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TMI Blog1962 (2) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... after called the "impugned Act". The facts that have given rise to this appeal may be briefly stated. The Oriental Gas Company was originally constituted by a deed of settlement dated April 25, 1853, by the name of the Oriental Gas Company, and it was subsequently registered in England under the provisions of the English Joint Stock Companies Act, 1862. By Act V of 1857 passed by the Legislative Council of India, it was empowered to lay pipes in Calcutta and its suburbs and to excavate the streets for the said purpose. By Acts of the Legislative Council of India passed from time to time special powers were conferred on the said Company. In 1946 Messrs. Soorajmull Nagarmull, a firm carrying on business in India, purchased 98 percent of the shares of the said Oriental Gas Company Limited. The said firm floated a limited liability Company named the Calcutta Gas Co. (Proprietary) Limited and it was registered in India with its registered office at Calcutta. On July 24, 1948, under an agreement entered into between the Oriental Gas Company, and the Calcutta Gas Company the latter was appointed the manager of the former Company in India for a period of 20 years from July 5, 1948. The O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substance of the legislation is gas and ,a,,-work within the meaning of entry 25 of List II. The learned Judge rejected all the contentions of the appellant and dismissed the petition by his order dated November 15, 1960. Hence the appeal. Learned Attorney-General, appearing for the appellant, has repeated before us all the contentions, except that relating to fundamental rights., which his client had unsuccessfully raised before the High Court. His contentions may be summarized thus : (1) The finding of the High Court that the appellant has no locus standi to file the petition cannot be sustained, as under the impugned Act the appellant s legal rights under the agreement entered into by it with the Oriental Gas Company on July 24, 1948 were seriously affected. (2) Under Art. 246 of the Constitution Parliament has exclusive power to make laws with, respect to any of the matters enumerated in List I : Parliament in exercise of the said power passed the Industries (Development and Regulation) Act, 1951, by virtue of entry 52 of said List; the two entries in List II, namely, entries 24 and 25, cannot sustain the Act, as entry 24 is subject to the provisions of entry 52 of List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enforce a legal right. In The State of Orissa v. Madan Gopal Rungta [1952] S C.R. 28 this Court has ruled that the existence of the right is the foundation of the exercise of jurisdiction of the court under Art. 226 of the Constitution. In Chiranjit Lal Chowdhuri v. The Union of India ) [1950] S.C.R. 869, it has been held by this Court that the legal right that can be enforced under Art. 32 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the court for relief. We do not see any reason why a different principle should apply in the case of a petitioner under Art. 226 of the Constitution. The right that can be enforced under Art. 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. The questions therefore, is whether in the present case the petitioner has a legal right, and whether it has been infringed by the contesting respondents. The petitioner entered into an agreement dated July 24, 1948, with respondent No. 5; in regard the Oriental Gas Company. Under the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany and are enforceable by or against the State. It is not necessary in this case to decide whether under the said agreement the appellant was constituted as agent or managing agent or a servant. of the Oriental Gas Company. Whatever may be its character, by reason of s. 4 of the impugned Act, it was deprived of certain legal rights it possessed under the agreement. Under the agreement, the appellant had the right to manage the Oriental Gas Company for a period of 20 years and to receive remuneration for the same. But under s. 4 of the impugned Act, it was deprived of that right for a period of five years. There was certainly a legal right accruing to the appellant under the agreement and that was abridged , if not destroyed, by the impugned Act. It is, therefore, impossible to say that the legal right of the appellant was not infringed by the provisions of the impugned Act. In the circumstances, as the appellant s personal right to manage the Company and to receive remuneration therefore had been infringed by the provisions of the statute, it had locus standi to file the petition under Art. 226 of the Constitution. To appreciate the rival contentions in regard to the other poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r alia, provides that on the issue of the notified order under s. 18A, all persons in charge of management, including persons holding office as managers or directors of the industrial undertaking immediately before the issue of the notified order shall be deemed to have vacated their offices as such, and that any contract of management between the industrial undertaking and any managing agent or any director thereof holding office as such immediately before the issue of the notified order