Full Judgment Text
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PETITIONER:
STATE OF ORISSA
Vs.
RESPONDENT:
M. A. TULLOCH AND CO.(AND CONNECTED APPEAL)
DATE OF JUDGMENT:
16/08/1963
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
SINHA, BHUVNESHWAR P.(CJ)
SUBBARAO, K.
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
CITATION:
1964 AIR 1284 1964 SCR (4) 461
CITATOR INFO :
D 1965 SC 117 (8)
APL 1970 SC1436 (14,16)
R 1975 SC 155 (16)
RF 1976 SC1654 (5,24,31)
RF 1979 SC 898 (33)
RF 1980 SC1955 (41)
RF 1981 SC 711 (1)
RF 1990 SC 85 (26)
RF 1990 SC2072 (44)
E 1991 SC1676 (8,9,10,11,13,14,42,45,46,54)
ACT:
Constitution of India-State legislation under Seventh
Schedule, List II, entry 23-Union Legislation tinder List I,
entry 54-Effect of Union legislation-General Clauses Act, s.
6, meaning of ’repeal’-Orissa Mining Areas Development Fund
Act, 1952 (XXVII of 1952), ss. 4, 5-Mines and Minerals
(Regulation and Development) Act, 1957 (67 of 1957), s.
18(1)(2)-General Clauses Act, 1897 (10 of 1897) s. 6-
Constitution of India, Art, 246(1), Seventh Schedule, List
II, Entry 23, List I, Entry 54.
HEADNOTE:
On a lease granted by the appellant under the Central Act 53
of 1948 the Respondent Trulloch & Co. was working a
manganese mine. The State Legislature of Orissa, then
passed the Orissa Mining Areas Development Fund Act, 1952
where under the State Government was empowered to levy a fee
being intended for the development of the "mining areas" in
the State. After bringing these provisions into operation,
the appellant made demands on the respondent on August 1,
1960 for payment of the fees due for the period July,, 1957
to March, 1958. The respondent then, challenged the
legality of the said demand before the High Court under Art.
226 of the Constitution. The writ petition was allowed on
the ground that on the coming into force of the Central Act,
1957 (Act 67 of 1957), as and from June 1, 1958, the Orissa
Act should be deemed to be non-existent for every purpose.
Thereafter, the appellant made an application to the High
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Court to review its judgment on the ground that even if the
Orissa Act of 1952 was superseded by Central Act 67 of 1957,
the liabilities which had accrued to the State prior to June
1, 1958 could not be deemed to be wiped out because the
Central Act was not retrospective. This application was
dismissed. It was urged on behalf of the State,
Inter alia, that the supersession of the Orissa Act by the
Central Act was neither more nor less than a repeal. If it
thus was a repeal, then s. 6 of the General Clauses Act,
1897 was attracted.
Held, (1) that since the Central Act 67 of 1957 contains the
requisite declaration by the Union Parliament under Entry 54
and that Act covers the same field as the Act of 1948 in
regard to mines and mineral development, the decision of
this Court in Hingir-Rampur Coal Co. v. State of Orissa
concludes this matter unless there were any material
difference between the scope and ambit of Central Act 53 of
1948 and that of the Act of 1957.
Besides, sub-ss. (1) and (2) of s. 18 of the Central Act of
1957 are wider in scope and amplitude and confer larger
powers on the Central Government than the corresponding
provisions of the Act of 1948:
462
Hingir-Rampur Coal Co. Ltd. v. State of Orissa, [1961] 2 S.
C. R. 537, followed.
(2) that the test of two legislations containing
contradictory provisions is not, however, the only criterion
of repugnancy, for if a competent legislature with a
superior efficacy expressly or impliedly evinces by its
legislation an intention to cover the whole field, the
enactments of the other legislature whether passed before or
after would be overborne on the ground of repugnance. Where
such is the position the inconsistency is demonstrated not
by a detailed comparison of provisions of the two statutes
but by the mere existence of the two pieces of legislation.
In the present case, having regard to the terms of s. 18(1)
it must be held that the intention of Parliament was to
cover the entire field and thus to leave no scope for the
argument that until rules were framed, there was no
inconsistency, and no supersession of the State Act;
Ch. Tika Ramji & Ors. v. State of Uttar Pradesh. [1956]
S.C.R. 393, inapplicable.
(3)..that if by reason of the declaration by Parliament the
entire subject-matter of "conservation and development of
minerals" has been taken over, for being dealt with by
Parliament, thus depriving the State of the power within it
theretofore possessed, it would follow that the "matter" in
the State List is, to the extent of the declaration,
subtracted from the scope and ambit of entry 23 of the State
List. There would, therefore, after the Central Act of
1957, be "no matter in the List" to which the fee could be
related in order to render it valid;
(4)..that a repeal may be brought about by repugnant legis-
lation, without even any reference to the Act intended to be
repealed, for once legislative competence to effect a repeal
is posited, it matters little whether this is done expressly
or inferentially or by the enactment of repugnant
legislation.
Where an intention to effect a repeal is attributed to a
legislature then the same would attract the incident of the
saving found in s. 6 of the General Clauses Act. If this
were the true position about the effect of the Central Act,
67 of 1957 as the liability to pay the fee which was the
subject of the notices of the demand had accrued prior to
June 1, 1958 it would follow that these notices were valid
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and the amounts due thereunder could be recovered
notwithstanding the disappearance of the Orissa Act by
virtue of the superior legislation by the Union Parliament.
Keshavan Madhava Menon v. State of Bombay, [1951] S.C.R.
228, Kay v. Goodwin, (1830) 6 Bing. 576, Surtees v. Ellison,
(1829) 9 B & C 750 and Trust Mai Lachmi Sialkoti Bradari v.
