commission to record G its findings on the various articles of the charge and submit its recommendation to the Sadar-i-Riyasat. H any of the charges are held to have been established against the accused, the Commission has to recommend the punishment mentioned in this section. Under sub-s. (2) of s. 17 the Commission may, in addition to the punishment referred to in sub-s. ( 1), recommend that the accused be H declared for ever or for any shorter period of time to be specified, incapable or being appointed to any public office. Sub-section ( 3) provides that in a fit case the Commission may recommend that

z.-' E. STATB v. M, S. FAllOOQI (Sikri, C.J;) 897

the accused be prosecuted for any o1fenee in a Cpun of law.

Subsection (7) specifically deals with members of the All India Services

and provides that in their case the Sadar-i-Riyasat may recommend the imposition of the punishment to the appropriate authority.

There are various other incidental provisions which we need not detail.

From the perusal of the provisions of the two statutory laws, namely, the All India Services (Discipline and Appeal) Rules,

1955, and the Jammu and Kashmir Government Servants' (Prevention of Corruption (Commission) Act, 1962, it is impossible to escape from the conclusion that the two cannot go together. The impugned Act provides for additional punishments not provided in the Discipline and Appeal Rules. It also provid~ for suspension 'I!Jld infliction ofsome punishments.

It seems to us that insofar as the Commission Act deals with the inftiction of disciplinary punish• ments it is repugnant to the 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 Service.

Insofar as the Commission Act deals with a preliminary enquiry for the purposes of enabling any prosecution to be launched it may be within the legislative competence of the Jammu and ashmir state and not repugnant to the provisions of the Disciplme and Appeal Rules.

But as the provisions dealing with investigation for possible criminal prosecution are inextricably intertwined with" the provisions

dealin~ with infliction of disciplinary punishment the whole Act must be read down so -as to leave the members of the A1l India Service outside its purview. -

We accordingly hold that the provisions of the Commission Act do not apply to the memblers ol e All India Services. Accordinglv we dismiss the appeal. As the respondent was not represented , there would be no order as to costs.

We thank Mr. G. L. Sanghi for assisting us as amicus curiae.

V.P.S.

Appeal dismissed.