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TMI Blog1963 (8) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... RAGHUBAR DAYAL, JJ. JUDGMENT 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... einafter called the Central Act, which was brought into force as and from June 1, 1953. The 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-- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. It would, however, be apparent that the States would lose legislative competence only to the "extent to which regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 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 Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opment 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 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 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. [1961] 2 S.C. R. 537. There, as here, it was the validity of the demand of the fee und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to mines and mineral development was taken over and covered by Central Act 67 of 1957. Now, it was the 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 regulation 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ament 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 competent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. [1956] S.C.R. 393 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,." We consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The State of Bombay [1951] S.C.R. 228. 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).......................... (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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 [1951] S.C.R. 228. 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 validi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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