The Chairman Amritsar Improvement Trust and Ors. [1963] 1
S.C.R. 242, referred to.
463
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals No. 561 and
562 of 1962.
Appeals from the judgment and order dated April 18, 1961, of
the Orissa High Court in O. J. Cs. Nos. 142 and 144 of
1960.
D. Narsaraju, Advocate-General for the State of Andhra
Pradesh, Ramdas, R. N. Sachthey and P. D. Menon, for the
appellants (in both the appeals).
M. C. Setalvad, Ramadeb Chaudhuri, B. C. Sen, S. C. Sen, S.
N.Andley, Rameshwar Nath and P. L. Vhora for the respondent
(in C. A. No. 561 of 1962).
Ranadeb Chaudhuri, B. C. Sen, S. C. Sen, S. N. Andley,
Rameshwar Nath and P. L. Vohra, for the respondent (in C. A.
NO. 562 of 1962).
P. Ram Reddy and R. Thiagarajan, for the Intervener. August
16, 1963. The judgment of the Court was delivered by
AYYANGAR J.-These two appeals which are against a common
judgment of the High Court of Orissa have been filed
pursuant to a certificate of ’fitness granted by the High
Court under Art. 132(1) of the Constitution. They raise for
consideration the question regarding the continued operation
of the Orissa Mining Areas Development Fund Act (Orissa Act
27 of 1952) and the continued exigibility of the fees
leviable from mine-owners under the said enactment.
Each of the respondents in ,the two appeals filed a
petition before the High Court of Orissa under Art. 226 of
the Constitution praying for the issue of a writ of mandamus
restraining the two appellants-The State of Orissa and the
Administrator, Orissa Mining Areas Development Fund, from
applying the provisions of the Orissa Mining Areas
Development Fund Act (Orissa Act 27 of 1952) to the
respective respondents and to direct the two appellants to
cancel the notices of demand requiring the petitioners to
Pay the fees assessed under the said Act issued by the
second appellant and for an injuction etc. restraining them
from taking any steps in pursuance of the said notice of
demand.
The facts giving rise to these petitions were briefly these.
There is not any material difference between the
464
facts of the two cases and so it would be sufficient if we
refer only to those in Civil Appeal 561 of 1962. The res-
pondent Tulloch & Co. Private Ltd.--a company incorporated
under the Indian Companies Act, works a manganese mine in
the State of Orissa under a lease granted by that State
under the provision of the Mines & Minerals (Development &
Regulation) Act, 1948 (Central Act 53 of 1948), and the
rules made thereunder. While the respondent was. thus
working these mines, the State Legislature of Orissa passed
an Act called the Orissa Mining Areas Development Fund Act
1952 (which for shortness we shall refer to as the Orissa
Act) where under certain areas were constituted as "mining
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areas" and under the powers Conferred under that enactment
the State Government was empowered to levy a fee on a
percentage of the value of the mined ore at the pit’s mouth,
the collections being intended for the development of the
"mining areas" in the State. The necessary steps for
bringing these provisions into operation were taken by the
State Government who thereafter made demands on the
respondent on August 1, 1960 for the payment of the said
fees. The present appeal is concerned with the fees which
became due for the period July, 1957 to March 1958. When a
demand was made for the sum the respondent filed petition
142 of 1960 before the High Court impugning the legality of
the demand and claimed the reliefs we have set out earlier.
The learned judges allowed the Writ Petition and issued
directions to the second appellant in terms of the prayer in
the petition. As the grounds on which the said demand of
the fees was impugned raised substantial questions touching
the interpretation of the Constitution the appellants
applied to the Court for a certificate of fitness under Art.
132(1) and (2) and this having been granted, the appeals are
now before us.
We shall now proceed to set out briefly the grounds upon
which the learned Judges of the High Court allowed the
petition of the respondents. Stated shortly, the contention
which the learned judges of the High Court accepted was that
the Orissa Act had been rended ineffective or superseded by
a Central enactment-The Mines and Minerals (Regulation and
Development) Act, 1957 (Act 67 of 1957), hereinafter called
the Central Act, which was brought into force as and from
June 1, 1953. The
465
Orissa Act had been enacted by virtue of the legislative
power conferred by entry 23 of the State Legislative List
reading "Regulation of mines and mineral development subject
to the provisions of List I with reference to regulation and
development under the control of the Union." The legislative
entry under which the later Central Act was enacted was item
54 of the Union List which ran "Regulation of mines and
mineral development to the extent to which such regulation
and development under the control of the Union is declared
by Parliament by law to be expedient in the public
interest." The Central Act carried in its second section a
declaration envisaged by the last words of the entry. Based
on these facts the argument to which the learned Judges
acceded was that on the coming into force of the Central Act
the Orissa Act ceased to be operative by reason of the
withdrawal of legislative competence by force of the entry
in the State List being subject to the Parliamentary
declaration and the law enacted by Parliament. They held
that for this reason the Orissa Act should be deemed to be
non--existent as and from June 1, 1958 for every purpose,
with the consequence that there was lack of power to enforce
and realise the demands for the payment of the fee at the
time when the demands were issued and were sought to be
enforced. It is the correctness of this judgment that is
challenged by the State in these appeals.
