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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 ..... 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 facts of the two cases and so it would be sufficient if we refer only to those in Civil Appeal 561 of 1962. The respondent 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 areas" and under the powers Conferred under that enactment the State Government was empowered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 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 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 notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 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 therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter 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 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 Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 competence 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 expedie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidity 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 declaration, but only the previously existing Central Legislature, 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 becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sibility 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 that this submission in relation to the Act before us is without force besides being based on a misapprehension 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. [1961] 2 S.C.R. 537 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." 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 ena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 twofold: (1) that the word 'repeal' used in the opening paragraph 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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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