shall be deemed to have been terminated and the person or persons appointed under the Act shall be empowered to take over the management and conduct the affairs of the Company in the place of the previous management. Chapter IIIB enables the Central Government for securing the equitable distribution and availability at fair prices of any article or class of articles relatable to any hanreeetd industry, and for controlling and ugsdlciulg the supply, distribution, and price of the said articles. Section 20 of the Act declares that after the commencement of the Act, it shall not be competent for any State Government or a local authority to take over the management or control of any industrial underta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned Act occupies a part of the field already covered by the Central Act. The question is whether the State Legislature has constitutional competency to encroach upon the said field. At this stage it would be convenient to read the relevant Articles of the Constitution. Article 246. (1) Notwithstanding anything in clauses (2) and (3) Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the ,Union List"). (3) Subject to clauses (1) and (2). The Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the ,State List"). List I-Union List Entry 7. Industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war. Entry 52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest. List II-State List Entry 24. Industries subject to the provisions of entries 7 and 52 of List I. Entry 25. Gas and gas-works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enactments, each in one aspect conferring the power to impose a tax upon goods; and it would accord with sound principles of construction to take the more general power, that which extends to the whole of India, as subject to an exception created by the particular power, that which extends to the provinced only. it is not perhaps strictly accurate to speak of the provincial power as being excepted out of the federal power, for the two are independent of one another and exist side by side. But the underlying principle in the two cases must be the same, that a general power ought not to be so construed as to make a nullity of a particular power conferred by the same Act and operating in the same field, when by reading the former in a more restricted sense effect can be given to the latter in its ordinary and natural meaning." The rule of construction adopted by that decision for the purpose of harmonizing the two apparently conflicting entries in the two Lists would equally apply to an apparent conflict between two entries in the same List. Patanjali Sastri, J., as he then was, hold in State of Bombay v. Narothamdas Jethabai [1951] S.C.R.51 that the words "administration of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by law to be expedient in the public interest. Therefore ordinarily industry is in the field of State legislation ; but, if Parliament by law makes a relevant declaration or declarations, the industry or industries so declared would be taken off its :field and passed on to Parliament. In the promises, the expression "industry" in all the entries must be given the same meaning. Now, what is the meaning of word "industry"? In Ch. Tika Ramji v. State of Uttar Pradesh [1956] S.C.R. 393 the expression "industries" is defined to mean the process of manufacture or production and does not include the raw materials used in the industry or the distribution of the products of the industry. It was Contended that the word "industry" was P. word of wide import and should be construed as including not only the process of manufacture or production but also activities antecedent thereto such as acquisition of raw materials and subsequent thereto such as disposal of the finished products of that industry. But that contention was not accepted. It is not necessary in this case to attempt to define the expression "industry" precisely or to state exhaustively all its ingredients. Assuming that the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not in the province of this Court to ascertain and scrutinize the reasons for doing so. It is suggested that this interpretation would prevent Parliament to make law in respect of gas and gas-works during war or other national emergency. Apart from the relevancy of such a consideration, the apprehension has no justification, for under Art. 249 Parliament is enabled to take up for legislation any matter which is specifically enumerated in List II whenever the Council of States resolves by two-thirds majority that such a legislation is necessary or expedient in the national interest. So too, under Art. 250 Parliament can make laws with respect to any of the matters enumerated in the State List, if a Proclamation of Emergency is in operation. Article 252 authorizes the Parliament to legislate for two or more States, if the Houses of the Legislatures of those :States give their consent to the said course. Subject to such emergency or extra- ordinary powers, the entire industry of gas and gas-works is within exclusive legislative competence of a State. It is, therefore, clear that the scheme of harmonious construction suggested on behalf of the State gives full and effective scop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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