Before proceeding further it is necessary to specify briefly
the legislative power on the relevant topic, for it is on
the precise wording of the entries in the 7th Schedule to
the Constitution and the scope, purpose and effect of the
State and the Central legislations which we have referred
to-earlier that the decision of the point turns. Article
246(1) reads:
"Notwithstanding anything in cls. (2) and (3),
Parliament has exclusive power to-make laws
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with respect to any of the matters enumerated
in List I in the Seventh Schedule (in this
Constitution referred to as the ’Union
List’)",
and we are concerned in the present case with
the State power in the State field. The
relevant clause in that context is cl. (3) of
the Article which runs :
"Subject to clauses (1) and (2), the
Legislature of any
466
State has exclusive power to make laws for
such State or any part thereof with respect to
any of the matters enumerated in List 11 in
the Seventh Schedule (in this Constitution
referred to as the ’State List’)."
Coming now to the Seventh Schedule, Entry 23 of the State
List vests in the State Legislature power to enact laws’ on
the subject of ’regulation of mines and mineral development
subject to the provisions of List I with respect to
regulation and development under the control of the Union’.
It would be seen that "subject" to the provisions of List I
the power of the State to enact Legislation on the topic of
"mines and mineral development" is plenary. The relevant
provision in List I is, as already noticed, Entry 54 of the
Union List. It may be mentioned that this scheme of the
distribution of legislative power between the Centre and the
States is not new but is merely a continuation of the state
of affairs which prevailed under the Government of India Act
1935 which included a provision on the lines of Entry 54 of
the Union List which then bore the number item 36 of the
Federal List and an entry corresponding to Entry 23 in the
State List which bore the same number in the Provincial
Legislative List. There is no controversy that the Central
Act has been enacted by Parliament in exercise of the
legislative power contained in Entry 54 or as regards the
Central Act containing a declaration in terms of what is
required by Entry 54 for it enacts by s. 2:
"It is hereby declared that it is expedient in the public
interest that the Union should take under its control the
regulation of mines and the development of minerals to the
extent hereinafter provided".
It does not need much argument to realise that to the extent
to which the Union Government had taken under "its control"
"the regulation and development of minerals" so much was
withdrawn from the ambit of the power of the State
Legislature under Entry 23 and legislation of the State
which had rested on the existence of power under that entry
would to the extent of that "control" be superseded or be
rendered ineffective, for here we have a case not of mere
repugnancy between the provisions of the two enactments but
of a denudation or deprivation of State legislative power by
the declaration which Parliament is empowered to make and
has made.
467
It would, however, be apparent that the States would lose
legislative competence only to the "extent to which
regulation and development under the control of the Union
has been declared by Parliament to be expedient in the
Public interest." The crucial enquiry has therefore to be
directed to ascertain this "extent" for beyond it the
legislative power of the State remains unimpaired. As the
legislation by the State is in the case before us the
earlier one in point of time, it would be logical first to
examine and analyse the State Act and determine its purpose,
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width and scope and the area of its operation and then
consider to what " extent" the Central Act cuts into it or
trenches on it.
The object of the Orissa Act, as disclosed by its preamble,
was "the constitution of’ mining areas" and the creation of
"a Mining Area Development Fund" in the State. Section 3
empowers the State Government to constitute and alter the
limits of these "mining areas". The object of the
Constitution of these "mining areas" was Inter alia the
provision of amenities like communications, water-supply and
electricity and "the better development of areas wherein any
mine was situated" as well as "to prove for the welfare of
the residents or workers in any such area within which
persons employed in a mine or group of mines reside or
work". Section 4 is the provision empowering the State
Government to levy a cess or a fee on all extracted minerals
from any mines in "a mining area" with a limit, however,
that the rate of such levy should not exceed 5 per cent of
the value of the minerals at the pit’s mouth. The cess was
to fall due quarterly every year oil 1st of January etc. and
was to be computed on the value of the mineral extracted
during the three months immediately preceding the dates
specified. Section 5 makes provision for the constitution
of the "Development Fund" into which the cesses raised under
s. 4 and other moneys received in that behalf might be paid
and the section also specifies the purposes for which the
Fund may be utilised. These were :
"5 (5). Without prejudice to the generality
of the foregoing provisions, the fund may be
utilised to defray-
(a) the cost of measures for the benefit of
labour and other persons residing or working
in the mining areas directed towards:-
468
(1) the improvement of public health and
sanitation, the prevention of disease, and the
provision and improvement of medical
facilities;
(ii) the provision and improvement of water-
supplies and facilities for washing;
(iii) the provision and improvement of
educational, facilities;
(iv)the improvement of standards of living
including housing and nutrition, the
amelioration of social conditions and the
provision of recreational facilities, and
(v) the provision of roads, tramways and
railways and such other communications;
(b) the grant to any educational, Institute
providing technical education in mining and
such other allied subjects;
(c) the grant to the Central Government, a
local authority or the owner, agent or manager
of a mine, in aid of any scheme approved by
the State Government for any of the purposes
of the Fund;
(d) the cost of administering the Fund,
including the allowances, if any, of members
of the Advisory Committee constituted under
section 6 and the salaries, provident funds,,
pensions, gratuity and allowances, if any, of
officers appointed under section 7 ; and
(e) any other expenditure which the State
Government may direct to be defrayed from the
Fund."
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The other sections which follow are not relevant and so arc
omitted.
We shall now turn to the Central Act. The long title of the
Act specifies that the twin purposes of the Act are: (1) the
Regulation of mines, and (2) the development of minerals,
both under the control of the Union. Section 2 we have
already extracted. Section 3 contains definitions of terms
used in the Act and thus may be omitted. Sections 4 to 10
form a group headed ’General Restrictions on Undertaking
Prospecting and Mining Operations’ and relate to the rules
and regulations under which prospecting licences and mining
leases might be granted, the period for which they may be
granted or renewed, the royalties and fees that would be
payable on them etc. The next group consists
469
of three sections. 10 to 12-dealing with the procedure for
obtaining prospecting licences or mining leases in respect
of land in which minerals vest in the Government. Sections
13 to 17 are grouped under a caption which reads:
"Rules for regulating the grant of Prospecting Licences
and Mining Leases".
Section 13 with which-this group starts empowers the Central
Government by notification, to make rules for regulating the
grant of prospecting licences and mining leases in respect
of minerals and for purposes connected therewith. Sub-s.
(2) specifies in particular the matters for which such rules
may provide and among them is head (i) reading
"(i) The fixing and collection of dead rent,
fines, fees or other charges and the
collection of royalties in respect of-
(i) prospecting licences,
(ii) mining leases,
(iii) minerals mined, quarried, excavated or
collected". Head (m) runs:
"(m) the construction, maintenance and use of
roads, power transmission lines, tramways,
railways, aerial ropeways pipelines and the
making of passages for water for mining
purposes on any land comprised in a mining
lease ;"
Up to this point the Act was dealing with the
first purpose viz "the Regulation of mines."
Section 18 is the provision relating to the
other object of the Act "The Development of
minerals." It would be necessary to set out in
some detail some of the terms of this section.
Section 18(1) enacts:
"18 (1). It shall be the duty of the Central
Government to take all such steps as may be
necessary for the conservation and development
of minerals in India, and for that purpose the
Central Government may, by notification in the
Official Gazette, make such rules as it thinks
fit." and 18(2):
"18 (2). In particular, and without prejudice
to the generality of the foregoing power, such
rules may provide for all or any of the
following matters, namely:-
470
(a)
(b)
(c)
(d) the development of mineral resources in
any area;
Section 25 provides for the recovery of any rent, royalty,
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tax or other sum due to the Government under this Act or the
rules made thereunder, and these are to be recovered in the
same manner as an arrear of land revenue.
The question for consideration is whether "the extent of
control and regulation" provided by the Central Act takes
within its fold the area or the subject covered by the Orissa
Act.
Learned Counsel for the appellant raised 4 points: (1) that
the object and purposes of the Orissa Act and its provisions
were quite distinct and different from the object and
purposes of the Central Act, with the result that the two
enactments could validly co-exist since they do not cover
the same field. It was argued that the Orissa Act was
concerned with the raising of a fund for providing amenities
to labour and other residents in "mining areas" while the
Central Act was concerned not with any social purpose, as
the Orissa Act, but merely with the development of the
mineral resources of the country. The object to be attained
by the two enactments being so dissimilar there was no
common area covered by the two enactments and the "extent of
control" which the Union assumed by its law was therefore
entirely outside the field occupied by the State Act and
there being thus no encroachment the State Act continued to
operate in full force. (2) Even if the Central Act might
cover the same field in the sense that it would be competent
to the Central Government to make rules under the Central
Act for the same purposes as the Orissa Act, and the rules
when made would overlap the provisions of the Orissa Act,
still there was no repugnance between the Central Act and
the Orissa Act until such rules were made for until then
there is no effective and operative Central legislation
covering the field occupied by the Orissa Act. (3) The power
to enact legislation to levy "fees" was an independent head
of Legislative power under the Constitution under item 96 in
the Union list and item 66 in the State List and therefore
there was
471
no question of the supersession of the State power under
item 66 of the State List by a Central enactment whose
source of legislative power is,entry 96 of List I and there-
fore the demand for the fee competently enacted by the State
was not superseded by Central legislation even though the
latter was covered by Entry 54 of the Union List. (4) In any
event, the Central Act was not retrospective or retroactive
and could not affect rights which accrued to the State prior
to June 1, 1958 on which date the Central. Act was brought
into force. The fees in regard to which the demands
impugned in the case were made had accrued long prior to-
June 1, 1958 and the demands would therefore be enforceable
notwithstanding the disappearance of the State Act
subsequent to the date of the accrual of the fee.
On the other hand, Mr. Setalvad-learned Counsel for the
respondent-urged that the Central Act covered the entire
field of mineral development, that being the "extent" to
which Parliament had declared by law that it was expedient
that the Union should assume control. In this connection he
relied most strongly on the terms of s. 18(1) which laid a
duty upon the Central Government "to take all such steps as
may be necessary for the conservation and development of
minerals in India" and "for that purpose the Central
Government may by notification, make such rules as it deems
fit". If the entire field of mineral development was taken
over, that would include the provision of amenities to
workmen employed in the mines which was necessary in order
to stimulate or maintain the working of mines. The test
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which he suggested was whether if under the power conferred
by s. 18(1) of the Central Act, the Central Government had
made rules providing for the amenities for which provision
was made by the Orissa Act and if the Central Government had
imposed a fee to defray the expenses of the provision of
these amenities, would such rules be held to be ultra vires
of the Central Government, and this particularly when taken
in conjunction with the matters for which rules could be
made under s. 13 to which reference has already been made.
We consider there is considerable force in this submission
of learned Counsel for the respondent, and this would
require very detailed and careful scrutiny. We are,
however, relieved from this
472
task-of detailed examination and discussion of this matter
because we consider that it is concluded by a decision of
this Court in The Hingir-Rampur Coal Co. Ltd.,& Ors. v. The
State of Orissa and Ors.(1). There, as here, it was the
validity of the demand of the fee under the Orissa Act now
under consideration that was the subject of debate. The
appellants then before this Court challenged on various
grounds the constitutional’ validity of the Orissa Act and
the rules made thereunder which empowered the State to levy
the cess. One of the grounds urged before the- Court was
that the Orissa Act was void,because the entire range of
mineral development had been taken under Central control by
the Mines and Minerals (Regulation & Development) Act, 1948
(Central Act 53 of 1948). The Central Act of 1948 was a
pre-constitution law, but the contention raised was that the
declaration in the Central enactment that it "was expedient
in the public interest that the Central Government should
take under its control etc." in terms of entry 36 of the
Federal List under the Government of India Act, 1935 was
tantamount to a declaration by law by Parliament of
assumption of "control by the Union" within Entry 54 of List
I of the 7th Schedule to the Constitution.
Before referring to the portion of the judgment dealing with
this aspect of the matter, it would be convenient to refer
to the Central Act of 1948 on the basis of which the
constitutional validity of the Orissa Act was impugned.
Central Act 53 of 1948 professes to be an Act to provide for
the regulation of mines and oil fields and for the deve-
lopment of minerals. Section 2 of that Act contained a
declaration as we have in s. 2 of the present Central Act 67
of 1957 and this read,:
"It is hereby declared that it is expedient in the public
interest that the Central Government should take under its
control the regulation of mines and oil fields and the
development of mines to the extent hereinafter provided".
It is a very short enactment consisting only of 14 sections
of which it is only necessary to mention s. 6 which is
headed "Power to make Rules as respects mineral deve-
(1) [1961] 2 S.C. R. 537.
473
lopment" and this empowers the Central Government by
notification to make rules for "the conservation and deve-
lopment of minerals." By amendments effected in Central Act,
53 of 1948, by the later Act 67 of 1957, the provisions
which related to "mines and minerals" and their development
and the references to "mines and minerals" in provisions
common to them and to oil fields were excised, so that
thereafter while the earlier Act of 1948 was limited to the
development of oil-fields, the entire range of the law
relating to mines and mineral development was taken over and
covered by Central Act 67 of 1957. Now, it was the
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existence of this enactment of 1948 when it applied to mines
and mineral development and before it was amended by Act 67
of 1957 by confining it to oil-fields, with the declaration
which is contained that it was expedient to " control
mineral development to the extent provided" that was urged
as having deprived the Orissa State Legislature of
competence to enact the Orissa Act. Dealing with this
ground of challenge Gajendragadkar, J. speaking for the
Court observed:
"Its validity (the demand of the fee under the
Orissa Act) is still open to challenge because
the legislative competence of the State
Legislature under Entry 23 is subject to the
provisions of List I with respect to regu-
lation and development under the control of
the Union; and that takes us to Entry 1. The
effect of reading the two Entries together is
clear. The jurisdiction of the State
Legislature under Entry 23 is subject to the
limitation imposed by the latter part of the
said Entry. If Parliament by its law has
declared that regulation and development of
mines should in public interest be under the
control of the Union, to the extent of such
declaration the Jurisdiction of the State
Legislature is excluded. In other words, if a
Central Act has been passed which contains a
declaration by Parliament as required by Entry
54, and if the said declaration covers the
field occupied by the impugned Act the
impugned Act would be ultra wires, not
because
of any repugnance between the two statutes but
because the State Legislature had no
jurisdiction to pass the law. The Limitation
imposed by the latter part of Entry 23 is a
limitation on the legislative compe
31-2 S C India/64
474
tence of the State Legislature itself. This
position is not in dispute.
It is urged by Mr. Amin that the field covered
by the impugned Act has already been covered
by the Mines and Minerals (Regulation and
Development) Act, 1948, (LIII of 1948) and he
contends that in view of the declaration made
by s. 2 of this Act the impugned Act is ultra
vires..... Section 2 of the Act contains a
declaration as to the expediency and control
by the Central Government. It reads thus :
’......... Section 4 of the Act provides that
no mining lease shall be granted after the
commencement of this Act otherwise than in
accordance with the rules made under this Act.
Section 5 empowers the Central Government to
make rules by notification for regulating the
grant of mining leases or for prohibiting the
grant of such leases in respect of any mineral
or in any area. Section 6 of the Act, however,
empowers the Central Government to make rules
by notification in the official gazette for
the conservation and development of minerals.
Section 6(2) lays down several matters in
respect of which rules can be framed by the
Central Government It is true that no rules
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have in fact been framed by the Central
Government in regard to the levy and
collection of any fees; but, in our opinion,
that would not make any difference. If it is
held that this Act contains the declaration
referred to in Entry 23 there would be no
difficulty in holding that the declaration
covers the field of conservation and
development of minerals, and the said field is
indistinguishable from the field covered by
the impugned Act. What Entry 23 provides is
that the legislative competence of the State
Legislature is subject to the provisions of
List I with respect to regulation and develop-
ment under the control of the Union, and Entry
54 in List I requires a declaration by
Parliament by law that regulation and
development of mines should be under the
control of the Union in public interest.
Therefore, if a Central Act has been passed
for the purpose of providing for the
conservation and development of minerals, and
if it contains the requisite declaration, then
it would not be com-
475
petent to the State Legislature to pass an Act
in respect of the subject-matter covered by
the said declaration. In order that the
declaration should be effective it is not
necessary that rules should be made or
enforced; all that this required is a
declaration by Parliament that it is expedient
in the public interest to take the regulation
and development of mines under the control of
the Union. In such a case the test must be
whether the Legislative declaration covers the
field or not. Judged by this test there can be
no doubt that the field covered by the
impugned Act is covered by the Central Act
LIII of 1948."
It is only necessary to add that the validity of this impost
was affirmed, however, for the reason that whereas the
Orissa Act was a post-Constitution enactment, the Central
Act of 1948 was a pre-Constitution law and as in terms of
Entry 54 "Parliament" had not made the requisite decla-
ration, but only the previously existing Central Legisla-
ture, it was held not to be within the terms of Entry 54 and
the State enactment was held to continue to be operative.
Since the Central Act 67 of 1957 contains the requisite
declaration by the Union Parliament; under Entry 54 and that
Act covers the same field as the Act of 1948 in regard to
mines and mineral development, we consider that the decision
of this Court concludes this matter unless there were any
material difference between the scope and ambit of Central
Act 53 of 1948 and that of the Act of 1957. Learned Counsel
for the appellant was not able to point to any matter of
substance in which there is any difference between the two
enactments. It was suggested that whereas s. 6 of the Act
of 1948 empowered rules to be made for taxes being levied,
there was no specific power to impose taxes under that of
1957. It is not necessary to discuss the materiality of
this point because what we are concerned with is the power
to levy a fee, and there is express provision therefore in
s. 13 of the Central Act of 1957 apart from the implication
arising from s. 25 thereof, which runs:
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"25. Any rent, royalty, tax, fee or other sum
due to the Government under this Act or the
rules made thereunder or under the terms and
conditions of any pros-
476
pecting licence or mining lease may,, on a
certificate of such officer as may be
specified by the State Government in this
behalf by general or special order, be
recovered in the same manner as an- arrear of
land revenue."
We ought to add that besides we see considerable force in
Mr. Setalvad’s submission that sub-ss (1) & (2) of s. 18 of
the Central Act of 1957 are wider in, scope and amplitude
and confer larger powers on the Central Government than the
corresponding provisions of the Act of 1948.
The second point urged by the appellant is based on the fact
that s. 18(1) of the Central Act merely lays a duty on the
Central Government "to take steps" for ensuring the
conservation and development of the mineral, resources of
the country and in that sense is not self-acting. The
submission is that even assuming that under the powers
conferred thereunder read in conjunction with s. 13 and the
other provisions in the Act, it would be competent for the
Central Government to frame rules on the lines of the Orissa
Act i.e., for the development at "mining areas" and for that
purpose to provide for the imposition of fees and for the
constitution of a fund made up of these monies, still no
such rules had been framed and until such rules were made or
such steps taken, the Central Act would not cover the field
so that the Orissa Act would continue to operate in full
force. In support of this submission reliance was placed on
the decision of this Court in Ch. Tika Ramji & Ors. etc. v.
The State of Uttar Pradesh & Ors.(1) and in particular on a
passage at p. 432 reading :
"Even assuming that sugarcane was an article
or class of articles relatable to the sugar
industry within the meaning of section 18-G of
Act LXV of 1951, it is to be noted that no
order was issued by the Central Government in
exercise of the powers vested in it under that
section and no question of repugnancy could
ever arise because, as has been noted above,
repugnancy must exist in fact and not depend
merely on a possibility. The possibility of
an order under section 18-G being issued by
the Central Government would not be enough.
The existence of such an order would be the
essential prerequisite before any repugnancy
could ever arise,."
(1) [1956] S.C.R. 393.
477
We consider that this submission in relation to the Act
before us is without force besides being based on a mis-
apprehension of the true legal position. In the first place
the point is concluded by the earlier decision of this Court
in The Hingir-Rampur Coal Co. Ltd. & Ors. v. The State of
Orissa and Ors.(1) where this Court said :
"In order that the declaration should be effective it is not
necessary that rules should be made or enforced ; all that
this required is a declaration by Parliament that it was
expedient in the public interest to take the regulation of
development of mines under the control of the Union. In
such a case the test must be whether the legislative
declaration covers the field or not."
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But even if the matter was res integra, the argument cannot
be accepted. Repugnancy arises when two enactments both
within the competence of the two Legislatures collide and
when the Constitution expressly or by necessary implication
provides that the enactment of one Legislature has
superiority over the other then to the extent of the
repugnancy the one supersedes the other. But two enactments
may be repugnant to each other even though obedience to each
of them is possible without disobeying the other. The test
of two legislations containing contradictory provisions is
not, however, the only criterion of repugnancy, for if a
competent legislature with a superior efficacy expressly or
impliedly evinces by its legislation an intention to cover
the whole field, the enactments of the other legislature
whether passed before or after would be overborne on the
ground of repugnance. Where such is the position, the
inconsistency is demonstrated not by a detailed comparison
of provisions of the two statutes but by the mere existence
of the two pieces of legislation. In the present case,
having regard to the terms of s. 18(1) it appears clear to
us that the intention of Parliament was to cover the entire
field and thus to leave no scope for the argument that until
rules were framed, there was no inconsistency and no super-
session of the State Act.
It was next urged that under the scheme of the legislative
entries under the Constitution, as previously under the
Government of India Act, 1935, the power to levy a fee was
an independent head of legislative power under
(1) [1961] 2 S.C.R. 537.
478
each of the three legislative Lists and not merely an inci-
dental power flowing from the grant of power over the
subject-matter in the other entries in the List. From this
it was sought to be established that even if the Union could
levy a fee under the Central Act it would not affect or
invalidate a State legislation imposing a fee for a similar
service. This argument again proceeds on a fallacy. It is,
no doubt, true that technically speaking the power to levy a
fee is under the entries in the three lists treated....as a
subject-matter of an Independent grant of legislative power,
but whether it is an incidental power related to a
legislative head or an independent legislative power it is
beyond dispute that in order that a fee may validly be
imposed the subject-matter or the main head of legislation
in connection with which the fee is imposed is within
legislative power. The material words of the Entries are:
"Fees in respect of any of the matters in this List". It
is, therefore, a prerequisite for the valid imposition of a
fee that it is in respect of a "matter in the list". If by
reason of the declaration by Parliament the entire subject-
matter of "conservation and development of minerals" has
been taken over, for being dealt with by Parliament, thus
depriving the State of the power which it theretofore
possessed, it would follow that the "matter" in the State
List is, to the extent of the declaration, subtracted from
the scope and ambit of Entry 23 of the State List. There
would, therefore, after the Central Act of 1957, be "no
matter in the List" to which the fee could be related in
order to render it valid.
Lastly, it was urged that the fees, recovery of which was
being sought by the State were those which had accrued prior
to June 1, 1958 and as the Central Act was not retrospective
it could not have operation so as to invalidate the demands
for the payment of the fee made on the respondents. It was
pointed out that s. 4 of the Orissa Act imposed a charge on
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the mine owners for the payment of the fee. The liability
to pay the fee accrued quarterly and we are concerned in
this appeal with the fee due in respect of six quarters from
September 30, 1956 to March 31, 1958. The demands for the
fee due for these quarters was served on the respondents on
August 1, 1960. It was therefore submitted that even on the
footing that the Orissa
479
Act stood repealed, superseded or nullified on the enactment
of the Central Act, the right to recover the past arrears of
fees which had accrued due previous to the repeal or
nullification would not be abrogated.
Pausing here it is necessary to mention that after the
judgment was delivered by the High Court in the two
petitions which are the subject of these two appeals before
us, setting aside even the notice of demand, applications
were made by the State Government to the High Court to
review its judgment. The ground urged was that even on the
footing that the Orissa Act of 1952 was superseded by
Central Act 67 of 1957, the liabilities which had accrued to
the State prior to June 1, 1958 could not be deemed to be
wiped out because the Central Act was not rctrospectivc and
that the Court should modify its orders accordingly. The
learned Judges, however, dismissed the applications for two
reasons: (1) They had already granted certificates of
fitness under Art. 132 of the Constitution and among the
grounds raised by the State in its memoranda of appeal was
this point about the effect of the Central. Act on the
continued enforceability of the dues and thus the point
was pending consideration by this Court.
(2) It had already been held by this Court in a decision in
Keshavan Madhava Menon v. The State of Bombay(1) to which we
shall make reference, that when an earlier Act is superseded
or rendered null under Art. 13 of the Constitution, nothing
done under the old Act would survive except in respect of
past and closed transactions, and the present case was thus
covered.
We shall now turn to the arguments urged before us in
support of this contention. Learned Counsel for the State
submitted that the supersession of the Orissa Act by the
Central Act was neither more nor less than a repeal. If it
thus was repeal, then s. 6 of the General Clauses Act 1897
was attracted. Section 6 reads :-
"6. Where this Act, or any Central Act or
Regulation made after the commencement of this
Act, repeals any enactment hitherto made or
hereafter to be made, then unless a different
intention appears, the repeal shall not-
(a)..........................
(1) [1951] S.C.R. 228.
480
(b) affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder;
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under any enactment
so repealed; or
(d) ..........................
(e) affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may
be instituted, continued or enforced ...... as if the
repealing Act or Regulation had not been passed",
and the argument on the interpretation of this section was two-
fold: (1) that the word ’repeal’ used in the opening paragraph
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was not confined to express repeals but that the word was
comprehensive enough to include cases of implied repeals; (2)
Alternatively it was submitted that even if the expression
’repeal’ in s. 6 be understood as being confined to express
repeals, still the principle underlying s. 6 was of general
application and capable of being attracted to cases of implied
repeals also.
Before proceeding further it will be convenient to clear
the ground by adverting to two matters: (1) The effect of a
Central Act under its exclusive legislative power which
covers the field of an earlier State Act which was competent
and valid when enacted is not open to doubt. The
Parliamentary enactment supersedes the State law and thus it
virtually effects a repeal (2) The effect in law of a
repeal, if it is not subject to a saving as is found in s. 6
!of the General Clauses Act is also not a matter of
controversy. Tindak C.J. stated this in Kay v. Goodwin(1):
"I take the effect of repealing a statute to be to
obliterate it as completely from the records of the
Parliament as if it had never been passed; and it must be
considered as a law that never existed except for the
purpose of those actions which were commenced, prosecuted
and concluded whilst it was an existing law".
(1) [1830],6 Bing. 576 at p. 582
481
It was the same idea that was expressed by Lord Tenterden
in, Surtees v. Ellison(1)
"It has long been established that, when an Act of
Parliament is repealed, it must be considered (except as to
transactions past and closed) as if it had never existed".
This laid down the law as it was prior to the U.K. Inter-
pretation Act, 1890 which by s. 38(2) made provision for a
saving of the type we now have in s. 6 of the Indian General
Clauses Act, 1897 which we have extracted earlier. The
submission of Mr. Setalvad-learned Counsel for the
respondent-was very simple. He said that s. 6 on its terms
applied only to express repeals.Here we have a case not
of an express repeal but of the supersession of a State
enactment by a law having bythe Constitution superior
efficacy. it would, therefore, bea mere disapperrance or
supersession of the State enactment or at the best a case of
an implied repeal. In this connection he invited our
attention to some observations to be found in the decision
of this Court in Keshavan Madhava Menon v. The State of
Bombay (2) already referred to. The Court was there
concerned with the legality of the prosecution of the
appellant for contravention of the Indian Press (Emergency
Powers) Act, 1931. The offence had been committed before
the Constitution came into force and a prosecution launched
earlier was pending after January 26, 1950. The enactment
which created the offence was held to be void under Art.
19(1) (a) read with Art. 13 as being inconsistent with one
of the Fundamental rights guaranteed by Part III of the
Constitution. In the circumstances, the point that was
debated before this Court was whether the prosecution could
be continued after the enactment became void. The majority
of the Court held that the Constitution was prospective in
its operation and that -Art. 13(1) would not affect the
validity of proceedings commenced under pre-Constitution
laws which were valid up to the date of the Constitution
coming into force, for to hold that the validity of these
proceedings were affected would in effect be treating the
Constitution as retrospective. They therefore considered
that there was no legal objection -to the prosecution
continuing. Fazl Ali, J. who dissented
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(1) [1829] 9B. & C. 750 at 752. (2) [1951] S.C.R. 228.
482
from the majority, after discussing the legal effect of a
repealing statute in the absence of a saving clause and the
history of the provision in regard to the matter in the
successive General Clauses Acts in India, observed:
"The position therefore now in India as well
as in England is that a repeal has not the
drastic effect which it used to have before
the enactment of the Interpretation Act in
England or the General Clauses Act in this
country. But this is due entirely to the fact
that an express provision has been made in
those enactments to counteract that effect.
Hence, in those cases which are not covered by
the language of the General Clauses Act, the
principle already enunciated [Kay v.
Goodwin(1) and Surtees v. Ellison(2)] will
continue to operate. The learned Attorney
General had to concede that it was doubtful
whether section 6 of that Act is applicable
where there is a repeal by implication, and
there can be no doubt that the law as to the
effect of the expiry of a temporary statute
still remains as stated in the books, because
section 6 of the General Clauses Act and
section 38(2) of the Interpretation Act have
no application except where an Act is
repealed".
Mr. Setalvad submitted that this was an express decision on
the point in his favour. We are, however, not disposed to
agree with the submission apart from its being the basis of
a dissenting judgment. We might add that this point as to
the effect of an implied repeal has arisen in a few other
cases before this Court but it has been left open [see for
instance, the judgment in Trust Mai Lachhmi Sialkori Bradari
v. The Chairman, Amritsar Improvement Trust and Ors.(3)].
The question is res integra and has to be decided on
principle.
We must at the outset point out that there is a difference
in principle between the effect of an expiry of a temporary
statute and a repeal by a later enactment and the discussion
now is confined to cases of the repeal of a statute which
until the date of the repeal continues in force. The first
question to be considered is the meaning of the expression
’repeal’ in s. 6 of the General Clauses Act-whether it is
confined to cases of express repeal or whether the
(1) [1830] 6 Bing. 576.
(2) [1819] 9 B. & C. 750.
(3) [1963] 1 S.C.R. 242.
483
expression is of sufficient amplitude to cover cases of
implied repeals. In this connection there is a passage in
Craies on Statute Law, Fifth Edition at pages 323 and 324
which appears to suggest that the provisions of the
corresponding s. 38 of the English Interpretation Act were
confined to express repeals. On page 323 occurs the
following:
"In Acts passed in or since 1890 certain
savings are implied by statute in all cases of
express repeal, unless a contrary intention
appears in the repealing Act",
and on the next page:
"It had been usual before 1889 to insert
provisions to the effect above stated in all
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Acts by which express repeals were effected.
The result or’ this enactment is to make into
a general rule what had been a common
statutory form, and to substitute a general
statutory presumption as to the effect of an
express repeal for the canons of construction
hitherto adopted."
There is, however, no express decision either in England or,
so far as we have been able to ascertain, in the United
States on this point. Untrammeled, as we are, by authority,
we have to inquire the principle on which the saving clause
in s. 6 is based. It is manifest that the principle
underlying it is that every later enactment which supersedes
an earlier one or puts an end to an earlier state of the law
is presumed to intend the continuance of rights accrued and
liabilities incurred under the superseded enactment unless
there were sufficient indications-express or implied-in the
later enactment designed to completely obliterate the
earlier state of the law. The next question is whether the
application of that principle could or ought to be limited
to cases where a particular form of words is used to
indicate that the earlier law has been repealed. The entire
theory underlying implied repeals is that there is no need
for the later enactment to state in express terms that an
earlier enactment has been repealed by using any particular
set of words or form of drafting but that if the legislative
intent to supersede the earlier law is manifested by the
enactment of provisions as to effect such supersession, then
there is in law a repeal notwithstanding the absence of the
word ’repeal’ in the later ,statute. Now, if the
legislative intent to supersede the
484
earlier law is the basis upon which the doctrine of implied
repeal is founded could there be any incongruity in at-
tributing to the later legislation the same intent which s.
6 presumes where the word ’repeal’ is expressly used. So
far as statutory construction is concerned, it is one of the
cardinal principles of the law that there is no distinction
or difference between an express provision and a provision
which is necessarily implied, for it is only the form that
differs in the two cases and there is no difference in in-
tention or in Substance. A repeal may be brought about by
repugnant legislation, without even any reference to the Act
intended to be repealed, for once legislative competence to
effect a repeal is posted, it matters little whether this is
done expressly or inferentially or by the enactment of
repugnant legislation. If such is the basis upon which
repeals and implied repeals are brought about it appears to
us to be both logical as well as in accordance with the
principles upon which the rule as to implied repeal rests to
attribute to that legislature which effects a repeal by
necessary implication the same intention as that which would
attend the case of an express repeal. Where an intention to
effect a repeal is attributed to a legislature then the same
would in our opinion, attract the incident of the saving
found in s. 6 for the rules of construction embodied in the
General Clauses Act are, so to speak, the basic assumptions
on which statutes are drafted. If this were the true
position about the effect of the Central Act 67 of 1957 as
the liability to pay the fee which was the subject of the
notices of the demand had accrued prior to June 1, 1958 it
would follow that these notices were valid and the amounts
due thereunder could be recovered notwithstanding the
disappearance of the Orissa Act by virtue of the superior
legislation by the Union Parliament.
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The appeals would, therefore, be allowed and the Writ
Petitions would stand dismissed. As the appellants have
failed in their main submissions, we make no order as to
costs.
Appeals allowed.
485